Meethian Kunju M.M. v. State of Kerala and Thrikakkara Municipality and Puravankara Projects Limited

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** **FRIDAY, THE 2ND DAY OF DECEMBER 2016/11TH AGRAHAYANA, 1938** **WP(C).No. 16368 of 2013 (U)** **----------------------------** **PETITIONER(S):** **-------------** **1. MEETHIAN KUNJU M.M. S/O.M.M.MOHAMMED, MANATH PAZHAYAPURAYIL HOUSE, KAKKANAD P.O, KOCHI - 682 030.** **2. M.I MEETHIAN KUNJU, S/O.M.M ISMAYIL, MANATH PAZHAYAPURAYIL HOUSE, KAKKANAD P.O, KOCHI - 682 030.** **3. M.I PAREED, S/O.M.M.ISMAYIL, MANATH KIZHAKKE PAZHAYAPURAYIL HOUSE, KAKKANAD P.O, KOCHI - 682 030.** **4. M.A.ABOOBACKER, S/O.M.A AHAMMED, MANATH PAZHAYAPURAYIL HOUSE, KAKKANAD P.O, KOCHI - 682 030.** **5. M.M.ABOOBACKER, S/O.M.M MOHAMMED, MANATH KIZHAKKE PAZHAYAPURAYIL HOUSE, KAKKANAD P.O, KOCHI - 682 030.** **6. K.P MOHAMMED, S/O.K.K.PAREED, KAITHA VELIEKKAKATHU HOUSE, KAKKANAD P.O, KOCHI - 682 030. BY SRI.K.RAMAKUMAR (SENIOR ADVOCATE) ADVS.SRI.S.M.PRASANTH SMT.SMITHA GEORGE SMT.ASHA BABU SMT.G.ASHWINI SRI.V.C.RAJESH** **RESPONDENT(S): --------------** **1. THE STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, LOCAL SELF GOVERNMENT DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM - 695 001.** **--2--** **--2--** ## **WP(C).No. 16368 of 2013 (U) ---------------------------** **2. THE THRIKKAKARA MUNICIPALITY, REPRESENTED BY ITS SECRETARY, THRIKKAKARA, ERNAKULAM, KOCHI - 682 028.** **3. M/S.PURAVANKARA PROJECTS LIMITED, G-261,PANAMPILLY AVENUE, COCHIN - 682036.** - **R1 BY SPECIAL GOVERNMENT PLEADER SRI.C.A.NAZAR R2 BY ADV. SRI.S.SHANAVAS KHAN R3 BY SRI.M.RAMESH CHANDER (SENIOR ADVOCATE) ADVS.SRI.P.R.VENKETESH** - **SRI.JOSHUA SAMUEL** - **BY ANEESH JOSEPH** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 02-12-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **mbr/** ## **WP(C).No. 16368 of 2013 (U) ----------------------------** ## **APPENDIX** |**PETITIONER(S)'**|**EXHIBITS:**| |---|---| |**-----------------------**|| |**EXHIBIT P1 :**|**TRUE COPY OF THE PRINT OUT FROM THE WEBSITE OF**| ||**THE 3RD RESPONDENT SHOWING THE DETAILS OF THE**| ||**PROJECT 'PURNA MOONREACH'.**| |**EXHIBIT P2 :**|**TRUE COPY OF THE PHOTOGRAPHS SHOWING THE STAGE**| ||**OF CONSTRUCTION.**| |**EXHIBIT P3 :**|**TRUE COPY OF THE LETTER NO A.4 712/08/RTI**| ||**DATED 13-03-2008.**| |**EXHIBIT P4 :**|**TRUE COPY OF THE REPRESENTATION DATED 31-12-2007**| ||**SUBMITTED BEFORE THE SECRETARY THRIKKAKARA GRAMA**| ||**PANCHAYAT.**| |**EXHIBIT P5 :**|**TRUE COPY OF THE REPRESENTATION DATED 31-12-2007**| ||**BEFORE THE DISTRICT COLLECTOR, ERNAKULAM.**| |**EXHIBIT P6 :**|**TRUE COPY OF THE REPRESENTATION DATED 23-11-2007**| ||**SUBMITTED TO THE HON'BLE MINISTER FOR LOCAL**| ||**SELF GOVERNMENT.**| |**EXHIBIT P7 :**|**TRUE COPY OF THE CIRCULAR NO.37348/RBI/07**| ||**DATED 3-7-2007.**| |**EXHIBIT P8 :**|**TRUE COPY OF THE REPRESENTATION SUBMITTED BEFORE**| ||**THE DISTRICT COLLECTOR, ERNAKULAM.**| |**EXHIBIT P9 :**|**TRUE COPY OF THE REPRESENTATION SUBMITTED BEFORE**| ||**THE COMMANDANT GENERAL, FIRE & RESCUE SERVICE,**| ||**CHENKALCHOOLA, THIRUVANANTHAPURAM.**| |**EXHIBIT P10 :**|**TRUE COPY OF THE INTERIM ORDER DATED 9-2-2011 IN**| ||**W.A NO 91/2011.**| |**EXHIBIT P11 :**|**TRUE COPY OF THE ORDER DATED 24-04-2012 IN**| ||**SLP NO.12957 OF 2011.**| |**EXHIBIT P12 :**|**TRUE COPY OF THE STATEMENT DATED 12-12-2012 BY**| ||**THE SECRETARY OF THE THRIKKAKARA MUNICIPALITY.**| |**EXHIBIT P13 :**|**TRUE COPY OF THE PETITION DATED 8-5-2013**| ||**SUBMITTED BY ONE OF THE PETITIONERS BEFORE THE**| ||**2ND RESPONDENT.**| |**EXHIBIT P14 :**|**TRUE COPY OF THE COMMUNICATION DATED 1-6-2013 OF**| ||**THE 2ND RESPONDENT.**| **--2--** **--2--** ## **WP(C).No. 16368 of 2013 (U) ---------------------------** **EXHIBIT P15 : TRUE COPY OF THE COMMUNICATION DATED 10-09-2009 OF THE 1ST RESPONDENT. EXHIBIT P16 : TRUE COPY OF THE PETITION DATED 12-11-2012 SUBMITTED BY ONE OF THE PETITIONERS BEFORE THE 2ND RESPONDENT. EXHIBIT P17 : TRUE COPY OF THE RENEWAL CERTIFICATE DATED 30.1.2006 ISSUED BY R2. EXHIBIT P18 : TRUE COPY OF THE APPLICATION DATED 8-5-2012 SUBMITTED BY R3 BEFORE R2. EXHIBIT P19 : TRUE COPY OF GO(RT) NO.412/2013 LSGD DATED 15.2.2013 BY R1.** **RESPONDENT(S)' EXHIBITS: ----------------------EXT.R3A: TRUE COPY OF THE NOC DATED 31.1.2006 ISSUED BY THE THRIKKAKARA GRAMA PANCHAYATH. EXT.R3B: TRUE COPY OF THE COMMENCEMENT LETTER DATED 6.7.2006 ISSUED BY THE PETITIONER TO THE THRIKKAKARA GRAMA PANCHAYATH. EXT.R3C: TRUE COPY OF THE NOC DATED 3.4.2007 ISSUED BY THE AIRPORT AUTHORITY OF INDIA TO THE PETITIONER. EXT.R3D: TRUE COPY OF THE NOC DATED 19.11.2007 RECEIVED FROM THE FIRE AND RESCUE SERVICES HEADQUARTERS, THIRUVANANTHAPURAM. EXT.R3E: TRUE COPY OF THE CONSENT RECEIVED FROM THE KERALA STATE POLLUTION CONTROL BOARD DATED 16.12.2006 & 28.2.2011. EXT.R3F: TRUE COPY OF THE CONSENT RECEIVED FROM THE DISTRICT OFFICER, GROUND WATER DEPARTMENT, ERNAKULAM DATED 25.10.2007, 3.1.2008 AND 10.1.2008. EXT.R3G: TRUE COPY OF THE NOC DATED 26.2.2007 FROM THE COMMAND AVIATION OFFICER, HEADQUARTERS, SOUTHERN NAVAL COMMAND, COCHIN. EXT.R3H: TRUE COPY OF THE CONSENT RECEIVED FROM MINISTRY OF ENVIRONMENT AND FOREST, NEW DELHI DATED 8.9.2009.** **--3--** ## **--3--** ## **WP(C).No. 16368 of 2013 (U)** ## **---------------------------** |**EXT.R3I:**|**TRUE COPY OF THE INTERIM ORDER DATED 2.5.2008**| |---|---| ||**PASSED IN WPC.NO.9903/2008 OF THIS HON'BLE**| ||**COURT.**| |**EXT.R3J:**|**TRUE COPY OF THE ORDER DATED 24.4.2012 PASSED BY**| ||**THE HON’BLE SUPREME COURT IN SLP NO.12957/2011.**| |**EXT.R3K:**|**TRUE COPY OF THE APPLICATION DTED 8.5.2012 FILED**| ||**BY THIS RESPONDENT TO THE SECRETARY, THRIKKAKARA**| ||**MUNICIPALITY UNDER RULE 15A OF THE KMB RULES.**| |**EXT.R3L:**|**TRUE COPY OF THE REPRESENTATION OF THE THIRD**| ||**RESPONDENT DATED 27.6.2012 TO THE GOVERNMENT.**| |**EXT.R3M:**|**TRUE COPY OF THE GO NO.412/2013/LSGD**| ||**DATED 15.2.2013.**| |**EXT.R3N:**|**TRUE COPY OF THE RENEWED NOC/PERMIT ISSUED BY**| ||**THE SECRETARY, THRIKKAKARA MUNICIPALITY**| ||**DATED 25.3.2013 TO THIS RESPONDENT.**| |**EXT.R3O:**|**TRUE COPY OF THE LETTER OF THE RESPONDENT**| ||**DATED 28.8.207 ISSUED TO THE SECRETARY,**| ||**THRIKKAKARA PANCHAYATH.**| |**EXT.R3P:**|**TRUE COPY OF THE LETTER DATED 11.5.2012 FROM THE**| ||**PETITIONER TO THE MUNICIPALITY.**| |**EXT.R3Q:**|**TRUE COPY OF THE ACKNOWLEDGEMENT DATED 11.5.2012**| ||**RECEIVED FROM THE 2ND RESPONDENT MUNICIPALITY.**| |**EXT.R3R:**|**TRUE COPY OF THE OCCUPANCY CERTIFICATE**| ||**DATED 18.10.2014 ISSUED BY THE MUNICIPALITY TO**| ||**THE PETITIONER.**| |**EXT.R3S:**|**TRUE COPIES OF THE POSTAL RECEIPTS AND**| ||**ACKNOWLEDGMENTS.**| ||**//TRUE COPY//**| ||**P.S. TO JUDGE**| |**mbr/**|| ## **K. VINOD CHANDRAN, J.** -----------------------------------------W.P.(C) No. 16368 of 2013 (U) -----------------------------------------Dated: 2[nd] December, 2016 ## **J U D G M E N T** The issue is in a very narrow compass; the matter having been once considered by the Division Bench of this Court elaborately, and confirmed by the Hon'ble Supreme Court; but, has been made complex only for reason of the attempt made by the contesting respondent to undermine the directions of the Division Bench based on the innocuous reservation made by the Hon'ble Supreme Court. 2. The petitioners and certain others, residents of the 2[nd] respondent Municipality, (which, at the earlier instance was a Panchayat) had challenged the attempt of the 3[rd] respondent to make construction of a multistoried apartment complex in Ward No.10 of the ## **W.P.(C) No. 16368/2013** **-2-** Panchayat. At the earlier instance, the petitioners alleged the construction to be not in compliance with the Kerala Municipality Building Rules, 1999 ('KMBR 1999' for short) and the possibility of such construction of the multi-storied complex, by its very existence, violating the fundamental right guaranteed to the petitioners and other residents of the locality, under Article 21 of the Constitution of India, for reason of the adverse effect it will have on the public facilities like, sanitation, light, supply of water and so on and so forth. 3. In the writ petition, initially, there was an interim order passed staying the construction. The 3[rd] respondent appeared and contended that there were no building rules applicable as on the date of commencement of construction and they had, prior to such date on which the rules were made applicable, obtained a No Objection Certificate (NOC) from the **-3-** ## **W.P.(C) No. 16368/2013** Panchayat (as the local authority then was) to carry on the construction. The learned Single Judge, who was seized of the writ petition, finding that if at all the building rules were made applicable, there could be only a violation of the FAR, permitted construction of 1,81,844 sq. ft., which would come within the maximum permissible FAR of 2.50, as the rules provided then. Eventually, the writ petition was rejected and an appeal was filed, in which also Ext.P10 interim order was passed granting permission to the 3[rd] respondent to complete the interior works also at their risk. The Writ Appeal stood allowed by decision reported in **Meethian Kunju M.M. v. State of Kerala - 2011 (2) KHC 415 (DB)** . 4. In appeal, this Court found that the NOC did not create any vested right on the respondent to carry out a construction without a building permit, merely ## **W.P.(C) No. 16368/2013** **-4-** because there was an NOC issued, prior to the application of the building rules in Panchayat areas. The NOC was issued on 30.01.2006 and the KMBR 1999 was made applicable to the 2[nd] respondent Panchayat with effect from 15.11.2006. 5. The Division Bench framed two questions to be answered, as to whether the 3[rd] respondent acquired any vested right to proceed with the construction, untrammeled by the restrictions in the KMBR 1999 and, if it is so found, whether the application of the building rules with effect from 15.11.2006 could be applied retrospectively taking away such vested right. It was categorically found that there was no vested right on the 3[rd] respondent and the question of retrospective application of building rules did not, at all, arise. ## **W.P.(C) No. 16368/2013** **-5-** 6. The 3[rd] respondent, then took up a contention that if the KMBR 1999 is made applicable, then, the prescription on FAR should be taken as applicable in the building rules as on 15.11.2006. The FAR as on that date was 4, but, the same was amended in the year 2009, reducing it to 2.75. The Division Bench found that there was no application made by the 3[rd] respondent, obviously, on the impression that the NOC created a vested right on them. The contention of the vested right having been found against them, the 3[rd] respondent had then to make an application and it was found that 'if such an application was made today' (sic), the FAR permitted would be only 2.75, subject to the additional fee required to be paid at the rate of Rs.1,000/- per square meter for FAR above 1.50. The interim order passed by the learned Single Judge was adverted to and the fact of considerable constructions ## **W.P.(C) No. 16368/2013** **-6-** having been made, on the basis of the interim order, was noticed. Here, it has to be emphasised that the 3[rd] respondent did not have any contention in the earlier litigation that they had even commenced construction as per the NOC. The operative portion of the decision of the Division Bench reads as under: "In the circumstances, we are of the opinion that the 3[rd] respondent is entitled to claim for the protection of the construction in so far as the construction does not exceed the above mentioned area of 1,81,844 sq.ft., though the 3[rd] respondent has not so far made an application seeking appropriate sanction for the same under the Kerala Municipality Building Rules. Having regard to the above mentioned factual background, we deem it appropriate to permit the 3[rd] respondent now to make an application seeking the appropriate sanction under **-7-** ## **W.P.(C) No. 16368/2013** the Kerala Municipality Building Rules. The said application shall be considered by the 2[nd] respondent and sanction be accorded for the construction of the above mentioned extent of 1,81,844 sq.ft only, subject to the condition that all the other requirements of the law, i.e., either the Kerala Municipality Building Rules and other relevant laws, if any, dealing with the construction of such buildings, are complied with by the 3[rd] respondent.” 7. A Special Leave was filed by the 3[rd] respondent before the Hon'ble Supreme Court, which was dismissed by Ext.P11. The findings in the cited decision hence has become final as far as the 3[rd] respondent is concerned. A reservation was made with respect to the liberty of the 3[rd] respondent to apply under Rule 15A of the KMBR 1999. It was also specified that, if such an application is made then the prescribed ## **W.P.(C) No. 16368/2013** **-8-** authority would consider it untramelled by any of the observations made by the Division Bench. The 3[rd] respondent is said to have made an application, allegedly, in accordance with the directions of the Hon'ble Supreme Court, as is seen from Ext.P18. However, subsequently, orders were issued by the Government at Ext.P19, which is impugned in this writ petition. 8. The learned Senior Counsel appearing for the petitioners would submit that the attempt of the 3[rd] respondent was to subvert the directions in the order of the Hon'ble Supreme Court and by that wriggle out of the obligation to file an application under the KMBR 1999, as directed by the Division Bench of this Court. The learned Counsel would place reliance on **M/s Chingleput Bottlers v. M/s Majestic Bottling Co.AIR 1984 SC 1030** , **Anirudhsinhji Karansinhji** ## **W.P.(C) No. 16368/2013** **-9-** **Jadeja v. State of Gujarat- AIR 1995 SC 2390** , **State of Kerala v. Saji T.M - 2009 (3)KHC 610 (DB)** , **Sreedharan v. Kalluvathukkal Panchayat- 2015 (1) KLT 778** and **Roy V.M. v. Ayavana Grama Panchayat- 2015 (3) KHC 445** to contend that the Government has usurped the powers of the local authority in directing extension or renewal of building permit under Rule 15A. It is also submitted that Rule 15A will have no application with respect to the 3[rd] respondent. The NOC cannot be said to be a building permit and there is no question of renewal under Rule 15A of KMBR 1999; which specifically speaks of renewal or extension of permits and not NOC; issued by the local authority. The petitioners would also specifically refer to the order of the Hon'ble Supreme Court to point out that there was a requirement of an application filed under Rule 15A to be notified to the ## **W.P.(C) No. 16368/2013** **-10-** petitioners and a further direction to the authority to afford an opportunity of hearing to the original petitioners also. There was no notice issued by the 3[rd] respondent, on the filing of the application and there was also no hearing before the impugned order was passed, argues learned Senior Counsel. 9. The learned Standing Counsel for the respondent Municipality supports the petitioners and points out that a permit, which is entitled to be extended or renewed should be accompanied by a sanctioned plan approved under the KMBR 1999. A NOC issued by the erstwhile Panchayat, when the building rules were not applicable to the Panchayats, cannot be extended. The learned Standing Counsel would also specifically point out that the claim of vested right, based on the NOC issued was specifically rejected ## **W.P.(C) No. 16368/2013** **-11-** by the Division Bench of this Court. The Division Bench had also directed a building permit application to be filed before the Municipality in accordance with the then existing rules, which was also directed to be considered on the basis of the FAR as existing on the date of application. Without such an application being filed, the 3[rd] respondent could not have made an application for extension under Rule 15A, is the specific contention taken. The learned Standing Counsel would also rely on the judgment of this Court in **Mukundan Menon M. v. State of Kerala - 2012 (4) KHC 489** to contend that the Secretary of the Municipality is the authority prescribed under Rule 15A and the Government is not an appellate or superior authority exercising any powers over the local authority under Rule 15A. ## **W.P.(C) No. 16368/2013** **-12-** 10. The learned Senior Counsel for the 3[rd] respondent would insist on a re-reading of Ext.P11, which according to him sanctions the procedure adopted by the 3[rd] respondent. The liberty granted to the 3[rd] respondent was to apply under Rule 15A and the Hon'ble Supreme Court had specifically directed consideration untrammeled by the observations of the Division Bench. The 3[rd] respondent would refer to the definition clause of 'permit' under Rule 2(bd) of the KMBR, which means 'a permission or authorisation in writing by the Secretary to carry out the work'. Reference is also made to Sub-Rule (9) of Rule 15A, which reads as under: “(9) A development permit or a building permit issued before or after the commencement of the Kerala Municipality Building Rules, 1999 or these rules or under the Kerala **-13-** ## **W.P.(C) No. 16368/2013** Building Rules, 1984 including that under the orders of Government or District Collector granting exemption from rule provisions, shall be extended or renewed, on proper application, on like terms and for like periods as a permit issued under these rules.” 11. The NOC being issued before the application of KMBR to the respondent Panchayat, squarely comes under Sub-Rule 9 of Rule 15A and is hence possible of consideration for extension or renewal under Rule 15A, is the argument. It is also submitted that the 3[rd] respondent had filed Ext.R3(k) with notice to the petitioners, which was also produced in their writ petition as Ext.P18. Subsequently, when the Municipality failed to act upon the application filed, the 3[rd] respondent was constrained to approach the Government under Rule 61 of the Kerala Municipality Act, 1994, which speaks of overall superintendence ## **W.P.(C) No. 16368/2013** **-14-** over the local authorities by the Government. Ext.P19 issued under Section 61 cannot be faulted and the 3[rd] respondent's construction ought to be issued Occupancy Certificate and the various apartments in the construction numbered; is the plea taken. It is also contended that the order of the Hon'ble Supreme Court having specifically directed the consideration of the application without being influenced by the observations of the Division Bench, the directions of the Division Bench could no longer be pressed into service by the petitioners. 12. This Court is of the opinion that the allegation of the 3[rd] respondent having attempted to misinterpret the reservation made by the Hon'ble Supreme Court, to subvert the directions of the Division Bench is to be upheld. The SLP filed by the 3[rd] respondent was dismissed finding no reason to cause interference to the ## **W.P.(C) No. 16368/2013** **-15-** decision of the Division Bench. A liberty sought for by the respondents under Rules 15A of the KMBR was allowed by the Hon'ble Supreme Court and it was directed that if such an application is filed then, the same would be decided in accordance with law, on merits and without being influenced by the observations in the Division Bench judgment. It cannot at all be said that the directions in the Division Bench judgment stood effaced on such reservation being made. The Division Bench judgment was on 29.03.2011. The order of the Hon'ble Supreme Court in the SLP was dated 24.04.2012, after about a year. The subject matter related back to the year 2006. The liberty granted to make an application under Rule 15A would only have been on the impression that there was an application for permit; which if issued could be extended or renewed under Rule 15A. ## **W.P.(C) No. 16368/2013** **-16-** 13. Rule 15A only permits extension or renewal of permits already issued and only if such extension or renewal was possible, could the consideration be made untrammeled by the observations of the Division Bench. Based on the reservation it cannot be held that the 3[rd] respondent was permitted to carry on the construction on the strength of the NOC issued by the Panchayat, in which event there would definitely have been interference caused to the Division Bench judgment. 14. The 3[rd] respondent cannot play hide and seek with the Court and the contentions raised are mutually destructive. The 3[rd] respondent, at the first instance, before this Court, took up a contention that at the time of issuance of NOC, the building rules were not applicable to the Panchayat areas. The then local authority having issued an NOC, they had a vested right to commence and continue the construction, despite the ## **W.P.(C) No. 16368/2013** **-17-** building rules having been made applicable subsequently was the claim raised. The Division Bench negatived such plea and also found that since the 3[rd] respondent had not filed an application under the building rules on it being enforced, the 3[rd] respondent cannot even seek for the FAR, as applicable at the time of enforcement of the Rules. The Division Bench directed the 3[rd] respondent to make a fresh application and the same was directed to be considered in accordance with the provisions of the Rules, as it exists on the date of application. The Hon'ble Supreme Court refused to interfere with the said findings and directions in the Special Leave filed. Presumably on the request made by the 3[rd] respondent before the Hon'ble Supreme Court, they were permitted to seek for an extension of permit under Rule 15A. The Court obviously was not informed that there was in fact no ## **W.P.(C) No. 16368/2013** **-18-** permit issued, which could be extended or renewed under Rule15A. The reservation could have been availed of only if there was a right on the 3[rd] respondent to invoke Rule 15A. 15. When no permit was issued under the KMBR 1999 there is no question of an application under Rule 15A. The attempt of the 3[rd] respondent is to say that an NOC issued prior to the enforcement of KMBR 1999, has to be renewed under Rule 15A of the rules. The primary fallacy is in the fact that there is no validity period prescribed for a NOC. The NOC itself is of no consequence since the claim of vested right, based on that document, raised by the 3[rd] respondent, was negatived by the Division Bench which decision has acquired finality. Sub-Rule (9) of Rule 15A, specifically speaks of a development permit or building permit issued before or after the commencement of the KMBR ## **W.P.(C) No. 16368/2013** **-19-** 1999 or under the Kerala Building Rules, 1984 ('KBR 1984' for short); which is not issued to or even applied for by, the 3[rd] respondent. The sub-rule also includes the orders of the Government or District Collector granting exemption from the rule provisions, which also the 3[rd] respondent is not in possession of. It does not include a NOC which was granted by the Panchayat, prior to the enforcement of the KMBR 1999. The NOC, at the risk of repetition, is no permit since a permit would be issued on the basis of the sanctioned plan, which has to comply with the provisions of the building rules. 16. Then, again, the 3[rd] respondent having been granted the remedy of filing an application by the Division Bench, did not do so for about a year, when the matter was pending before the Hon'ble Supreme Court. The Hon'ble Supreme Court rejected the SLP by order ## **W.P.(C) No. 16368/2013** **-20-** dated 29.03.2011. An application is said to have been moved before the Municipality, as produced at Ext.R3 (k) (Ext.P18) on 27.06.2012. By Ext.R3(k), the 3[rd] respondent sought for renewal of the NOC. It was submitted by the 3[rd] respondent in Ext.R3(k) that the NOC was issued on an application which was filed along with site plan, section drawings, floor plans etc. But, however, the fact remains that there was no sanction of the plan or the drawings. The NOC issued at Ext.R3(a) also specifically indicated the Panchayat having no objection in the construction being carried out, subject to the condition of 3 meters set back being left from the boundary adjacent to PWD roads, as provided in Section 220(b) of the Kerala Panchayat Raj Act, 1994. The NOC was so issued since the KBR 1984 were not enforced within the Panchayat area. There is also no validity period prescribed for Ext.R3(a). ## **W.P.(C) No. 16368/2013** **-21-** 17. The contentions raised in Ext.R3(k) was earlier raised before the Division Bench and negatived. Under guise of a liberty granted to the 3[rd] respondent to file an application, under Rule 15A, the 3[rd] respondent sought for extension of an NOC, which had no validity period, which was not issued under the building rules and which was not supported by any sanctioned or approved plan. A month thereafter the 3[rd] respondent approached the Government with Ext.R3(l). Again, the contentions which were negatived by the Division Bench of this Court were reiterated in Ext.R3(l). The 3[rd] respondent prayed for permitting the construction with FAR as applicable in the year 2007 and expressed its willingness to pay the permit fee as of 2007 under the KMBR 1999. This contention was specifically negatived by the Division Bench of this Court. The direction of the Hon'ble Supreme Court to consider the extension ## **W.P.(C) No. 16368/2013** **-22-** application under Rule 15A untrammeled by the observations of the Division Bench, was confined to an extension or renewal of a valid permit, which had expired. It did not extend to the manner in which the application for permit has to be considered and the FAR applicable, which was directed by the Division Bench of this Court to be based on the provisions of KMBR 1999 as existing then, which decision was upheld by the Apex Court. 18. The decisions placed on record by the petitioners and the respondent Municipality are quite relevant in this context. **M/s Chingleput Bottlers** deprecated the practice of the High Court having issued a writ of mandamus directing the Commissioner to grant a license without the prior approval of the State Government as enjoined by the applicable rules. The High Court was stated to have exceeded its jurisdiction ## **W.P.(C) No. 16368/2013** **-23-** even when a specific plea as to the requirement of the prior approval of the State Government having not been raised before it. It was held that the High Court ought not to have short circuited the whole procedure upon a wrongful assumption of its powers. The other decisions, in various contexts, also were instances when the original authority had failed to exercise the power conferred on it or had acted under the dictate of another. 19. In **Anirudhsinhji** the accused were booked under the TADA; without the prior approval of The District Superintendent of Police, for recording an information under the Act, as required under the statute. The DSP had in fact sought the approval of the Government; which was received. The Court found that neither could the DSP have abdicated his powers nor did the Government apply its mind in considering the ## **W.P.(C) No. 16368/2013** **-24-** request made. **Saji T.M.** is a case in which the Directors discretion to sanction posts in a School was found to be not liable for interference by the Government. **Sreedharan** and **Roy** were cases in which the powers to be exercised by the Secretary under the Kerala Panchayath Raj Act, 1994 was so exercised on dictation by the Council and a SubCommittee, appointed by the Council; which orders were set aside and the Secretary directed to consider the issue independently. The Government under Section 61 of the Kerala Municipality Act, 1994 ('Act' for short) could not have usurped the powers of the original authority, which was conferred with the power to consider and issue building permits. 20. The learned Senior Counsel appearing for the 3[rd] respondent submits that the 3[rd] respondent had approached the Government under Section 61 of the ## **W.P.(C) No. 16368/2013** **-25-** Act only since the Municipality had failed to consider their application under Rule 15A for more than a month. Even if the Government could have exercised its supervisory powers, it should have been confined to directing the Municipality to pass orders on Ext.R3(k). The Government, it is regrettable to state, have gone over board in passing Ext.R3(m), which has to be found to be totally without jurisdiction; against the specific directions of the Division Bench, as confirmed by the Hon'ble Supreme Court and based on irrelevant and extraneous considerations. The Government, by Ext.R3 (m), directed the Secretary, Thrikkakara Municipality to consider the application filed by the 3[rd] respondent, which, by itself, cannot be faulted, but, went ahead and directed renewal of the NOC of permit for a further period of three years, which was not a permissible exercise under the Rules, by the Government and again ## **W.P.(C) No. 16368/2013** **-26-** not possible of compliance for reason of there being no building permit at all issued with a specific validity period. Ext.R3(m) hence, would stand set aside. 21. The learned Senior Counsel appearing for the petitioners have a further submission that if at all the authority/authorities considered the application filed by the 3[rd] respondent, then a date of hearing ought to have been fixed and a notice issued to the petitioners. As submitted by the contesting respondent, it cannot be said that Ext.R3(k) was not notified to the petitioners since they have produced it as Ext.P18, but a further application before the Government also ought to have been notified to the petitioners. The Government, having noticed the order of the Hon'ble Supreme Court, ought to have then fixed a date and issued notice to the petitioners, affording them with a reasonable opportunity of hearing. The consideration made by the ## **W.P.(C) No. 16368/2013** **-27-** Government is, hence, in violation of the procedure prescribed by the Hon'ble Supreme Court. If that was the only defect, then, this Court would have definitely remanded the matter to the Government. However, this Court has found that the Government had acted without jurisdiction in passing Ext.R3(m). The 3[rd] respondent did not have a right to move for extension under the Statute, since there was no permit issued, which alone could be extended. Hence, a prayer for remand is not open to the 3[rd] respondent. 22. Though liberty was granted under Rule 15A by the Hon'ble Supreme Court, the facts indicate that there is no reason why the 3[rd] respondent should ask for an extension or renewal since there was no building permit issued with a specific validity period. The NOC issued, though styled as a building permit, was already held as creating no vested right on the 3[rd] respondent ## **W.P.(C) No. 16368/2013** **-28-** and was found to be not a building permit issued under the KMBR 1999 or the KBR 1984 enabling an extension under Rule 15A. The 3[rd] respondent having not complied with the specific directions in the Division Bench judgment of this Court, the matter should have rested there and the construction made on the basis of an interim order issued by the learned Single Judge at the stage of pendency of the writ petition would then be in peril. But it has been stated by the learned Senior Counsel for the 3[rd] respondent that already the purchasers had been inducted and on the basis of the provisional Occupancy Certificate issued as also the numbering made of the various apartments, there are people residing there. This Court cannot shut its eyes to the injury and distress that would be visited on such innocent purchasers, many of whom, would have invested their life savings to provide themselves with a ## **W.P.(C) No. 16368/2013** **-29-** shelter over their heads. All the same the attempt of the 3[rd] respondent to subvert the due process of law cannot be ignored. In such circumstances, this Court would direct an application to be filed in accordance with the provisions of the KMBR 1999, as it existed on the date of the Division Bench judgment of this Court, i.e on 29.03.2011, with applicable fees as on that date. The application for building permit shall be considered and the permit granted as on 2011. The validiity period will be for the period as specified in the KMBR 1999, as it existed in 2011. The 3[rd] respondent would also have to file a further application under Rule 15A with appropriate fees, if the building had not been granted the occupancy certificate (provisional on orders issued in the earlier litigation) before the validity period. On extension of such period, the Municipality shall inspect the premises and ensure that the building constructed ## **W.P.(C) No. 16368/2013** **-30-** is in accordance with the sanctioned plan and in accordance with the KMBR 1999. Any violation from the sanctioned plan would have to be regularised and any violation from the provisions of the KMBR 1999 would have to be rectified. The application for building permit along with the plan and drawings of the existing building shall be submitted with a period of one month from today. The Municipality shall consider the same and issue orders within 30 days from the date of filing of application. The renewal application shall be filed after the modifications or rectification suggested, has been complied with. 23. After dictation of the judgment, the learned Counsel appearing for the 3[rd] respondent submitted before this Court that there is already an application filed for building permit and the same is produced by an additional affidavit filed, after the hearing was ## **W.P.(C) No. 16368/2013** **-31-** concluded in the matter. This Court, hence, posted the matter as 'to be spoken to' on 08.12.2016. An affidavit dated 05.12.2016 has been filed, producing additional documents. Exhibit R3(p) is a list of documents, enclosing the NOC styled as a building permit/NOC and the site plans of the various floors as also the different sanctions from the various authorities, required under the statutory rules. Exhibit R3(q) is a receipt of payment of the fees for permit renewal. Exhibit R3(v) is an Occupancy Certificate issued by the Municipal Engineer on completion of Tower A and the others, various acknowledgments of registered communications issued to the petitioner. This Court is unable to comprehend as to how the said documents would improve the case of the 3[rd] respondent. 24. It has already been held by this Court that the NOC issued by the erstwhile Panchayath is not a ## **W.P.(C) No. 16368/2013** **-32-** building permit and the Division Bench of this Court, found the NOC not creating any vested right on the 3[rd] respondent to carry out a construction after the KMBR,1999 was made applicable. Yet again, the mere production of the plan for the building would not substitute the need for an application under the KMBR,1999. The requirement to file an application for building permit is available in the rules under Rule 7, which has to be made in writing in the form available in Appendix A together with plans and statements in duplicate and documents to prove ownership of land, payment of application fee along with copy of the certificate of registration of the designer of the building who has prepared and signed the plans etc:. The application hence has to be in the manner prescribed under the rules and the consideration would also be as provided under the rules. Exhibit R3(p) cannot be a ## **W.P.(C) No. 16368/2013** **-33-** substitute to an application as prescribed under the rules. 25. However, in this context it has to be noticed that there were a number of other cases posted before this Court, wherein the very same Municipality was the respondent; in which an identical situation of issuance of NOC and commencement of construction and continuance of the same on interim orders issued came up for final hearing. The writ petitions were those numbered as W. P. (C) Nos: 37363/2007, 3367/2007 and 38058/2007. This Court, unfortunately, was not apprised of the decision in **Meethian Kunju** , despite the same Municipality having been involved. This Court relied on the decision in **Mather Projects (P) Ltd V. Government of Kerala - 2009 (4) KLT 986** which was also considered by **Meethian Kunju,** and distinguished. This Court directed the constructions to ## **W.P.(C) No. 16368/2013** **-34-** be regularised on the basis of the circulars, which in **Meethian Kunju** was found to be executive instructions, inconsistent with the law as found in the building rules. Though the decision would have been otherwise, if **Meethian Kunju** was pointed out to the Court, the only concession therein conceded to the petitioners was the relaxation in FAR. It is a matter of little consolation, to this Court, which rendered final decision therein that the FAR, though at the time of coming into force of the building rules, was 2.5, which has now been enhanced to 4. Even if the petitioners therein were directed to make applications on the basis of the FAR as available in the rules at the time of its enforcement; the subsequent enhancement of FAR would have enabled a further application for permit at the enhanced FAR and, at worst, a regularisation application. Be that as it may; it cannot be said that ## **W.P.(C) No. 16368/2013** **-35-** there could, at any event, be a different conclusion arrived at in the present case; for reason of the parties being regulated by the directions in the decision of the Division Bench, in the earlier round. The Writ Petition is allowed, setting aside Ext.P19. No Costs. Sd/K.VINOD CHANDRAN, JUDGE jjj 5/12/16