S. Krishnakumar v. Corporation of Thiruvananthapuram

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE THE ACTING CHIEF JUSTICE MR.HRISHIKESH ROY & THE HONOURABLE MR. JUSTICE A.K.JAYASANKARAN NAMBIAR** **WEDNESDAY, THE 27TH DAY OF JUNE 2018 / 6TH ASHADHA, 1940** **WA.No. 82 of 2016 IN WPC. 18889/2014** **AGAINST THE ORDER/JUDGMENT IN WP(C) 18889/2014 of HIGH COURT OF KERALA DATED 12-11-2015** **APPELLANT(S)/PETITIONER** **S.KRISHNAKUMAR, AGED 50 YEARS S/O. LATE M.G.SIVASANKARA KURUP, MANAGING DIRECTOR, LIFE SPAN, INFRASTRUCTURE INDIA PVT. LTD, ANA NIKUNJAM CONSTRUCTIONS PVT. LTD, INDRAPRASTAHAM, T.C 4/2554(3), PATTOM-KOWDIAR ROAD, PATTOM P.O., THIRUVANANTHAPURAM - 695 004** **BY ADVS.SRI.R.S.KALKURA SRI.M.S.KALESH SRI.HARISH GOPINATH SMT.R.BINDU** ## **RESPONDENT(S)/RESPONDENT:** **CORPORATION OF THIRUVANANTHAPURAM REPRESENTED BY ITS SECRETARY, CORPORATION BUILDINGS, VIKAS BHAVAN, THIRUVANANTHAPURAM - 695 033.** **R1 BY ADV. SRI.N.NANDAKUMARA MENON (SR.) R1 BY ADV. SRI.P.K.MANOJKUMAR,SC,TVPM CORPORATION** **THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 27-06-2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **HRISHIKESH ROY, Ag.C.J. & A.K.JAYASANKARAN NAMBIAR, J.** **- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - W.A. No.82 of 2016** **- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 27[th] day of June, 2018** ## **JUDGMENT** ## **A.K.JAYASANKARAN NAMBIAR,J.** The respondent in W.P.(C).No.18889 of 2014 is the appellant before us, impugning the judgment dated 12.11.2015 in the said writ petition. The writ petition was preferred by the Corporation of Thiruvananthapuram impugning Ext.P6 order dated 23.10.2013 of the Tribunal for Local Self Government Institutions that found the appellant herein entitled to a deemed permit for construction of a multi-storeyed building. The facts in the writ petition would indicate that the respondent therein had, through an application dated 15.02.2013, sought an approval of the site plan pertaining to the land where he intended to put up a construction, as also an approval to the ground plan, elevation and sections of the building and specification of the work with a view to getting permission to execute the work. The said application was rejected by the Secretary of the Corporation, on the ground that, the property in question was included in the Green Strip Zone of the revised town planning scheme of the Thiruvananthapuram city, and in such areas only a residential building having 300 sq.metres plinth area could be sanctioned. It was also pointed out that, the prior concurrence of the Regional Town Planner was required before putting up the construction as applied for. The respondent in the writ petition, being aggrieved by the order passed by the Secretary of the Corporation, preferred an appeal before the Council of the respondent Corporation. The said appeal, however, 2 **W.A. No.82 of 2016** was rejected, and therefore, a further appeal before the Tribunal for Local Self Government Institutions was preferred, which came to be allowed by Ext.P6 order that was impugned in the writ petition, by the Corporation. A perusal of Ext.P6 order would show that the Tribunal found that, the application submitted by the petitioner for approval of site plan/permission for construction of the building was dated 15.02.2013, and the 30 days period contemplated in Section 390 of the Kerala Municipalities Act, 1994 expired on 17.03.2013. The order of the Secretary of the respondent Corporation, rejecting the application of the petitioner, although dated 13.03.2013 was served on the applicant only on 25.03.2013. The applicant had, in the meanwhile, made a reference to the Municipal Council in terms of Section 392 of the Kerala Municipalities Act read with Rule 15(1) of the Kerala Municipality Building Rules, on 21.03.2013. While the said reference application ought to have been disposed by the Municipal Council on or before 21.04.2013, no such order was passed by the Council but the applicant was served with a rejection order dated 13.05.2013 that was communicated to him on 01.06.2013. The Tribunal, therefore, found that the applicant was entitled to the benefit of the deeming provision contemplated under Section 392 of the Kerala Municipalities Act, 1994 and consequently, to a deemed permission for the purposes of Section 387 of the Act. As already noted above, the Corporation impugned the said order of the Tribunal in W.P(C).No.18889 of 2014. The learned Single Judge who considered the matter, found that the Secretary of the Corporation had passed the order rejecting the application of the applicant under Section 387, on 13.03.2013, although the order was communicated to the applicant only on 25.03.2013. Referring to the provisions of Section 392(2) of the Act read with Rule 15 (2), the learned Judge found that the 3 **W.A. No.82 of 2016** deeming provision would apply only if the Council did not determine the issue as to whether or not the permit sought for by the applicant could be granted, within a period of 30 days from the date of reference. In the case on hand, it was found that there was no need for a reference to the Council since the Secretary's order dated 13.03.2013 had to be seen as passed within 30 days for the purposes of Section 392 of the Kerala Municipalities Act, although the communication of the said order was beyond the period of 30 days. In other words, the learned Single Judge construed the statutory provisions under Section 392 as only requiring the Secretary to pass an order on an application under Section 387 within the period of 30 days envisaged in Section 390 and 391, thereby holding that there was no requirement, under the statutory provisions, for communicating the order so passed to the applicant within the period of 30 days. Consequently, the writ petition was allowed, by setting aside the order of the Tribunal for Local Self Government Institutions, and directing the Secretary to pass fresh orders after issuing a notice to the applicant, and giving reasons as to why the building permit sought for by the applicant could not be granted. The process of considering the application of the applicant was directed to be completed within a period of six weeks from the date of receipt of the copy of the judgment, and the Secretary was to pass an order within 30 days after hearing the applicant. 2. In the writ appeal filed by the applicant, the main ground of challenge is against the interpretation placed on Section 392 and Rules 13, 14 and 15 of the Kerala Municipality Building Rules in the matter of determining when the deeming provision came into effect. It is contended that the statutory provisions have to be 4 **W.A. No.82 of 2016** interpreted in such a manner that the period of 30 days, for the deeming provision to come into effect, had to be seen as including the date of communication of any order passed by the Secretary. It is stated that inasmuch as the Secretary's order was not communicated to the applicant within 30 days, the reference to the Council, at the instance of the applicant, was a valid one, and on account of nonconsideration of the reference by the Council within the further period of 30 days envisaged in Section 392, the Tribunal was correct in holding that the appellant was entitled to the benefit of the deeming provision. We note that when the writ appeal came up for admission, by an interim order dated 21.01.2016, this court had, taking note of the balance of convenience, permitted the Corporation to pass orders based on the judgment of the learned Single Judge, and acting on the said permission, the respondent Corporation has since, by an order dated 12.08.2016, rejected the application for building permit submitted by the appellant herein. 3. We heard Sri.R.S.Kalkura, the learned counsel for the appellant and the learned Senior counsel Sri.P.Nandakumara Menon duly assisted by Sri.P.K.Manoj Kumar on behalf of the respondent Corporation. 4. On a consideration of the facts and circumstances and submissions made across the bar, we note from a conjoint reading of Section 387, 388, 389, 390, 391 and 392 of the Kerala Municipalities Act, 1994 that, the scheme for processing an application for construction or re-construction of a building, contemplates the submission of an application for approval of a site plan of a land where the construction is proposed, as also an application, together with a ground plan, 5 **W.A. No.82 of 2016** elevation and sections of the building and specification of the work, for permission to execute the work. The applications are to be considered, at first instance, by the Secretary of the Municipal Corporation, and the provisions of Section 388, read with the proviso to Section 391, makes it clear that, the application for permission to execute the work has necessarily to be preceded by an approval on the application for site approval. In other words, it is only after an approval is granted to the site that the application for permission to construct the building thereon can be considered by the Secretary of the Corporation. The period of 30 days granted to the Secretary for passing orders on the applications has to be viewed in the light of the aforesaid statutory scheme. Section 392 of the Act makes it clear that, in the event of the Secretary not passing an order as contemplated under Section 387 to 391, within the period of 30 days granted to him under the said provisions, the applicant can approach the Council of the Municipal Corporation through a written application to determine whether such approval/permission should be given or not. The Council of the respondent Corporation is thereafter to decide the said issue within a month from the date of a receipt of the written request, failing which the applicant is to be entitled to a deemed approval/permission, which would enable the applicant to proceed to execute the work in such manner as not to contravene any of the provisions of the Act, Rules or bylaws. Although the learned Senior counsel appearing for the Corporation would bring to our notice a decision of the Division Bench of this court in Wireless T.T. Info Services Ltd. v. S.I of Police [2011 (2) KLT 820], we do not see the said decision as taking a different view than what is expressed above. In the case of the appellant herein, we find that the application submitted by the appellant in terms of Section 387 was dated 15.02.2013, while the 6 **W.A. No.82 of 2016** said application appears to have been rejected by an order dated 13.03.2013 of the Secretary of the respondent Corporation, it is not in dispute that the said order was not communicated to the appellant till 25.03.2013. By virtue of the provisions of Section 392, therefore, the appellant became entitled to approach the Municipal Council with a written request for consideration of the application for approval/permission. In the case at hand, the issue arises as to whether the reference that was made by the appellant on 21.03.2013 is to be construed as a reference in respect of the application for site approval, or a reference in respect of the application for building permit, or both. Taking note of the express provisions of Section 388, 389 and the proviso to Section 391, we are of the view that, on account of the non-communication of any order of rejection by the Secretary, on the application submitted by the appellant under Section 387, within the period of 30 days from the date of receipt of the application, the appellant became entitled to a reference in respect of the application for site approval alone, since a permission for building permit construction had to be preceded by a site approval - either actual or deemed. Thus viewed, we find that the appellant did, in fact, make a reference to the Municipal Council on 21.03.2013, and the Municipal Council did not pass any order rejecting the request for approval by the appellant till 13.05.2013, which was beyond the period of one month envisaged in Section 392 of the Act. We are of the view, therefore, that on account of the deeming provision under Section 392, the appellant became entitled to a deemed site approval for the purposes of the Act, and the order of the Tribunal for Local Self Government Institutions in that regard appears to us to lay down the correct position in law. We do not, however, find that the appellant had obtained the benefit of the deeming provision in respect of the 7 **W.A. No.82 of 2016** application for building permit since, it was only after the deemed approval in respect of the site that an application for building permit could have been considered by the statutory authorities concerned. Inasmuch as there were orders passed even before the deemed site approval arose in this case, rejecting the application for building permit submitted by the appellant, and further, another order dated 12.08.2016 has been passed by the Secretary of the respondent Corporation, which is brought to our notice today by the learned Senior counsel for the respondents, we are of the view that, the said orders passed ought not to govern the issue with regard to entitlement of the appellant for building permit. This is more so because, we find that the aforesaid order dated 12.08.2016 of the Secretary of the respondent Corporation was passed pursuant to the permission granted by this court through the interim order dated 21.01.2016, and any order to be passed pursuant to the said order of this court was made subject to the ultimate decision in the writ appeal. Inasmuch as we feel that the application for building permit submitted by the appellant in 2013 should merit a fresh consideration, at the hands of the respondent Corporation, after treating the appellant herein as a person, who has obtained a deemed approval for the site on which he proposes to put up the construction, we dispose the writ appeal by setting aside the impugned judgment, and declaring that the appellant has a deemed site approval in terms of Section 392 of the Kerala Municipalities Act, and directing that the application of the appellant for building permit, to put up a construction on the said site, should now be considered by the Secretary of the respondent Corporation within a period of six weeks from the date of receipt of a copy of this judgment. To enable the respondent Corporation to do so, we quash the order dated 12.08.2016 of the 8 **W.A. No.82 of 2016** Secretary of the respondent Corporation. We make it clear that in the peculiar circumstances of this case, the application for building permit of the appellant shall be considered based on the law/norms as applicable in 2013 when the respondent Corporation was statutorily obliged to consider the said application. The writ appeal is disposed as above. Sd/- **HRISHIKESH ROY ACTING CHIEF JUSTICE** Sd/- **A.K.JAYASANKARAN NAMBIAR JUDGE** mns **W.A. No.82 of 2016** 9