T.S. Saludeen and K. Nilavarneesa v. State of Kerala and Puthunagaram Grama Panchayath and Secretary, Puthunagaram Grama Panchayath

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE N.NAGARESH** **MONDAY ,THE 18TH DAY OF MARCH 2019 / 27TH PHALGUNA, 1940** ## **WP(C).No. 35444 of 2016** ## **PETITIONER:** **1 T.S.SALUDEEN,AGED 64 YEARS, S/O SANTHU MUHAMMED RAWTHER, MINZIA MANZIL, KOZHIKKADA, THATHAMANGALAM,PALAKKAD.** - **2 K.NILAVARNEESA AGED 50 YEARS, W/O SALUDEEN, MINZIA MANZIL,KOZHIKKADA, THATHAMANGALAM, PALAKKAD.** **BY ADVS. SRI.JACOB SEBASTIAN SMT.ANU JACOB SRI.K.V.WINSTON** ## **RESPONDENTS:** - **1 STATE OF KERALA REPRESENTED BY THE SECRETARY TO GOVERNMENT, LOCAL SELF GOVERNMENT (R.B) DEPARTMENT, GOVERNMENT OF KERALA, THIRUVANANTHAPURAM-1.** - **2 PUTHUNAGARAM GRAMA PANCHAYATH PUTHUNAGARAM PALAKKAD, PIN:678503 REPRESENTEDBY ITS SECRETARY.** - **3 SECRETARY PUTHUNAGARAM GRAMA PANCHAYAT, PALAKKAD, PIN:678503.** **BY ADVS. SRI.K.MOHANAKANNAN SMT.A.R.PRAVITHA** ## **SRI.B.JAYASURYA, GP** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 18.03.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C).No. 35444 of 2016** 2 ## **JUDGMENT** The writ petitioners challenge non-issuance of occupancy certificate and non-numbering of building of the petitioners. 2. The petitioners own 19 cents of land in Puthunagaram Grama Panchayath in Palakkad District. The petitioners sought building permit to construct a commercial building with a total plinth area of 1872.25 sq.metre. The building permit was granted on 10.10.2007. The construction of the basement, ground floor and first floor was completed by February, 2010. The third respondent-Secretary to the Panchayath numbered the building and issued ownership certificate on 31.03.2010. 3. The further construction of the building was completed in October, 2011, contend the petitioners. The Fire and Rescue Department issued No Objection Certificate in October, 2011. Thereafter, the petitioners applied for numbering the building and issuing completion certificate. The respondents have refused to approve the construction of the second, third and fourth floors. On 17.10.2011 the third respondent required **WP(C).No. 35444 of 2016** 3 the petitioners to effect certain modifications. According to the petitioners, those modifications were effected. The Deputy Director of Panchayath issued Ext.P1 report, in which no serious defects in construction of building, were noted. In the meanwhile, the Kerala Panchayath Building Rules, 2014 came into force on 21.08.2014. 4. In view of the objections made by the respondents 2 and 3, the petitioners filed an application for regularization of the so called unauthorized construction as per Ext.P2. The said application was rejected as per Ext.P3. In Ext.P3, it was stated that the building in question violates safety and security provisions (Appendix II), Rules 40A, (facilities for physically challenged persons), Rule 47, (Fire Escape Stair) and Rule 34 (Parking). Against Ext.P3 the petitioners filed Ext.P4 review petition. The said review petition was disposed of as per Ext.P5 which required the petitioners to rectify the violation mentioned in the Government letter dated 14.12.2015 and to submit request for regularization before the local body. The petitioners accordingly approached the fourth respondent filing Ext.P6. Since Ext.P6 did not yield any positive result, the petitioners **WP(C).No. 35444 of 2016** 4 have filed this writ petition. 5. The respondents 2 and 3 opposed the writ petition and filed counter affidavit. The respondents 3 and 4 contended that, the building number assigned to the petitioners was cancelled based on Government letter. The building in question violated Building Rules and also plan and permit. According to respondents 2 and 3, the first petitioner has submitted Ext.P6 representation stating that, defects stand cured. It is incorrect and violation still exists, of the Building Rules. The Engineer, Local Self Government Department attached to the Panchayath has inspected the building and found that the lift is not installed and there is no ramp for physically challenged persons. The fire escape stairs provided behind the building is connecting ground level and first floor only. Therefore Section 114(2) of the Kerala Municipality Building Rules stand violated. With regard to parking facility, respondents 2 and 3 stated that, part of the road has been shown as parking lot by the petitioner. 6. The respondents 2 and 3 further contended that, the building permit was issued in the year 2007. At that time the Kerala Municipality Building Rules, 1999 was in force. **WP(C).No. 35444 of 2016** 5 Subsequently, the Kerala Panchayat Building Rules, came into force in the 2011. Therefore, the deviations and violations noticed in Ext.P3 is under the provisions of the Kerala Municipality Building Rules,1999. 7. Learned counsel representing respondents 2 and 3 also brought to my notice the technical report submitted by the Assistant Engineer, LSGD Section. The Rule 40A has been violated in so far as construction of ramp for physically challenged persons. The second defect pointed out is that the lift installed in the premises is not functioning. The report also states that the height of stairs and handrails are less than 19cm and 1m respectively and hence it violates Rule 47. The report also finds that, there is no change in the area of car parking which was pointed out by the respondents. Therefore, Rule 34 also stands violated. In the circumstances, the building is constructed illegally, violating the provisions of statutory Rules and it cannot be regularized. 8. Learned Government Pleader appearing for the first respondent contended that, all the defects specified in the report of the Assistant Engineer, LSGD relates to essential social **WP(C).No. 35444 of 2016** 6 welfare measures. Those provisions have been brought in order to secure the rights of physically challenged persons. Similarly, the fire escape requirements are insisted as lack of it will adversely affect the inhabitants and the occupants of the building in emergencies. Therefore, in public interest also the stand of the respondents 1 to 3 is to be upheld. 9. I have perused the pleadings and considered the arguments raised by the counsel for the petitioners, learned Government Pleader appearing for the first respondent and learned standing counsel for respondents 2 and 3. 10. Learned counsel for the petitioners relied on the judgment of the Hon'ble Supreme Court in **T.Vijayalakshmi and Others v. Town Planning Member and Another** reported in [2006(8)SCC 502] to contend that an application for grant of permission for construction of a building is required to be decided in accordance with law applicable on the day on which such permission is granted. In view of the said judgment of the Hon'ble Supreme Court it is clear that requirements for building construction by the petitioners should be tested on the basis of law as existed in 2007, when the building permit was issued. **WP(C).No. 35444 of 2016** 7 Admittedly, in the year 2007, Building Rules applicable to the area in question was the Kerala Municipality Building Rules,1999, as it stood then. Therefore the Kerala Panchayat Building Rules, which came into force in the year 2011 cannot be relied on to decide the legality or regularilty of the issuance of the building permit to the petitioners. 11. The objections raised by respondents as evident from the Technical Report of the Assistant Engineer, LSGD Section are four in number. Firstly, Rule 40A of the Kerala Municipality Building Rules has not been followed as far as it relates to facilities for physically challenged persons. There is no ramp constructed from the ground level to ground floor, it has been stated. A perusal of the Rules would show that this requirement has been introduced only by way of an amendment in the year 2010. As on the date of issuance of the building permit the Rule was not in force. Therefore, the respondents cannot insist that the petitioners shall comply with the amended Rules, 2011, because the permit was issued in the year 2007. 12. Another defect pointed out by the respondents is that though there is a lift installed in the building in question, it is not **WP(C).No. 35444 of 2016** 8 functional. As per the Building Rules, as existed in 2011, requirement of lift would apply only to the building having more than three floors and more than 2500 sq.meter plinth area. The plinth area of building of the petitioners is 1857.18 sq meters only. Therefore, the respondents cannot contend that the petitioners should satisfy the requirements of amended Rules. 13. The third objection is that the fire escape stair has been constructed in violation of the Rules. The height of the stair should be 19cm and height of the handrails should be 1m. It is pointed out that in certain points, the stairs and handrails do not satisfy the said requirement. Going through the Kerala Municipality Building Rules and Kerala Panchayat Building Rules, it is seen that the requirement of 9cm high stairs and 1 meter high handrails have been insisted only in Rule 47 of the Kerala Panchayat Building Rules. It cannot be made applicable to a construction carried out on the basis of a permit issued under the Kerala Municipality Building Rules. 14. The last objection pointed out is that the petitioners have not made any changes to the parking area in question in order to regularise the parking area. The respondents 2 and 3 **WP(C).No. 35444 of 2016** 9 have stated in counter affidavit that the parking facilities claimed by the petitioners has part of public road and for ascertaining the same, a joint verification by the revenue department is necessary. 15. The petitioners' case is that in view of the Kerala Municipality Building Rules, as it stood in the year 2011, the building required a car parking area of only 125 sq.meters. The petitioners contend that they already have car parking area of 283.94 M[2] even as per the report of the third respondentSecretary. 16. In view of the facts stated above I am of the opinion that respondents have proceeded to consider the construction of the building of the petitioners on a wrong premises inasmuch as the respondents have relied on Kerala Panchayat Building Rules whereas the Rules that apply would be the Kerala Municipality Building Rules, as it existed in 2007. The subsequently implemented Kerala Panchayat Building Rules cannot be resorted to, to consider the legality of the building construction by the petitioners. In the light of the above, this writ petition has to be disposed of with positive directions. **WP(C).No. 35444 of 2016** 10 17. Accordingly, respondents 2 and 3 shall consider Ext.P6 application for regularization submitted by the petitioners within a period of three months. The application shall be considered based on the Kerala Municipality Building Rules,1999 as it stood as on the date of building permit issued to the petitioners. If the respondents 2 and 3 have any doubt regarding the parking area marked by the petitioners, it will be open to them to approach the Taluk Surveyor to ascertain the exact area of parking area left by the petitioner and the road marking. With these directions, the writ petition stands disposed of. **Sd/-** **N.NAGARESH** dlk/19.03.19 **JUDGE** **WP(C).No. 35444 of 2016** 11 ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **EXHIBIT P1:** **TRUE COPY OF THE REPORT/LETTER OF THE DEPUTY DIRECTOR OF PANCHAYAT DATED 29.11.2013.** - **EXHIBIT P2: TRUE COPY OF THE APPLICATION FOR REGULARISATION OF UNAUTHORISED CONSTRUCTION SUBMITTED BY THE PETITIONERS BEFORE THE IST RESPONDENT ON 31.10.2014.** **EXHIBIT P3: TRUE COPY OF THE ORDER DATED 14.12.2015 ISSUED BY THE IST RESPONDENT ON EXT.P2.** **EXHIBIT P4: TRUE COPY OF THE REVIEW PETITION DATED 14.1.2016 SUBMITTED BY THE PETITIONERS BEFORE THE GOVT. OF KERALA.** **EXHIBIT P5: A TRUE C0PY OF THE ORDER OF THE GOVT. OF KERALA DATED 29.4.2016 ON EXT.P4.** - **EXHIBIT P6: A TRUE COPY OF THE REPRESENTATION SUBMITTED BY THE PETITIONERS BEFORE THE 3RD RESPONDENT ON 16.6.2016 ALONG WITH ITS ACKNOWLEDGEMENT.** **EXHIBIT P7 TRUE COPY OF NOTIFICATION GO(P) NO.12/2018/LSGD DATED 15.02.2018** ## **RESPONDENTS EXHIBITS**