## **IN THE HIGH COURT OF KERALA AT ERNAKULAM**
## **PRESENT:**
**THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN**
**TUESDAY, THE 13TH DAY OF DECEMBER 2016/22ND AGRAHAYANA, 1938**
**WP(C).No. 25023 of 2008 (D) ----------------------------**
**PETITIONER:**
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**SRI.V.P.ABDUL KAREEM, AGED 55, S/O.KUNJU PAREED, KOLLAMPARAMBIL HOUSE, NETTOOR, MARADU-682 304, ERNAKULAM.**
**BY ADVS.SRI.T.K.RADHAKRISHNAN**
**RESPONDENT(S):**
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**1. STATE OF KERALA, REPRESENTED SECRETARY TO GOVERNMENT, (LSGD), SECRETARIAT, TRIVANDRUM.**
**2. THE CHIEF TOWN PLANNER, TRIVANDRUM.**
**3. MARADU GRAMA PANCHAYAT, REPRESENTED BY ITS SECRETARY, MARADU-682 304, ERNAKULAM.**
- **R1 & R2 BY GOVERNMENT PLEADER SMT.VINEETHA HARIRAJ R3 BY ADV. SRI.S.CHANDRASENAN, SC**
**THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 13-12-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:**
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## **WP(C).No. 25023 of 2008 (D) ---------------------------**
## **APPENDIX**
## **PETITIONERS' EXHIBITS:**
**EXT. P1 : COPY OF THE LETTER DATED 1.2.2006 ISSUED BY 3RD RESPONDENT.**
**EXT. P2 : COPY OF THE JUDGMENT DATED 21.11.2007 IN WRIT PETITION.**
**EXT. P3 : COPY OF THE LETTER DATED 28.11.2007 ISSUED BY THE PETITIONER’S COUNSEL.**
- **EXT. P4 : THE ORDER DATED 5.1.2008 ISSUED BY THE 1ST RESPONDENT.**
**EXT. P5 : COPY OF THE LETTER DATED 5.1.2008 ISSUED BY THE 1ST RESPONDENT.**
**EXT. P6 : COPY OF THE LETTER DATED 7.2.2008 ISSUED BY THE PETITIONER TO RESPONDENTS.**
**EXT. P7 : COPY OF THE LETTER ISSUED BY THE PETITIONER TO RESPONDENTS DATED 30.3.06.**
**EXT. P8 : THE ORDER DATED 2.3.2006 ISSUED BY THE 1ST RESPONDENT.**
**EXT. P9 : THE GOVT. ORDER DATED 8.12.2005 ISSUED TO THE PETITIONER.**
**RESPONDENTS' EXHIBITS: NIL.**
**//TRUE COPY//**
**P.S. TO JUDGE**
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## K. VINOD CHANDRAN, J
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W.P(C) No. 25023 of 2008 D
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Dated this the 13[th] day of December, 2016
## J U D G M E N T
The petitioner challenges Ext.P5 order and seeks setting aside of the same and implementation of Ext.P4 on the basis of Ext.P8. Essentially the claim of the petitioner is for exemption for building construction.
2. The facts to be noticed are that the petitioner was the owner of a property in Survey No.1456/1 (Re.Sy.No.172/10) in Block No.14 of Maradu Village. The property had a total extent of 9½ cents out of which 3½ cents were acquired by the Government in the year 1993 for the purpose of widening of the National Highway and its approach road. The petitioner in the year 1997 applied
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for a construction of a building in the remaining property. The petitioner was issued with a No Objection Certificate on 31.03.1997 for construction of a five storied building since there were no building rules applicable to the respondent Panchayath. Subsequently on 20.07.1998 the Kerala Building Rules 1984 (KBR) was made applicable to the Maradu Grama Panchayath. The petitioner completed the construction of the ground and first floor before the KBR were made applicable on 20.07.1998. The building was issued occupancy certificate and also numbered.
3. Later the petitioner moved the Panchayath for construction of the balance floors as permitted in the NOC. The same stood rejected for reason of the KBR having been made applicable. It is pertinent that
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subsequently KBR was superseded by the Kerala Municipality Building Rules 1999 (KMBR). In 2007 the petitioner was before this Court seeking for exemption under Rule 85A of Chapter XI of the KMBR. By that time Rule 85A was no more available. The learned Counsel for the petitioner contends that the delay occurred only since the petitioner had filed an appeal against the rejection. However, the question of consideration of an application for permit under the building rules and the claim for exemption as provided under the building rules are quite different and distinct.
4. Be that as it may, exemption claim was raised before the Panchayath in 2006, as is seen from Ext.P1 dated
01.02.2006. The petitioner also approached this Court with
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a claim for exemption which was considered and disposed of by Ext.P2. Therein the Government was directed to constitute a special committee as provided under Rule 85 of the KMBR and consider the issue in accordance with law. A special committee was constituted but however, the claim stood rejected as per Ext.P5 finding that the
land was after petitioner's acquired awarding compensation and not surrendered free of cost.
5. The learned Counsel for the petitioner takes me to Rule 85 A and the note thereunder which is extracted herein below:
“85A: Special Committee may permit construction to abut streets:- The Special Committee shall, if so directed by the Government or if so found necessary
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with the prior approval of the Government, permit any building or all buildings up to a particular height to abut the boundary of the road or with only a fixed distance from the boundary of the road, which may be less than that specified under rule 75.
Provided that the Government may consult the Arts and Heritage Commission before giving prior approval sought by the Special Committee.
Note: (1) Road boundary for the purposes of this rule shall be the boundary of the
road after its formation or widening as envisaged in the scheme in full or in its modified or reduced form as approved by the Government.
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(2) Provisions in this rules shall apply to buildings proposed in plots left after acquisition under the Land Acquisition Act Also.]
6. The contention raised is that after Rule 85A was introduced even persons whose lands were acquired under the Land Acquisition Act could be considered for exemption for buildings proposed to be constructed in plots left after the acquisition. The specific claim for exemption raised by the petitioner, is that there can be no building constructed above the ground floor and first floor, since the plot left after acquisition cannot satisfy the Floor Area Ratio (FAR), as per the KMBR then in force. It is hence, the petitioner seeks consideration under proviso
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to Rule 85A as it existed then for exemption from the FAR.
7. Rule 85A was introduced by SRO 170/01 dated 22.02.2001 long after the acquisition was made. The said rule also stood deleted when Chapter XI itself was substituted on 5.1.2006. The petitioner's writ petition seeking consideration by special committee was filed after the deletion of the rule. Hence definitely the application of the petitioner could be considered by the special committee only in accordance with the rules as it existed then. The contention raised of the delay having been occasioned for reason of an appeal having been filed against the rejection of the request for construction after the KBR was made effective, cannot be countenanced. As noticed earlier the consideration of application for
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building permit and the claim for exemption are distinct and not possible of being intermingled. Based on the appeal filed against the rejection of a building permit, the petitioner could not have desisted from raising a claim for exemption which is independent of the permit application. The petitioner could and ought to have proceeded with both the remedies simultaneously. By the time the claim for exemption was raised, the provision for exemption itself was deleted.
8. Chapter XI of the KMBR, which was substituted in 2006 specifically provided for exemption only with respect to plots in which there was a free surrender of land for a public purpose. The petitioner however seeks consideration of a claim raised prior to
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2006; when R 85A was available. Even then, it is to be pointedly noticed that exemption claimed for by the petitioner of FAR does not come within Rule 85A.
9. The Rule as is extracted above only speaks of permission (exemption) to make construction of a building up to a particular height abutting the boundary of a road or with a fixed distance from the boundary of the road, which is less than that specified under Rule 75. It is also to be noticed that note (2) of Rule 85A makes that provision applicable to plots acquired under the Land Acquisition Act. Chapter XI as such was not made applicable to plots acquired under the Land Acquisition Act. Hence what could have been exempted is only the set back as provided under the KMBR and not the FAR as prescribed in the
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KMBR. Even if Rule 85A was applied, the petitioner could not have claimed an exemption from FAR as applicable to the Panchayaths with effect from 20.07.1998 under the KBR or under the KMBR.
9. The petitioner also relies on 1989 (2) KLT 681 (Ashalatha v. Commissioner, Cannanore Municipality) . That was a case in which a permit was issued under the Building Rules of 1968 and then the Kerala Building Rules of 1984 came into force on 15.05.1984. After that the permit issued under the Rules of 1968 was renewed up to 1988. On a further renewal sought the same was declined on the ground that the construction of the second floor would be in violation of the stringent requirements of the Rules of 1984. The compliance of the
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stringent prescriptions, of set back and parking space was found to be practically impossible, since the ground and first floors were already constructed on a valid permit. The applicants claim was allowed on the ground that the Rules of 1984 by Rule 41 saved the permits issued under the Rules of 1968; which in that case stood renewed after the Rules of 1984 was made effective. There is no corresponding saving provision in the KMBR. It is also pertinent that in the instant case there was no permit and there was only a NOC. The NOC issued during the time when there was no building rules applicable, would not create a vested right as has been held by a Division Bench of this Court in Meethian Kunju V. State of Kerala {2011
(2) KHC 415}. The decision in Ashalatha (supra) hence
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would not be applicable.
10. On all the above counts the petitioner is dis-
entitled from the reliefs sought for in the writ petition. Writ petition would stand dismissed. No costs.
Sd/-
(K. VINOD CHANDRAN, JUDGE)
jma
//true copy//
P. A to Judge
