RFA Nos. 86 of 2012; RFA No. 211 of 2012; WP(C) Nos. 13106 of 2010 & 14854 of 2010, IN THE HIGH COURT OF KERALA AT ERNAKULAM

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE SATHISH NINAN** **WEDNESDAY, THE 9TH DAY OF OCTOBER 2019 / 17TH ASWINA, 1941** ## **RFA.No.86 OF 2012** **AGAINST THE JUDGMENT AND DECREE IN OS 648/2005 DATED 12-04-2011 OF III ADDITIONAL SUB COURT, ERNAKULAM** **-----** ## **APPELLANT/DEFENDANT:** **VINU KOSHY ABRAHAM, AGED 32,** **S/O.M.K.ABRAHAM, ENGINEER, RESIDING AT FLAT NO.10B4, A B M TOWERS, KADAVANTHRA, COCHIN 20** **BY ADVS. SRI.N.NANDAKUMARA MENON (SR.) SRI.P.K.MANOJKUMAR SRI.R.VENUGOPAL** ## **RESPONDENTS/DEFENDANTS:** - **1 A B M TOWERS RESIDENTS ASSOCIATION, A B M TOWERS, KADAVANTHRA, COCHIN -20, REP.BY ITS PRESIDENT.** **2 THE SECRETARY, A B M TOWERS RESIDENTS ASSOCIATION, A B M TOWERS, KADAVANTHRA, COCHIN-20.** **3 A B M BUILDERS (P) LTD., P.B.NO 2040, 12 G C D A, COMMERCIAL COMPLEX, KADAVANTHRA, COCHIN-20, REP. BY ITS MANAGING DIRECTOR.** **4 KERALA STATE ELECTRICITY BOARD, REP.BY ITS ASST.ENGINEER, ELECTRICAL SECTION, GIRINAGAR, COCHIN-20.** **RFA.No.86 OF 2012 -2-** **5** **BABU THOMAS, S/O. P.V.THOMAS, H B-77, PANAMPILLI NAGAR, COCHIN 20. R1-2 BY ADV. SRI.SANTHEEP ANKARATH R1-2 BY ADV. SRI.SUMODH MADHAVAN NAIR R1-2 BY ADV. SRI.S.SREEKUMAR (SR.) R3 BY ADV. SRI.P.B.KRISHNAN, R3 BY ADV. SRI.P.M.NEELAKANDAN R3 BY ADV. SRI.SABU GEORGE R3 BY ADV. SRI.P.B.SUBRAMANYAN R3 BY ADV. SRI.S.NITHIN ANCHAL R4 BY ADV. SRI.K.M.SATHYANATHA MENON,SC,KSEB R4 BY SRI.P.A.AHAMED, SC, KSEB R5 BY ADV. SMT.M.A.ZOHRA** **THIS REGULAR FIRST APPEAL HAVING BEEN FINALLY HEARD ON 01.10.2019, ALONG WITH WP(C).13106/2010(K), WP(C).14854/2010(F), RFA.211/2012, THE COURT ON 09.10.2019, DELIVERED THE FOLLOWING:** ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE SATHISH NINAN** **WEDNESDAY, THE 9TH DAY OF OCTOBER 2019 / 17TH ASWINA, 1941** ## **WP(C).No.13106 OF 2010** ## **PETITIONERS:** **1 M/S. ABM BUILDERS (P) LTD., KADAVANTHRA, COCHIN,REP.BY THE MANAGING DIRECTOR M.K.ABRAHAM.** **2 VINU KOSHY ABRAHAM, S/O.M.K.ABRAHAM, 10 B4,ABM TOWERS,KADAVANTHRA,COCHIN.** **3 M.K.ABRAHAM, AGED 61, S/O.M.G.KOSHY, ABM TOWERS,KADAVANTHRA,COCHIN.** **BY ADVS. SRI.N.NANDAKUMARA MENON (SR.) SRI.P.K.MANOJKUMAR SRI.R.VENUGOPAL** ## **RESPONDENTS:** - **1 THE SECRETARY, CORPORATION OF COCHIN, ERNAKULAM.** - **2 ABM TOWERS RESIDENTS ASSOCIATION, KADAVANTHRA,COCHIN,REP.BY ITS PRESIDENT, KADAVANTHRA.P.O,COCHIN.** **3 THE STATE OF KERALA, REP.BY THE SECRETARY TO THE GOVT.,LOCAL SELF GOVT.DEAPARTMENT, GOVT.SECRETARIAT,THIRUVANANTHAPURAM.** ## **R3 BY GOVERNMENT PLEADER SRI.P.M.SATHEESH** **R1 BY ADV. SRI.V.C.MADHAVANKUTTY** - **R2 BY ADV. SRI.SANTHEEP ANKARATH R1 BY ADV. SRI.S.RAMESH BABU SC.COCHIN CORPN. R2 BY ADV. SRI.P.K.SURESH KUMAR (SR.)** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 01.10.2019, ALONG WITH WP(C).14854/2010(F), RFA.211/2012, RFA.86/2012, THE COURT ON 09.10.2019 DELIVERED THE FOLLOWING:** ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE SATHISH NINAN** **WEDNESDAY, THE 9TH DAY OF OCTOBER 2019 / 17TH ASWINA, 1941** ## **WP(C).No.14854 OF 2010** **(FILED UNDER SECTION 8 OF THE KERALA HIGH COURTS ACT)** ## **PETITIONER:** **ABM CIVIL VENTURES PVT.LTD., HAVING ITS REGISTERED OFFICE AT CC NO.38/721/B5, ABM TOWER, KADAVANTHRA, KOCHI-20, REPRESENTED BY ITS MANAGING DIRECTOR, M.K.ABRAHAM, AGED 61 YEARS, S/O.M.G.KOSHI, ABM TOWERS, KADAVANTHRA, KOCHI-20.** **BY ADVS. SRI.A.BALAGOPALAN SRI.M.N.MANMADAN SRI.A.RAJAGOPALAN** ## **RESPONDENT:** **CORPORATION OF COCHIN,** **REP. BY ITS SECRETARY, OFFICE OF THE CORPORATION OF COCHIN, PARK AVENUE, KOCHI-11.** ## **R1 BY SMT.SAREENA GEORGE,SC,COCHIN CORPORATION** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 01.10.2019, ALONG WITH WP(C).13106/2010(K), RFA.211/2012, RFA.86/2012, THE COURT ON 09.10.2019 DELIVERED THE FOLLOWING:** ## IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT ## THE HONOURABLE MR. JUSTICE SATHISH NINAN WEDNESDAY, THE 9TH DAY OF OCTOBER 2019 / 17TH ASWINA, 1941 ## RFA.No.211 OF 2012 AGAINST THE JUDGMENT AND DECREE IN OS 648/2005 DATED 12-04-2011 OF III ADDITIONAL SUB COURT, ERNAKULAM ----- ## APPELLANT/(3RD DEFENDANT IN THE SUIT): ABM BUILDERS (P) LTD., P.B.NO.2040, 12 GCDA, COMMERCIAL COMPLEX, KADAVANTHRA, KOCHI682 020, REPRESENTED BY ITS MANAGING DIRECTOR. BY ADV. SRI.P.K.RAVISANKAR ## RESPONDENTS/(PLAINTIFF AND DEFENDANTS 1,2,4 AND 5 IN THE SUIT): - 1 VINU KOSHY ABRAHAM, S/O.M.K.ABRAHAM, ENGINEER, RESIDING AT FLAT NO.10B4, ABM TOWERS, KADAVANTHRA, KOCHI-682 020. - 2 ABM TOWERS RESIDENTS ASSOCIATION, ABM TOWERS, KADAVANTHRA, KOCHI-682 020, REPRESENTED BY ITS PRESIDENT MR.SIDHARTHA GOSWAMI. - 3 THE SECRETARY, ABM TOWERS RESIDENTS ASSOCIATION, ABM TOWERS, KADAVANTRA, KOCHI-682 020. - 4 KERALA STATE ELECTRICITY BOARD, REPRESENTED BY ITS ASSISTANT ENGINEER, ELECTRICAL SECTION, GIRINAGAR, KOCHI-682 020. - 5 BABU THOMAS, S/O.P.V.THOMAS, HB-77, PANAMPILLY NAGAR, KOCHI-20. R2 BY ADV. SRI.ARUN MATHEW VADAKKAN - R2-3 BY ADV. SRI.SANTHEEP ANKARATH - R3 BY ADV. ARUN MATHEW VADAKKAN R4 BY ADV. SC-STANDING COUNSEL FOR KSEB R5 BY ADV. SMT.M.A.ZOHRA THIS REGULAR FIRST APPEAL HAVING BEEN FINALLY HEARD ON 01.10.2019, ALONG WITH WP(C).13106/2010(K), WP(C).14854/2010(F), RFA.86/2012, THE COURT ON 09.10.2019 DELIVERED THE FOLLOWING: ## **SATHISH NINAN, J.** **= = = = = = = = = = = = = = = = = = RFA Nos.86 & 211 of 2012 & W.P.(C) Nos.13106 & 14854 of 2010 = = = = = = = = = = = = = = = = = = Dated this the 9[th] day of October, 2019** ## **JUDGMENT** The issue involved in these litigations relate to the construction of a multi-storeyed building, allegedly in violation of the Kerala Municipality Building Rules, 1999 and also the completion plan submitted before the Corporation. The violations relate to non-providing of “recreation area” and “car parking area”. The parties to the litigations are the builder, owner of the land, the apartment owners' association, the son of the Managing Director of the builder company to whom the disputed “recreation area” and “car parking area” have been alienated under Ext.A4 sale deed and also the company formed by him which is in occupation of that portion, the Cochin Corporation, the Kerala State Electricity Board and the State of Kerala. 2. The order by the Tribunal for Local Self Government challenged in the Writ Petitions held RFA Nos.86 & 211 of 2012 & W.P.(C) Nos.13106 & 14854 of 2010 :- 2 :- that, the building constructed violates the Kerala Municipality Building Rules, 1999 and also the completion plan submitted before the Corporation. In the judgment and decree of the civil court which are assailed in the Regualr First Appeals, it has been held that Ext.A4 sale deed is null and void. 3. That 51.152 cents of property over which the building in question is constructed belonged to the owner-the 5[th] defendant in the suit, as obtained from the Greater Cochin Development Authority, is not in dispute. Ext.A1 is the power of attorney dated 07.06.1996 executed by the owner to the builder, authorising construction and sale of multi-storeyed commercial cum residential apartment complex in the property. Ext.P1 building permit dated 20.01.95 was obtained for construction of a multi-storeyed building consisting of basement, ground and three floors in the property. Thereafter, Ext.P2 building permit dated 07.06.96 was obtained on increasing the total floors of the building to eight. Still thereafter, on adding RFA Nos.86 & 211 of 2012 & W.P.(C) Nos.13106 & 14854 of 2010 :- 3 :- ninth floor to the building, Ext.P3 permit dated 30.05.98 was issued. The period of validity of the permit was three years, expiring on 29.05.01. Exts.P1 to P3 permits were issued under Kerala Building Rules, 1984 (hereinafter referred to as “the 84' Rules). 4. During the currency of Ext.P3 permit, the Kerala Municipality Building Rules, 1999 (hereinafter referred to as “the 99' Rules”) came into force. The period of Ext.P3 permit expired on 29.05.01. Subsequently, the builder submitted an application dated 09.01.04 for regularisation of the building. This was accompanied by a completion plan, marked as Ext.B5 in the suit. The Corporation, being satisfied that the 99' rules have been complied with, regularised the construction and issued occupancy certificate. 5. Thereafter, noticing that the area earmarked as “recreation area” and “car parking area” in the completion plan-Ext.B5, were converted by the builder for other purposes, the Corporation issued RFA Nos.86 & 211 of 2012 & W.P.(C) Nos.13106 & 14854 of 2010 :- 4 :- Ext.P5 show-cause notice/provisional order calling upon the builder to have it restored in terms of the completion plan. Rule 50 of the 99' rules stipulate for providing of a minimum area as specified therein, to be set apart as “recreation area”. 6. It is to be noticed here that, though Ext.P3 permit, the approved plan and Ext.B5 the completion plan showed basement, ground plus 9 (nine) floors, the basement floor was not at all constructed. The corporation treated the ground floor as the basement floor and so on. 7. The corporation, after hearing the builder, confirmed Ext.P5 provisional order as per Ext.P7 final order. The same was challenged by the builder and his son, before the Tribunal for Local Self Government Institutions. The same was dismissed by the Tribunal as per Ext.P9 order. That order is assailed in the writ petitions. 8. The “recreation area” and “parking area” in issue, were conveyed by the by builder to the son RFA Nos.86 & 211 of 2012 & W.P.(C) Nos.13106 & 14854 of 2010 :- 5 :- of the Managing Director of the builder as per Ext.A4 sale deed. He instituted a suit for a prohibitory injunction not to obstruct the drawing of the electric line to the said portion. In the suit, the association as one of the defendants raised a counter claim challenging Ext.A4 sale deed to be null and void, sham and not binding on them. As per the judgment impugned in the Regular First Appeals, the suit was dismissed and the counter claim was decreed. 9. Heard learned Senior Counsel Sri.N. Nandakumara Menon and learned counsel Sri.P.K. Ravisankar on behalf of the appellants/petitioners and learned counsel Sri.Santheep Ankarath, Smt.M.A.Zohara, Smt.Sareena George and Sri.P.A. Ahamed on behalf of the respondents. 10. It is not in dispute that in terms of Rule 50 of the 99' rules, a minimum area as specified therein is to be earmarked as recreation area in the building. It is also not in dispute that the completion plan, Ext.B5 submitted along with the RFA Nos.86 & 211 of 2012 & W.P.(C) Nos.13106 & 14854 of 2010 :- 6 :- application for regularisation dated 09.01.2004 shows the “recreation area”. The plan also shows a “parking area”. It is also not in dispute that at variance from Ext.B5 completion plan, no recreation area is in fact provided, and that the said portion and a portion of the parking area has been conveyed to the son of the Managing Director of the builderplaintiff in the suit, under Ext.A4 sale deed and is converted as a commercial space. 11. According to the learned Senior Counsel, the recreation area as stipulated in the 99' rules and as shown in Ext.B5 completion plan need not be provided for the reason that, the building was completed on the basis of Ext.P3 permit issued under the 84' rules and within the period of the permit; therefore, only the 84' rules apply, which rules does not mandate a “recreation area”. As regards Ext.B5 completion plan, it is submitted that the same was a folly committed by the architect and that a completion plan in terms of Ext.P3 permit was submitted to the Corporation RFA Nos.86 & 211 of 2012 & W.P.(C) Nos.13106 & 14854 of 2010 :- 7 :- within the period of validity of the permit, that it does not show any recreation area, and that the said plan is to be considered as the completion plan. Therefore, there is no violation as alleged, is the submission. 12. The learned Senior Counsel relied on the decision of the Apex Court in T. Vijayalakshmi and others v. Town Planning Member and another, [2006 (8) SCC 502] and of this Court in Desai Homes v. Divisional Officer, Fire and Rescue Services and another [2017 (3) KLT 143] to submit that, if new rules come into force during the currency of a permit, then the permit holder will continue to be bound by the rules that were in force at the time of issuance of the permit. He canvasses this proposition to contend that, merely because the 99' rules came into force during the currency of Ext.P3 permit, the same will not ipso facto apply to the case at hand, and that the party is bound by the 84' rules only. The 84' rules does not mandate a “recreation area”. Therefore, the association or RFA Nos.86 & 211 of 2012 & W.P.(C) Nos.13106 & 14854 of 2010 :- 8 :- the Corporation cannot bank upon the 99' rules to compel a provision for recreation area. There is no quarrel with the said legal proposition. But the above law is qualified by the condition that, the construction must have been completed during the period of validity of the permit. If the permit elapses and the construction is not completed, then the new rules will apply. 13. The arguments of the learned Senior Counsel is mainly twofold. Firstly that the building has been completed within the period of validity of Ext.P3 permit, i.e. before 29.05.2001. Secondly Ext.P3 permit was renewed/extended by the Corporation in February 2004, on collecting fine. Therefore, the construction is under Ext.P3 permit and hence the 99' rules does not apply. 14. Coming to the contention that the building was completed within the period of validity of Ext.P3 permit i.e. prior to 29.05.01, the learned Senior Counsel relies upon the application dated 28.02.01 submitted to the Corporation produced as RFA Nos.86 & 211 of 2012 & W.P.(C) Nos.13106 & 14854 of 2010 :- 9 :- Ext.R2(a)(31) and also the completion certificate dated 05.03.01 produced as Ext.R2(a)(32). It would be appropriate to refer to the contents of the application dated 28.02.01 which reads thus:- “I am submitting the completion plan of the Building as per above permit. The final NOC to Fire department is already forwarded from your office which is under consideration for issue shortly. As I have to apply for permanent Electricity and Water connection I request you to issue partial occupancy certificate for Ground Floor + 2 floors.” 15. Referring to the same, the learned Senior Counsel would submit that, as evident therefrom, the construction of the building is over and a completion plan has also been submitted. The said application is accompanied by a completion certificate dated 05.03.01 which refers to Ext.P3 permit. In view of submission of the said completion certificate and the completion plan to the Corporation, it is evident that the RFA Nos.86 & 211 of 2012 & W.P.(C) Nos.13106 & 14854 of 2010 :- 10 :- construction of the building was completed on 05.03.01, contends the counsel. Here, the office notes of the Corporation are of significance. The note made on 16.04.01 available at Ext.R2(a)(4) indicates that, the Completion Certificate dated 05.03.01 is under consideration by the Corporation. The notes at Ext.R2(a)(6) regarding the same, dated 01.06.01 indicates that the structural construction of the building is not fully complete even as on the said date, but is only substantially completed. The further note dated 23.07 at R2(a)(9) indicates that works regarding drainage facility is still going on and that the entire works of the building is not over. Therefore, the office notes of the Corporation indicates that as on the date of submission of the completion certificate dated 05.03.01 [Exts.R2(a)(32)] and the completion plan on 28.02.01 [Ext.R2(a)(31)], the construction of the building was not completed. That apart, the submission of the application dated 28.02.01 [Ext.R2(a)(31)] seeking issuance of partial RFA Nos.86 & 211 of 2012 & W.P.(C) Nos.13106 & 14854 of 2010 :- 11 :- occupancy certificate for ground plus two floors by itself imply that the construction of the entire building is not completed. This is further evident from a reading of Rule 22(4) of the KMBR 1999 which reads thus:- _“22.Completion certificate, development_ _certificate and occupancy certificate.-_ _(4) The owner of a building may if he intends to occupy the building before its completion apply to the Secretary for that purpose and the Secretary shall, on being satisfied that such occupancy will not endanger life issue occupancy certificate ” in respect of the completed part._ 16. An application for partial occupancy is contemplated only in a case where the construction of the entire building is not completed. Therefore, the materials on record drives home only one conclusion, that as on 05.03.01 when the completion certificate at Ext.R2(a)(32) was submitted before the Corporation, the construction was not complete. The mere fact that an owners' association was RFA Nos.86 & 211 of 2012 & W.P.(C) Nos.13106 & 14854 of 2010 :- 12 :- formed or some of the allottees started occupation will not enable to find that the construction of the building was completed in terms of the Rule Ext.R22(1) of the 99' rules. Therefore, the contention of the learned Senior Counsel that the construction of the building was completed within the period of validity of Ext.B3 permit cannot be accepted. 17. The next contention to be answered is regarding the renewal/extension of Ext.P3 permit on payment of the renewal fee and fine. Ext.P12 receipt evidences collection of renewal fee and fine. Ext.P3 permit was renewed or extended and Ext.P11 occupancy certificate was issued. Therefore, the structure must be deemed to have been completed under Ext.P3 permit which is issued under the 84' rules, submits the learned senior counsel. 18. Here it would be apposite to refer to certain statutory provisions. Section 394 of the Kerala Municipalities Act, 1994 stipulates that if RFA Nos.86 & 211 of 2012 & W.P.(C) Nos.13106 & 14854 of 2010 :- 13 :- the construction is not completed within the period specified in the permit, the permit shall lapse unless an application for extension of time is made during the validity of the permit. Section 394 reads thus:- “394. _Lapse of permission.—Where_ _the construction or reconstruction of a building is not completed within the period specified in the permission, such permission shall lapse unless an application for extension of time is made before the expiry of the period specified_ .” 19. Rule 9(2) of the 84' rules provides that, re-validation of the permit beyond the period shall be subject to the rules then in force. The Rule reads thus:- “9. _Sanction, Refusal, validity and Revocation of permit:—_ _…........................................................._ _................_ **==> picture [282 x 13] intentionally omitted <==** _remain valid up to three years._ RFA Nos.86 & 211 of 2012 & W.P.(C) Nos.13106 & 14854 of 2010 :- 14 :- _The development, redevelopment/building construction/alteration shall be commenced during the first year of such period and shall be completed not later than the valid period of the permit. If the construction is still not completed, the permit shall be revalidated on application subject to the_ ” _rules then in force_ . 20. Rule 15A(9) of the 99' rules provides that a permit issued under the 1984 Rules shall be extended or renewed on application, on the terms and periods for a permit issued under the 99' Rules. The said rule reads thus:- “15A. _Extension and renewal of period of permits._ _(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 Building Rules, 1984 including that under the orders of Government or District Collector granting exemption from rule provisions, shall be_ RFA Nos.86 & 211 of 2012 & W.P.(C) Nos.13106 & 14854 of 2010 **==> picture [37 x 9] intentionally omitted <==** _extended or renewed, on proper application, on like terms and for like periods as a permit issued under these rules_ .” 21. In terms of Rule 15A(2), the application for extension of permit shall be submitted within the period of validity of the permit. The said Rule reads thus:- Rule 15A(2) “ _The Secretary shall, on application submitted within the valid period of the permit, grant extension twice, for further periods of three years each_ .” 22. In terms of Section 15A(4) of the 99' rules, as it stood at the relevant time, the application for renewal of a permit is to be submitted within one year from the period of expiry of the permit. The said Rule reads thus:- “ _The Secretary shall, on application submitted within one year of the expiry of the permit, grant renewal, once, for a period of three years_ .” RFA Nos.86 & 211 of 2012 & W.P.(C) Nos.13106 & 14854 of 2010 :- 16 :- 23. From the above it is evident that, after the coming into force of the 99' rules, the renewal/extension can only be under the said rules and that, Rule 15A(4) as it stood at the relevant time mandated that the application for renewal of the permit shall be submitted within a period of one year from the expiry of the permit. 24. Therefore, there cannot be a renewal of the permit unless the application for renewal is submitted within one year from the expiry of the permit. Here, Ext.P3 permit expired on 29.05.01. Admittedly, no application was submitted within one year therefrom. The builder is banking upon the acceptance of “renewal fee and fine” by the Corporation, to contend that Ext.P3 permit has been renewed by the Corporation. At the very outset it is to be noticed that there cannot be a renewal by Ext.P12 in the year 2004 against the mandate of Rule 15A(4). Even that apart, a perusal of the relevant files of the Corporation which resulted in Exts.P12 and P11 namely, collection of fine and RFA Nos.86 & 211 of 2012 & W.P.(C) Nos.13106 & 14854 of 2010 :- 17 :- issuance of occupancy certificate, would reveal that, though the fee collected was termed as “renewal fee” it is really the fee collected for regularisation. The office notes of the Corporation dated 20.09.03 available at Ext.R2(a)(14) is significant in this regard:- ||"<br>പപർമമറ <br>പതകമ<br>നൽകനതമന<br>കകമ| |---|---| |<br> <br> <br><br>അപപക സമർപമചമടമലലത<br>മനല<br>ല കല<br>ലവധമ|| |<br><br> <br><br> <br>|| |കഴമഞ ഒര വർഷല കഴമഞതമനല<br>ല വവണല|| |<br>|| |പതകമ നൽകവലൻ കഴമയലത നമലയമലമലണ<br>.|| |<br> <br> <br>|| |തടർനള <br>നമർമലണല<br>റഗലററപസഷൻ|| |<br> <br>|| |പചയനതമപലയഅപപക സമർപമപകണതണ<br>.<br>”|| 25. It is categorically stated that the period for renewal of the permit is over since the renewal application was not submitted within one year from the expiry of the permit, and that the course open is to apply for regularisation. The entries in the office notes of the Corporation, Exts.R2(a)(15) and R2(a)(16) reaffirm this fact. The entry at Ext.R2(a)(16) dated 20.10.03 reads thus:- “Yes. Let the party apply for regularisation and after complying with the documents of TDO.” RFA Nos.86 & 211 of 2012 & W.P.(C) Nos.13106 & 14854 of 2010 :- 18 :- 26. That the builder has to seek for regularisation has been reiterated therein. As is evident from the entry in the office notes on 21.10.03, the party was issued with notice. It is pursuant thereto that the builder has submitted the application dated 09.01.04, seeking regularisation. Copy of the application is available at Ext.R2(a) (66) to 69. Along with the regularisation application, Ext.B5 completion plan is also submitted. As noticed supra, the regularisation sought for after the expiry of the permit could only be in terms of the 99' rules which came into force in the meanwhile. This required providing for recreation area in terms of Rule 50 referred to supra. It is in accordance therewith that Ext.B8 completion plan is submitted by the builder, providing “recreation area”. The office note of the Corporation available in Ext.R2(a)(18) and (19) dated 16.01.04 reveals that, on consideration of the regularisation application and the completion plan so submitted, the Corporation has decided to RFA Nos.86 & 211 of 2012 & W.P.(C) Nos.13106 & 14854 of 2010 :- 19 :- grant occupancy certificate on accepting `70,018/towards “renewal fee” and fine. Evidently the mentioning of “renewal fee” is a mistake/misnomer and it can only be regularisation fee. It is pursuant thereto that the fee and the fine were collected on 13.02.04 as evidenced by Ext.P12, and occupancy certificate-Ext.P11 issued on 17.02.04. Therefore, relying on Exts.P11 and P12 it cannot be contended that Ext.P3 permit was renewed in the year 2004, and that the construction was completed and occupancy certificate issued in terms of Section Ext.P3 permit. It can only be held that the construction effected beyond the period of Ext.P3 permit was regularised based on the application submitted by the builder along with Ext.B5 completion plan, under the the 99' rules. Therefore, the contention of the learned Senior Counsel that there has been a renewal of Ext.P3 permit beyond the period, by collecting fine and fee, fails. 27. On the above discussions, the following RFA Nos.86 & 211 of 2012 & W.P.(C) Nos.13106 & 14854 of 2010 :- 20 :- conclusions ensue:- - (1) There has been no renewal or extension of Ext.P3 permit. (2) All that could be done was to seek for regularisation under the 99' rules. (3) Regularisation was sought for under the 99' rules. (4) The 99' rules and the completion plan-Ext.B5, provided for recreation area and parking area. (5) The recreation area and parking area, as shown in Ext.B5plan, are liable to be restored. The Corporation was right in the directions issued in the above regard. The order of the Tribunal, affirming the action of the Corporation suffers from no infirmity and is only to be affirmed. 28. Coming to the Regular First Appeals, they RFA Nos.86 & 211 of 2012 & W.P.(C) Nos.13106 & 14854 of 2010 :- 21 :- arise from the dismissal of the claim for a prohibitory decree not to obstruct the drawing of electric connection to the disputed portion of the building, and against the decree on the counter claim declaring Ext.A4 sale deed to be sham, null and void, and not binding on the association. The challenge against Ext.A4 sale deed is on various grounds. Firstly, that Ext.A1 power of attorney executed by the owner of the property in favour of the builder does not authorise sale of commercial space; secondly, Ext.A4 is executed only to defeat the interests of the association since the same is a recreation area provided in terms of the requirement under the 99' Rules. 29. As regards the challenge against the authority conferred under Ext.A1 power of attorney, it is not necessary to go into the merits of the contention regarding the authority granted under Ext.A1 since, the association does not have the locus to raise such a challenge. The challenge based on the powers under Ext.A1 power of attorney RFA Nos.86 & 211 of 2012 & W.P.(C) Nos.13106 & 14854 of 2010 :- 22 :- could be urged only by the person who executed the power of attorney viz. the owner of the land. He has not filed a suit nor raised a counter claim challenging Ext.A4 sale alleging that Ext.A1 does not authorise such a sale. When an agency has been constitited, it is for the principal to challenge the authority exercised by the agent, if aggrieved, and not for a stranger. Therefore, the said ground of challenge against Ext.A4 sale deed fails. 30. As regards the allegation that Ext.A4 is a sham document, it is seen that Ext.A4 sale deed was executed based on Ext.A2 sale agreement and Ext.A3 construction agreement dated 16.12.1996. At that time there was a valid building permit issued under the 84' Rules. The necessity to provide a recreation area arose only on the coming into force of the 99' Rules and on expiry of Ext.P3 permit on 29.05.01. Ext.A4 sale deed is executed only on 29.05.03, ie. after the expiry of the permit and after the advent of the '99 rules. That apart, both the vendor and the vendee were fully aware and RFA Nos.86 & 211 of 2012 & W.P.(C) Nos.13106 & 14854 of 2010 :- 23 :- conscious of the fact that, though the approved plan was for construction of building with a basement floor, the basement floor was not constructed and that there is violation of the plan. They were aware that the facilities in the basement floor, as shown in the approved plan would have to be provided on the ground floor of the building. The sale Ext.A4, is at a point of time when the earlier permit could not be renewed/extended and the '99 rules mandated providing of “recreation area”. Ext.B5 completion plan submitted before the Corporation shows car parking area and recreation area. On the whole, the attempt appears to be, to get over the mandates of the '99 rules and to deviate from Ext.B5 completion plan based on which occupancy certificate-Ext.P11 was obtained. The builder, and the son of its Managing Director, who is the assignee under Ext.A4 sale deed, sail together in all the proceedings and challenge the action of the Corporation. They admit that the portions covered under Ext.A4 is shown as, RFA Nos.86 & 211 of 2012 & W.P.(C) Nos.13106 & 14854 of 2010 :- 24 :- recreation area and parking area in Ext.B5 completion plan submitted before the Corporation. Though they contend that they are not bound to restore the recreation area and parking area as shown in Ext.B5 completion plan, for the reasons already discussed while dealing with the writ petitions, the recreation area and the car parking area, indicated in Ext.B5 completion plan, are liable to be restored. Thus, though it is not necessary to hold Ext.A4 sale deed to be void or sham, a decree is liable to be passed on the counter claim, in tune with the findings in the writ petitions, declaring that the area earmarked as recreation area and car parking area in Ext.B5 plan are liable to be maintained as such. The owners' association definitely has interest over the common areas and the amenities. Hence they are entitled for such a declaration. As a corollary, the dismissal of the plaint claim for prohibitory injunction, by the trial court, is only to be affirmed and I do so. RFA Nos.86 & 211 of 2012 & W.P.(C) Nos.13106 & 14854 of 2010 :- 25 :- 31. In the result, modifying the decree and judgment of the trial court, a decree is passed on the counter claim declaring that the area earmarked in Ext.B5 completion plan as “recreation area” and “car parking area” are liable to be maintained as such. The RFAs are allowed as above. The writ petitions being devoid of merits are dismissed. No costs. Before parting with the cases it is clarified that, the disposal of these cases will not affect the right of the builder, if any under law, to provide the necessary recreation area and parking area as mandated under the Kerala Municipality Building Rules, 1999 even at a portion different from the one earmarked in Exhibit B5 plan and to seek for regularisation of the same. Needless to say that any such action shall be with notice to the owners' association. **Sd/SATHISH NINAN JUDGE** kns/- //True Copy// P.S. To Judge ## **APPENDIX OF WP(C) 13106/2010** ## **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 A TRUE COPY OF THE BUILDING PERMIT GRANTED ON 20-01-1995 BY THE CORPORATION OF COHCIN. EXHIBIT P2 A TRUE COPY OF THE REVISED BUILDING PERMIT ISSUED TO THE PETITIONER DATED 7-6-1996. EXHIBIT P3 A TRUE COPY OF THE FURTHER PERMIT GRANTED TO THE PETITIONER DATED 30-05-1998.** - **EXHIBIT P4 A TRUE COPY OF THE CERTIFICATE OF REGISTRATION, STATED TO BE THAT OF THE 2ND RESPONDENT DATED 18-7-2002.** - **EXHIBIT P5 A TRUE COPY OF THE PROVISIONAL NOTICE ISSUED BY THE CORPORATION DATED 9-3-09.** - **EXHIBIT P6 A TRUE COPY OF THE REPLY GIVEN BY THE PETITIONERS DATED 16-3-09.** - **EXHIBIT P7 A TRUE COPY OF THE FINAL ORDER PASSED BY THE CORPORATION OF COCHIN DATED 21-10-09.** - **EXHIBIT P8 A TRUE COPY OF THE APPEAL MEMORANDUM FILED BY THE PETITIONERS.** - **EXHIBIT P9 A TRUE COPY OF THE JUDGMENT RENDERED IN APPEAL NO.896/09 DATED 31-10-09 ON THE FILE OF THE TRIBUNAL FOR LOCAL SELF GOVERNMENT INSTITUTIONS, THIRUVANANTHAPURAM.** **RESPONDENT'S/S EXHIBITS:** **EXHIBIT R2 A TRUE COPY OF ENTIRE RECORDS IN FILE NO-2 OF CORPORATION OF KOCHI.** ---------- -2- Appendix ## **APPENDIX OF WP(C) 14854/2010** ## **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF THE ORDER ISSUED BY THE RESPONDENT BEARING NO.KRP2-1811/04 DATED 30.4.2010. EXHIBIT P2 TRUE COPY OF THE INTERIM ORDER PASSED BY THIS HONOURABLE COURT IN WP(C)NO.13262/2010 DATED 20.4.2010.** **EXHIBIT P3 TRUE COPY OF THE LETTER DATED 17.4.2010 ISSUED BY THE BUILDER, ABM BUILDERS PRIVATE LTD. TO THE RESPONDENT.** **EXHIBIT P4 TRUE COPY OF THE REPLY DATED 7.5.2010 ISSUED BY THE ADVOCATE FOR THE PETITIONER TO THE RESPONDENT.** **EXHIBIT P5 TRUE COPY OF THE APPEAL NO.418/2010 FILED BY THE PETITIONER BEFORE THE TRIBUNAL FOR LOCAL SELF GOVERNMENT INSTITUTIONS.** ----------