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2016 DIGILAW 698 (KER)

Rajamma v. State Of Corporation Of Cochin

2016-08-12

K.VINOD CHANDRAN

body2016
JUDGMENT K. Vinod Chandran, J. 1.The petitioner is aggrieved with the construction carried on by the 4th respondent, in the property lying to the north of the petitioner's residential property. The petitioner is residing, with her family, in 4.630 cents of property comprised in Survey No.294/3 of Ernakulam Village in Ward No. 68 of Cochin Corporation. To the immediate north lies 6.820 cents of property in the very same survey number belonging to the 4th respondent, wherein, the objectionable construction is going on. The petitioner was aggrieved with the land being filled up for the construction of an apartment complex which, the petitioner apprehended, would result in flooding up of the petitioner's property. On the construction being commenced based on building permit at Exts.P2 and P3, the petitioner also alleged certain violations on the western side wherein, the projection of the building was up to 80 cms while the permissible projection could only be of 60cms. The petitioner hence filed Exts.P4 and P5 complaints before the Corporation. 2. The Corporation based on the complaint received, issued Ext.P6 notice of enquiry. However, since nothing transpired the petitioner approached this Court with the above writ petition. There was an order granted on 22.01.2015; wherein there was a direction to ensure that the construction of the 4th respondent is in accordance with Ext.P2 permit and Ext.P3 approved plan. 3. While the writ petition was pending, the 4th respondent approached this Court with an additional counter affidavit dated 24.06.2008 wherein, Exts.R4(a) and R4(b) were produced. Ext.R4 (a) was a receipt for a revised plan, received by the Corporation from the 4th respondent. Ext.R4(b) was the communication addressed by the Corporation to the 4th respondent pointing out the pendency of the writ petition and the consequent inability to consider such revised plan. In that circumstances, the 4th respondent sought for consideration of the revised plan, which was directed as per order dated 22.09.2015; wherein there was a specific direction to hear the petitioner. The petitioner is said to have been heard on the question of the revised plan. Admittedly, revised plan was to construct two additional floors. Ext.P2 building permit contemplated a building of three stories (ground + two). The revised plan as submitted by Ext.R4(a), contemplated construction of the 3rd and 4th floors. The petitioner is said to have been heard on the question of the revised plan. Admittedly, revised plan was to construct two additional floors. Ext.P2 building permit contemplated a building of three stories (ground + two). The revised plan as submitted by Ext.R4(a), contemplated construction of the 3rd and 4th floors. The 4th respondent was informed that there could not be two floors above the proposed building, as per the revised plan, for reason of lack of parking area; to be provided under Kerala Municipality Building Rules, 1999 (KMBR). The 4th respondent then submitted a further revised plan seeking additional construction of one floor, ie., the 3rd floor on the building already permitted as per Ext.P2. The 4th respondent did not inform this Court about such action having been taken. The Corporation too issued Exhibit P8 building permit; without notice issued to the petitioner. 4. The Corporation thus, without hearing the petitioner on the construction of the 3rd floor issued Ext.P9 permit dated 15.12.2015, which is also challenged as per an amendment application filed. Since no counter has been filed, the amendment petition stands allowed and the writ petition being ripe for hearing, there is no requirement to direct the petitioner to file an amended writ petition; as the 4th respondent never raised any dispute against the amendment sought. 5. With respect to the water logging, the learned Counsel, on behalf of the 4th respondent, undertakes that there would be a drain provided and the wall on the boundary of the petitioner's property would be strengthened to ensure that no damage is caused to the petitioner's property. The projection on the western side beyond 60 cms is also undertaken to be demolished by the 4th respondent. In such circumstances, the above grounds do not survive for any consideration and it is directed that the 4th respondent comply with the undertaking within a period of one month from the date of receipt of the certified copy of this judgment. After completion of the same, the 4th respondent shall inform the compliance to the Corporation and the authorities of the Corporation shall with notice to the petitioner, examine the site and ensure that the grievance of the petitioner is redressed and only then permit further construction. In view of the above undertaking, there would be no difficulty for the 4th respondent to carry out the construction, as per Ext.P2 building permit. 6. In view of the above undertaking, there would be no difficulty for the 4th respondent to carry out the construction, as per Ext.P2 building permit. 6. Further challenge is with respect to the 3rd floor as permitted by Ext.P9 in accordance with Ext.P8. With respect to that, this Court had directed the Commissioner, who had earlier inspected the property to again inspect the property along with an expert and file a report. The Commissioner's report dated 08.08.2016 has been placed on record. The second inspection was directed since the Commissioner's report dated 28.01.2016 in paragraph 6 reported that the construction of the additional 3rd floor is proceeding from the existing pillar of the 2nd floor resulting in infraction of Rule 24(8) of KMBR. It was found on inspection that outer limit of the pillar with a width of 70cms stands at a distance of 78 cms from the boundary of the building, thus, violating the requirement of open space as prescribed for buildings above the 2nd floor, from the ground, as provided in the KMBR. For understanding the above objection, one has to look at the provisions of the KMBR; specifically Section 24. 7. Sub-section (3) of Section 24 prescribes that every building up to 10 mts in height shall have a minimum front-yard of 3mts depth and a rear yard of 2mts depth, as per sub-section (4). Sub-section (5) speaks of a minimum side yard of 1.20 mts on one side and a minimum of 1m on the other side. There is no dispute with respect to the said open spaces as provided in the KMBR, which is available as per the original building permit. The objection arises since the present construction of the 3rd floor increases the height of the building from 10 mts to 12 mts. In that context, sub-section (8) of Rule 24 applies, which is extracted hereunder along with sub-section (11): (8) "For building above 10 metres in height, in addition to the minimum front, rear and side open spaces required for height upto 10 metres, there shall be provided increase in such minimum open space at the rate of 0.5 metre per every 3 metres height [or fraction thereof] exceeding 10 metres. Provided that such additional set back corresponding to increase in height [shall] be provided for the whole building at ground level [or for the corresponding floors at their level] xxxx xxxx xxxx xxxx xxxx (11) Every open space provided, either interior or exterior shall be kept free from any erection thereon and shall be open to the sky and only cornice, roof or whether shade not more than 0.60 metre width shall overhang or project over the said open space so as to reduce the width to less than the minimum required." 8. As per sub-section (8) when a building is built above 10mts, in addition to the minimum front, rear and side open spaces, there shall be provided increased open space at the rate of 0.5m per every 3mts height [or fraction thereof], exceeding 10mts. In the present case, the minimum open space provided as per Ext.P2 permit is the bare minimum space available with the 4th respondent and hence, there could be no open space provided on the ground of the plot itself. In such circumstances, the proviso comes into play wherein, the additional set back required, corresponding to increase in height, could be provided for the corresponding floors at their level. The building having a height of more than 10mts but less than 13mts as provided under sub- section (8); there need be a further open space of 0.5m provided on the roof of the 2nd floor; for building the 3rd floor. Effectively what is intended is that the 3rd floor should be built inside the existing building structure; so as to ensure that there is left 0.5m open space around the 3rd floor; which open space is also intended to be "kept free from any erection thereon and shall be open to the sky"(sic) as per sub-section (11). It is in this context that this Court directed a second inspection by the Commissioner along with an Expert. The Commissioner's report dated 08.08.2016 is placed on record. 9. On further inspection also, it was revealed that the pillars to hold the roof of the 3rd floor was built, as an extension of the pillars; on which the ground plus two floors are built, in accordance with Ext.P2 permit. The Commissioner's report dated 08.08.2016 is placed on record. 9. On further inspection also, it was revealed that the pillars to hold the roof of the 3rd floor was built, as an extension of the pillars; on which the ground plus two floors are built, in accordance with Ext.P2 permit. Hence even the structure for the 3rd floor is intended to be built on the pillars, which hold up the building, permitted as per Ext.P2, with the roof resting on such pillars, over hanging the open space, said to have been provided to comply with sub-section (8), with a further weather shade falling down from the roof, taking recourse to the proviso to sub-section (8). The wall of the 3rd floor is built inside, away from the pillar, so as to provide the open space as required under sub-section (8), between the wall and the pillar, is the argument. Effectively there is a covered veranda, all around, on the third floor, which is projected as the open space provided. 10. The Commissioner has reported that the Assistant Engineer, PWD Building Division, Ernakulam has opined that the presence of show pillar is permissible in the setback area for aesthetic appearance and structural stability. The primary fallacy in the said opinion is that if the pillar is merely a show piece or one for aesthetic appearance, then it could never be one for structural stability. As a corollary if it is intended for holding up the structure, then it cannot be a mere show-piece and the same has to be necessarily in accordance with the KMBR. The Assistant Engineer is said to have also opined that a conjoint reading of Rule 8(c)(i) with Rule 24(11) makes it clear that architectural bands, cornices etc. shall not be included in the floor area calculation and the pillar is similar to that of an architectural band. The Assistant Engineer has thus opined that the compliance of the Building Rules has to be determined from the wall and not from the pillar, in the third floor. This is merely the opinion of the Engineer, which this Court finds it difficult; to relate with the specific provision in the Building Rules. 11. The Commissioner too, having doubts over the opinion expressed by the Assistant Engineer, rightly called for the Executive Engineer. The Executive Engineer's opinion is reflected in paragraph 4. This is merely the opinion of the Engineer, which this Court finds it difficult; to relate with the specific provision in the Building Rules. 11. The Commissioner too, having doubts over the opinion expressed by the Assistant Engineer, rightly called for the Executive Engineer. The Executive Engineer's opinion is reflected in paragraph 4. The Executive Engineer though felt that the show pillar is permissible, it was opined that strictly going by Rule 24 (11), the statute prescribes only the exclusion of cornice, roof or weather shade in the open space and not a pillar and hence the presence of pillar is not permissible in the setback area. The Executive Engineer then relied on the common practices; to opine that the construction of the pillar could be condoned; which opinion too lacks statutory backing. Only taking note of the expert opinion, the Commissioner reported that on the basis of the expert opinion, there is no infraction of Rule 24(8) with regard to the setback provided. 12. This Court is unable to accede to the expert opinion, on an interpretation of the provisions, as laid down in the statutory rule; regarding the set-back and open space as understood by the law makers. Under sub-section (11), the prescription for open space is specifically intended, to be "kept free from any erection thereon, and shall be open to the sky and only cornice, roof or weather shade not more than 0.60 meter width shall overhang or project over the said open space"(sic). The Supervisor was also present in Court, with whom also; the Court interacted, as with both the learned Counsel, on the question of violation of KMBR. Admittedly, the roof of the 3rd floor rests on the pillar and that is why even the experts have opined that it is necessarily for structural stability. The walls built inside, leaving 50cm space on the roof of the 2nd floor, cannot by themselves hold up the roof of the 3rd floor and the pillars standing around the 3rd floor are load bearing pillars. Definitely the roof could extend up to 0.60 meters as an overhang, into the open space. However, here it is not a mere overhang and the roof extends and rests on the pillars which hold the building and even the roof of the third floor. Definitely the roof could extend up to 0.60 meters as an overhang, into the open space. However, here it is not a mere overhang and the roof extends and rests on the pillars which hold the building and even the roof of the third floor. Hence what is provided as 50cm open space, is bounded by the pillars and covered by the roof and the weather shade; which does not make it an open space as provided under sub-Section (11). The weather shade is a further overhang from the extended roof, which proceeds downwards, between the pillars; having further extension of 50cm. This according to the Supervisor (A Grade) is essential, in so far as protecting walls from the incessant rains, which the State is known for. 13. In such circumstances, the 3rd floor permitted by Ext.P9 permit, as per Ext.P8 plan would definitely be in violation of the KMBR and hence no construction can be carried in accordance with the revised permit granted. The learned Counsel for the 4th respondent would then contend that the pillars have been already constructed, which is of no avail, since the above writ petition was pending here when the revised plan was submitted and this Court had also specified by order dated 14/01/2016 that any construction will be subject to the result of the writ petition. The writ petition hence would stand allowed, recording the undertaking above referred, made by the 4th respondent and setting aside Ext.P9 building permit, but however permitting the 4th respondent to complete the building as per Ext.P2 building permit, after complying with the undertaking made. 14. The learned counsel for the 4th respondent would then request this Court to leave open the remedy of the 4th respondent to seek for a sanction with a revised proposal, leaving open the space as found by this Court and as provided in the KMBR. The learned Counsel for the petitioner would submit that the same would be impossible for reason of the 3rd floor having to be constructed 50 meters inside the 2nd floor roof. The inner wall, built 50 meters inside, of the roof, obviously cannot bear the load without allowing the load to rest on the pillars; thus affecting the very stability of the building, causing apprehension of real danger to the nearby property owners too. The inner wall, built 50 meters inside, of the roof, obviously cannot bear the load without allowing the load to rest on the pillars; thus affecting the very stability of the building, causing apprehension of real danger to the nearby property owners too. The load of the existing building being on the pillars built on the four sides of the existing building, the attempt itself is said to be a subterfuge employed, fully realising that the 3rd floor can only rest on such pillars. However, that would be a consideration, which has to be made by the Corporation, which could also be proceeded with only after hearing the petitioner. 15. This Court cannot but notice the laxity of the Corporation in so far as not having heard the petitioner, when a revised plan was submitted after the original revised plan was not acceded to by the Corporation. This was also in the teeth of an order of this Court to so hear the petitioner. Before leaving the matter, this Court places on record its appreciation for the manner in which the inspection was conducted by the Commissioner and the doubt expressed by the Commissioner, even when the Assistant Engineer opined as to there being no violation of the KMBR; which is a correct interpretation of the statutory rule, as has been found by this Court. The writ petition would stand allowed. The 4th respondent shall not carry out the construction, even as per Exhibit P2, unless the undertaking is complied as certified by the Corporation. No order as to costs.