W.P.(C). Nos. 37239/2017 and 38043/2017 (Ranjana v. Thrissur Corporation; Karthik Ramani v. Thrissur Corporation)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE V.G.ARUN** **WEDNESDAY, THE 07TH DAY OF AUGUST 2019 / 16TH SRAVANA, 1941** ## **WP(C).No.37239 OF 2017(D)** ## **PETITIONER:** **RANJANA, AGED 55, D/O.VATTEKKAT RAMAN NAIR,5151, SHOBHA CITY, PUZHAKKAL, GURUVAYOOR ROAD,THRISSUR - 680 553,NOW RESIDING AT 12-A, BLOCK-D,CHAKOLAS HABITAT, THEVARA FERRY ROAD,THEVARA, COCHIN - 682 013.** **BY ADVS. SRI.S.SREEKUMAR (SR.) SRI.ANEESH JAMES SRI.JIJO THOMAS SRI.MALLENATHAN.M.** ## **RESPONDENTS:** **1 CORPORATION OF THRISSUR MUNICIPAL OFFICE ROAD, KURUPPAM,THRISSUR - 680 001,REPRESENTED BY THE SECRETARY. 2 THE SECRETARY CORPORATION OF THRISSUR, MUNICIPAL OFFICE ROAD, KURUPPAM,THRISSUR - 680 001. 3 DR.B.VIJAYA KUMAR S/O.LATE BHASKARAN NAIR, "SIVADAM",28/124/5, SOUHRIDA LANE, PATTURACKAL,THIRUVAMPADY P.O., THRISSUR - 680 022.** **BY ADVS. SRI. SANTHOSH P.PODUVAL, SC, THRISSUR CORPORATION SRI.S.JUSTUS SRI.U.V.DEEPU** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 29-072019, ALONG WITH WP(C).38043/2017(E), THE COURT ON 7-08-2019 DELIVERED THE FOLLOWING:** W.P(C) Nos. 37239 & 38043 of 2017 2 **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE V.G.ARUN** **WEDNESDAY, THE 07TH DAY OF AUGUST 2019 / 7TH SRAVANA, 1941** ## **WP(C).No.38043 OF 2017** ## **PETITIONER:** **KARTHIK RAMANI AGED 33 YEARS** **MANAGING PARTNER, M/S.KALYAN DEVELOPERS, DOOR NO. TC 35/1403, SREEKRISHNA BUILDING,WEST PALACE ROAD, THRISSUR CITY P.O.,THRISSUR - 680 020.** **BY ADVS. SRI.P.RAMAKRISHNAN SRI.C.ANIL KUMAR SMT.ASHA K.SHENOY SRI.T.C.KRISHNA SMT.PREETHI RAMAKRISHNAN (P-212) SRI.PRATAP ABRAHAM VARGHESE** ## **RESPONDENTS:** - **1 CORPORATION OF THRISSUR** **MUNICIPAL OFFICE ROAD,KURUPPAM, THRISSUR, 680 001REPRESENTED BY ITS SECRETARY** - **2 THE SECRETARY CORPORATION OF THRISSUR,MUNICIPAL OFFICE ROAD, KURUPPAM,THRISSUR 680 001.** **3 DR.B.VIJAYA KUMAR S/O.LATE BHASKARAN NAI,SIVADAM, 28/124/5, SOUHRIDA LANE,PARRURAICKAL, THIRUVAMPADY P.O.,THRISSUR 680 022** **4 RAJANA D/O.VATTEKAT RAMAN NAIR,RESIDING AT 5151, SHOBHA CITY,PUZHAKKAL, GURUVAYOOR ROAD,THRISSUR - 680 553.** **BY ADVS.** **SRI. SANTHOSH P.PODUVAL, SC, THRISSUR CORPORATION SRI.S.JUSTUS SRI.U.V.DEEPU** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 2907-2019, ALONG WITH WP(C).37239/2017(D), THE COURT ON 7-08-2019 DELIVERED THE FOLLOWING:** W.P(C) Nos. 37239 & 38043 of 2017 3 ## **JUDGMENT** ## **Arun, J** The petitioner in WP(C) No.37239 of 2017 is the owner of a property ad-measuring 40 cents comprised in Survey No.1611 /1P in Thrissur Village of Thrissur District, who intends to construct a multistoried apartment complex in her property. The petitioner in WP(C) No.38043 of 2017 is the builder, who has entered into an agreement to construct the multi-storied apartment complex. The access to the property, where the proposed construction is to be effected, is through the Ponnumveetil Lane, which is a public street having a width of 5 metres as per the Asset Register maintained by the Thrissur Corporation. Alongside the access road there is a drain covered with concrete slabs. The 5 metre width of the road is inclusive of the width of the drain. The short question arising for consideration in these writ petitions is as to whether, for the purpose of calculating the width of a W.P(C) Nos. 37239 & 38043 of 2017 4 public road /street, the width of the public drain alongside the road can also be taken into account. 2. The brief facts essential for deciding the question raised in this Writ Petition are as follows: The owner of the property had, for the purpose of strengthening the concrete slabs over the drain in the Ponnumveetil Lane, approached the Thrissur Corporation with a proposal to replace the existing concrete slabs over the drain with stronger slabs at her expense, so that heavy vehicles including fire engines could reach up to her property. The Public Works Standing Committee of the Corporation, vide its decision dated 19.8.2015, approved the proposal submitted by the owner. Thereupon, the petitioner replaced the slabs and obtained NOC from the Fire and Rescue Services, Consent to Establish from the Pollution Control Board and Building Permit from the Corporation. 3. The 3[rd] respondent in both writ petitions is the owner of a plot adjoining the petitioner's property and was apprehensive about the proposed construction. W.P(C) Nos. 37239 & 38043 of 2017 5 Therefore, the 3[rd] respondent challenged the petitioner’s building permit by filing an appeal (Appeal No.1188 of 2016), before the Tribunal for Local Self Government Institutions. The main ground of challenge was that the Ponnumveettil Lane, which is the access road to the plot where the construction is to be effected, did not have the minimum width mandated under Rule 33 of the Kerala Municipality Building Rules (KMBR). By order dated 23.10.2017, which is impugned in these writ petitions , the Tribunal held that after measuring the width of the access road, excluding the width of the drainage, the Advocate Commissioner had reported that at various points the width of the access road was less than 5 metres, which is the minimum prescribed width. Based on the said finding, the Tribunal went on to hold that the building permit issued to the owner was illegal and set aside the building permit. 4. The learned Senior Counsel appearing for the owner assails the findings of the Tribunal on various grounds. It is submitted that the Tribunal committed a W.P(C) Nos. 37239 & 38043 of 2017 6 mistake in placing reliance on Rule 2(1)(bm) and (bma) of the Kerala Municipality Building Rules to hold that the width of the road does not take in the width of the drainage. It is contended that the Tribunal committed an error in finding that the definition of public street under Section 2(34) of the Kerala Municipality Act should give way to the definition of road and width of the road in Rule 2(1)(bm) and (bma) of the Kerala Municipality Building Rules. It is submitted that when, in the Municipality Asset Register, the width of the road is recorded as 5 metres, then a different finding could not have been arrived at by the Tribunal based on the Advocate Commissioner's report. Reliance is also placed on a report submitted by the District Town Planner to the Chief Town Planner stating that the width of Ponnumveetil Lane is more than 5.10 metres. The learned counsel appearing for the builder supported the argument of the learned Senior Counsel and placed reliance on GO(Ms)No.76/2017/LSGD dated 31.3.2017, whereby the Government clarified that ‘width the of street’ would among other things which are provided as W.P(C) Nos. 37239 & 38043 of 2017 7 integral constituent part of the right of way, take in road side drains also. 5. The contention of the 3[rd] respondent is that the width of the road should be calculated without including the drain. The 3[rd] respondent has also got a case that the sanction accorded by the Public Works Standing Committee of the Corporation to the owner for replacing the slabs over the drain with stronger concrete slabs, is without authority and amounts to maladministration and that he has already approached the Ombudsman for Local Self Government Institutions alleging maladministration on the part of the Corporation officials. The 3[rd] respondent alleges that the Corporation had extended a special favour to the owner by permitting her to strengthen the concrete slabs, thereby making it possible for her to obtain permit for constructing a multi-storied building complex. 6. The learned Standing Counsel for Thrissur Corporation reiterated the stand of the Corporation expressed through its counter affidavit that, the width W.P(C) Nos. 37239 & 38043 of 2017 8 of the access road, as per its Asset Register and on actual measurement is more than 5 metres at all points and that the action of the Corporation in having permitted the owner to replace the existing slabs and lay stronger slabs over the drain was legally permissible. 7. In order to decide the issue arising in these writ petitions, the relevant provisions of the Kerala Municipality Act and the Kerala Municipality Building Rules are to be looked into. **Section 2(34)** of the Municipality Act defines ‘public street’ to mean any street, road , square, court, alley, passage or riding path over which the public have a right of way, whether a thoroughfare or not and includes; a) the road over any public bridge or cross way b) the loot way attached to any street , public bridge or cross way and c) **the drains attached to any street** , public bridge or cross way and the land whether covered or not by any pavement, verandha or structure, which lies on either side of the road up to the boundaries of the adjacent property, whether the property is private property or property belonging to the W.P(C) Nos. 37239 & 38043 of 2017 9 Government. **Rule 2 (1)(bm)** of the Rules define ‘road’ as any highway, street, lane, pathway, alley, passageway, carriageway, foot way or bridge whether a thoroughfare or not, over which the public have a right of passage or access uninterruptedly for a specified period; whether existing or proposed in any town planning scheme. The ‘width of the road’ has been defined in **Rule 2(1) (bma)** to be the right of way including medians, service roads and flyover. **Rule 33 (1)** stipulate that the minimum clear width of access through a building and plots as well as the width of the street giving access to the plot from the main street shall be as shown in Table 4.1 and Table 4.2 unless otherwise specifically mentioned elsewhere in these Rules. The building proposed to be constructed by the owner falls under Group A1 occupancy included in Table 4.1 and the minimum width of access required in accordance with the total floor area of the proposed building is 5 metres. As per Sub Rule 6 of Rule 33, every access shall be drained and lighted to the satisfaction of the Secretary and man-hole covers or other drainage, water or any other fittings laid in such access shall be flushed with finished surface level so as not to obstruct safe travel over the same. Chapter XVII of the KMBR deals with Safety Provisions for Highrise Buildings. Rule 116 therein mandate that the width of access to a high rise building and plot as well as width of the street W.P(C) Nos. 37239 & 38043 of 2017 10 giving access to the plot from the main street shall be 5 metres or as prescribed elsewhere in the Rules, whichever is higher. 8. Interpreting in Rules 2(1) (bm), (bma) and 33 of the KMBR and Section 2(34) of the Kerala Municipality Act, the Tribunal came to the conclusion that as far buildings are concerned, the definition in KMBR would prevail over the definitions in the Kerala Municipality Act. It is also held that Rule 2(1)(bma) being an inclusive definition, the absence of the word drainage in that Rule would show that the legislature had intended to exclude drainage from the purview of 'width of the road'. 9. As far as the finding of the Tribunal that the definitions in the KMBR would prevail over the definition in the Kerala Municipality Act, it has to be noticed that the Kerala Municipality Building Rules is formulated by the Government in exercise of the powers conferred by Sections 381, 387, 398 and 406 read with 565 of the Kerala Municipality Act, 1994. Section 381, which is relevant in this context reads as W.P(C) Nos. 37239 & 38043 of 2017 11 follows: — **“381. Building rules.** (1) The Government may make rules- (a) for the regulation or restriction of the use of sites for building; and (b) for the regulation or restriction of building construction. (2) Without prejudice to the generality of the powers conferred by clause (a) of sub-section 1), rules made under that clause may provide that - (a) no insanitary or dangerous site shall be used for building construction; and (b) no site shall be used for the construction of a building intended for public worship, if the construction thereon will wound the religious feelings of any class of persons. (3) Without prejudice to the generality of the powers conferred by clause (b) of sub-section(1), rules made under that clause may provide for the following matters:- namely (a) information and plans to be submitted together with applications for permission to construct a building; (b) height of buildings, whether absolute or relative to the width of W.P(C) Nos. 37239 & 38043 of 2017 12 streets; (c) level and width of foundation level of lowest floor, and stability of structure; (d) number and height of storeys composing a building and height of rooms; (e) provision of sufficient open space external or internal and adequate means of ventilation; (f) provision of means of egress in case of fire; (g) provision of secondary means of access for the removal filth; (h) materials and methods of construction of external and partition walls, roofs and floors; (i) position, materials and methods of construction of hearths, smoke escapes, chimneys, staircases, latrines, drains, cesspools ; (j) paving of yards; (k) restrictions on the use of inflammable materials in the building; and (l) in the case of wells, the dimensions of the well in the manner of enclosing it, and if the well is intended for drinking purposes the means which shall be used to prevent pollution of water.” W.P(C) Nos. 37239 & 38043 of 2017 13 Therefore, being a subordinate legislation, the KMBR cannot provide a restrictive meaning to the word "road", as against the definition in the parent statute, namely, the Kerala Municipality Act. The definition of public street in Section 2(34) of the Municipality Act takes in drains attached to any street. Hence, the meaning of the term 'width of the road' in Rule 2(bma) has to be understood to include drains alongside the roads also. It is no longer _res integra_ that the subordinate legislation should conform to the policy of the parent statute. In _**Ispat Industries Ltd vs Commissioner of customs, Mumbai**_ **(2006)12 SCC 583,** the Hon’ble Supreme Court referred to the Gunapradhan axiom in the Mimamsa Principles of interpretation (the medieval Indian rules of interpretation) and held as follows; **32.** It may be mentioned that the Mimamsa rules of interpretation were our traditional principles of interpretation laid down by _Jaimini_ in the 5th century BC whose Sutras were W.P(C) Nos. 37239 & 38043 of 2017 14 explained by _Shabar_ , _Kumarila Bhatta_ , _Prabhakar_ , etc. The Mimansa rules of interpretation were used in our country for at least 2500 years, whereas Maxwell’s first edition was published only in 1875. These Mimansa principles are very rational and logical and they were regularly used by our great jurists like _Vijnaneshwara_ (author of _Mitakshara_ ), _Jimutvahana_ (author of _Dayabhaga_ ), _Nanda Pandit_ , etc. whenever they found any conflict between the various Smritis or any ambiguity or incongruity therein. There is no reason why we cannot use these principles on appropriate occasions even today. However, it is a matter of deep regret that these principles have rarely been used in our law courts. It is nowhere mentioned in our Constitution or any other law that only _Maxwell’s Principles of Interpretation_ can be used by the court. We can use any system of interpretation which helps us to solve a difficulty. In certain situations Maxwell’s principles would be more appropriate, while in other situations the Mimansa principles may be more suitable. One of the Mimansa principles is the Gunapradhan Axiom, and since we are utilising it in this judgment we may describe it in some detail. “Guna” means subordinate or accessory, while “pradhan” means principal. The Gunapradhan Axiom states: “If a word or sentence purporting to express a subordinate idea clashes with the principal idea, the former must be adjusted to the latter or must be disregarded altogether.” W.P(C) Nos. 37239 & 38043 of 2017 15 10. The Government has, as per GO(Ms)No.76/2017/LSGD dated 31.3.2017, clarified that 'street, road furniture and services such as street lights, lamp posts, electricity/telecommunication holes/lines, **road side drains** , footpaths, wayside plants/trees etc, which are provided as integral constituent part of the right of way will also fall within the scope of the definition of **width of the road** under Rule 2(1)(bma) of the KMBR. 11. In such circumstances, the finding of the Tribunal that road side drain cannot be included for measuring the width of the access road and that, after excluding the width of the drain, the width of the access road to the property of the owner is less than 5 metres cannot be sustained. The other violations raised by the 3[rd] respondent, in his appeal before the Tribunal, having been found against by the Tribunal itself, does not survive for consideration, in the absence of a challenge against those findings by the 3[rd] respondent. As far as the complaint against the W.P(C) Nos. 37239 & 38043 of 2017 16 permission granted by the Thrissur Corporation to the owner for strengthening the concrete slabs over the drain is concerned, it is the admitted case of all parties that the 3[rd] respondent has already filed a complaint in this regard before the Ombudsman for Local Self Government Institutions. In the result, the Writ Petitions are allowed. The order of the Tribunal for Local Self Government Institutions dated 23[rd] October, 2017 in Appeal No.1188 of 2016 is set aside. No order as to costs. **V.G.ARUN, JUDGE** cms W.P(C) Nos. 37239 & 38043 of 2017 17 ## **APPENDIX OF 37239/2017** ## **PETITIONER'S/S EXHIBITS:** - **EXHIBIT P1 A TRUE COPY OF THE BUILDING PERMIT DATED 08/09/2016 ISSUED BY THE 2ND RESPONDENT TO THE PETITIONER** - **EXHIBIT P2 A TRUE COPY OF THE CONSENT TO ESTABLISH DATED 30/10/2014 ISSUED BY THE KERALA STATE POLLUTION CONTROL BOARD.** - **EXHIBIT P3 A TRUE COPY OF THE NOC DATED 19/07/2016 ISSUED BY THE FIRE AND RESCUE SERVICES, GOVERNMENT OF KERALA.** - **EXHIBIT P4 A TRUE COPY OF THE ROUGH SKETCH SHOWING THE PROPERTY OF THE PETITIONER AND PONNUVEETTIL LANE.** - **EXHIBIT P5 A TRUE COPY OF THE MINUTES OF THE MEETING OF THE STANDING COMMITTEE FOR PUBLIC WORKS OF THE 1ST RESPONDENT CORPORATION HELD ON 19/08/2015.** - **EXHIBIT P6 A TRUE COPY OF THE REPORT DATED 14/11/2014 SUBMITTED BY THE DISTRICT TOWN PLANNER, THRISSUR TO THE CHIEF TOWN PLANNER, THIRUVANANTHAPURAM.** - **EXHIBIT P7 A TRUE COPY OF THE MEMORANDUM OF APPEAL IN APPEAL NO.1188 OF 2016 ON THE FILE OF THE TRIBUNAL FOR LOCAL SELF GOVERNMENT INSTITUTIONS, THIRUVANANTHAPURAM.** - **EXHIBIT P8 A TRUE COPY OF THE RELEVANT PAGE OF THE ASSET REGISTER MAINTAINED BY 1ST RESPONDENT CORPORATION.** - **EXHIBIT P9 A TRUE COPY OF THE WRITTEN STATEMENT FILED BY THE PETITIONER IN APPEAL NO.1188 OF 2016 ON THE FILE OF THE TRIBUNAL FOR LOCAL SELF GOVERNMENT INSTITUTIONS, THIRUVANANTHAPURAM.** - **EXHIBIT P10 A TRUE COPY OF THE WRITTEN STATEMENT FILED BY THE 1ST RESPONDENT CORPORATION IN APPEAL NO.1188 OF** W.P(C) Nos. 37239 & 38043 of 2017 18 **2016 ON THE FILE OF THE TRIBUNAL FOR LOCAL SELF GOVERNMENT INSTITUTIONS, THIRUVANANTHAPURAM.** **EXHIBIT P11** **A TRUE COPY OF THE REPORT FILED BY THE ADVOCATE COMMISSIONER IN APPEAL NO.1188 OF 2016 ON THE FILE OF THE TRIBUNAL FOR LOCAL SELF GOVERNMENT INSTITUTIONS, THIRUVANANTHAPURAM.** - **EXHIBIT P12 A TRUE COPY OF THE OBJECTION FILED BY THE PETITIONER TO EXHIBIT P11 COMMISSION REPORT.** **EXHIBIT P13** **A TRUE COPY OF THE ORDER DATED 23/10/2017 OF THE TRIBUNAL FOR LOCAL SELF GOVERNMENT INSTITUTIONS IN APPEAL NO.1188 OF 2016.** **EXT P14 COPY OF GO(MS) NO.76/2017/LSGD DTD 31.3.2017** RESPONDENTS EXTS EXT R3(A) COPY OF RESOLUTION PASSED IN THE WARD SHABHA OF DIVISION NUMBER 3 OF THE THRISSUR CORPORATION HELD ON 17.2.2015 EXT R3(B) COPY OF THE SAID LETTER DTD 28.2.2015 ISSUED BY THE WORSHIPFUL MAYOR OF THE THRISSUR CORPORATION. EXT R3(C) COPY OF SAID COMPLAINT IN OP NO.1499/2015 OF HON'BLE OMBUDSMAN FOR LOCAL SELF GOVERNMENT INSTUTITION. EXT R3(D) COPY OF APPLICATION DTD 1.8.2016 SUBMITTED BY THE SECRETARY OF PONNUVEETIL LANE RESIDENCE ASSOCIATION UNDER THE RIGHT TO INFORMATION ACT. EXT R3(E) COPY OF REPLY LETTER TO THE EXT R3(D) FROM R1 CORPORATION. EXT R3(F) COPY OF AMENDMENT APPLICATION FILED IN COMPLAINT IN OP NO.1499/2015 PENDING BEFORE THE HON'BLE OMBUDSMAN. ## **APPENDIX OF WP(C) 38043/2017** ## **PETITIONER'S EXHIBITS:** **EXHIBIT P1** **TUE COPY OF CONSENT ISSUED BY THE KERALA STATE POLLUTION CONTROL BOARD DATED 30/10/2014** W.P(C) Nos. 37239 & 38043 of 2017 19 **EXHIBIT P2 TRUE COPY OF NOC (FIRE SAFETY CLEARANCE) DATED 19/7/2016 ISSUED BY THE FIRE ADN RESCUE SERVICES DEPARTMENT EXHIBIT P3 TRUE COPY OF BUILDING PERMIT DATED 8/9/2016 ISSUED BY THE 2ND RESPONDENT EXHIBIT P4 TRUE COPY OF ROUGH SKETCH SHOWING THE LIE OF THE PROPERTY AND PONNUVEETTIL LANE EXHIBIT P5 TRUE COPY OF MINUTES OF THE MEETING OF THE STANDING COMMITTEE HELD ON 19/8/2015 EXHIBIT P6 TRUE COPY OF REPORT DATED 14/11/2014 SUBMITTED BY THE DISTRICT TOWN PLANNER, THRISSUR TO THE CHIEF TOWN PLANNER, THIRUVANANTHAPURAM EXHIBIT P7 TRUE COPY OF APPEAL NO.1188/2016 BEFORE THE TRIBUNAL FOR LOCAL SELF GOVERNMENT INSTITUTIONS, THIRUVANANTHAPURAM. EXHIBIT P8 TRUE COPY OF WRITTEN STATEMENT DATED 21/6/2017 SUBMITTED BY THE 4TH RESPONDENT BEFORE THE TRIBUNAL FOR LOCAL SELF GOVERNMENT INSTITUTION (WITHOUT EXHIBITS) EXHIBIT P9 TRUE COPY OF REPORT SUBMITTED BY THE ADVOCATE COMMISSIONER BEFORE THE TRIBUNAL FOR LOCAL SELF GOVERNMENT INSTITUTION EXHIBIT P10 TRUE COPY OF OBJECTIONS SUBMITTED BY THE 3RD RESPONDENT TO THE COMMISSIONER REPORT BEFORE THE TRIBUNAL FOR LOCAL SELF GOVERNMENT INSTITITION EXHIBIT P11 TRUE COPY OF ORDER DATED 23/10/2017 PASSED BY TRIBUNAL FOR LOCAL SELF GOVERNMENT INSTITUTIONS IN APPEAL NO.1188/2016** EXT P12 COPY OF GOVERNMENT ORDER DTD 31.3.2017 ISSUED BY GOVERNMENT OF KERALA, LOCAL SELF GOVERNMENT DEPARTMENT RESPONDENTS EXTS NIL cms /True copy/ P.S.to Judge