WP(C) No.4475/2016 – M/S BUSINESS INDIA BUILDERS AND DEVELOPERS LTD. v. THE STATE OF KERALA & OTHERS

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE N.NAGARESH** **TUESDAY, THE 28[TH] DAY OF SEPTEMBER 2021 / 6TH ASWINA, 1943** **WP(C) NO. 4475 OF 2016** ## **PETITIONERS:** **1 M/S.BUSINESS INDIA BUILDERS AND DEVELOPERS LTD., DOOR NO.32/1380, B3 ADOBE ENCLAVE BUILDING, PIPELINE ROAD, PALARIVATTOM, KOCHI - 682 025, REPRESENTED BY ITS POWER OF ATTORNEY HOLDER M/S.GREEN CITY HERITAGE PRIVATE LIMITED, THROUGH ITS DIRECTOR ASHWIN LAXMAN PATEL, AGED 35 YEARS, S/O.LAXMAN PATEL, FLAT NO.504, AVANESH APARTMENT, PLOT NO.225, SECTOR - 13, KHARGHAR, NAVI MUMBAI - 410 210. 2 M/S.GREEN CITY HERITAGE PRIVATE LIMITED, C-21, SURSAGAR TOWER, NR.SATTADHAR SOCIETY, GHATLODIYA, AHAMEDABAD – 380 063, HAVING REGIONAL OFFICE AT 48/863A, MAMANGALAM -POTTAKKUZHI ROAD, ELAMAKKARA P.O., COCHIN - 682 026, REPRESENTED BY ITS DIRECTOR ASHWIN LAXMAN PATEL. 3 ASHWIN LAXMAN PATEL, AGED 35 YEARS, S/O.LAXMAN PATEL, DIRECTOR, M/S.GREEN CITY HERITAGE PRIVATE LIMITED, FLAT NO.504, AVANESH APARTMENT, PLOT NO.225, SECTOR-13, KHARGHAR, NAVI MUMBAI - 410 210. 4 NISANT SANTHUBHAI PATEL, S/O.SANTHUBHAI RAVJI BHAI PATEL, VHAVIK APARTMENTS, DOOR NO.A301, KOPPAR ROAD, SASTHRI NAGAR, DOMBIVALI WEST, THANE DISTRICT, MAHARASHTRA, REPRESENTED BY HIS POWER OF ATTORNEY HOLDER SRI.SANTHUBHAI RAVJI BHAI PATEL, FLAT NO.B-308, SHREE BALAJI CHS,** WP(C) No.4475/2016 : 2 : **PLOT NO.19/4, SECTOR-20, KHARGHAR, NAVI MUMBAI – 410 210.** **BY ADVS. SRI.JOSEPH KODIANTHARA (SR.) SRI.D.KISHORE SMT.MINI GOPINATH SRI.R.MURALEEKRISHNAN MALAKKARA** ## **RESPONDENTS:** - **1 THE STATE OF KERALA REPRESENTED BY ITS PRINCIPAL SECRETARY, LOCAL SELF GOVERNMENT DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM, PIN - 695 001.** - **2 THE CHIEF TOWN PLANNER, OFFICE OF THE CHIEF TOWN PLANNER, THIRUVANANTHAPURAM, PIN - 695 003.** - **3 THE REGIONAL TOWN PLANNER, CORPORATION OF COCHIN, ERNAKULAM DISTRICT, PIN - 682 030.** - **4 THE CORPORATION OF COCHIN, REPRESENTED BY ITS SECRETARY, ERNAKULAM DISTRICT, PIN - 682 011.** - **5 THE SECRETARY, CORPORATION OF COCHIN, ERNAKULAM DISTRICT, PIN - 682 011.** - **6 THE ASSISTANT EXECUTIVE ENGINEER, CORPORATION OF COCHIN, ZONAL OFFICE, EDAPALLY, ERNAKULAM DISTRICT, PIN - 682 025.** **BY ADVS.** **SPL.GOVERNMENT PLEADER SRI.S.RENJITH (AAG) SRI.BABU KARUKAPADATH,SC,COCHIN CORPORATION R4-6 BY SRI. C.N.PRABHAKARAN** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 28.09.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** WP(C) No.4475/2016 : 3 : ## **J U D G M E N T** ~ ~ ~ ~ ~ ~ ~ ~ ~ ## _**Dated this the 28[th] day of September, 2021**_ In this writ petition, the petitioners seek to quash Ext.P10 notice of the Assistant Executive Engineer to the extent it finds that the width of the access road leading to the petitioners' property is less than the minimum width stipulated in the statute, and to declare that the petitioners are entitled to have Ext.P9 application for Building Permit considered notwithstanding defect No.2 pointed out in Ext.P10 as a special case or otherwise in the light of Ext.P3 Scheme and Exts.P11, 13 and 14 documents. The petitioners have sought for further consequential reliefs. 2. Petitioners 1 and 2 are incorporated Companies. The 2[nd] petitioner is the Power of Attorney holder of the 1[st] petitioner. The 3[rd] petitioner is a Director of the 2[nd] petitioner. The 4[th] petitioner is the land owner who surrendered property WP(C) No.4475/2016 : 4 : ## for the building project in issue. 3. The Corporation of Cochin issued Ext.P1 Building Permit dated 31.01.2006 to the 1[st] petitioner to construct multistoried buildings at Edappally. On 30.10.2007, the 1[st] petitioner entered into a Development Agreement with the 2[nd] petitioner, under which the 1[st] petitioner was to appropriate 30% super built up area and the 2[nd] petitioner was to appropriate the remaining 70%. When the construction work was in progress, the creditors of the 1[st] respondent-Company filed a number of civil suits before various courts. Pursuant to the claims made by creditors of the 1[st] petitioner, attachment orders were passed by civil courts, and attachment order was passed even in respect of the project at Edappally. 4. In the meanwhile, the validity of Ext.P1 Building Permit expired. The permit was extended up to 06.12.2008 as per Ext.P2. However, the construction could not be carried out due to pending litigations. Some creditors of the 1[st] petitioner filed C.P. No.41/2009 seeking to wind up the 1[st] petitioner-Company. In the said Company Petition, a Scheme WP(C) No.4475/2016 : 5 : was arrived at under Section 391 of the Companies Act and the said Scheme permitted the 2[nd] petitioner to complete the project and hand over 30% of the super built up area of the condominium to satisfy the debt of the creditors. This Court approved the Scheme as per Ext.P3 judgment. This Court also appointed a Core Committee to supervise the Scheme. During the said period, the progress of construction was slow. The petitioners applied for renewal of Building Permit which was due to expire on 05.12.2011. The renewal application was not considered due to pending litigations. Later, the validity of the existing permit was extended till 03.12.2014. On 04.11.2014, the Building Permit was revised, removing a part of the Project property and incorporating additional properties. Ext.P5 Revised Building Permit was issued. The permit was valid up to 15.12.2015. Before the expiry of the said permit, the petitioners completed Tower-B and submitted Building Completion Certificate on 02.12.2015. 5. The petitioners state that the original Building Permit issued on 31.01.2006 was for construction of Tower-A WP(C) No.4475/2016 : 6 : and Tower-B in 197 Cents of land. The permit was renewed from time to time up to 03.12.2014. Pursuant to the orders of this Court in Ext.P3 judgment, 27 Cents of land was removed from the 197 Cents of project land. Additional properties were purchased by the petitioners and included in the project and presently the project area is 207.7 Cents. This necessitated a revised Building Permit. Revised permit was obtained for Tower-B alone. 6. The petitioners applied for revised Building Permit for Tower-A and Tower-C on 17.09.2015. The Assistant Executive Engineer issued Ext.P10 communication pointing out certain defects and the Defect No.2 was that the width of the access road should be 10 metres and the revised plan does not satisfy the statutory requirement of access width. The petitioners would state that Tower-B in the same project area was approved with the same access road. The width of the access road is 7.65 metres. Furthermore, the access road, namely Mamangalam-Pottakuzhi Road, is proposed to be widened to 22 metres, as per the Ext.P11 Council Decision WP(C) No.4475/2016 : 7 : of the Corporation of Cochin and it has been included in the Town Planning Scheme. In such circumstances, denial of Building Permit to Tower-A and Tower-C is unjustifiable, contended the petitioners. 7. The 3[rd] respondent filed a statement. The 3[rd] respondent stated that an application from Secretary, Kochi Municipal Corporation to the Government Secretary, LSGD was received on 04.04.2015 for the renewal of building permit beyond 9 years owned by the 1[st] petitioner and others. As per the documents submitted, a building permit for the period from 06.12.2005 to 05.12.2008, was issued on 06.12.2009 for a residential building having an area of 20919.03m[2] with G+17 stories. The building permit was renewed from 06.12.2008 to 05.12.2011 and again renewed from 04.12.2011 to 03.12.2014 by the Secretary of Kochi Corporation. But, the local body has again renewed the permit after nine years for the said construction for a period of 3 years from 03.12.2014 on a revised plan having an area of 10444.34 m[2] with G+17 stories; which implies that building permit exists as on today. WP(C) No.4475/2016 : 8 : 8. The 3[rd] respondent stated that though the application for renewal of building permit was beyond 9 years and the area of the construction is 10444.34 m[2] with G+17 stories, the survey numbers mentioned in both are different from that of previous permits. In the circumstances a letter No.D/772/15 Ldis dated 15.07.2015 from RTP Officer, Ernakulam was sent to the Secretary of Kochi Corporation asking clarification. A letter No.EYP2/884/15 dated 04.09.2015 of the Secretary, Kochi Municipal Corporation was received on 26.10.2015. Even though clarification of Secretary was not exhaustive, the application was forwarded to Government through Chief Town Planner as per letter No.D/772/15 dated 11.02.2016. 9. As per Rule 33 of the KMBR, 1999, the minimum clear width of access to a building and plot as well as the width of the street giving access to the plot from the main street for Group A1 occupancy with total floor area above 24000 sq.m., shall be 10.00 m. The width of access that is taken while considering application for layout approval is the WP(C) No.4475/2016 : 9 : width available at site as specified in Rule 33 of the KMBR, 1999 and not the proposed road which is not in existence at the time of consideration of the application as contented by the petitioners, contended the 3[rd] respondent. 10. Heard the learned counsel for the petitioners, the learned Government Pleader representing respondents 1 and 3 and the learned Standing Counsel for respondents 4 to 6. 11. This Court on 24.02.2016 passed an interim order directing the respondents to process Ext.P9 application for Building Permit without insisting on the compliance of Condition No.2 in Ext.P10 notice within a period of two months. A learned Single Judge of this Court subsequently noted that the Corporation of Kochi as well as Regional Town Planner have recommended for grant of Building Permit for Tower-A and Tower-C. Accordingly, a learned Single Judge disposed of the writ petition on 20.09.2016 directing the Chief Town Planner to bring the proceedings to a logical conclusion. 12. The State filed WA No.1558/2016 and contended that the Regional Town Planner had not made any such WP(C) No.4475/2016 : 10 : recommendation in favour of the petitioners as observed by the learned Single Judge. The Division Bench of this Court accepted the said argument, modified the judgment in the writ petition and directed the authorities to decide the Building Permit application on its merits. The petitioners filed RP No.825/2018, which was dismissed by the Division Bench. The petitioners thereupon filed Civil Appeal Nos.3155 to 3156 of 2019 before the Hon’ble Apex Court against the judgment in WA No.1558/2016. 13. The Hon’ble Apex Court disposed of the Civil Appeals with the following observations and directions: “The limited grievance made in these appeals is that the appellant(s) had prayed for diverse relief(s) in the writ petition, however, the High Court has disposed of the matter merely on the basis of one of the reliefs claimed therein, by directing the application for grant of building permit to be decided by the competent authority. Notably, no discussion is found in the impugned judgment of the High Court with regard to other reliefs. In these circumstances, we relegate the parties before the High Court for consideration of reliefs (a) and (b) only, afresh in accordance with law. The writ petition is restored to the file of the High Court to its original number for being heard afresh on reliefs (a) and (b) by the learned Single Judge of the WP(C) No.4475/2016 : 11 : High Court. All contentions available to both parties in that regard are left open. The appeals are disposed of accordingly.” The direction of the Apex Court therefore is to consider the reliefs (a) and (b) which reliefs are relating to Defect No.2 in Ext.P9, as regards the width of the access road, for the purpose of grant of Building Permit to Tower-A and Tower-C. 14. The Apartment Complex Project of the petitioners contemplates three Towers. Ext.P1 Original Building Permit was issued to the petitioners on 31.03.2006. The access road to the Project area has a width of 7.65 metres. It is an admitted position that at the time of issuance of the Building Permit, the Kerala Municipal Building Rules, 1999 required that the access road should have a width of 7 metres only for buildings having more than three stories. Therefore, the respondents granted Ext.P1 Building Permit. 15. The said Building Permit was renewed from time to time and its validity was extended till 31.12.2014. During this period, various litigations were initiated against the 1[st] WP(C) No.4475/2016 : 12 : petitioner in different civil courts and properties including the property where the project was in progress, was attached. Finally, this Court, adjudicating CP No.41/2009, approved a Scheme under Section 391 of the Companies Act, as per Ext.P3 judgment, on 21.11.2013. The Scheme contemplated that the Tower-B of the project shall be completed and possession of 30% of the super built up area should be to the Builder, to satisfy the claim of the creditors. 16. Ext.P1 judgment would make it abundantly clear that though only 30% of the super built up area of Tower-B was to be handed over at the first instance for the benefit of the creditors of the 1[st] respondent, after completion of the project, other areas including common facilities such as Club House, Swimming Pool, Landscape Garden, Health Centre, etc. also had to be apportioned. The Scheme also contemplated that additional area, if any, procured as per the revised Floor Area Ratio would also be apportioned as per the compromise agreement. The additional area so obtained also had to be allotted to the share of the Builder in Tower-B so that WP(C) No.4475/2016 : 13 : the 30% could be carved out from one tower only and would lie compactly. 17. Ext.P3 judgment would amply make it clear that the Scheme approved under Section 391 of the Companies Act contemplated procurement of additional area for the project and the completion of project in its whole, so as to share the value in 30:70 proportion. This Court further constituted a Core Committee under the Chairmanship of Mr. Justice P.S.Gopinathan to implement the Scheme. The petitioners procured an additional area of 29.5 Cents for the completion of the project, as contemplated by the Scheme. 18. For the effective implementation of the Scheme in a time bound manner, the petitioners applied for a Revised Building Permit initially for Tower-B. The Revised Building Permit was necessitated due to the deletion and addition of land intended for the project. It may be noted that such a change in the land area of the project was also contemplated under the Scheme as approved by Ext.P3 judgment. The revision was allowed, Ext.P5 Revised Building Plan was WP(C) No.4475/2016 : 14 : issued and construction of Tower-B was completed. 19. In the meanwhile, the Building Rules were amended with effect from 05.02.2013 and under Rule 33 of the KMBR, 1999, the requirement of access width was increased to 10 metres for Group A1 Occupancy (with total floor area above 600 square metres) with total floor area of buildings above 24,000 square metres. Ext.P5 Revised Building Permit was issued to Tower-B after the said amendment, though available access width was only 7.65 metres. This was perhaps due to the reason that the total floor area of Tower-B is only 10444.34 square metres. Now, the situation is that even after the amendment to Building Rules effected on 05.02.2013, with the access width of 7.65 metres, Building Permit has been issued to Tower-B and the same is being denied to Towers A and C on the ground that the access width is only 7.65 metres. 20. The petitioners are put to a disadvantageous position due to the amendment to Building Rules brought about with effect from 05.02.2013 and due to the then pending WP(C) No.4475/2016 : 15 : litigation. Originally, Ext.P1 Building Permit was issued on 31.01.2006. While the Building Permit was current, CP No.40/2009 was filed under the provisions of the Companies Act, before this Court, in the year 2009. The final judgment in CP No.40/2009 was delivered only on 21.11.2013. The Scheme approved under Section 391 by this Court as per Ext.P3 judgment contemplated addition of land to the project area, which consequentially necessitated a Revised Building Permit. Building Permit for Tower-A and Tower-C is not being issued in view of the amendment to Building Rules made on 05.02.2013. 21. The Scheme framed which was approved by this Court, was not in an inter-party civil litigation. It was a Scheme framed under Section 391 of the Companies Act. The Scheme was framed for the benefit of about 2800 creditors. The Creditors are not of the 1[st] petitioner-Company alone. A good number of creditors were creditors of two other Companies also who are not parties to the present proceedings. When a Scheme is approved by this Court, for WP(C) No.4475/2016 : 16 : the benefit of 2800 creditors, implementation of the Scheme shall be given priority and any amendment to the rules brought about during the interregnum shall not put the petitioners herein and others, who have invested their money in the Housing Project, to a disadvantageous position and financial distress. 22. Act of the Court shall prejudice no man. Actus Curiae Neminem Gravabit. This principle has been held to be fundamental to the system of justice and application to Indian Jurisprudence. No man should suffer because of the fault of the court or delay in the procedure – _**Busching Schmitz Private Limited v. P.T. Menghani and another** [1977 (2) SCC 835]_ . 23. In the case of the petitioners, they have been proceeding with the project on the basis of Ext.P1 Building Permit. Pursuant to the Company Petition filed by certain creditors, a Scheme was arrived at, which was approved by this Court. The Scheme contemplated the Project as a whole and even approved addition of land to the area of project, WP(C) No.4475/2016 : 17 : without which the Scheme cannot be successfully implemented. The pendency of the Company Petition and the addition of land, necessitated a revised Building Permit. When Ext.P9 application was made for revised Building Permit, it was not issued due to the amendment made in the interregnum, to the Building Rules. Denial of Building Permit in such circumstances would be unjustifiable. 24. There is yet another reason which would justify the claim of the petitioners for issuance of Building Permit. The access road to the project site is the Mamangalam-Pottakuzhy Road. The Corporation of Cochin has included the said road in the Jawaharlal Nehru Urban Town Planning Scheme, proposing to widen the road to 22 metres. An amount of ₹22.78 Crores has been set apart for widening the road to an extent of 4.69 Km. The Corporation has issued notification on 02.01.2004 fixing the Building Line with respect to the road. The said notification has already been published. Though respondents 1 to 3 may be justified in contending that an application for building permit should be considered with WP(C) No.4475/2016 : 18 : reference to the rules as existing at the time of consideration of the application, the peculiar facts of this case, the Scheme approved as per Ext.P3 judgment and the fact that nonimplementation of the Scheme would adversely affect not only the parties to this writ petition, but to a large number of persons who are not parties to this writ petition, demand that the application for building permit should be considered without insisting on the amended rules, which were brought into effect during the formulation of the Scheme. 25. The Core Committee appointed by this Court in its Ext.P12 minutes has observed as follows: “According to the proposer the built-up-area now agreed to be handed over to the Core Committee is inclusive of the area that would be built up in Tower A for which there was earlier permit. Now the local authority had raised objection regarding the width of the proposed road and in the event permit is not reissued/revised, construction of Tower A is not possible. The share of the builder allotted in Tower B construction of which is now completed is after taking the account of the proposed built up area in Tower A also. If Tower A could not be constructed, whatever may be objection raised by the local authority, the area now allotted to the share of the builder for disposal to discharge the liability would be much reduced. In effect that would annul the compromise agreement which has been accepted by the Honourable High Court of Kerala.” WP(C) No.4475/2016 : 19 : 26. This Court finds considerable merit in the said observations and findings of the Core Committee. For all the afore reasons and taking into consideration the Scheme statutorily approved by this Court, Ext.P9 application for Building Permit submitted by petitioners is liable to be considered without insisting on the amended access width requirement brought about with effect from 05.02.2013, to meet the ends of justice. Ext.P10 is therefore set aside in so far as it relates to Defect No.2 mentioned therein. The respondents are directed to consider Ext.P9 application for Building Permit submitted by the petitioners without insisting on curing of Defect No.2 mentioned in Ext.P10 and issue Building Permit to the petitioners within a period of two months, if the petitioners are otherwise eligible for the same. Sd/- **N. NAGARESH, JUDGE** aks/23.09.2021 WP(C) No.4475/2016 : 20 : ## **APPENDIX OF WP(C) 4475/2016** ## **PETITIONERS' EXHIBITS:** **EXHIBIT P1 ETRUE COPY OF THE BUILDING PERMIT DATED 31.01.2006 ISSUED BY THE ASSISTANT EXECUTIVE ENGINEER, CORPORATION OF COCHIN.** **EXHIBIT P2 TRUE COPY OF THE MEMO DATED 25.02.2009 ISSUED BY THE 6TH RESPONDENT. EXHIBIT P3 TRUE COPY OF THE JUDGMENT DATED 21.11.2013 IN C.P.NO.41/2009 AND CONNECTED CASES.** - **EXHIBIT P4 TRUE COPY OF THE MEMO DATED 01.04.2014 ISSUED BY THE 5TH RESPONDENT.** - **EXHIBIT P5 TRUE COPY OF THE REVISED BUILDING PERMIT DATED 04.11.2014 ISSUED BY THE 5TH RESPONDENT.** - **EXHIBIT P6 TRUE COPY OF THE ORDER DATED 16.06.2015 IN WP(C) NO.10896 OF 2015 OF THIS HONOURABLE COURT.** - **EXHIBIT P7 TRUE COPY OF THE PROCEEDINGS** - **EXHIBIT P7 TRUE COPY OF THE PROCEEDINGS NO.EYP2/884/15 DATED 23.07.2015 OF THE 5TH RESPONDENT.** - **EXHIBIT P8 TRUE COPY OF THE RECEIPT DATED 02.12.2015 EVIDENCING THE ACKNOWLEDGMENT OF COMPLETION CERTIFICATE SUBMITTED BY THE PETITIONERS.** - **EXHIBIT P9 TRUE COPY OF THE APPLICATION FOR BUILDING PERMIT DATED 17/9/2015 SUBMITTED BY THE PETITIONERS BEFORE THE 5TH RESPONDENT.** - **EXHIBIT P10 TRUE COPY THE NOTICE NO.EYP2/COC/EYP/1775/14 DATED 13.10.2015 OF THE 6TH RESPONDENT.** - **EXHIBIT P11 TRUE COPY OF THE RELEVANT EXTRACT OF PROPOSAL APPROVED BY THE COUNCIL, CORPORATION OF COCHIN REGARDING THE DEVELOPMENT OF ROADS.** - **EXHIBIT P12 TRUE COPY OF THE EXTRACT OF THE MINUTES DATED 14.12.2015 OF THE CORE COMMITTEE HEADED BY JUSTICE P.S.GOPINATHAN.** WP(C) No.4475/2016 : 21 : |**EXHIBIT P13**|**TRUE COPY OF THE "POURAVAKASHA REKHA"**| |---|---| ||**ISSUED BY THE CORPORATION OF COCHIN.**| |**EXHIBIT P14**|**TRUE COPY OF THE NOTIFICATION DATED**| ||**02.01.2004 ISSUED BY THE CORPORATION OF**| ||**COCHIN UNDER SECTION 350 OF HE**| ||**MUNICIPALITY ACT.**| |**EXHIBIT P14(A)**|**TRUE COPY OF THE NOTIFICATION PUBLISHED**| ||**IN THE METRO MANORAMA DAILY DATED**| ||**06.02.2004.**| |**EXHIBIT P15**|**TRUE COPY OF THE ORDER DATED 15/3/2019**| ||**IN SLP(C) 7647-7648/2019 OF THE**| ||**HONOURABLE SUPREME COURT**| SR