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2008 DIGILAW 201 (KER)

Rekha Babu v. State Of Kerala

2008-03-19

PIUS C.KURIAKOSE

body2008
Judgment : 1. Thegrievance of the petitioners who are engaged in the business in real estate, building construction etc. in various parts of the State including the Corporation Kochi is that the Corporation of Kochi, the third respondent is not issuing the development and occupancy certificate as prescribed under the Kerala Municipality Building Rules, 1999 in respect of a building constructed by them at the Vyttila Junction on the strength of Ext. P1 building permit. According to the petitioners they applied for a permit for construction of a building in a plot admeasuring roughly 8.38 cents belonging to them by virtue of two separate sale deeds dated 18.2003. This plot is situated along the side of Sahodaran Ayyappan Road and the plot is the balance extent after surrender of a portion of the original plot free of cost for the purpose of widening the Sahodaran Ayyappan Road. The third respondent Corporation of Kochi considered the above application which was made in the form in Appendix-A(2) of the Kerala Municipality Building Rules and after making due enquiries issued building permit dated 7.2004 in terms of R.11(3) of the Municipality Building Rules to the petitioners. Ext. P1 is copy of the above building permit. Petitioners completed the construction of the building strictly in terms of Ext. P1 permit and the plan and sketch, which were approved by the third respondent. Upon completion of the construction of the building which is of commercial nature the building was named BCG City Gate. After the construction of the building was completed, the petitioners applied to the third respondent for the development and occupancy certificates as prescribed under the Kerala Municipality Building Rules on 21.2007 by submitting the requisite forms along with the necessary documents. In the meanwhile the third respondent issued Ext. P2 notice dated 112.2006 to the petitioner alleging that the petitioners have constructed the building in violation of the Building Rules stating that the free surrender benefits will not be available to the petitioners since it was not the petitioners who had surrendered land for widening the road. Petitioners submit that the third respondent was prompted by Ext. P3 Government letter dated 211.2006 wherein it is mentioned that free surrender benefits are to be confined to only owners who actually surrendered the lands and not to persons who purchased land from them. On receipt of Ext. P2 the petitioners submitted Ext. Petitioners submit that the third respondent was prompted by Ext. P3 Government letter dated 211.2006 wherein it is mentioned that free surrender benefits are to be confined to only owners who actually surrendered the lands and not to persons who purchased land from them. On receipt of Ext. P2 the petitioners submitted Ext. P4 reply pointing out through Exts. P2 and P3 that respondents are misinterpreting a Government Order G.O. (Rt) 2631/97 LAD dated 310.2007 for the purpose of withdrawing the benefits which had already been granted in respect of the property of the petitioners. Copy of the above Government Order is produced by the petitioners as Ext.P6. In the meanwhile the first respondent Government in the Local Self Department gave in its official website in the internet a photo of the building constructed by the petitioners named as BCG Gate alleging that the above building is constructed in violation of the Kerala Municipality Building Rules 24(3), 24 (4), 24(5), 24(8), 24(11)and 39(2). Ext. P5 is copy of the announcement so made by the first respondent obtained by downloading the same from the website in the internet. The petitioners submit that the allegations in Ext. P5 are untrue and that the details given in the website of the first respondent through Ext. P5 in relation to the building are also absolutely incorrect. On account of the publication of such incorrect facts through the official website of the first respondent regarding their building the petitioners are even subjected to deep embarrassment and heavy damages against the public at large. There is no justification at all for the third respondent in refusing to issue development and occupancy certificate to the petitioners. On the above submissions the petitioners have raised various grounds and filed the Writ Petition seeking the following reliefs: 1. To issue a writ, order or direction in the nature of certiorari quashing Exts. P3 and P2 issued by respondents 1 and 3 respectively, after declaring that Ext. P6 G.O. is not applicable to the building constructed by the petitioners pursuant to Ext. P1 permit. 2. To issue a writ, order or direction in the nature of mandamus commanding the 1st respondent to withdraw from its official website any reference, pronouncement or publication in relation to the building constructed by the petitioners pursuant to Ext. P1 permit. 3. P6 G.O. is not applicable to the building constructed by the petitioners pursuant to Ext. P1 permit. 2. To issue a writ, order or direction in the nature of mandamus commanding the 1st respondent to withdraw from its official website any reference, pronouncement or publication in relation to the building constructed by the petitioners pursuant to Ext. P1 permit. 3. To issue a writ, order or direction in the nature of certiorari quashing Ext. P6 G.O. issued by the 1st respondent. 4. To issue a writ, order or direction in the nature of mandamus commanding the 3rd respondent to issue forthwith to the petitioners the development and occupancy certificates as prescribed under the K.M.B. Rules, 1999 in respect of the building constructed by them pursuant to Ext. P1 permit. (Ed. Note: Paras. 2 to 3 omitted being narration of facts) .4. Having considered the pleadings, documents and the rival submissions addressed I am of the view that the paramount question on which the decision in this case should turn is whether the contention of respondents 1 and 2 that benefits conferred under Chapter XI are available only to the original owner of the land from out of which a portion has been freely surrendered for the purposes mentioned in R.79 is correct in the light of the language used in R.79 and the provisions contained in Chapters 2 and 3 of the K.M.B. Rules. The above question in my opinion is to be answered in favour of the petitioners. The Kerala Building Rules in existence at the time of making application for Ext. .P1 permit (the date of application is 12.2003) contained Chap.XI with Rr. 79 to 85(a) concerning construction in plots of land a portion of which has been surrendered free of cost for road development. According to R.79, other provisions in the K.M.B. Rules, 1999 shall apply to constructions in such plots subject to the modifications in Chap. XI. Chap. XI does not either expressly or impliedly state that the plot of land from which a portion has been surrendered free of cost for road development is not transferable at all. The said chapter also does not mention that the benefits under the same are exclusively conferred upon or are enjoyable only by the owner who surrendered the land free of cost and that any subsequent transferee of the plot will not be entitled to the benefits thereof. The said chapter also does not mention that the benefits under the same are exclusively conferred upon or are enjoyable only by the owner who surrendered the land free of cost and that any subsequent transferee of the plot will not be entitled to the benefits thereof. A careful reading of the Rules will show that the benefits which are provided by way of incentive to the persons who make free surrender of their lands for road development has been conferred not personally to the owner but rather in respect of the remainder properties. In other words, the benefits are to run with the remainder plots whoever are the owner of the remainder plot at the relevant point of time. Such an interpretation is in keeping with one of the basic tenets of law that the successor in interest takes his principal predecessors interest with all the benefits and disadvantages attached to the same. Mr. Matthews argument in this context was that while determining the consideration for the purchase made by the petitioners their predecessor had taken into account these benefits and also the value of the land he had to surrender free, and the petitioners were compelled to pay a price for that loss/benefits. The argument has considerable merit. If the Government were of the intention that the benefits shall accrue to only to owner and not to the plot in question express provision to that effect could have been incorporated in Chap.XI. The first respondent while issuing Ext. P3 appears to be completely unmindful of the Kerala Municipality Building Rules, which had been brought into force on 10.1999. Ext.P6 G.O. was issued at a time when the Kerala Building Rules, 1984 was in existence. With the commencement of the Kerala Municipality Building Rules with effect from 10.1999 incorporating Chap.XI the relevance of Ext. P6 has become considerably eroded. The third respondent is bound to act in accordance with the Kerala Municipality Building Rules from 10.1999. 5. It was pointed out by Mr. Mathews that with effect from 1.2006 Government has replaced Chap.XI of the K.M.B. Rules and that under the new provisions, any person seeking benefits under the said Chapter shall make an application for permit for construction in the form prescribed as per the proviso to R.79(1). The new form seeks details of both the persons surrendering the plot and applying for building permit. The new form seeks details of both the persons surrendering the plot and applying for building permit. Such requirement was absent in the replaced chapter. Argument therefore was that this is a circumstance, which would indicate that in the replaced Chapter the rule maker was not concerned whether it is the person who surrendered the plot who is applying for the benefits. In my opinion, even on first principle and in the absence of any specific provision in the rule that the benefit will be given only to the person who actually surrendered the land the benefit has to be given not only to the person who surrendered the land but also whose successors in interest. .6. Report submitted by the Commissioner is very convincing and in the light of my finding that the petitioners are also entitled to the benefits of Chap.XI being successors in interest of the person surrendered land freely, the report will go to show that the allegation that the construction violates Building Rules is not sustainable. The first allegation is the allegation shown as item No. 1 in the table in paragraph 8 of the counter-affidavit is violation of R.24(3) and 24(8) in respect of the front yard. The Commissioners report is that the mean average of the measurement taken by the Commissioner amounts to 1.62 metres. If proviso to R.82(1) is applied it has to be found that there is no violation. Violation No. 2 alleged is regarding side yard. Going by the measurement recorded by the Commissioner and applying the proviso to R.82(4) it can be seen that there is no violation of R.56(2) and R.24(8) as alleged. The third reported violation is regarding rear yard, i.e., violation of Rr.56(2) and 24(8). Once R.82(3) is applied and the commissioners report is succeeded it will be seen that the above violation is not real. The 4th item of violation noted is the violation of R.34. The Commissioner corresponding to item No.4 in the table has reported that the total open area available for parking is 97.456 metres. In view of the specific provisions incorporated in R.84 this allegation .will demolish. According to R.34(2), mercantile or commercial building having a carpet area exceeding 75 sq. metres should have parking space of 100 sq. metres in the normal case. In view of the specific provisions incorporated in R.84 this allegation .will demolish. According to R.34(2), mercantile or commercial building having a carpet area exceeding 75 sq. metres should have parking space of 100 sq. metres in the normal case. But in the case of the petitioners it is not the normal rule, which applies, but only the special provision contained in R.84, which applies. On the basis of the Commission report, parking area provided is much higher than that prescribed under the special provision contained in R.84. The next allegation as per table is violation of R.117. But this allegation should fail in view of Ext. P7 no objection certificate issued by the Commandant General, Home Guards Civil Defence and Fire Services, Thiruvananthapuram. The relevant rule, which applies, is R.117 since the building in question is not high-rise building as classified under R.110 in view of Exts. P7 and P8. The next and last allegation is that there is violation of R.25, i.e., 3 metre distance rule from the road boundary to the building. This allegation stands repudiated in view of the applicability of R.82(6). 7. Result of the discussion is that the Writ Petition will stand allowed. There will be a direction to the third respondent to issue forthwith to the petitioners the development and occupancy certificates as prescribed under the K.M.B. Rules, 1999 in respect of the building constructed by them pursuant to Ext. P1 permit. There will also be a direction to the first respondent to withdraw from its official website any reference, pronouncement or publication in relation to the building constructed by the petitioners pursuant to Ext. P1 permit. It is also declared that Ext. P3 is not binding on the petitioners. Ext. P2 is quashed. Writ Petition is allowed as above. Parties will suffer their costs.