M/S PURAVANKARA PROJECTS LTD. v. State of Kerala and The Corporation of Cochin

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE C.K.ABDUL REHIM** **WEDNESDAY, THE 19TH DAY OF JUNE 2013/29TH JYAISHTA 1935** ## **WP(C).No. 37531 of 2010 (N)** **----------------------------** ## **PETITIONER(S):** **--------------------------** ## **1. M/S.PURAVANKARA PROJECTS LTD.,** **A COMPANY INCORPORATED UNDER THE COMPANIES ACT,1956, AND HAVING ITS REGISTERED OFFICE AT NO.130/1, ULSOOR ROAD, BANGALORE - 560 042 AND ITS BRANCH OFFICE AT G-261, PANAMPILLY AVENUE, KOCHI - 682 036.** ## **2. NANI R. CHOKSEY,** **AGED ABOUT 59 YEARS, S/O. MR. RUSI CHOKSEY AT NO.130/1, ULSOOR ROAD, BANGALORE - 560 042.** **BY SMT. SUMATHI DANDAPANI, SENIOR ADVOCATE BY ADV. DR. RAJEEV DHAVAN BY ADV .SRI.P.R.VENKATESH SRI.JOSHUA H.SAMUEL** ## **RESPONDENT(S):** **----------------------------** ## **1. THE STATE OF KERALA,REPRESENTED BY THE** **SECRETARY TO GOVERNMENT, LOCAL SELF GOVERNMENT DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM - 01.** ## **2. THE CORPORATION OF COCHIN,** **CORPORATION OFFICE, P.B. NO. 1016, ERNAKULAM,M COCHIN - 682 011, REPRESENTED BY ITS SECRETARY.** **R1 BY SPL.GOVERNMENT PLEADER SRI.P.JAYASANKAR R2 BY ADV. SRI.P.K.SOYUZ,SC,COCHIN CORPN. R2 BY ADV. SRI.M.K.CHANDRAMOHAN DAS,SC,COCHIN CORPN.** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 03/04/2013, THE COURT ON 19/06/2013 DELIVERED THE FOLLOWING:** **Kss** ## **WPC.NO.37531/2010 (N)** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** - **P1: COPY OF APPLICATION FILED ON 7/05/2008 BY THE FIRST PETITIONER COMPANY.** - **P2: COPY OF THE BUILDING INSPECTOR'S REPORTS SUBMITTED ON 3/06/2008 CONTAINED IN OFFICE NOTE OBTAINED BY THE FIRST PETITIONER COMPANY UNDER RTI ACT.** - **P3 SERIES - COPY OF NOC OBTAINED FROM AVIATION DEPARTMENT AND FIRE DEPARTMENT AND SUBMITTED ON 3/06/23006 BY THE FIRST PETITIONER COMPANY.** - **P4: COPY OF OFFICE NOTING MAINTAINED BY THE SECOND RESPONDENT WITH REGARD TO THE APPLICATION OF THE FIRST PETITIONER DTD. 7/05/2008.** - **P5: COPY OF LETTER DTD. 6/03/2008 FROM THE 2ND RESPONDENT TO THE FIRST PETITIONER.** - **P6(A): COPY OF LETTER DTD. 5/06/2007 TO THE DY.CHIEF ENGINEER,KSEB FROM THE PETITIONER.** - **P6(B): COPY OF LETTER DTD. 18/08/2007 TO EXECUTIVE ENGINEER, KSEB FROM THE PETITIONER.** - **P6(C): COPY OF LETTER DTD. 31/03/2008 FROM THE KSEB TO CHAIRMAN, COCHIN PORT TRUST FROM THE PETITIONER.** - **P6(D): COPY OF LETTER DTD. 9/01/2008 TO CHAIRMAN, COCHIN PORT TRUST FROM THE PETITIONER.** - **P6(E): COPY OF LETTER DTD. 16/01/2008 TO DY.CHIEF ENGINEER, KSEB FROM THE PETITIONER.** - **P7: COPY OF THE LETTER FROM THE FIRST PETITIONER COMPANY DTD. 26/06/2009 TO THE 2ND RESPONDENT.** - **P8: COPY OF LETTER DTD. 17/07/2009 FROM THE 2ND RESPONDENT TO THE FIRST PETITIONER COMPANY.** - **P9(A): COPY OF LETTER FROM THE FIRST PETITIONER DTD. 31/10/2009 TO THE KSEB.** **P9(B): COPY OF REPLY DTD. 3/11/2009 FROM THE KSEB TO THE PETITIONER.** **Kss ..2/-** **..2....** ## **WPC.NO.37531/2010 (N)** - **P10: COPY OF LETTER DTD. 7/12/2009 TO THE 2ND RESPONDENT BY THE PETITIONER.** - **P11: COPY OF G.O.(MS) NO.249/2009/LSGD DTD. 16/12/2009.** - **P12(A): COPY OF REPRESENTATION DTD. 19/05/2010 ADDRESSED TO THE RESPONDENTS BY THE PETITIONER.** - **P12(B): COPY OF REPRESENTATION DTD. 21/06/2010 ADDRESSED TO THE CHIEF TOWN PLANNER BY THE PETITIONER.** - **P13: COPY OF LETTER DTD. 14/06/2010 ALONGWITH ENCLOSURES OBTAINED BY FIRST PETITIONER UNDER RTI ACT WITH TRANSLATION.** - **P14: COPY OF LETTER NO.47329/RBI/2010/LSGD DTD. 28/07/2010 FROM FIRST RESPONDENT TO THE FIRST PETITIONER.** - **P15: COPY OF LETTER NO.MOP4/09/08 DTD. 15/09/2010 FROM FIRST RESPONDENT TO SECOND RESPONDENT.** - **P16: COPYOF REPRESENTATION DTD. 22/09/2011 FILED BY THE PETITIONER BEFORE THE HON'BLE MINISTER OF KERALA & PRINCIPAL SECRETARY.** ## **RESPONDENT'S EXHIBITS: N I L** **/TRUE COPY/** ## **P.S.TO JUDGE** **Kss** C.K.ABDUL REHIM,J. ------------------------------WP(C).NO. 37531 of 2010 --------------------------------Dated this the 19th day of June, 2013 JUDGMENT The first petitioner company had submitted an application before the 2[nd] respondent Corporation seeking permit for construction of a multi storied apartment complex in the property purchased by them in auction from the Goshree Island Development Authority(GIDA). The application was originally submitted on 7.5.2008. Subsequently a modified plan was submitted on 26.6.2009. It is evident that many shortfalls and modifications pointed out by the 2[nd] respondent Corporation and the Town Planning Department were rectified by the petitioners at different occasions. According to the petitioners, all the requisite formalities with respect to submission of application stood completed as on 7.12.2009. In the meanwhile, Government brought amendments to the Kerala Municipality Building Rules 1999 (KMBR for short), mainly to the extent of WP(C). 37531 /2010 2 reducing permissible Floor Area Ratio (FAR) for construction of multi storied buildings, with effect from 16.12.2009, as per Ext.P11. Request of the petitioner to consider the application on the basis of unamended provisions was declined by the State Government through Ext.P14. In Ext.P14 it is mentioned that the land in question was already exempted from the zoning regulations, but the petitioner could not satisfy the amended provisions of KMBR. Ext.P15 letter was issued by the 2[nd] respondent intimating the petitioner that the application has not been approved by the Chief Town Planner for the reason that the plan is not in accordance with the amended provisions of the KMBR, and it is in violation of the zoning regulations contained in the structural plan. It is challenging Ext.P14 and P15 that this writ petition is filed. 2. Contention of the petitioner is that they have completed all the requisite formalities with respect to submission of the application as on 7.12.2009 and hence the application ought to have been considered in accordance with the unamended provisions of KMBR, which only came into force subsequently. WP(C). 37531 /2010 3 But the legal position remains settled through decision of the Hon'ble Supreme Court in **Howrah Municipal Corporation and others vs. Ganges Rope Company Limited and others (2004 (1) SCC 663).** It is held that, provisions contained in the Howrah Municipal Corporation Act mandating consideration of application for building permit within a statutory period of 60 days, will not create any vested right on the applicants. The Building Rules or Regulation existing as on the date of sanctioning would govern the matter and not those existing on the date of application. No vested right on the basis of the unamended rules can be claimed, is the findings. A Division Bench of this court had followed the dictum in **Asset Homes** **Private Limited vs. State of Kerala (2011(1) KLT 257).** The same principle has been upheld in various other decisions also. 3. Learned Senior Counsel appearing for the petitioner made attempts to distinguish the factual situation raising contention based on completion of all the requisite formalities and on the basis of the deeming provision contained in the WP(C). 37531 /2010 4 Building Rules. But this court was not inclined to accept those contentions, as it is bound by the settled legal precedents. 4. Learned senior counsel appearing for the petitioners pointed out that KMBR has been further amended with effect from 1.2.2013, to the extent of restoring the original position with respect to FAR. Therefore it is submitted that the petitioner will be satisfied with a direction to the respondents to consider the pending application in view of the amended provisions. It is pointed out that the original application submitted on 7.5.2008 with modified plan submitted on 26.6.2009 was not rejected inspite of Ext.P15 letter. According to learned Senior counsel, the application now pending based on the modified plan is strictly in compliance with the amended provisions of KMBR, which came into effect on 1.2.2013. Therefore there is no impediments in considering the application and allowing the permit, is the submission. 5. Learned Standing Counsel appearing for the 2[nd] respondent pointed out that, even if the application is to be considered under the amended provisions of KMBR, the petitioner WP(C). 37531 /2010 5 has to remit the requisite permit fee as stipulated in the amended Rules. Learned senior counsel appearing on behalf of the petitioners undertook that they are ready and willing to pay the permit fee as per the amended provisions. 6. Considering the factual situations prevailing, I am of the view that relief to the extent of directing consideration of the application in accordance with the amended provisions of KMBR is justified. Learned senior counsel had pointed out that in view of the observations contained in Ext.P14 it is clear that there is already exemption from the zoning regulations under the structural plan. Ext.P13 letter is pointed out to show that the 2[nd] respondent had already taken a stand that there is no violation of any other provisions of the KMBR, except compliance of FAR. Since the original position regarding the FAR was restored by virtue of 2013 amendment, there is no impediment in granting the permit, is the contention. 7. Since the petitioner had expressed willingness to pay the permit fee under the amended provisions, it is for the 2[nd] respondent and the Town Planning Department to consider the WP(C). 37531 /2010 6 application in accordance with the amended provisions of KMBR, as it is existing as on the date of such consideration. Therefore, eventhough this court is not inclined to accept the challenges raised against Ext.P14 and P15, relief to the extent of directing fresh disposal of the permit application in view of the changed FAR under the amended provisions of KMBR can be granted. 8. In the result the writ petition is disposed of directing the 2[nd] respondent to consider and dispose of the application for building permit submitted by the petitioner on 7.5.2008 based on the modified plan submitted by them on 26.6.2009 dehors Ext,P14 and P15, under the amended provisions of the KMBR, which came into force as on 1.2.2013. Necessary steps for disposal of the application taking note of the observations contained hereinabove shall be taken at the earliest. At any rate the application shall be disposed of within a period of three months from the date of receipt of a copy of this judgment. 9. Needless to observe that the 1[st] respondent or any competent authority in the Town Planning Department shall take WP(C). 37531 /2010 7 necessary steps to grant clearance/approval without any delay, if the 2[nd] respondent forward the said application for any such clearance. C.K.ABDUL REHIM, JUDGE pmn/ WP(C). 37531 /2010 8