V.O. Devassy v. State of Kerala and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE ANTONY DOMINIC** **THURSDAY, THE 28TH JANUARY 2010 / 8TH MAGHA 1931** **WP(C).No. 17874 of 2009(D)** **--------------------------** ## **PETITIONER(S):** **--------------------** **V.O.DEVASSY, AGED 62, S/O.OUSEPH, ADVOCATE, VITHAYATHIL HOUSE, KESSARY COLLEGE ROAD, PARAVUR VILLAGE, PARAVUR TALUK,ERNAKULAM DISTRICT.** **BY ADV. SRI.K.S.BHARATHAN SRI.T.R.RAJAN** **SRI.K.K.CHANDRAN PILLAI** ## **RESPONDENT(S):** **--------------------** **1. STATE OF KERALA REPRESENTED BY SECRETARY TO THE LOCAL SELF GOVERNMENT DEPARTMENT, GOVERNMENT SECRETARIAT BUILDING,THIRUVANANTHAPURAM** **2. N.PARAVUR MUNICIPALITY, REPRESENTED BY ITS SECRETARY, NORTH PARAVUR MUNICIPAL OFFICE, NORTH PARAVUR, ERNAKULAM DISTRICT, PIN-683153.** **3. SECRETARY, NORTH PARAVUR MUNICIPAL OFFICE, NORTH PARAVUR, ERNAKULAM DISTRICT, PIN-683153.** **4. SUDHEESH, S/O.THANKKAPPAN, SREEVISHNU NILAYAM, PARAVUTHARA MURI, PARAVUR VILLAGE, PARAVUR TALUK, ERNAKULAM DISTRICT.** **ADV. SRI.JIJO PAUL FOR R4** **SRI.T.A.SHAJI FOR R2 SRI.S.RAMESH BABU FOR R3 GOVT.PLEADER SRI.V.MANU** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 28/01/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **WPC NO.17874/09** ## **APPENDIX** ## **PETITIONER'S EXHIBITS** ## **EXT.P1: TRUE COPY OF THE BUILDING PERMIT NO.BA 170/07 DT 8.6.07 ISSUED BY THE 1ST RESPONDENT.** **EXT.P2: TRUE COPY OF THE APPROVED PLAN ISSUED BY THE 1ST RESPONDENT.** **EXT.P3: TRUE COPY OF THE NOTICENO.T.P.505/08 DT 1.2.08 ISSUED BY THE 3RD RESPONDENT TO THE PETITIONER.** **EXT.P4: TRUE COPY OF THE INTERIM ORDER DT 13.2.08 PASSED BY THIS HON'BLE COURT IN WPC NO.5157/08.** **EXT.P5: TRUE COPY OF THE FINAL JUDGMENT DT 31.3.2008 PASSED BY THIS HON'BLE COURT IN WPC NO.5157/08.** **EXT.P6: TRUE COPY OF THE NOTICE NO.T.P.505/08 DT 31.3.08 ISSUED BY THE 3RD RESPONDENT TO THE PETITIONER.** **EXT.P7: TRUE COPY OF THE MEMORANDUM OF APPEAL NO.172/08 FILED BY THE PETITIONER BEFORE THE TRIBUNAL FOR LOCAL SELF GOVERNMENT INSTITUTIONS.** **EXT.P8: TRUE COPY OF THE ORDER DT 5.7.08 PASSED BY THE TRIBUNAL FOR LOCAL SELF GOVERNMENT INSTITUTIONS IN APPEAL NO.172/08.** **EXT.P9: TRUE COPY OF THE ORDER NO.T.P.505/08 DT 8.9.08 BY THE 3RD RESPONDENT TO THE PETITIONER.** **EXT.P10: TRUE COPY OF THE PRELIMINARY ORDER NO.T.P.505/08 DT 8.9.08 ISSUED BY THE 3RD RESPONDENT.** **EXT.P11: TRUE COPY OF THE EXPLANATION DT 15.9.08 SUBMITTED BY THE PETITIONER.** **EXT.P12: TRUE COPY OF THE EXPLANATION DATED 15.9.08 SUBMITTED BY THE PETITIONER TO P10.** **EXT.P13: TRUE COPY OF THE MEMORANDUM OF APPEAL NO.496/08 FILED BY THE PETITIONER BEFORE THE TRIBUNAL FOR LOCAL SELF GOVERNMENT INSTITUTIONS.** **EXT.P14: TRUE COPY OF THE ORDER DT 24.11.08 IN APPEAL NO.496/08 PASSED BY THE TRIBUNAL FOR LOCAL SELF GOVERNMENT INSTITUTIONS.** **WPC NO.17874/09** **-2-** **EXT.P15: TRUE COPY OF THE ORDER NO.T.P.505/08 DT 14.1.09 ISSUED BY THE 3RD RESPONDENT.** **EXT.P16: TRUE COPY OF THE EXPLANATION DATED 19.1.09 SUBMITTED BY THE PETITIONER TO EXT.P15 ORDER PASSED BY THE 3RD RESPONDENT.** **EXT.P17: A TRUE COPY OF THE MEMORANDUM OF APPEAL NO.48/09 FILED BY THE PETITIONER BEFORE THE LEARNED TRIBUNAL.** **EXT.P18: TRUE COPY OF THE ORDER NO.T.P.505/09 DT 11.2.09 WITHDRAWING EXT.P15 ORDER IMPUGNED IN EXT.P17 APPEAL.** **EXT.P19: TRUE COPY OF the ORDER DT 6.3.09 PASSED BY THE LEARNED TRIBUNAL IN APPEAL.** **EXT.P20: TRUE COPY OF THE NOTICE NO.T.P.505/09 DT 18.4.09 ISSUED BY THE 3RD RESPONDENT.** **EXT.P21: TRUE COPY OF THE EXPLANATION DT 23.4.09 FILED BY THE PETTIONER BEFORE THE 3RD RESPONDENT TO EXT.P20.** **EXT.P22: TRUE COPY OF THE ORDER NO.T.P.606/08 DT 14.6.09 ISSUED BY THE 3RD RESPONDENT.** ## **EXTS. OF R3** **EXT.R3(a): TRUE COPY OF THE LETTER OF THE SENIOR TOWN PLANNER DATED 4.3.2008.** ## **EXTS. OF R4** **EXT.R4(a): TRUE COPY OF THE ORDER DATED 4.8.2008 IN PETTION NO.AP.791(2)/2008/SIC PASSED BY THE STATE INFORMATION COMMISSION, KERALA.** ## **//TRUE COPY//** ## **P.A. TO JUDGE** **Rp** ## **ANTONY DOMINIC, J. ================ W.P.(C) NO. 17874 OF 2009 (D) =====================** ## **Dated this the 28[th] day of January, 2010** ## **J U D G M E N T** Petitioner is the owner of 7.116 cents of land in Sy.No.276/53, 5-4, 5-8 and 5-9 of Paravur Village. In 2007, he made an application to the respondent Municipality for a building permit. According to the petitioner, defects were pointed out, which were rectified and a revised plan was submitted. The revised plan submitted by him was considered, and Ext.P1 building permit and Ext.P2 approved plan were issued by the Municipality on 8/6/2007, for the construction of a three storied commercial building. 2. According to the petitioner, there was an old building in existence at the site, which was demolished and the site was cleared for starting construction. At that stage, the 4[th] respondent herein, owner of the neighbouring property filed a suit before the Munsiff's Court, North Paravur, for a decree of injunction restraining the petitioner from proceeding with construction. Injunction was declined by the Civil Court. Soon thereafter, on 14/1/2008, the 4[th] respondent made an application to the **WPC 17874/09** **:2 :** Municipality, invoking the provisions of the Right to Information Act, for obtaining copies of Exts.P1 and P2. The Secretary rejected his application and the appeal filed by him was also rejected. He filed a second appeal before the Chief Information Commissioner, which was allowed by Ext.R4(a) order dated 4/8/2008. Accordingly, copies of Exts.P1 and P2 were issued. 3. It is stated that on realising that in the plan approved, there were violations of the provisions of the Kerala Municipality Building Rules, the 4[th] respondent made a complaint to respondents 2 and 3 which led to Ext.P3 stop memo issued by the 3[rd] respondent on 01/02/2008. The reason stated in Ext.P3 stop memo is that there were disputes between the petitioner and the 4[th] respondent regarding the northern boundary of the plot and that the matter was pending consideration of the Civil Court. Petitioner challenged Ext.P3 before this Court in WP(C) No.5157/08. In that writ petition, Ext.P4 interim order was passed on 13/2/2008 permitting the petitioner to continue the construction, making it clear that the same shall be at his risk and that in the event the construction was found to be illegal, the same will be liable for demolition. The writ petition was finally disposed of by Ext.P5 judgment dated 31/3/2008 relegating the **WPC 17874/09** **:3 :** petitioner to file an appeal before the Tribunal for Local Self Government Institutions and clarifying that in the meanwhile, Ext.P3 interim order will continue. Petitioner submits that on the same day, pursuant to Ext.R3(a) communication received by the 3[rd] respondent from the Senior Town Planner, Ext.P6 notice was issued by the Secretary requiring the petitioner to stop further construction on the allegation that the provisions of the Building Rules mentioned therein were violated. 4. Aggrieved by Ext.P3 stop memo and Ext.P6 notice referred to above, petitioner filed Ext.P7 Appeal No.172/08 before the Tribunal for Local Self Government Institutions. Tribunal disposed of the appeal by Ext.P8 order dated 5/7/2008 quashing Exts.P3 and P6. In so far as Ext.P3 is concerned, Tribunal held that grounds specified in section 408(1) of the Kerala Municipality Act, were not pointed out in Ext.P3. In so far as Ext.P6 is concerned, Tribunal held that in the absence of any notice under the proviso to Rule 16 of the Kerala Municipality Building Rules, there arise no question of issuing Ext.P6. 5. According to the petitioner, in the meantime, construction work was continuing, and that, subsequently, by Ext.P9 dated 8/9/2008, Municipality called upon the petitioner to **WPC 17874/09** **:4 :** show cause why Ext.P1 building permit shall not be cancelled as provided under Rule 16 on account of the alleged violation of the various provisions of the Kerala Municipality Building Rules. On the same day, Ext.P10 order under Section 406(1) was also issued requiring the petitioner to stop further works on the basis that the petitioner had violated the provisions of the Kerala Municipality Building Rules. 6. On receipt of Exts.P9 and P10, petitioner submitted Exts.P11 and P12 explanations contenting mainly that he has undertaken construction on the strength of Ext.P1 and Ext.P2, building permit and approved plan, and that in the absence of any violation of the plan or permit, he is entitled to continue the construction and that Exts.P9 and P10 are illegal for that reason. Against Exts.P9 and P10, petitioner filed Ext.P13, Appeal No.496/08, before the Tribunal. The appeal was disposed of by Ext.P14 order. In Ext.P14 order, Tribunal took the view that the grounds mentioned in Exts.P9 and P10 were not available under Section 406 and that in the absence of having cancelled the building permit granted to the petitioner invoking the power under Rule 16 of the Kerala Municipality Building Rules, Exts.P9 and P10 are illegal. Accordingly, the impugned orders were set **WPC 17874/09** **:5 :** aside and the Secretary was directed to initiate fresh and proper proceedings, if there are any reasons for doing so. 7. This was followed by Ext.P15, another order dated 14/1/2009 alleging violation of the provisions of the Kerala Municipality Building Rules and requiring the petitioner to stop further construction work. He was also called upon to show cause why the building permit shall not be cancelled as it was allegedly issued in violation of the provisions of the Municipalities Act and the Building Rules. Ext.P15 also makes reference to the inspection conducted by a Building Inspector on 13/1/2009. On receipt of Ext.P15, petitioner submitted Ext.P16 explanation reiterating that there was no violation of the Building Rules and that he was constructing the building fully in compliance with the building permit and the approved plan. Ext.P15 was again challenged before the Tribunal by filing Appeal No.48/09, a copy of which is Ext.P17. 8. While the appeal was pending, the Municipality issued Ext.P18 informing that since Ext.P15 was issued without conducting an inspection with notice to the petitioner, they have decided to take fresh action in the matter and therefore were wtihdrawing Ext.P15. Despite Ext.P18, the Tribunal considered the **WPC 17874/09** **:6 :** appeal on merits and by Ext.P19 order, allowed the appeal on the ground that no specific reason available under Rule 16 of the Kerala Municipality Building Rules is properly and clearly stated in Ext.P15 notice. It is also stated that though Ext.P15 is also an order directing stoppage of construction, no grounds specified in Section 408 of the Kerala Municipality Act are stated in the order. Accordingly, the appeal was allowed and Ext.P15 was set aside and the Secretary was directed to initiate fresh and proper proceedings, if any, as per law, provided there are any reasons for doing so. 9. Pursuant to Ext.P19, Ext.P20 notice was issued by the Secretary on 18/4/2009. In this notice, it is alleged that the plan was approved in violation of the various provisions of the Kerala Municipality Building Rules. 7 violations have been pointed out in the notice. Accordingly, the petitioner was called upon to show cause why the permit shall not be cancelled. On its receipt, petitioner submitted Ext.P21 reply. Accordingly,the matter was considered and the Municipality issued Ext.P22 order dated 14/6/2009. In this order, it is stated that the plan approved by the Municipality violates various provisions of the Kerala Municipality Building Rules in the manner indicted in the order and that in view **WPC 17874/09** **:7 :** of the violations noticed therein, building permit is ordered to be cancelled. Petitioner submits that in the meanwhile, he continued the construction and that structure of all the three floors have already been completed. It is in these circumstances, this writ petition has been filed seeking to quash Ext.P22 order passed by the 3[rd] respondent and to direct the respondents to permit the petitioner to continue the construction in confirmity with Exts.P1 and P2. 10. The main contention raised by the counsel for the petitioner is that the construction is fully in compliance with Exts.P1 and P2, the permit and the plan approved by the Municipality. It is his contention that once a plan and a permit are approved by the Municipality and the same has been acted upon, it is not open to the Municipality to thereafter turn around and contend that the permit is liable to be cancelled. It is also his contention that although permit and plan were issued as early as on 8/6/2007, notice under Rule 16 was issued for the first time only by Ext.P20 dated 18/4/2009. It is stated that, in the meanwhile, he has proceeded with the construction and completed structure of the three floors and therefore, Municipality is estopped from raising the contention regarding the invalidity of **WPC 17874/09** **:8 :** permit and plan. Counsel also relied on the judgment of this Court in _**Heera Construction (P) Ltd. v. Corporation of Trivandrum**_ (2008(3) KLT 553), in support of this contention. 11. The 2[nd] respondent contended that in terms of Rule 16 of the Kerala Municipality Building Rules, if the Secretary is satisfied that a building permit was issued by a mistake or that a patent error has crept in a building permit issued, the Secretary is entitled to suspend or revoke any permit issued under the Rule. It is contended that in this case, evidently, there are violation of the various provisions of the Kerala Municipality Building Rules, and it was therefore that the Municipality have cancelled the building permit. It is stated that this exercise of power is a statutory one and therefore, the petitioner cannot object to Ext.P22. 12. The 3[rd] respondent, the Secretary of the Municipality is separately represented by a counsel. According to the Secretary, although permit has been issued and plan has been approved, the same was found to be in violation of the provisions of the Building Rules and that since a mistake has been committed, pursuant to Ext.P19 order passed by the Tribunal in Appeal No.48/09, Ext.P20 notice was issued and Ext.P22 final order was passed. In so far as the claim of the petitioner of having proceeded with the work **WPC 17874/09** **:9 :** and completed the structure of all the three floors is concerned, counsel contended that the petitioner is not entitled to claim equity, for the reason that, by Ext.P3 dated 01/02/2008, petitioner was alerted about the violations involved and that inspite of it, he continued the construction at his risk. 13. On behalf of the 4[th] respondent, the contention was that there is a patent violation of the Building Rules. It is contended that he is not guilty of delay or latches in making complaint to the authorities, in as much as, immediately after coming to know of the plan and the permit, he applied for a copy of the same as early as on 14/1/2008. When the request was rejected, he had to pursue the matter upto second appeal level to give a favourable verdict, and that it was thereafter only, he got a copy of the permit and the plan and could make a complaint, which he did immediately thereafter. 14. As already seen, this court is concerned only with the validity of Ext.P22 order passed by the Secretary of the Municipality. In Ext.P22, the finding is that in the plan approved, various provisions of the Kerala Municipality Building Rules have been violated in six respects. The fact that although these violations of the provisions of the Building Rules are highlighted in **WPC 17874/09** **:10 :** the counter affidavit filed by the party respondents, even in the reply affidavit filed by the petitioner, the answer given by the petitioner is too evasive, and therefore, fact that there is violation of the various provisions of the Building Rules is not a matter, which can be disputed by the petitioner. Therefore, I should proceed on the basis that in the permit that was granted and the plan that was approved, there was violation of the provisions of the Kerala Municipality Building Rules. If a permit has been granted and it is in violation of the provisions of the Building Rules or if the permit is vitiated by mistake or vitiated by errors, in such a situation, Rule 16 enables the Secretary to suspend or revoke the permit. The fact that a permit has been obtained by a person , will not, in my view, relieve the owner from his duty to ensure that his construction is in accordance with the provisions of the Municipality Act and the Building Rules. Indication to that effect is available in Rule 18 and Rule 20 of the Building Rules. Rule 18 provides for demolition or alteration of work unlawfully commenced, carried on or completed. Rule 18(1)(i)(a) provides that if construction, reconstruction or alteration of any building or digging of any well has been commenced without obtaining the permission of the Secretary or in contravention of the decision of **WPC 17874/09** **:11 :** the Council, demolition can be ordered. Similarly, if the construction or reconstruction or alteration is carried on, or has been completed otherwise than in accordance with the plan and specifications of permit, that also is a ground to order demolition. In addition, a third ground provided to order demolition is a case where construction, reconstruction or alteration of a building is carried on or has been completed in breach of any of the provisions contained in the Act or Municipality Building Rules or bye law or order made or issued thereunder or any direction or requisition lawfully given or made thereunder. Therefore, for this provision, it is evident that even in a case where a permit has been granted or plan is approved, if the Secretary is satisfied that the construction is carried on in breach of the Act or the Rules, it is open to the Secretary to initiate action. That apart, Rule 20 also provides that the grant of a permit or the approval of the drawings and specifications or inspections made by the Secretary during the erection of the building or structure, shall not in any way relieve the owner of such building of the responsibility for carrying out the work in accordance with the requirement of the rules. The aforesaid Rule therefore reinforces the plea of the 4[th] respondent that even in a case where a permit has been granted **WPC 17874/09** **:12 :** or a plan has been approved, if the construction is in violation of the provisions of the Act and the Rules, power is conferred on the Secretary of the Municipality, to take action under Rule 16 of the Kerala Municipality Building Rules. 15. As contended by the counsel for the petitioner, Ext.P1 permit and Ext.P2 plan has been allowed, but however, on facts, I found that the permit and plan have been issued in violation of the provisions of the Kerala Municipality Building Rules. If so, in the light of Rules, 16, 18 and 20 of the Kerala Municipality Building Rules, it is open to the Secretary to take action in accordance with the provisions of Rule 16, and if so, I cannot find any jurisdictional error for having issued Ext.P22 order. 16. Now the surviving question is whether the petitioner is entitled to save the structures constructed for the reason that Ext.P22 has been issued only on 14/6/09, where as he was issued Ext.P1 permit as early as on 8/6/2007. On facts, it can be seen that soon after Ext.P1 was issued, the first stop memo issued was Ext.P3 dated 01/02/2008. Thereafter, he was issued Ext.P9 stop memo, Ext.P10 order under Section 406(1), Ext.P15 notice stopping the work and Ext.P20 notice resulting in Ext.P22 order. It is true that all notices other than Ext.P20 were set aside by the **WPC 17874/09** **:13 :** Tribunal in the appeals filed by the petitioner. However, as rightly pointed out by the counsel for the 3[rd] respondent, from Ext.P3 onwards, the petitioner was alerted about the violation of the provisions of the Building Rules. It was despite the fact that he was alerted, that he continued with the construction and completed the structure. Therefore, the petitioner was taking a calculated risk, and if so, petitioner cannot claim equity from this Court on the ground that he completed the structure. This is all the more so, for the reason that, on account of the violation committed by the petitioner, the rights of the third parties like the 4[th] respondent are affected. Equity cannot be claimed at the cost of neighbour, whose rights are affected by the illegality. Therefore, I am not persuaded to think that the petitioner is entitled to succeed for equitable considerations. 17. As far as the judgment in _**Heera Construction (P) Ltd. v. Corporation of Trivandrum**_ (2008(3) KLT 553) relied on by the counsel for the petitioner is concerned, that was a case where building was constructed and thereafter permit was cancelled by the Trivandrum Corporation on the ground that the Committee which considered the application for building permit was wrongly constituted. This Court accepting the case of the **WPC 17874/09** **:14 :** petitioner that the irregular constitution of the Committee will not invalidate the decision of the Committee, granted relief to the petitioner. In my view, facts of the case are totally different, and therefore, the said judgment is of no assistance to the petitioner. 18. In the result, I do not find any illegality with Ext.P22. However, counsel for the 3[rd] respondent points out that if the construction is restricted to two floors, the violations pointed out are all curable. Therefore, irrespective of Ext.P22, it is made clear that it will be open to the petitioner to restrict the building to two floors, cure the irregularities and make an application to the Municipality, in which event, Municipality will take steps for regularizing the construction, and on that basis, permit the petitioner to proceed with the remaining works. Writ petition is disposed of as above. ## **ANTONY DOMINIC, JUDGE** Rp