High Court of KeralaSingle Judge2019-12-10Disposed of; the Court disposed of the writ pet...

Rajani Nalin Sambath Kanji Morarji v. Kozhikode Corporation

Case / Petition Number:WP(C) No.6850 OF 2011(E)

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: N. Nagareesh
Judgment Date: 2019-12-10
Court Decision / Holding: The writ petition is disposed of by upholding the Tribunal’s reasoning to the extent it directed consideration of the original application, but the direction to file a fresh proper application is set aside. The respondents are directed to consider the application originally submitted (14.12.2007) in accordance with law, after giving the petitioner an opportunity to cure defects, if any, and to take a decision within three months from receipt of a copy of this judgment. The decision should reflect the Rules in force as applicable and consider the master plan changes up to 2017.
Final Disposition: Disposed of; the Court disposed of the writ petition by directing consideration of the original application under law with an opportunity to cure defects, and a decision to be made within three months, incorporating current rules and master plan considerations.

Parties to the Case

Appellants / Petitioners

Rajani Nalin Sambath Kanji Morarji

Respondents

Kozhikode Corporation represented by its Secretary
The Secretary Kozhikode Corporation

Legal Representation & Advocates

Counsels for Petitioners

• Sri Anil Thomas (T)
• Smt. K.V. Rashmi

Counsels for Respondents

• Sri K.D. Babu, SC, Kozhikode Corporation

Case Synopsis & Summary

This writ petition challenges Ext.P10, which rejected the applicant’s building permit dated 14.12.2007 with liberty to file a fresh application. The petitioner argue that due to delay in processing the application and with no timely order by the Municipal Council, a deemed permit should operate, allowing the petitioner to proceed with construction. The applicant had initially submitted the building permit application on 14.12.2007 (Ext.P1) and re-submitted after curing defects on 25.09.2008 (Ext.P2). Ext.P4 (15.05.2010) again rejected the application on grounds that the land lies in an industrial area and that the Kerala Municipality Building Rules (KMBR), 1999, as amended by the 16.12.2009 circular, would apply to render the proposal non-compliant. The Tribunal for Local Self Government Institutions (LSGI) set aside Ext.P4 and directed fresh orders within a month, but subsequently Ext.P7 (30.09.2010) was again rejected on the grounding that current Building Rules and the 2009 Government Circular apply, limiting consideration to rules prevailing now. The petitioner’s appeal (No.938/2010) was allowed in part by the Tribunal, which directed a fresh proper application. The petitioner contends the Tribunal’s part order is illegal, while respondents rely on Asset Homes and Ramesh T.K. to insist on current-rule applicability. The High Court ultimately disposed of the petition, holding that the original application must be considered under law, with an opportunity to cure defects, and a decision to be made within three months, taking into account master plan changes (2017).

Provisions of Law Cited

Kerala Municipalities Act, Sec. 393Kerala Municipality Building Rules, 1999 (as amended by Circular dated 16.12.2009)

Legal Doctrines & Maxims

Deeming provision in the Kerala Municipalities Act
Merits to be considered as per the Rules prevailing on the date of consideration (as discussed in judgment)

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioner contends that the deeming provision under the Municipalities Act should apply to grant a valid building permit when the Corporation fails to decide timely. The applicant also argues that the decision should be guided by the Building Rules in force on the date of submission and that subsequent amendments (including master plan changes) should not automatically defeat the already-submitted application. The Tribunal’s direction to file a fresh proper application, and Ext.P7’s reliance on current Rules should not negate the original submission and its deeming consequences.

Contentions of Respondents

The respondents submit that the correct regime is the Rules in force at the time of consideration, supported by the 2009 Circular and the G.O. 9877/RD2/2010/LSGD; the land is in an industrial zone per the DTP Beach Area plan, and residential construction is not permitted under current Rules. They rely on Asset Homes Private Ltd. and Ramesh T.K. to argue that the merits should be judged by the Rules as on the date of consideration, not the date of submission, and that the 2017 master plan further constrains the applicant.

Cited Precedents (3)

Case Name	Citation	Treatment	Explanation
Asset Homes Private Ltd. v. State of Kerala	2011 (2) KLT 1	Distinguished	Although relied upon by the respondents to anchor the rule that merits are to be considered as of the date of consideration, the High Court distinguished this reasoning due to the deeming provision and consequential consequences of the original submission date.
Ramesh T.K. v. State of Kerala and others	2019 (1) KLT SN 107	Distinguished	Similarly cited to support merits being judged at the time of consideration, but court did not accept it as controlling, emphasizing the deeming provision and original submission date.
Howrah Municipal Corporation v. Ganges Rope Co. Ltd. and others	[(2004) 1 SCC 663]	Mentioned Only	Cited to illustrate a principle about restrictions on grants; not treated as binding or controlling authority in the present context.

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Extracted Judgment Text

Exact text extracted from official judgment records.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE N.NAGARESH** **TUESDAY, THE 10TH DAY OF DECEMBER 2019 / 19TH AGRAHAYANA, 1941** ## **WP(C).No.6850 OF 2011(E)** ## **PETITIONER:** **RAJANI NALIN SAMBATH KANJI MORARJI, 1/108, WEST HILL,, CALICUT-673 005.** **BY ADVS. SRI.ANIL THOMAS(T) SMT.K.V.RASHMI** ## **RESPONDENTS:** **1 KOZHIKODE CORPORATION REPRESENTED BY ITS SECRETARY,, KOZHIKODE CORPORATION, KOZHIKODE,, PIN-673 005.** **2 THE SECRETARY KOZHIKODE CORPORATION,, KOZHIKODE, PIN-673 005.** **BY ADV. SRI.K.D.BABU, SC, KOZHIKODE CORPORATION** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 10.12.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C) No.6850 OF 2011(E)** **2** ## **J U D G M E N T** ~ ~ ~ ~ ~ ~ ~ ~ ~ _**Dated this the 10[th] day of December, 2019**_ The writ petitioner seeks to quash Ext.P10 to the extent it rejected her application for building permit dated 14.12.2007 with liberty to file a fresh application before the Corporation. The petitioner further seeks to declare that in view of the delay in passing orders on the application for building permit dated 14.12.2007, which was re-submitted by the petitioner after curing defects on 25.09.2008 and in view of the fact that no order was passed in time on the request dated 03.11.2008 by the Municipal Council, a permit was deemed to have been issued in her favour and that the petitioner can proceed to execute the subject matter work. 2. The petitioner submitted an application for permit to construct a residential-cum-commercial building, to the 1[st] **WP(C) No.6850 OF 2011(E)** **3** respondent-Corporation on 14.12.2007. The said application for building permit was rejected by the Corporation as per Ext.P1 citing defects in the plan. Subsequently, the application was re-submitted after curing the defect, as per Ext.P2. The re-submission of the application was on 25.09.2008. The Corporation did not act on Ext.P2, contends the petitioner. Thereupon, the petitioner sent Ext.P3 letter to the 1[st] respondent intimating the 1[st] respondent that since her application for building permit is not decided, the deeming provision in the Municipalities Act will apply and the petitioner will have deemed permit. 3. Seven months thereafter, the respondents issued Ext.P4 order dated 15.05.2010 rejecting the application for building permit. In Ext.P4, it was stated that the land in question, where the petitioner proposed to make the construction, is situated in an industrial area and hence, construction of residential apartment building is not permissible. In Ext.P4, it was further stated that the Kerala Municipality Building Rules, 1999, as amended by Circular **WP(C) No.6850 OF 2011(E)** **4** dated 16.12.2009, will apply to the petitioner's proposed construction and in that view of the matter, the petitioner's proposal violates Rules 31, 32 and 34. 4. Aggrieved by Ext.P4 rejection order, the petitioner filed appeal No.489/2010 before the Tribunal for Local Self Government Institutions. The Tribunal found merit in the appeal filed by the petitioner and consequently, set aside the impugned Ext.P4 order. The Secretary of the Corporation was directed to pass fresh proper orders in the application for building permit submitted by the petitioner, as per law, within one month. 5. The respondent-Corporation again rejected the building permit application of the petitioner as per Ext.P7, contends the learned counsel for the petitioner. In Ext.P7 order, the same reasons were given for rejection. Aggrieved by Ext.P7 rejection dated 30.09.2010, the petitioner preferred Ext.P8 Appeal No.938/2010 before the Tribunal for LSGI. The Tribunal, after hearing the appeal, categorically held that the rejection of the petitioner's application cannot be **WP(C) No.6850 OF 2011(E)** **5** sustained. The Tribunal set aside Ext.P7 order of the Corporation. However, at the same time, the Tribunal held that the application for building permit submitted by the petitioner on 14.12.2007 is rejected with liberty to file fresh proper application. The petitioner contends that the order of the Tribunal to the extent it rejects the application of the petitioner and directs the petitioner to file fresh proper application, is illegal and unsustainable. The respondents are bound to consider the application for building permit already submitted by the petitioner. The learned counsel for the petitioner further submits that the application is liable to be considered in the context of the Rules prevailing on the date of submission of the application and subsequent changes/amendments to Rules cannot be imported to reject the application of the petitioner. 6. The 2[nd] respondent contested the writ petition filing counter affidavit. The 2[nd] respondent stated that as per the Kerala Municipality Building Rules and G.O. No.9877/RD2/2010/LSGD dated 08.09.2010, the application **WP(C) No.6850 OF 2011(E)** **6** submitted by the petitioner can be scrutinised only as per the Rules as existing now and the application has to be in terms of the current Rules. According to the 2[nd] respondent, the petitioner has submitted application for commercial-cumresidential building in an area which has been earmarked as an industrial zone, as per the approved DTP Scheme for Beach Area. Since the construction proposed by the petitioner does not satisfy the present Building Rules and since the DTP Scheme approved for Beach Area does not permit residential building in the area, the application for building permit submitted by the petitioner cannot be granted as such. The Standing Counsel for the respondentCorporation relied on the judgments of this Court in _**Asset Homes Private Ltd. v. State of Kerala** [2011 (2) KLT 1]_ and _**Ramesh T.K. v. State of Kerala and others** [2019 (1) KLT SN 107]_ to contend that the Rule that is to be taken into account in the matter of grant of building permit is the Rule when the application submitted by the petitioner is granted, and not the date on which the application was submitted by **WP(C) No.6850 OF 2011(E)** **7** the petitioner. 7. I have heard the learned counsel for the petitioner and Standing Counsel appearing for the respondents. 8. The petitioner had submitted the application for building permit for construction of residential-cum-commercial building as early as on 14.12.2007. Initially, the respondents rejected the application as per Ext.P1 giving three reasons. The petitioner re-submitted her application on 25.09.2008 as per Ext.P2. The said application was again rejected on 15.05.2010, as per Ext.P4. The Tribunal for LSGI, as per Ext.P5 order, found that the rejection of the petitioner's application for building permit is not sustainable and directed the Secretary of the Corporation to pass fresh orders. 9. However, the respondent-Corporation again rejected the application submitted by the petitioner on 30.09.2010 as per Ext.P7. The reason for rejection given in Ext.P7 is that the judgment of the Apex Court in _**Howrah Municipal Corporation and others v. Ganges Rope Co. Ltd. and others** [(2004) 1 SCC 663]_ disables the **WP(C) No.6850 OF 2011(E)** **8** respondents to grant building permit. The respondents further stated that it is the Building Rules as on date which will apply and, therefore, the application can be processed only in the light of 2009 Circular issued by the Government of Kerala. The legality of Ext.P7 was considered by the Tribunal for LSGI in Appeal No.938/2010. The Tribunal rightly found that the respondents have not made clear how there is violations of Rules 31, 32 and 34 with respect to the proposed construction. Therefore, Ext.P7 order of the Corporation is not a proper speaking order specifically and clearly stating any sustainable grounds as specified in Section 393 of the Kerala Municipalities Act as reasons for rejection of application for building permit. The Appeal was accordingly allowed in part. The Tribunal set aside Ext.P7 order. However, at the same time, the Tribunal rejected the application for building permit submitted by the petitioner on 14.12.2007 with liberty to file fresh proper application. 10. It is to be noted that the petitioner had originally submitted the said application dated 14.12.2007 which was **WP(C) No.6850 OF 2011(E)** **9** initially rejected by the Corporation. The application was re-submitted curing the defects. Though the Corporation rejected the application again as per Ext.P4 on 15.05.2010, the rejection was not for the reason that the application was incomplete. The reasons projected by the Corporation were different in Ext.P4. By Ext.P5, the Tribunal itself set aside Ext.P4 rejection by the Corporation and remitted the application back to the Corporation. In the said circumstances, this Court is of the opinion that the order of the Tribunal in rejecting the application submitted by the petitioner on 14.12.2007 and the direction to file a fresh proper application, is unjustified. If at all there is any more defect in the application, the 1[st] respondent ought to have given opportunity to the petitioner to cure the defects. The date of original submission of an application is of some consequence in the matter, in view of the deeming provision contained in the Act. 11. The learned Standing Counsel for the respondents, relying on the judgments in _**Asset Homes Private Ltd.**_ **WP(C) No.6850 OF 2011(E)** **10** _(supra)_ and _**Ramesh T.K.** (supra)_ , contended that even if the application was submitted by the petitioner on 14.12.2007, the merits of the application can be considered only as on the date of consideration of the application by the Corporation. There cannot be any quarrel on that matter in view of the Division Bench judgment of this Court in _**Asset Homes Private Ltd.** (supra)_ . The Standing Counsel for the respondents would further submit that a new master plan has come into force in 2017 in respect of the area in question and the application of the petitioner for building permit will have to be considered in the backdrop of the master plan also. In such circumstances, this writ petition is disposed of upholding the order of the Tribunal for LSGI setting aside Ext.P7 order. However, the direction in the order of the Tribunal rejecting the application of the petitioner is set aside. The respondents shall consider the application originally filed by the petitioner, in accordance with law, after granting the petitioner an opportunity to cure defects, if any, still subsisting. A decision on the application for building permit **WP(C) No.6850 OF 2011(E)** **11** shall be taken by the respondents, as expeditiously as possible, at any rate, within a period of three months from the date of receipt of a copy of this judgment. Sd/- **N. NAGARESH, JUDGE** aks/10.12.2019 **WP(C) No.6850 OF 2011(E)** **12** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF ORDER OF THE 2ND RESPONDENT DATED 18.07.2008.** - **EXHIBIT P2 TRUE COPY OF THE COVERING LETTER WITH WHICH THE APPLICATION WAS RE-SUBMITTED BY PETITIONER DATED 25.09.2008.** **EXHIBIT P3 TRUE COPY OF REQUEST MADE BY PETITIONER TO THE MUNICIPAL COUNCIL DATED 03.11.2008.** **EXHIBIT P4 TRUE COPY OF ORDER OF 2ND RESPONDENT DATED 15.05.2010. EXHIBIT P5 TRUE COPY OF ORDER IN APPEAL 489/2010 BY THE TRIBUNAL FOR LSGI DATED 07.07.2010.** - **EXHIBIT P6 TRUE COPY OF LEGAL OPINION OBTAINED BY THE CORPORATION FROM THEIR LEGAL ADVISOR DATED 23.09.2010.** **EXHIBIT P6(a) TRUE TYPED COPY OF EXT.P6 LEGAL OPINION OBTAINED BY THE CORPORATION FROM THEIR LEGAL ADVISOR DATED 23.09.2010.** - **EXHIBIT P7 TRUE COPY OF ORDER OF THE 2ND RESPONDENT DATED 30.09.2O10.** - **EXHIBIT P8 TRUE COPY OF APPEAL MEMORANDUM IN APPEAL NO:938/2010 BEFORE TRIBUNAL FOR LSGI DATED 05.10.2010.** - **EXHIBIT P9: TRUE COPY OF WRITTEN STATEMENT FILED BY THE CORPORTION BEFORE THE TRIBUNAL FOR LSGI IN APPEAL NO.938/2010 DATED NOV,2010.** - **EXHIBIT P10: TRUE COPY OF THE ORDER IN APPEAL NO.938/2010 DATED 30.11.2010.** **EXHIBIT P11 TRUE COPY OF THE LETTER DATED** **WP(C) No.6850 OF 2011(E)** ## **13** **01.01.2011. EXHIBIT P11(a) TRUE COPY OF THE RECEIPT DATED 01.01.2011. EXHIBIT P12 TRUE COPY OF THE DECISION NO.91 OF THE KOZHIKODE CORPORATION DATED 12.07.2011. EXHIBIT P13 TRUE COPY OF THE NOTICE NO.TP2/87387/07 DATED 09.03.2011.**