ALBERT JERONE v. STATE OF KERALA

OP.15553/01Page numbers was thereafter, i.e., on 5.11.1999, that the impugned Ext.P4was issued. On the strength of Ext.P1, the Panchayat granted permit.3. The factual controversies between the parties rest on verdicts rendered inter partis by the civil courts.4. Learned counsel appearing for the petitioners argued that by the coming into force of the KMBR, 1999 with effect from1.10.1999, there was no authority to exercise any powerreferable to Rule 5 of KBR, 1984, which stood repealed and therefore, the issuance of the impugned exemption on5.11.1999, in exercise of authority under Rule 5 of the KBR,1984, is without jurisdiction.5. Per contra, learned counsel for the 4th respondent argued that the Amending Act provided certain savings in Section 172 of that Act and this, essentially, enables the continuance of OP.15553/01Page numbers proceedings on the basis of applications which were already pending before the competent authority for exemption.6.

Section 410 of the Principal Act, as it then stood, provided for grant of exemption from any of the provisions of Chapter XVIIIor the rules made thereunder. The modality of exercise of that power was also stated in Section 410. On and after the repeal of that provision by the Amending Act with effect from24.3.1999, the power of exemption as was available under Section 410 would not be there. 7. But, Section 172 of the Amending Act provided that

notwithstanding the repeal of Section 410 of the Principal Act, actions or the petitions, appeal petitions or review petitions seeking exemption from the provisions or rules relating to building construction filed and pending before the Government or any Officer authorised by Government immediately before such repeal shall be continued in accordance with the provisions of the said Section and disposed of accordingly

. OP.15553/01Page numbersThis essentially enables exercise of authority under Section410 of the Principal Act, notwithstanding the repeal, in relation to matters which were already pending with the Government.

Therefore, the power to grant exemption as done in the case in hand was available. 8. The consequential question then would be as to whether the coming into force of KMBR, 1999 with effect from 1.10.1999and the resultant repeal of KBR,1984, would result in lack of power to make an order of exemption relying on the similar clause in Section 172 of the Amending Act and referable to Section 410 of the Principal Act read with Rule 5 of the KBR,1984, in cases then pending with the Government. The saving clause contained in Section 172 of the Amending Actessentially saves the continuance of the provisions of Section410 along with the provisions in the KBR, 1984 for the purpose of consideration and disposal of applications, appeals, revisions, reviews etc. pending in relation to the grant of exemption. That would work in terms of Section 172 of the OP.15553/01Page numbersAmending Act only if KBR, 1984 is also held to be alive concurrently and limited by the operational impact of Section172 of the Amending Act.

Therefore, in relation to matters which fall under Section 172 of the Amending Act, Section 410of the Principal Act; and Rule 5 and the other provisions of the KBR, 1984 would continue to operate, notwithstanding the coming into being of KMBR, 1999, which included the repeal of KBR, 1984.9. For the aforesaid reasons, this writ petition fails. The same is accordingly dismissed. No costs. Sd/-THOTTATHIL B.RADHAKRISHNAN,Judge.kkb.9/6.