K. M. Mathew v. State of Kerala and Thiruvananthapuram Corporation

## IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE FRIDAY, THE 8TH DAY OF MARCH 2013/17TH PHALGUNA 1934 WP(C).No. 30080 of 2011 (H) ---------------------------- PETITIONER: ## -------------- K.M.MATHEW MANAGING PARTNER, HOTEL RESIDENCY TOWER, PRESS ROAD THIRUVANANTHAPURAM. BY ADVS.SRI.PIRAPPANCODE V.S.SUDHIR SRI.T.K.ANANDA KRISHNAN SRI.JELSON J.EDAMPADAM RESPONDENT: ---------------- ## 1. STATE OF KERALA REPRESENTED BY ITS SECRETARY, LOCAL SELF GOVERNMENT DEPARTMENT SECRETARIAT, THIRUVANANTHAPURAM-695 001. ## 2. THIRUVANANTHAPURAM CORPORATION, REPRESENTED BY ITS SECRETARY, CORPORATION OFFICE THIRUVANANTHAPURAM-695 001. R2 BY ADV. SRI.P.K.MANOJKUMAR R2 BY ADV. SRI.N.NANDAKUMARA MENON (SR.) BY SMT. LILLY K.T., GOVERNMENT PLEADER THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 08-03-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C) No. 30080/2011 : 2 : ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** EXHIBIT P1- TRUE COPY OF THE PERMIT ISSUED BY THE 2ND RESPONDENT BY ORDER NO.TP 3/BA-222/07 DATED 31.5.2008. EXHIBIT P2- TRUE COPY OF THE CERTIFICATE NO.G1-9981/2007 DATED 9.1.2008 OF THE COMMANDANT GENERAL, FIRE AND RESCUE SERVICES, THIRUVANANTHAPURAM. EXHIBIT P3- TRUE COPY OF THE NO OBJECTION CERTIFICATE NO.AA1/SR/NOC/RHQ DATED 20.2.2009 ISSUED BY THE AIRPORT AUTHORITY OF INDIA. EXHIBIT P4- TRUE COPY OF THE STRUCTURAL STABILITY CERTIFICATE DATED 12.11.2009. EXHIBIT P5- TRUE COPY OF THE FILE RECEIVED BY THE PETITIONER UNDER RIGHT TO INFORMATION ACT, CONTAINING THE ENTIRE NOTINGS. EXHIBIT P6- TRUE COPY OF THE REPRESENTATION DATED 14.8.2009 SUBMITTED BY THE PETITIONER BEFORE THE CHAIRMAN, TOWN PLANNING COMMITTEE, THIRUVANANTHAPURAM CORPORATION. EXHIBIT P7- TRUE COPY OF THE REPRESENTATION DATED 23.9.2010 SUBMITTED BY THE PETITIONER BEFORE THE 2ND RESPONDENT. EXHIBIT P8- TRUE COPY OF THE PETITION DATED 16.5.2011 FILED BY THE PETITIONER SEEKING EXTENSION OF THE VALIDITY OF THE PERMIT. EXHIBIT P9- TRUE COPY OF THE PETITION DATED 3.8.2011 SUBMITTED BY THE PETITIONER. EXHIBIT P10- TRUE COPY OF THE CERTIFICATE NO.E6/62687/11 DATED 22.8.2011 ISSUED BY THE 2ND RESPONDENT. EXHIBIT P11- TRUE COPY OF THE NOTICE NO.TP E6/33868/09 DATED 22.8.2011 ISSUED BY THE 2ND RESPONDENT. EXHIBIT P12- TRUE COPY OF THE AMENDED RULES PUBLISHED AS S.R.O.NO.1070/2009 IN THE KERALA GAZETTE EXTRA ORDINARY NO.2345 DATED 16.12.2009. EXHIBIT P13- TRUE COPY OF THE LETTER DATED 23.1.2010 SRI.BABY JOHN. EXHIBIT P14- TRUE COPY OF THE LETTER NO.2776/10/E11 DATED 28.1.2010 OF THE STATE PUBLIC INFORMATION OFFICER, DIRECTORATE OF PRINTING W.P.(C) No. 30080/2011 : 3 : ## DEPARTMENT. EXHIBIT P15- TRUE COPY OF THE LETTER DATED 29.1.2010 ADDRESSED TO THE SUPERINTENDENT, GOVERNMENT CENTRAL PRESS, THIRUVANANTHAPURAM. EXHIBIT P16- TRUE COPY OF THE LETTER NO.3620/10/E11 DATED 27.2.2010 OF THE STATE PUBLIC INFORMATION OFFICER, DIRECTORATE OF PRINTING DEPARTMENT, GOVERNMENT CENTRAL PRESS, THIRUVANANTHAPURAM. EXHIBIT P17- TRUE COPY OF THE LETTER NO.E16/41307/10 DATED 12.3.2010 OF THE INFORMATION OFFICER, ATTACHED TO THE 2ND RESPONDENT, ADDRESSED TO ONE MAHESH, UNDER THE RIGHT TO INFORMATION ACT. EXHIBIT P18- TRUE COPY OF THE LETTER NO.E14/27388/10 DATED 25.1.2010 OF THE 2ND RESPONDENT ADDRESSED TO THE IST RESPONDENT. EXHIBIT P19- TRUE COPY OF THE LETTER NO.E9/E/BA/719/2009 DATED 19.6.2010 OF THE 2ND RESPONDENT ADDRESSED TO THE IST RESPONDENT. EXHIBIT P20- TRUE COPY OF THE JUDGMENT OF THIS HON'BLE COURT IN WP(C) NO.22269/2010. EXHIBIT P21- TRUE COPY OF THE G.O.(RT) NO.355/2012/LSGD DATED 04.02.2012. ## **RESPONDENTS' EXHIBITS** : NIL ## **//TRUE COPY//** ## **P.A. TO JUDGE** rv ## **A.M. SHAFFIQUE, J** ## **---------------------------------------** ## **W.P.(C). NO. 30080 OF 2011** **----------------------------------------** Dated this the 08[th ] day of March, 2013 ## **JUDGMENT** Petitioner challenges Ext.P11, order issued by the Corporation of Thiruvananthapuram rejecting the application for a revised plan for construction of certain number of floors in respect of an existing building. 2. The facts as disclosed would indicate that the petitioner had already constructed a building in terms of Ext. P1 building permit and thereafter submitted an application dated 25.06.2009 for constructing additional floors. The petitioner obtained necessary certificate from the Fire and Rescue Services as per Ext.P2 dated 09.01.2008 and also No Objection Certificate dated 20.02.2009 from the Airport Authority of India. 3. According to the petitioner though the Superintending Engineer concerned had after verification directed the permit to be granted there was delay on the part of the Secretary of the Corporation to issue the permit. Hence the petitioner submitted representation dated 14.08.2009 to the Chairman/Council Secretary, Town Planning Committee of the Corporation as W.P. (C) NO.30080 OF 2011 **2** evident from Ext.P6. But still according to the petitioner no action was taken in that regard. By Ext.P7 petitioner informed the Secretary of the Corporation that since the Corporation Council had not taken any action on the basis of the request made by him, he has got deemed building permit. 4. But by Ext. P11, the Secretary had rejected the application. The reason for rejection of application is on account of the amendment to the Kerala Municipality Building Rules, 1999 (hereinafter referred to as the 'Rules'). The amendment had come into effect as per notification G.O. MS. No. 249/2009/LSGD dated 16.12.2009. According to the petitioner, though the notification for amendment is on 16.12.2009, the same was published in the Gazette only on 16.01.2010 as evident from the information obtained by the petitioner in terms of Ext. P14 dated 28.01.2010. 5. The petitioner also complains that the Corporation had issued building permits on the basis of the unamended Rules upto 15.01.2010 since the Corporation received the information regarding the amendment to the Rules only on that date and in between 16.12.2009 and 15.01.2010, 105 building permits were W.P. (C) NO.30080 OF 2011 **3** issued. This is based on the right to information received as per Ext.P17. 6. The petitioner while challenging Ext. P11 seeks a direction that he is entitled to get the building permit as his application is dated 25.06.2009 and there was delay on the part of the Corporation to issue the building permit. 7. Three specific contentions are raised by the petitioner. The first contention is that on a reference to the files in relation to the processing of petitioner's application there is a note which indicates that since the revised plan submitted by the petitioner complies with all the requirements and all the certificates are available, permission may be granted after collecting an amount of Rs. 17,84,345/- towards the permit fee. This endorsement is seen made on 18.11.2009. Therefore according to the petitioner, already a decision had been taken in the matter but for the fact that the Secretary has not issued the building permit, it cannot be stated that the petitioner's building permit has been rejected. Reliance is placed on Rule 11(3) of the Rules which reads as under:- **4** W.P. (C) NO.30080 OF 2011 Rule 11(3):- Approval of site and plans shall be intimated to the applicant in writing and the permit as in Appendix C shall be issued on remittance of the permit fee at the rates specified in Schedule II and submission of revised or modified plans, if approved with modifications or conditions. According to the petitioner the Secretary had not complied with the above provision and if he had complied with the said provision within a reasonable time from the date of 18.11.2009 wherein the grant of building permit was recommended, the petitioner could have remitted necessary fee and obtained the building permit. 8. Another contention urged by the petitioner is based on the notification issued in the Gazette. According to the learned counsel though the date of notification of the amendment in Ext. P12 Gazette notification is dated 16.12.2009 it would come into operation only when it is actually printed and published, on the basis of Ext. P14 information it was only on 16.01.2010. If the petitioner's application had been processed, immediately on the said date when the recommendation was made or atleast before the date of publication, petitioner was entitled to get the permit. W.P. (C) NO.30080 OF 2011 **5** 9. Another contention urged by the petitioner is that he has a valid permit to construct the building in terms with the plans submitted on the basis of the deeming provision under Section 392 of the Kerala Municipality Act (hereinafter referred to as 'Act'). According to the petitioner since there was delay on the part of Secretary in issuing the building permit he had submitted Ext.P6 request to the Council, which was again not considered within a period of one month and therefore in terms with Section 392(2), the petitioner is deemed to have obtained the building permit. 10. Counter affidavit is filed by the Corporation denying the allegations. According to them in so far as the building permit was not issued prior to the date of amendment i.e., 16.12.2009 the petitioner has to submit a revised plan in accordance with the amended Rules. Since no such application was received permission was refused. It is also contended that the petitioner did not prefer any Appeal to the Council and therefore the question of deeming permit does not arise for consideration. It is further contended that the amended Rules had come into force on 16.12.2009 and therefore in so far as the petitioner's building W.P. (C) NO.30080 OF 2011 **6** permit had not been issued, petitioner cannot claim any right as claimed. 11. The question to be considered is whether the petitioner is entitled to a building permit as per the unamended Building Rules as his application was prior to the date of amendment and there is a recommendation by the authorities to issue the permit which was before the amendment and whether the laches or delay on the part of the Secretary in not complying with Rule 11(3) would enable the petitioner to get the building permit in terms of the unamended Rules. 12. Rule or regulation that would apply in respect of grant of permission under the Building Rules has been considered by the Supreme Court in **Howrah Municipal Corporation and Others v. Ganges Rope Co. Ltd. And Others [(2004) 1 SCC 663]** wherein the Supreme Court has held that building Rules or Regulations prevailing at the time of sanction would govern the subject of sanction and not the Rules and Regulations existing on the date of application for sanction. Reference to paragraph 30 and 36 of the above judgment are relevant for consideration which is extracted as under:- W.P. (C) NO.30080 OF 2011 **7** “30. This Court, thus, has taken a view that the Building Rules or Regulations prevailing at the time of sanction would govern the subject of sanction and not the Rules and Regulations existing on the date of application for sanction. This Court has envisaged a reverse situation that if subsequent to the making of the application for sanction, the Building Rules, on the date of sanction have been amended more favourably in favour of the person or party seeking sanction, would it then be possible for the Corporation to say that because the more favourable Rules containing conditions came into force subsequent to the submission of application for sanction, it would not be available to the person or party applying. xxx 36. The abovestated legal position is not disputed on behalf of the respondent Company. What is being contended is that the order of the High Court fixing a period for the Corporation to decide its pending application for sanction creates a vested right in favour of the applicant Company to seek sanction for its additional proposed construction on the basis of the Building Rules, as they stood prior to the amendment introduced to the Building Rules and the consequent resolution of the Corporation restricting the height of buildings on G.T. Road. It is undeniable that after the amendment of the Building Rules and the resolution passed by the Corporation thereunder, restrictions imposed on heights of buildings on specified wards, roads and localities would apply to all pending applications for sanction. The question is whether any exception can be made to the case of the applicant seeking sanction who had approached the Court and obtained consideration of its applications from sanction within a specified period. We have extracted above the various orders passed by the High Court in writ petitions successively filed by the Company in W.P. (C) NO.30080 OF 2011 **8** an effort to obtain early sanction for its additional construction of three floors on the buildings in its multistoreyed complex already completed up to the fourth floor. In none of the orders of the High Court, there is a mandate issued to the Corporation to grant a sanction. What was directed by the High Court in the first order was merely a “liberty” or option to the Company to seek sanction for additional three floors. In the subsequent order, an “expectation” was expressed for decision of the pending applications within a period of four weeks. There was, thus, in favour of the Company an order of the High Court directing the Corporation to decide its pending applications for sanction within the alloted period but non-compliance therewith by the Corporation cannot result in creation of any vested right in favour of the Company to obtain sanction on the basis of the Building Rules as they stood on the date of making application for sanction and regardless of the amendment introduced to the Building Rules. Neither the provisions of the Act nor general law creates any vested right, as claimed by the applicant Company for grant of sanction or for consideration of its application for grant of sanction on the then existing Building Rules as were applicable on the date of application. Conceding or accepting such a so-called vested right of seeking sanction on the basis of the unamended Building Rules, as in force on the date of application for sanction, would militate against the very scheme of the Act contained in Chapter XII and the Building Rules which intend to regulate the building activities in a local area for general public interest and convenience. It may be that the Corporation did not adhere to the time-limit fixed by the Court for deciding the pending applications of the Company but we have no manner of doubt that the Building Rules with prohibition or restrictions on construction W.P. (C) NO.30080 OF 2011 **9** activities as applicable on the date of grant or refusal of sanction would govern the subject-manner and not the Building Rules as they existed on the date of application for sanction. No discrimination can be made between a party which had approached the Court for consideration of its application for sanction and obtained orders for decision of its application within a specified time and other applicants whose applications are pending without any intervention or order of the Court.” 13. Therefore there cannot be any doubt regarding the matter that a mere recommendation or entry in the office note of the Corporation is not the relevant date to be considered for considering whether the unamended Rules apply or not whereas the date would be the date of sanctioning the permit which apparently has not been done in the case until the amendment has come into force. The reference is made by the learned counsel for the petitioner on the basis of Rule 11(3) to indicate that there is laches on the part of the Secretary in issuing the building permit in favour of the petitioner despite the recommendation made by the competent authorities as evident from Ext. P5 note. Rule 11(1) relates to the approval of the site and site plan. Rule 11(2) is in respect of verification of the building plan, elevation and sections of the buildings and W.P. (C) NO.30080 OF 2011 **10** specifications of the work, as to whether it conforms to the site and plan. This is also to be done by the Secretary. Apparently the Secretary has the advantage of getting reports from officers who are competent to verify the requirements under the Building Rules, which has happened in the case as evident from the note as seen in Ext. P5. The Rule 11(3) would indicate that approval of site and plans shall be intimated to the applicant in writing by the Secretary and on remittance of the permit fee. Sub-Rule 4 further indicates that if after inspection of site and verification of plans and documents Secretary decides to refuse approval, the same shall be communicated in writing specifying the reasons. SubRule 5 further indicates that if the Secretary requires any further documents or plans or information as per the Rules the same has to be intimated to the applicant in writing. Rule 11A relates to the approval of site and plans and the issuance of permit. 14. Apparently the permit can be issued only after all these formalities are completed. The contention raised by the learned counsel for the petitioner is that Secretary had not called upon him to remit the necessary fee in terms of Sub-Rule 3 of Rule 11 of the Rules and if he had called upon the petitioner to do W.P. (C) NO.30080 OF 2011 **11** so, necessarily the petitioner would have obtained the permit immediately. Assuming for the sake of argument that there is delay on the part of the Secretary in complying with Rule 11(3) as evident from this case, the fact remains that the petitioner can always prefer an Appeal before the Council as provided under Section 392 of the Act and still if there is delay on the part of the Council in approving or rejecting the application for permit, Section 392(2) clearly indicates that the petitioner will have a deemed permit and he is entitled to proceed with the construction in accordance with the plans submitted by him. Therefore non-compliance of Rule 11(3) of the Rules within a reasonable time would not affect the right of the petitioner in any manner. 15. The next question is whether the petitioner has obtained a deemed permit in terms of Section 392(2) of the Act. Ext. P6 is the application submitted by the petitioner. The endorsements in the application would show the application is dated 14.08.2009 apparently after 30 days from the date on which the application is submitted to the Secretary for the building permit. There is an endorsement of T.P.O., this might be W.P. (C) NO.30080 OF 2011 **12** the Town Planning Officer. Again there is an endorsement as Chairman, T.P.O. There is nothing in the application to indicate that the said application is submitted to the Council. The learned counsel for the petitioner would submit that T.P.O. is the Chairman of the Standing Committee which deals with building plans and approvals. But when the statute gives a right to the applicant to approach the Council apparently the applicant has to approach the Council alone failing which the applicant will not be entitled to seek the benefit of deemed permit under Section 392 (2) of the Act. The Corporation has denied the fact that the Council had received any such application. Therefore this Court cannot come to the conclusion as to whether a proper application has been submitted to the Council by the petitioner as the endorsements in Ext. P6 would not indicate anything in that regard. Therefore I am of the view that the petitioner is not entitled for a deemed permit, as petitioner did not avail of the said remedy as provided under Section 391(1). For that reason he cannot now complain that the Secretary has not complied with Rule 11(3) at the appropriate time. W.P. (C) NO.30080 OF 2011 **13** 16. Next contention urged is based on the date when the amendment had come into force. The learned counsel for the petitioner relies upon the judgment in **Pankaj Jain Agencies v. Union of India and Others [(1994) 5 SCC 198]** . It is contended that though the date of notification is on a particular date it will come into operation only on the date when it is actually published and when the notification comes to knowledge of the public. Reference is made to paragraph 16, 17, and 18 which reads as under:- - “16. Again in B.K. Srinivasan v. State of Karnataka it was observed: (SCC p. 672, para 15) “There can be no doubt about the proposition that where a law, whether parliamentary or subordinate, demands compliance, those that are governed must be notified directly and reliably of the law and all changes and additions made to it by various processes. Whether law is viewed from the standpoint of the 'conscientious good man' seeking to abide by the law or from the standpoint of Justice Holmes's 'unconscientious bad man' seeking to avoid the law, law must be known, that is to say, it must be so made that it can be known. We know that delegated or subordinate legislation is all pervasive and that there is hardly any field of activity where governance by delegated or subordinate legislative powers is not a important if not more important, than governance by parliamentary legislation. But unlike parliamentary legislation which is publicly made, delegated or subordinate legislation is often made unobtrusively in the chambers of a Minister, a Secretary to the Government or W.P. (C) NO.30080 OF 2011 **14** other official dignitary. It is, therefore, necessary that subordinate legislation, in order to take effect, must be published or promulgated in some suitable manner, whether such publication or promulgation is prescribed by the parent statute or not. It will then take effect from the date of such publication or promulgation.” 17. In the present case indisputably the mode of publication prescribed by Section 25(1) was complied with. The notification was published in the Official Gazette on the 13.2.1986. As to the effect of the publication in the Official Gazette, this Court held [Srinivasan case AIR at p. 1067:SCC pp. 672-73, para 15]: “ Where the parent statute is silent, but the subordinate legislation itself prescribes the manner of publication, such a mode of publication may be sufficient, if reasonable. If the subordinate legislation does not prescribe the mode of publication or if the subordinate legislation prescribes a plainly unreasonable mode of publication, it will take effect only when it is published through the customarily recognised official channel, namely, the Official Gazette or some other reasonable mode of publication.” 18. We, therefore, see no substance in the contention that notwithstanding the publication in the Official Gazette there was yet a failure to make the law known and that, therefore, the notification did not acquire the elements of operativeness and enforceability. This contention of Shri. Ganesh is unacceptable.” 17. No doubt the principal of law as to the coming into force of a notification in the form of subordinate legislation is very clear. But the fact remains that amendment to the KMBR is not an ordinary notification. It is an amendment to a specific Rule W.P. (C) NO.30080 OF 2011 **15** made by the Government exercising its legislative powers. There is a difference between an amendment to the statute by the legislature and subordinate legislation. If it is subordinate legislation the principal of law relied upon by the learned counsel for the petitioner would be correct. When it is amendment to the statute made by the legislature, it comes into operation on the date specified in the said amendment. The amendment comes in the form of notification. It states that it shall come into effect at once, meaning thereby the date specified in the notification. That it was published only on 16.01.2010, will not amount to the amendment coming into effect only on 16.01.2010. Therefore I am not satisfied with the said contention also. Having regard to the aforesaid factual circumstances and the findings thereon, I am not satisfied with the contentions urged by the petitioner. In the result, the writ petition is dismissed. Sd/- **A.M. SHAFFIQUE JUDGE** DCS