Research › Search › Judgment

Kerala High Court · body

2001 DIGILAW 698 (KER)

George Joseph v. State of Kerala

2001-11-28

C.N.RAMACHANDRAN NAIR, P.K.BALASUBRAMANYAN

body2001
Judgment :- P.K. Balasubramanyan, J. This Original Petition was adjourned for being heard by a Division Bench in terms of S.3 of the Kerala High Court Act by a learned Single Judge on the ground that a question of general importance regarding the powers of the Government to exempt buildings or owners of buildings from the various provisions of the Kerala Building Rules arises for consideration. 2. The petitioner and respondent No.3 are owners of neighbouring properties within the second respondent Municipality. Petitioner has challenged the orders of exemption, dated 4.6.1998 and 23.10,1999, granted by the Government to respondent No.3 for putting up a construction in his property. Under the first order dated 4.6.1998 the Government exempted respondent No.3 from complying with Rr. 15(2),34(3),15(5),17(2)(5),20(6). 21(ii)(a) and (b), 21(14), 34(4) and 22(6) of the Kerala Building Rules and by the second order dated 23.10.1999 also from complying with R.21(13) of the Rules. The petitioner questions the competence of the Government to grant exemption in the manner in which it was done. He also challenges the power to grant exemption as annihilative of the Kerala Building Rules which is enacted in public interest and such an uncanalised and unrestrained power was liable to be struck down as violative of Arts.14 and 21 of the Constitution. The petitioner also complains that the two orders were passed in violation of principles of natural justice since he was not heard before the grant of exemptions and he was entitled to be heard in the circumstances of the case. The further contention is that an ex post facto exemption under R.5 of the Kerala Buildings Rules was not contemplated and a person who has put up a building in violation of all the Rules is not entitled to seek or obtain an exemption subsequent to making an illegal construction. It is also contended that in view of the changes brought about in the relevant provisions of the Kerala Municipalities Act, the Government had lost its power to grant exemption and that in any event the exercise of power in this case is totally arbitrary and requires to be struck down. Respondent No. I, the State of Kerala has not filed any counter affidavit in the Original Petition. Thus the allegations in the Original Petition are not specifically controverted by the first respondent State. 3. Respondent No. I, the State of Kerala has not filed any counter affidavit in the Original Petition. Thus the allegations in the Original Petition are not specifically controverted by the first respondent State. 3. Respondent No_ 2, the local authority, Palai Municipality, has submitted that it had granted permission to respondent No. 3 for construction of a five storeyed building. But the local authority found on inspection based on a complaint by the petitioner that there was violation of the Building Rules. Hence an order dated 2.11.1996 was passed by the local authority suspending the permission granted to respondent No.3 for making the construction. The local authority further points out that subsequent to the suspension of the building permit by the local authority, respondent No.3 had filed an application for exemption under R.5 of the Kerala Buildings Rules before the Government and the Government had granted the exemptions which are challenged by the petitioner in the Original Petition. It is further stated that an order dated 5.6.1999 from the Government was received by the local authority directing the local authority to ensure strict compliance with the order of exemption dated 4.6. 1998 and that it was found that there was no strict compliance with the order of exemption. Respondent No.3 had again sought exemption from R.34(8) of the Rules and that had been granted by the Government. It is pointed out that a parapet or compound wall should be constructed on the western side of the plot avoiding rain water flowing into the-property of the petitioner and that no nuisance shall be caused to the neighbouring plot on the western side and drainage facility should be provided for the flow of rain water from each floor to the ground floor slab. It is submitted that while granting permission or issuing" a building permit the local authority had insisted that the construction should be strictly in accordance with the orders of the Government and that no nuisance should be caused to the neighbouring plot on the western side. 4. Respondent No.3 has also not filed a counter affidavit in the Original Petition specifically controverting the allegations in the original petition. But respondent No. 3 has filed a counter affidavit in CMP No. 7847 of 2000 wherein he has contended that there was no violation of natural justice in the Government passing the orders of exemption. 4. Respondent No.3 has also not filed a counter affidavit in the Original Petition specifically controverting the allegations in the original petition. But respondent No. 3 has filed a counter affidavit in CMP No. 7847 of 2000 wherein he has contended that there was no violation of natural justice in the Government passing the orders of exemption. It is stated in the counter affidavit that the petitioner has also been guilty of violation of the Kerala Building Rules. The' Original Petition was actuated by mala ftdes. The petitioner had also approached the civil court with a suit which was dismissed and he had filed an appeal that was pending. The building constructed by respondent No.3 in his property, which has an extent of 33 cents, occupies only 44% of the available land. The petitioner was harassing respondent No.3 and the petitioner was not entitled to any relief in the Original Petition. 5. Chapter X of the Kerala Municipalities Act, 1960 dealt with building regulations within the municipalities. Under S.222 of the Act the Government was competent to make rules for the regulation or restriction of the use of sites for building and for the " regulation or restriction of building. Without prejudice to the general power there was also p9werto make rules to bring in various regulations in building activities including the provisions to insist on leaving sufficient open space external or internal and for providing adequate means of ventilation. It was in exercise of the powers conferred by S.222 of the Kerala Municipalities Act read with S.344 of the Act that the Kerala Building Rules, 1984, hereinafter referred to as the Building Rules, were made after complying with the requirements in that behalf. The Building Rules were made applicable to all Municipalities in the State of Kerala. Chapter II of the Rules provided for permit for building and enforcement of the provisions of the Act and the Rules. Various conditions were imposed on construction and various restrictions were placed. Obviously all these were done in public interest and in the interest of public safety. Under R.5, the Government was conferred the power to exempt buildings from the requirements set out by the Building Rules. Various conditions were imposed on construction and various restrictions were placed. Obviously all these were done in public interest and in the interest of public safety. Under R.5, the Government was conferred the power to exempt buildings from the requirements set out by the Building Rules. Under that rule the Government may, in consultation with the Chief Town Planner, exempt any building from the operation of all or any of the provisions of the Building Rules subject to the conditions, if any, to be stipulated in the order granting such exemption. An application for exemption was to be considered only based on individual applications forwarded to the Government through the authority and the Chief Town Planner with their specific recommendations. Subsequently with effect from 4.9.1989 R.5A was also inserted in the Rules and it provided for regularisation bf unlawful construction and reconstruction of buildings and digging wells. Thus whereas R.5 of the Building Rules provided for the grant of exemption from any of the restrictions imposed by the Buildings Rules, R.5A conferred power on the Government to regularise unlawful construction or reconstruction. 6. In Raman v. State of Kerala, 1994 (I) KLT 1029 this Court upheld the validity of R.5 of the Building Rules. It is argued by learned counsel for the petitioner that the said decision required reconsideration since that decision has not properly considered the uncanalised and arbitrary nature of power given to the Government for doing away with each and every provision of the Kerala Building Rules enacted in the interests of public safety and public order. When a power is given by the rule, which by its exercise would annihilate the very restrictions placed by the main provision of the Act on construction of buildings in the course of proper and planned development and public safety and of the restrictions placed by the rules in that behalf, it has to be considered to be the conferment of an arbitrary power and it has to be further considered whether it could pas_ the test of validity under Art.14 of the Constitution of India. Even the broadening horizon of Art.21 of the Constitution will have to be borne in mind while considering the validity of such a rule. Even the broadening horizon of Art.21 of the Constitution will have to be borne in mind while considering the validity of such a rule. But for the purpose of this case we do not think that it is necessary to further pursue this aspect and it may have to be considered in more detail when the occasion arises. For the moment, we proceed on the basis that this court has upheld the validity of the rule. 7. But it is clear on the scheme of R.5 that exemption should be obtained by an owner of land before he puts up the construction. It is not open to the owner of land to put up a building in violation of the various provisions of the Building Rules and then to seek exemption invoking R.5 of the Rules to legitimatise, what he had done illegally and in blatant violation of the Building Rules. An ex post facto exemption is not contemplated by R.5 of the Kerala Building Rules. In fact the introduction of R.5A on 5.9.1989 re-emphasises this position. In the case on hand, the contesting respondent approached the Government under S. S of the Rules after he had made a construction. It may be noted that the local authority had also issued the order Ext. P I dated 2.11.1996 directing the contesting respondent not to proceed with the construction since it was in violation of the Rules. In fact there was no direct challenge to that order even by the contesting respondent. It is, therefore, clear that the grant of exemption in this case was not validly made by the Government. Both the orders of exemption Exts. P5 and .P8 suffer from this vice. We are of the view that on that ground these orders of exemption are liable to be quashed. We must notice here that what the contesting respondent has done is to commit an illegality and it is not open to the Government to confer benefits on such a person so as to bail him out of the illegalities and violations he had committed in scant regard to the relevant provisions of the Municipalities. Act and the Building Rules. 8. The power under R.5 of the Building Rules is only a power to exempt from the operation of all or any of the provisions of the Building Rules. Act and the Building Rules. 8. The power under R.5 of the Building Rules is only a power to exempt from the operation of all or any of the provisions of the Building Rules. The power does not extend to exempting a builder from thee restrictions placed by the relevant provisions of the Kerala Municipalities Act. Only S.410 of the Municipalities Act confer power. on the Government to grant exemption. Therefore, in the guise of exercising power under R.5 of the Kerala Building Rules, no-one can be exempted from the compliance with the provisions of the Kerala Municipalities Act. 9. Though learned counsel for respondent No.3 attempted to argue that Ext. PI order of the Pala Municipality was challenged by the contesting respondent, it is clear that the said order was not challenged in the appropriate manner before the appropriate authority and hence that order had become final. That order had clearly held that the construction of the building had violated R.15(5),15(7),21(13) and the other relevant provisions of the Kerala Building Rules. Apparently it is in the teeth of this order that the contesting respondent proceeded with the construction and thereafter sought exemption from the Government under R.5 of the Kerala Building Rules. We find force in the submission that the contesting respondent having already violated the Building Rules, there is no power in the Government to pass an order of exemption under R.5 of the Rules. The order Ext. P5 has, therefore, been passed by the Government without proper application of mind and without considering whether it could exercise power under R.5 of the Kerala Building Rules in the circumstances obtaining in the case and whether even otherwise, the grant of such an exemption was justified in the interests of public safety and public order. 10. The second order of exemption Ext. P8 dated 23.10.1999 is seen to be more arbitrary. it does not appear that even the Municipality was consulted. Even the requirement of R..21(13) was exempted apparently since the contesting respondents had violated that Rule. Ext. P8 also provides that exemption from R.21(13) of the Building Rules is granted subject to the approval of the Fire Force Department. It is 'lot clear whether the Government expects the Fire Force Department or the concerned authority in that department to exercise its independent judgment or not. Ext. P8 also provides that exemption from R.21(13) of the Building Rules is granted subject to the approval of the Fire Force Department. It is 'lot clear whether the Government expects the Fire Force Department or the concerned authority in that department to exercise its independent judgment or not. Normally, when the Government has already passed an order of exemption, it is meaningless to say that exemption is subject to the approval of a subordinate authority or department which would obviously consider itself bound by the order already passed by the Government. Similarly it is also stated that no nuisance shall be ..caused to the neighbouring plot on the western side. How this is to be ensured is not very clear. The order winds up by saying that the order is not a sanction to start work and before starting the construction, building permit from Pala Municipality should be obtained. This stipulation is made as if the contesting respondent has not yet started the construction of the building. Obviously by that time the construction has been more or less complete or substantially complete. Thus Ext. P8 order also indicates complete lack of application of mind. 11. Ext. P7 communication dated 5.6.1999 is only a communication from the Secretary to the Government to the Secretary to the Pala Municipality directing him to ensure that the contesting respondent is strictly following the conditions of Ext. P5 order. of exemption.. It has no independent existence as such. 12. In addition to seeking the quashing of Exts. P5, P7 and P8, the petitioner has also sought the issue of Writ of Mandamus directing the second respondent, the Pala Municipality to take action against the 3rd respondent as contemplated under S.406 of the Kerala Municipalities Act. On the facts above discussed and on the materials available from the pleadings it is clear that the building was constructed by respondent No.3 in violation of the Building Rules and inspite of Ext. P1 order of the Municipality directing him to stop the construction since it is in violation of the relevant Rules. The construction was apparently undertaken before any exemption was applied for or obtained from the Government. In that situation, it appears to us that prayer (b) sought for by the petitioner also deserves to be granted. 13. P1 order of the Municipality directing him to stop the construction since it is in violation of the relevant Rules. The construction was apparently undertaken before any exemption was applied for or obtained from the Government. In that situation, it appears to us that prayer (b) sought for by the petitioner also deserves to be granted. 13. Learned counsel for the Municipality submitted that the exemption was granted after the building had come into existence and, that was possible under R.5 of the Building Rules. But the learned Government Pleader appearing on behalf of respondent No.1 specifically submitted that an exemption should be' obtained before starting the construction and not after the construction is completed or started. Counsel for the Municipality submitted that the Municipality had issued Ext. PI order directing respondent No.3 to stop the work and any construction by respondent No.3 in violation of the order Ext. PI could not be taken note of or countenanced. Learned Senior counsel, who appeared for the contesting respondent, respondent No.3, submitted that the plan was sanctioned for the construction on 20.3.1991, but that the period of sanction expired on 19.3.1994. A fresh permit was sought for and it was granted for the period from 4.8.1994 to 3.8.1997. Even though there were violations as indicated in Ex!. PI, there was no occasion for respondent No.3 to appeal against the order Ext. PI. Learned counsel submitted that sufficient safeguards had been provided even while granting exemption orders Exts. P5 and P8 and there was no reason why this Court should interfere with those orders. Counsel also submitted that the petitioner was also guilty of violation of the Building Rules, and in view of that, and in view of the fact that the Government, in exercise of its power under R.5 of the Kerala Buildings' Rules, has granted the exemptions and respondent No.3 had put up the construction, there was no justification in interfering with the orders of exemption at the instance of the petitioner. 14. We think that these submissions on behalf of respondent No. 3 do not improve the position as far as respondent No.3 is concerned. Since no valid exemption was sought for or obtained from the Building Rules before the construction itself was started or the violation had occurred, it appears to us that the exemption sought under R.5 of the Rules could not have been granted by the Government. Since no valid exemption was sought for or obtained from the Building Rules before the construction itself was started or the violation had occurred, it appears to us that the exemption sought under R.5 of the Rules could not have been granted by the Government. In this context, the Government had not taken note of the order Ext. PI passed by the Municipality which was not challenged by respondent No.3 before any appropriate forum at the appropriate. time. In fact as we have noticed, there was no dispute that there were violations of the Building Rules when respondent No.3 put up the construction. There is also one other aspect. There is a case for the petitioner that the fire force clearance contemplated by Ext. P8 order of exemption was not obtained by respondent No.3 before he proceeded to take advantage of Ext. P8 order of exemption. This submission could not be specifically controverted on behalf of respondent No.3. It therefore, appears that even after obtaining the order of exemption Ext. P8, respondent No.3 has not adhered to the terms of the exemption granted to him. 15. We are, therefore, satisfied that the orders Exts. P5 and P8 are liable to be quashed along with Ext. P7, the communication pursuant to Ext. P5 order of exemption. Since the Government is not seen to have applied its mind to the relevant aspects as indicated above while passing the orders Exts. P5 and P8, we think that the proper course to adopt is to direct the Government to reconsider the question whether it has the power to grant exemption under R.5 of the Rules after the Rules are violated and the construction is put up and consider whether on the facts and in the circumstances of the case and in the light of Ext. PI order any order of exemption in favour of respondent No.3 could have been or should have been granted. It has also to specifically consider the other objections raised by the petitioner. While, therefore, quashing the orders Exts..P5, P7 and P8, we 'remit the proceedings to the Government for a proper consideration pf all the. relevant aspects including the aspects indicated above and to take a fresh decision On the, related questions. The" Government will give an opportunity of being heard to respondent No.3 as well as to the petitioner and will pass an order only thereafter,. relevant aspects including the aspects indicated above and to take a fresh decision On the, related questions. The" Government will give an opportunity of being heard to respondent No.3 as well as to the petitioner and will pass an order only thereafter,. As far as prayer (b) is concerned, we are of the view that the petitioner is entitled to that relief in the circumstances and the local authority, the second respondent is bound to ensure that its order Ext. PI is obeyed by respondent No.3. Respondent No.2 is, therefore, directed to initiate proceedings against respondent No.3 as contemplated by S.406 of the Municipalities Act. Obviously an opportunity for hearing should be given to respondent No.3 to answer the notice and to establish his defence. An opportunity will also be given to the petitioner before us, of being heard so as to enable" him to assist the local authority in coming into a proper decision in the proceeding initiated under S.406 of the Kerala Municipalities Act. The Original Petition is thus allowed. Exts. P5, P7 and P8 are quashed and the proceeding remitted to the Government for a fresh consideration and decision after notice to respondent No. 3.and to the petitioner and in the light of the various aspects arising for decision including the aspects referred to in this judgment. Respondent No. 2 is directed to initiate action against respondent No.3 as contemplated under S.406 of the Municipalities Act and is directed to give effect to its decision after giving an opportunity of being heard to respondent No.3 and to the petitioner. The parties are directed to suffer their respective costs.