Kerala High Court · 2012

WP(C).No. 216 of 2011 (B) -2- BY ADV. SRI.M.R.SASITH R,R5 BY ADV. SRI.T.P.M.IBRAHIM KHAN,ASST.S.G OF INDIA R1,R2 BY SPECIAL GOVERNMENT PLEADER, SRI.P.JAYASANKAR. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 28-03-2011. THE COURT ON 25-09-2012, DELIVERED THE FOLLOWING:SU/- WP(C).No. 216 of 2011 (B) APPENDIXPETITIONER'S EXHIBITS:P1:COPY OF THE RECEIPT ISSUED BY THE 4TH RESPONDENT ACKNOWLEDGING THERECEIPT OF THE APPLICATION SUBMITTED BY THE FIRST PETITIONER.P2:COPY OF THE LETTER DATED 11-3-2009 SEND BY THE 2ND RESPONDENT TO THE 4TH RESPONDENT.P3:COPY OF THE CHALAN DATED 13-11-2009 EVIDENCING PAYMENT OF RS.63,976/- FOR GRANTING NOC from the FIRE DEPARTMENT.P4:COPY OF THE CHALAN DATED 12-3-2010 EVIDENCING PAYMENT OF RS.41,137/- FOR GRANTING NOC FROM THE FIRE DEPARTMENT.P5:COPY OF THE RECEIPT DATED 14-12-2009 ISSUED FROM THE OFFICE OF THEKERALA STATE POLLUTION CONTROL BOARD, THIRUVANANTHAPURAM.P6:COPY OF THE NO OBJECTION CERTIFICATE DATED 29-4-2010 ISSUED BY THEFIRE AND RESCUE DEPARTMENT.P7:COPY OF THE ENVIRONMENTAL CLEARANCE DATED 19-5-2010 ISSUED BY THE MINISTRY OF ENVIRONMENT AND FORESTS, NEW DELHI.RESPONDENTS' EXHIBITS: NIL./TRUE COPY/P.A. TO JUDGESU/- C.T.RAVIKUMAR, J.----------------------------W.P.(C)No.216 of 2011----------------------------Dated 25th September, 2012JUDGMENTThe first petitioner is the brother of the second petitionerand they respectively own and possess 172 cents of land situated inSurvey No.243/2 and 18.50 cents situated in Survey Nos.243/1-1 and243/1-2, of Meenamkulam Village in Thiruvananthapuram District. Bothof them are represented in this proceedings by Shaju George, theirpower of attorney holder. The first petitioner and one Mr.AbrahamMathew, the previous owner of the second petitioner's property, jointlysubmitted an application dated 4.7.2008 before the fourth respondentseeking grant of building permit for constructing a 21 storied buildingwith 310 dwelling units, as is obvious from Ext.P1 receipt. It iscontended that on 25.7.2008 the fourth respondent forwarded thatapplication to the second respondent. Admittedly, they did notapproach the Panchayat Committee under section 235K of the KeralaPanchayat Raj Act, 1994 (for short `the Act') and Rule 15 of the KeralaMunicipality Building Rules, 1999 (for short `KMBR') though theSecretary neither granted the permit nor refused the same within thirtydays from the date of receipt of the application. They contend that theywere virtually, prevented from approaching the Panchayat Committeeunder section 235K of the Act and Rule 15 of KMBR. As per Ext.P2 WP(C).No.216/20112dated 11.3.2009 the second respondent notified eight defects in theaforesaid application for building permit, to the fourth respondent withfurther instruction to obtain fresh plan sans such notified defects fromthe petitioners and to take further action thereon. Thereafter, thepetitioners submitted a revised plan before the fourth respondent aftercuring the notified defects and applied for `No Objection Certificate' fromthe Fire Department for the construction of flat. Exts.P3 and P4 wouldreveal the remittance of the fee and additional fee for grant of NoObjection Certificate from the Fire Department. On 1.1.2009 thepetitioners entered into an agreement with Mars Property DevelopmentCompany (P) Ltd. for constructing flats in the aforementioned properties.Ext.P5 receipt dated 14.12.2009 is produced in proof of that. Theysubmitted application for consent to construct the flats before the KeralaState Pollution Control Board. It is further contended that as their agentthe said Company moved the Ministry of Environment and Forestsseeking prior environmental clearance. Obviously, later, the petitionerscancelled the agreement with the said company. Ext.P6 No ObjectionCertificate dated 29.4.2010 was subsequently, issued by the Fire andRescue Department and Ext.P7 environmental clearance dated19.05.2010 was issued by the Ministry of Environment and Forests.Naturally, Ext.P7 is addressed not to the petitioners whilst addressed to WP(C).No.216/20113the aforesaid company. As noticed earlier, it is from the aforementionedAbraham Mathew that the second petitioner purchased the propertymentioned above as per sale deed No.1465/09 of Kazhakuttam SROdated 26.06.09. According to the petitioners, they are now in thepossession of No Objection Certificate from the Fire and RescueDepartment and Environmental Clearance from the Ministry ofEnvironment and Forests. However, the fourth respondent has not sofar, disposed of their application for building permit. The cause for theconcern and grievance of the petitioners is the amendment subsequentlybrought into certain provisions under the KMBR, more particularly to Rule31 of the KMBR. By virtue of the amendment to Rule 31 of KMBR, forResidential A1 occupancy, reduction in percentage of the coverage areaand maximum permissible Floor Area Ratio were brought in. It iscontended that if their application for building permit was granted by thefourth respondent on or before 16.12.2009, the date of coming into forceof such amendments, the petitioners could have constructed apartmentshaving coverage of 65% of the plot area with maximum permissible FloorArea Ratio as 4. However, on account of the amendment to Rule 31 ofKMBR the percentage of the coverage area was reduced from 65% to45% for the occupancies more than 300 sq.mts. with number of dwellingunits above 200 and the maximum permissible Floor Area Ratio without WP(C).No.216/20114additional fee was reduced to 1.50 from 3. The contention of thepetitioners is that the said amendments brought into Rule 31 of theKMBR cannot and will not have any impact and effect on their applicationfor building permit submitted as early as on 4.7.2008 and as such, theyare entitled to construct flats based on the unamended provisions in Rule31 of the KMBR with respect to the percentage of coverage area and themaximum permissible Floor Area Ratio. It is their contention that sincethey submitted their application for building permit on 4.7.2008 they arenot responsible for the administrative delay on the part of respondents 2to 4 and therefore, that cannot be put to their disadvantage. It is furthercontended that no fruitful purpose would be served by approaching therespondents by submitting representations and any such course of actionwould only delay the matter further. It is in the said circumstances thatthis writ petition has been filed with the following prayers:-“(i) Issue appropriate writ or order declaring thatpetitioners are entitled to construct 310multistoried apartments in 2 towers with clubhouse and swimming pool based on theapplication dated 04.07.2008 as permittedby Exhibits P6 and P7 in Sy.No.243/2, 243/1-1and 243/1-2 of Meenamkulam village,Thiruvananthapuram District.(ii) Issue a writ of mandamus or other appropriatewrit, order or direction commanding secondrespondent to permit petitioners to construct 310 WP(C).No.216/20115multistoried apartments in 2 towers with clubhouse and swimming pool based on theapplication dated 04.07.2008 as permittedby Exhibits P6 and P7 in Sy.No.243/2, 243/1-1and 243/1-2 of Meenamkulam village,Thiruvananthapuram District.” 2. A counter affidavit has been filed in this writ petition bythe second respondent. It is stated therein that the Secretary of thirdrespondent Panchayat viz., the fourth respondent, forwarded anapplication for construction of a 17 storeyed residential apartmentbuilding in Sy.Nos.243/1-1 and 243/1-2 of Meenamkulam village to thatoffice on 25.7.2008. As the site is located in ThiruvananthapuramDistrict a report of the Regional Town Planner, Thiruvananthapuram wasobtained. Further it is stated that on verification it was found that theapplication was not in conformity with the provisions of KMBR in force atthat point of time. As per the Rules then prevailing no approval wasrequired from the Department and therefore, after notifying the eightdefects, in accordance with the provisions thus prevailing, the fourthrespondent was instructed as per Ext.P2 dated 11.3.2009 to obtainmodified plan from the petitioners rectifying the notified defects and thenprocess the application there itself. It is further stated therein that KMBRwas amended on 16.12.2009 and further amended on 21.6.2010. Asregards the applicability of the building rules it is stated therein that WP(C).No.216/20116Government have issued letter No.9877/RD2/2010/LSGD dated 8.9.2010to the effect that the building rules existing on the date of sanction wouldgovern the matter and not those existing on the date of application. It isfurther stated therein that the said view of the Government was virtuallyconfirmed by the judgment of this Court in Asset Home's case. It isalso stated therein that a perusal of the application brought out violationseven with respect to the side open space Rule 55 and the distance fromthe street to the building Rule 25(1). The basement floor plan, detailedcalculation for FAR etc. were also not furnished, it is further stated.Based on such averments, the respondents prayed for dismissal of thewrit petition.3. I have heard the learned counsel appearing for thepetitioners and the learned Government Pleader.4. Obviously, the application dated 4.7.2008 submitted forbuilding permit for constructing flat in the properties mentioned abovewas defective. The petitioners themselves admitted the fact that revisedplan was submitted before the fourth respondent only on 10.11.2009,after curing the defects mentioned in Ext.P2. The said fact is very muchevident from the averments in paragraph 8 of the writ petition. That WP(C).No.216/20117apart, the averments in paragraph 6 of the writ petition would revealthat despite the failure on the part of the fourth respondent to act upontheir application before the expiry of 30 days from the date ofapplication, they had not approached the Committee of the thirdrespondent Panchayat in terms of section 235-K of the Act and Rule 15of the KMBR. Section 235-K of the Act reads thus:-“235K. Reference to Village Panchayat whereSecretary makes delay in granting or refusingapproval or permission.-(1) Where, within the periodspecified in Section 235I or 235J, as the case may be, theSecretary has neither given nor refused approval of abuilding site, or permission to execute any work, as thecase may be, the Village Panchayat shall be bound on thewritten request of the applicant, to determine whether suchapproval or permission should be given or not.(2) Where the Village Panchayat does not, within onemonth from the date of receipt of such written request,determine whether such approval or permission should begiven or not, such approval or permission shall be deemedto have been given, and the applicant may proceed toexecute the work. But it shall not be so as to contraveneany of the provision of this Act or any rules or bye-lawsmade thereunder.” Rule 15 of KMBR reads thus:-“15. Reference to council where the Secretarydelays to grant or refuse to approve or permit.-(1)The Council shall, if the Secretary neither approves nordisapproves a building site, neither gives nor refuses WP(C).No.216/20118permission to execute any work within thirty days from thedate of receipt of the application, on the written request ofthe applicant, be bound to determine whether suchapproval or permission should be given or not.(2) Where the Council does not, within one monthfrom the date of receipt of such written request, determinewhether such approval or permission should be given ornot, such approval or permission shall be deemed to havebeen given, and the applicant may proceed to executework, but not so as to contravene any provision of the Actor these rules or bye-laws made thereunder.Provided that such execution of work shall beconsidered as duly permitted and not one for regularisationand permit shall be issued as per rules even if the workhas been commenced, being carried on or completed if itotherwise complies with rule provisions.” 5. A bare perusal of Section 235-K of the Act and Rule 15 ofKMBR would make it clear that in order to get the benefit of the deemingprovision contained thereon, with respect to the grant of building permit,upon the failure of the committee to grant or refuse approval of abuilding site or permission to execute any work certain conditions haveto be satisfied. Firstly, upon such failure on the part of Secretary of theconcerned Panchayat within 30 days from the date of receipt of theapplication he/she should have made a request in writing to theconcerned Panchayat council. Secondly, upon receipt of such a requestin writing to the concerned Village Panchayat from the concernedapplicant there should be failure from the part of the concerned Village WP(C).No.216/20119Panchayat to determine whether such approval or permission should begiven or not. The deeming provision would come into play only if theVillage Panchayat fails to determine whether such approval or permissionshould be given or not within one month from the date of receipt of suchwritten request from the concerned applicant requesting the VillagePanchayat to determine whether such approval or permission should begiven or not. In this case, in paragraph 6 of the writ petition, it is statedthat when the petitioners approached the fourth respondent andinformed him of their intention to approach the Panchayat Committee asper Section 235-K of the Act and Rule 15 of KMBR, they were informedthat such an application would not be entertained on account ofpendency of the issue before the second respondent. Further, it is statedtherein that when they approached the second respondent they wereinformed that no queries in such a matter would be entertained beforethree months from the date of receipt of application in the office. Apartfrom such assertion no material whatsoever has been produced in thiswrit petition to show that the petitioners were thus, prevented fromapproaching the committee of the third respondent in terms of theprovisions under section 235-K of the Act and Rule 15 of the KMBR. Atany rate, in terms of the specific provisions under section 235-K ofthe Act and Rule 15 of KMBR the petitioners cannot be permitted to WP(C).No.216/201110claim the benefit of the deeming provisions thereunder without makingany such written request as contemplated under the aforesaid provisionscontending that they were prevented from approaching the PanchayatCommittee. Even going by their own assertions in paragraph 6 of thewrit petition it is not clear as to which officer had informed them or gavethem such instructions or information. Even if such intimations orinformations were given they cannot be assigned as a reason for thefailure to make a written request in terms of the aforesaid provisions andthen staking a claim for the benefit of the deeming provisions under theaforementioned provisions in the Act and the Rules even without makinga written request in terms of the statutory provisions. The deemingprovision would operate only on satisfaction of the aforesaid twinconditions. In fact, on that sole score itself the petitioners are disentitledto get any relief in this writ petition.6. The other contention raised by the petitioners is that sincethey submitted the application for building permit on 4.7.2008 and thedelay occurred solely on account of the non-feasance on the part ofrespondents 2 and 4, such administrative delay shall not be permitted toaffect the right available under the unamended provisions of Rule 31 ofKMBR. In other words, the contention of the petitioners is that as the WP(C).No.216/201111amendment to Rule 31 bringing changes in the percentage of coveragearea and Floor Area Ratio came only with effect from 16.12.2009, itcannot and will not have any effect on their application submitted forbuilding permit as early as on 4.7.2008. Whether it is minor or major,admittedly, the application submitted for building permit in this case on4.7.2008 was defective and even going by the contentions of thepetitioners a revised plan after curing the defects mentioned in Ext.P2was submitted only on 10.11.2009. The petitioners did not have a casethat upon the failure of the fourth respondent to take a decision either togrant or refuse permission within 30 days from 10.11.2009 they made awritten request for taking a decision in terms of section 235-K of the Actand Rule 15 of the KMBR to the Committee of the third respondent. Thatapart, the specific contention of the second respondent is that in terms ofGovernment letter NO.9877/RD2/2010-LSGD dated 8.9.2010 anapplication for building permit has to be considered in the light of therules existing on the date of sanction and not the rules existing on thedate of application. The second respondent contends that the said standof the Government is virtually confirmed by this Court in M/s.AssetHomes Private Ltd. and another v. State of Kerala (2011 (1) KHC276). It has been held therein by this Court that issuance of buildingpermit is not a ministerial act and that reports of No Objection WP(C).No.216/201112Certificates from various departments also may not automatically lead tothe issuance of a building permit. Grant of NOC coupled with thecompletion of all other formalities under Rule 11(3) alone would lead toissuance of the permit. In short, despite the fact that the applicationdated 4.7.2008 being defective and the petitioners' failure to make awritten request in terms of the provisions under section 235-K of the Actand Rule 15 of KMBR, either after one month from 4.7.2008 or aftersubmission of the revised plan on 10.11.2009 to the Committee of thethird respondent, the petitioners cannot be heard to contend that theyshould be given the benefit of the deeming provisions under theaforesaid provisions. I had occasion to consider a similar case. Despitethe coming into force of the amended provisions the petitioners/applicants who made applications prior to the amendment prayed for adirection to consider their applications in the light of the unamendedprovisions. That contention was considered in W.P.(C)No.26611 of 2010in the light of the decision in Asset Home's case (supra) and it wasrepelled as per judgment dated 15.11.2011. Having failed to make awritten request to the Panchayat Committee either one month after4.7.2008 or after 10.11.2009, the petitioners cannot legally claim thatthey are entitled to get the benefit of the deeming provisions and adeeming permit by virtue of the provisions under section 235-K of the WP(C).No.216/201113Act and Rule 15 of KMBR. In short, the application submitted by thepetitioners cannot be directed to be considered in the light of theunamended provisions in Rule 31 of the KMBR ignoring the amendmentsthat came into force with effect from 16.12.2009. For all these reasons,this writ petition is liable to fail and accordingly, it is dismissed. Sd/- C.T.RAVIKUMAR JudgeTKS