Kristal Infra Structures Limited v. Thrikkakara Grama Panchayath & Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** **WEDNESDAY, THE 15TH DAY OF JUNE 2016/25TH JYAISHTA, 1938** **WP(C).No. 38058 of 2007 (E) ----------------------------** **PETITIONER(S): -------------** **KRISTAL INFRA STRUCTURES LIMITED, KANNANKERY ESTATE BUILDING, SHANMUGHAM ROAD,, ERNAKULAM, KOCHI-682 031, REPRESENTED BY ITS, CO-ORDINATOR, KERALA OPERATIONS,, MAJOR K.RAVEENDRAN (RETD).** **BY ADVS.SRI.K.I.MAYANKUTTY MATHER SMT.S.AMINA** **RESPONDENT(S):** **--------------** **1. THRIKKAKARA GRAMA PANCHAYATH, REPRESENTED BY ITS SECRETARY, THRIKKAKARA-682 030.** **2. GOVERNMENT OF KERALA, REPRESENTED BY PRINCIPAL SECRETARY,, LOCAL ADMINISTRATION** - **(M) DEPARTMENT,, SECRETARIAT, TRIVANDRUM-695003.** **3. CHIEF TOWN PLAINNING OFFICER, THIRUVANANTHAPURAM-695003.** **4. THE SENIOR TOWN PLANNER, REGIONAL TOWN PLANNING OFFICE, ERNAKULAM-682 020.** **R BY SRI.S.SHANAVAS KHAN,SC R BY GOVERNMENT PLEADER SRI BIJU MEENATTOOR** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 15-06-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** WPC.No.38058/2007 : 2 : ## K. VINOD CHANDRAN, J - - - - - - - - - - - - -- - - - - - - - - - - - - - - - ## W.P(C) No. 38058 of 2007 - - - - - - - - - - - - - - - - - - - - - - - - - - - - ## Dated this the 15[th] day of June, 2016 ## J U D G M E N T The short contention raised by the petitioner herein is that as per Ext.P3(b) Circular, the petitioner is entitled to complete the construction of the building which was permitted as per Ext.P1 No Objection Certificate; if necessary by paying the permit fees as made applicable to constructions in the Panchayath area. 2. The petitioner on 04.11.2006 obtained a No Objection Certificate (NOC) from the Panchayath for constructing a multi storied apartment complex. The petitioner proceeded with the construction and completed the structure. Immediately after obtaining the NOC, by Ext.P3 dated 06.11.2006 the Kerala Municipality Building Rules, 1999 WPC.No.38058/2007 : 3 : (KBR for brevity) was extended and brought in force in the Thrikkakkara Grama Panchayat, the respondent herein. Subsequently by Ext.P3(a), KBR application was extended to the entire State of Kerala; made effective from 20.06.2007. 3. Obviously on representations being made, there was a mitigation provided insofar as the constructions already permitted and carried on by Ext.P3(b) circular which was made applicable specifically to the respondent Panchayath. Relevant Clause in Ext.P3(b) being 3, 4 and 5 are extracted herein: 3.®X ² Øß ÜÍߺíºÄᢠ®KÞW ÈßVNÞâ ¦ø ¢ÍߺíºßGßÜïÞJÄáÎÞÏ æµGß¿BZ æµ ®¢ Ìß ¦V dɵÞø¢ ÈßVNÞÃÞÈáÎÄß ÕÞBß ÎÞdÄçÎ ÈßVNßAáÕÞX ÉÞ¿áUâ. 4.®X ² Øß ÕÞBߺíºßGáUÄá¢, ®KÞW ground level-Èá Îáµ{ßçÜAí ÈßVNÞâ ¦ø¢ WPC.No.38058/2007 : 4 : ÍߺíºßGßÜïÞJÄáÎÞÏ æµGß¿BZAí æµ ®¢ Ìß ¦V ÌÞǵÎÞAß æÉVÎßxí ÈWµß ÎÞdÄçÎåÈßVNÞâ ¥ÈáÕÇßAÞÕâ. 5.Øíd¿µíºíºùßæa ÉÃß ÉâVJßÏÞAßÏÄᢠ®KÞW §ÄáÕæø ÈOV ÜÍߺíºßGßÜïÞJÄáÎÞÏ æµGß¿JßÈá æÉVÎßxí ËàØí ÌÞǵÎÞÏßøßAᢠ4. By Ext.P4 again with reference to the respondent Panchayath, certain zoning regulations were brought into force as per Town Planning Act, 1108 ME and Madras Town Planning Act, 1920. It is in consequence of Ext.P3,P3(b) and P4 that Ext.P6 stop memo was issued. The Stop memo specifically refers to the NOC given by the Panchayath two days back and despite that; directed compliance of provisions of the KMBR. The petitioners construction at that stage had been only at the piling stage. For reason of no counter WPC.No.38058/2007 : 5 : affidavit having been filed, this Court by interim order dated 22.05.2008 permitted the construction to go on. The interim order is extracted hereunder: “There will be an interim order as prayed for. However, the liability of the petitioner on payment of permit fee will be decided in the writ petition”. The construction also is said to be long over. 5. I have heard the learned counsel for the petitioner as also the learned Standing Counsel for the Thrikkakkara Panchayath, which is now a Municipality. 6. Relevant is the decision of a Division Bench of this Court in 2009 (4) KLT 986 (Mather Projects (P) Ltd. v. Government of Kerala for deciding the issue. There the issue was whether by a notification under the Kerala Panchayath Raj Act, 1994, the Building Rules can be made applicable to WPC.No.38058/2007 : 6 : the Panchayath. The Division Bench upheld the extension of the Building Rules to the Panchayath and also noticed the circular brought out by the Government in mitigation of the constructions already started with NOC from the Panchayath. The stipulation in the circulars to collect permit fees was held to be legal. In Paragraph 9, the Division Bench noticed that the levy of permit fees on persons who proceeded with the construction as per the NOC was without quid pro quo, since the Panchayat, but for issuing an NOC, was not involved in providing any service or implementing a regulatory measure. 7. It was noticed that the KMBR was extended to the Panchayaths too abruptly and after such extension, the Government issued circulars waiving almost all the provisions of the KMBR in mitigation of the constructions WPC.No.38058/2007 : 7 : already carried out and directed levy of permit fee alone. The Court found that such concessions having been freely extended to the constructions; even when there was no such requirement in law; the levy of permit fee was proper. In such circumstance, going by Ext.P4 there could be no stipulation made of following the provisions of KMBR, inter alia, including that of floor area ratio (FAR). The Division Bench of this Court required the levy to be paid. 8. In such circumstance, on the petitioner remitting the permit fee as available under the KMBR, the construction proposed as per the NOC at Ext.P1 shall be permitted to be completed and the same shall be regularised. The respondent local body, now a Municipality, shall also issue the occupancy certificate and completion certificate; on completion. The Stop memo shall stand set aside on the WPC.No.38058/2007 : 8 : petitioner paying the permit fee within a period of two months from the date of receipt of a certified copy of this judgment. Writ petition is disposed of. No costs. Sd/- (K. VINOD CHANDRAN, JUDGE) jma //true copy// P.A to Judge WPC.No.38058/2007 : 9 : ## **WP(C).No. 38058 of 2007 (E)** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** - **EXT.P1 : TRUE COPY OF THE NOC ISSUED BY THE 1[ST] RESPONDENT EXT.P2 : TRUE COPY OF THE PLAN SUBMITTED BY THE PETITIONERS BEFORE THE 1[ST] RESPONDENT** - **EXT.P2(A) : TRUE COPY OF THE PLAN SUBMITTED BY THE PETITIONERS BEFORE THE 1[ST] RESPONDENT** - **EXT.P2(B) : TRUE COPY OF THE PLAN SUBMITTED BY THE PETITIONERS BEFORE THE 1[ST] RESPONDENT** - **EXT.P2(C) : TRUE COPY OF THE PLAN SUBMITTED BY THE PETITIONERS BEFORE THE 1[ST] RESPONDENT** - **EXT.P2(D) : TRUE COPY OF THE PLAN SUBMITTED BY THE PETITIONERS BEFORE THE 1[ST] RESPONDENT** - **EXT.P3 : TRUE COPY OF THE NOTIFICATION ISSUED BY THE GOVERNMENT** - **EXT.P3(A) : TRUE COPY OF THE CIRCULAR ISSUED BY THE GOVERNMENT EXT.P3(B) : TRUE COPY OF THE CIRCULAR ISSUED BY THE GOVERNMENT EXT.P4 : TRUE COPY OF THE NOTIFICATION DRAFT PROPOSAL TO INTRODUCE CHANGES IN THE ZONING AND SUB DIVISIONAL REGULATIONS IN THE TOWN PLANNING ACT, 1108 ME AND MADRASS TOWN PLANNING ACT, 1920** - **EXT.P5 : TRUE COPY OF THE NOTICE ISSUED BY THE 4TH RESPONDENT EXT.P6 ; TRUE COPY OF THE STOP MEMO ISSUED BY THE 1[ST] RESPONDENT** - **EXT.P7 : TRUE COPY OF THE REPLY SUBMITTED BY THE PETITIONER BEFORE THE 1[ST] RESPONDENT** - **EXT.P8 : TRUE COPY OF THE EXTRACT OF DETAILS PUBLISHED BY THE GOVERNMENT OF INDIA REGARDING THOSE BUILDINGS THAT HAS VIOLATED RULES** - **EXT.P9 : TRUE COPY OF THE EXTRACT OF DETAILS PUBLISHED BY THE GOVERNMENT OF INDIA REGARDING DETAILS OF VIOLATION IN RESPECT OF THE BUILDING** - **EXT.P10 : TRUE COPY OF THE GOVERNMENT NOTIFICATION G.O(M.S) NO.103/91/LAD** - **EXT.P11 : TRUE COPY OF THE INTERIM ORDER IN WPC NO.3367/2007** ## **RESPONDENTS EXHIBITS:nil** **TRUE COPY** **P.A TO JUDGE**