K. H. Ashraf v. State of Kerala & Kalamassery Municipality & Secretary, Kalamassery Municipality

## IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN FRIDAY, THE 10TH DAY OF NOVEMBER 2017/19TH KARTHIKA, 1939 WP(C).No. 3123 of 2017 (M) --------------------------- PETITIONER: ---------- K.H.ASHRAF AGED 47 YEARS, S/O. KOCHUPARAMBIL HASSAN, MANGALASSERI HOUSE, VATTEKUNNAM KARA, NORTH KALAMASSERY P.O, ERNAKULAM DISTRICT, REPRSENTED BY HIS POWER OF ATTORNEY HOLDER, ABDUL JAMAL P.A, AGED 43 YEARS, S/O. ABDUL RAHMAN, PATHUVANA HOUSE, MUPPATHADAM P.O, ERNAKULAM DISTRICT. BY ADVS.SRI.K.ABDUL JAWAD SRI.MATHEW A KUZHALANADAN SMT.A.GRANCY JOSE SRI.M.K.PRASANTH KUMAR RESPONDENTS: ----------- 1. STATE OF KERALA REPRESENTED BY THE SECRETARY TO GOVERNMENT, LOCAL SELF GOVERNMENT DEPARTMENT, THIRUVANANTHAPURAM. 2. THE KALAMASSERY MUNICIPALITY REPRESENTED BY ITS SECRETARY, CHANGAMPUZHA NAGAR P.O, ERNAKULAM DISTRICT, PIN 682 033. 3. THE SECRETARY KALAMASSERY MUNICIPALITY, CHANGAMPUZHA NAGAR P.O, ERNAKULAM DISTRICT, PIN 682 033. R2-R3 BY ADV. SRI.M.K.ABOOBACKER,SC KALAMASSERY MUNCI BY GOVERNMENT PLEADER SRI.E.S.ASHRAF THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 10-11-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 3123 of 2017 (M) --------------------------- APPENDIX PETITIONERS' EXHIBITS ----------------------EXHIBIT P1. COPY OF THE TITLE DEED NO.1033/09 OF EDAPPALLY SUB REGISTRAR OFFICE. EXHIBIT P2. COPY OF THE OWNERSHIP CERTIFICATE DATED 26.8.14. EXHIBIT P3. COPY OF THE RECEIPTS OF PAYMENT OF PROPERTY TAX TO THE MUNICIPALITY. EXHIBIT P4. COPY OF THE BUILDING PERMIT DATED 19.10.11 APPROVED BY THE 3RD RESPONDENT. EXHIBIT P5. COPY OF THE NO OBJECTION CERTIFICATE DATED 3.9.12. EXHIBIT P6. COPY OF THE NO OBJECTION CERTIFICATE FINAL, DATED 23.10.13 ISSUED BY THE DIVISIONAL OFFICER OF THE FIRE AND RESCUE SERVICES. EXHIBIT P7. COPY OF THE NOTICE DATED 27.11.13 ISSUED BY THE 3RD RESPONDENT. EXHIBIT P8. COPY OF THE LETTER DATED 24.5.14 BY THE IST RESPONDENT. EXHIBIT P9. COPY OF THE LETTER DATED 5.4.16 BY THE IST RESPONDENT. EXHIBIT P10. COPY OF THE RELEVANT PAGE OF THE ASSESSMENT REGISTER OF THE IST RESPONDENT MUNICIPALITY. EXHIBIT P11. COPY OF THE SKETCH OF THE LIE AND NATURE OF THE BUILDING. EXHIBIT P12. COPY OF THE PHOTOGRAPHS OF THE BUILDING. RESPONDENTS' EXHIBITS --------------------NIL /TRUE COPY/- PA TO JUDGE ## **ANU SIVARAMAN, J.** ## **= = = = = = = = = = = = = = =** **W.P.(C).No.3123 of 2017 = = = = = = = = = = = = = = = Dated this the 10[th] day of November, 2017** ## **JUDGMENT** 1. Petitioner has filed this writ petition challenging Exhibits P7 to P9 orders issued in the matter of numbering of a building, construction of which was completed on the basis of Exhibit P4 building permit issued by the Municipality. The petitioner contends that he has purchased an extent of 10 cents of land by Exhibit P1 sale deed. It is stated that a building was in existence in the said land from 1987 onwards. Exhibits P2 and P3 are property tax receipts in respect of that building. The petitioner had approached the Municipality for building permit for making additional construction over the existing building. Exhibit P4 building permit was granted permitting additional construction having an area of 899.69 m[2] . The petitioner later got all necessary permits including, NOC from the Fire and Safety Department and the construction was completed. 2. It is stated that as an anonymous complaint had been received by the Chief Town Planner (Vigilance), an inspection had been conducted on the petitioner's building. When the petitioner W.P.(C).No.3123/17 2 made application for numbering of the building, he was issued with Exhibit P7 notice by the Municipality stating that a slab was projecting out of the building in violation of Rule 25(1) of the Kerala Municipal Building Rules, 1999 ('Building Rules' for short) which has to be removed. It is further stated that going by the structure of the building, only 50% of coverage is permissible and the same has to be corrected. It is also stated that sufficient parking area was not provided in the building. The petitioner contends that Exhibit P7 order was issued only on the basis of the inspection report submitted by the Chief Town Planner (Vigilance) and the Municipality has no objection against the construction of the building. It is specifically stated that underground parking area was provided in the building as stipulated in Exhibit P4 building permit. The petitioner also contends that going by the provisions of Rule 31 of the Building Rules, coverage permitted for a mercantile/commercial building was 65% and not 50% as contended in Exhibit P7. It is stated that the petitioner had approached the Government pointing out that all violations had been corrected and that his building may be numbered. By Exhibit P8 dated 24.05.2014, the petitioner was required to submit an application before the Municipality for W.P.(C).No.3123/17 3 regularisation of the construction. It is stated that the petitioner had made such a request. It appears that the request had been forwarded by the Municipality to Government. By Exhibit P9 communication dated 5.4.2016 the Secretary to Government in the Local Self Government Department has addressed the Secretary, Kalamassery Municipality pointing out two further violations. It is stated that the construction violates Section 383A of the Kerala Muncipality Act, 1994, coverage permissible as per the structure plan for Central City and also violates criteria 2 (facilities for disabled) of Appendix II of the Regularisation Rules, 2014. The learned counsel for the petitioner contends that the violation of Section 383A alleged with respect to set off of 3 metres from public road is clearly not applicable to the petitioner's building in terms of the 1[st] proviso to the said section itself which specifically states that the said limit of 3 metres shall not be applicable to construction subject to Building Rules, of first floor or second floor or of both upon a building, existing on the date of coming into force of that Act. It is therefore contended that since it is an admitted fact that W.P.(C).No.3123/17 4 the petitioner's building was in existence from 1987 onwards, the invocation of Section 383A is completely unjustified. As regards the facility for disabled also, it is stated that the petitioner had made necessary provisions with regard to such facilities and had submitted the same to the satisfaction of the Municipality. However, in view of Exhibit P9 it is stated that no further steps have been taken by the Municipality yet. The learned counsel for the petitioner places reliance on the decisions of this Court in **M/s. Heera Construction (Pvt) Ltd. v. Corporation of Thiruvananthapuram and another** [2008 (3) KHC 422] wherein this Court has held that the reasons stated for rejection of application for numbering of the building are not sustainable, in view of the fact that the building permit had been granted overlooking the same contentions. The learned counsel also placed reliance on the decision of this Court in **Confident Projects India Pvt.Ltd v. State of Kerala and others** [2016 KHC 458] to contend that in a case where there was no contention that the building permit was issued by mistake or that patent error has crept in it, the local authority cannot impose additional condition while renewing the said permit. W.P.(C).No.3123/17 5 3. A counter affidavit has been filed on behalf of respondents 2 and 3. It is admitted that there was a building in existence in the property belonging to the petitioner having plinth area of 140m[2] . It is also admitted that Exhibit P4 building permit had been granted for construction of building having plinth area of 899.6m[2] in the property. It is stated that the petitioner had already acquired clearance and NOC from the Fire and Safety Department and had submitted a completion plan for obtaining occupancy certificate. But the Chief Town Planner (Vigilance) conducted a surprise check and pointed out some shortcomings in the construction and accordingly Exhibit P7 notice was issued. It is stated that thereafter the petitioner had rectified the shortcomings pointed out and had submitted the application for regularisation of the construction, but the same was rejected by the Government. 4. The 1[st] respondent has not filed any counter affidavit. However, the learned Government Pleader would submit that since the petitioner has a contention that all the violations noted except with regard to coverage have been rectified and that the issue of coverage of the building is on the basis of a building permit W.P.(C).No.3123/17 6 issued as also the provisions of Building Rules which provides that coverage of 65%, it is for the Government to consider the said claims raised by the petitioner. It is stated that the specific contention of the petitioner as well as the Municipality being that there was a building in existence from 1987 in the property and that what was permitted was only the construction of the 1[st] and 2[nd] floors of the said building, the objection with regard to Section 383A would also be considered in favour of the petitioner. 5. Accepting these contentions, I direct the 1[st] respondent to immediately consider the case of the petitioner with regard to his claim for occupancy and numbering of the building. The Government shall specifically considered the case of the petitioner and the Municipality that the construction of 1[st] and 2[nd] floors was carried out over the existing building which was there from 1987 onwards. The 1[st] respondent shall also consider that the petitioner had made constructions on the strength of the building permit duly granted by the Municipality in 2011 and subject to all clearances and no objections as received from the competent authority. The Government shall take a decision in W.P.(C).No.3123/17 7 the matter within a period of two months from the date of receipt of a copy of this judgment, after hearing the petitioner as well as the 2[nd] respondent. In the meanwhile the 2[nd] respondent shall provisionally number the petitioner's building to enable him to utilise the building. The petitioner shall produce a copy of this judgment before the respondents for compliance. The writ petition is ordered accordingly. sd/- **Anu Sivaraman, Judge** sj