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2019 DIGILAW 100 (KER)

T. K. Ramesh v. State of Kerala

2019-01-30

SHAJI P.CHALY

body2019
JUDGMENT : 1. This writ petition is filed by the petitioner seeking to quash Ext.P7 communication issued by the 2nd respondent, i.e., the Corporation of Kochi, dated 24.03.2010, informing the petitioner that the application submitted by the petitioner seeking issuance of the building permit cannot be considered in view of G.O.(Ms) No.249/09 dated 16.12.2009, modifying the Kerala Municipality Building Rules, 1999, and directing the petitioner to submit a fresh plan, taking into account the amendment to the Rules. Brief material facts for the disposal of the writ petition are as follows: 2. Petitioner is the owner in possession of 74.845 cents of land on the side of Kaloor-Perandoor Road, within the limits of the Corporation of Kochi. Petitioner submitted an application for construction of a multi-storied building on entering into a Memorandum of Understanding with a builder, on 07.05.2008. According to the petitioner, without considering the application submitted by the petitioner, the 3rd respondent, i.e., the Secretary of the Corporation insisted for free surrender of land on the main road side for widening the road. On 03.12.2008, a notice was issued, directing the petitioner to cure two defects and the petitioner has carried out the same. Petitioner has also submitted a plan by providing land for development of the road in the sketch. Again on 12.01.2009, a notice was issued, pointing out some defects, which were also rectified to the satisfaction of the authorities. However, no action was taken to grant licence. At last, after implementing the amended Rules, the 4th respondent issued a notice directing the petitioner to submit a fresh plan in accordance with the amended Rules to Rules, 1999. It is also the case of the petitioner that, the permitted FAR before amendment was 2.5 without fine. After amendment also the permitted FAR is 2.5, but with additional fee after the permitted FAR 2.0, and thereupon, demanded the petitioner to re-submit the plan in accordance with the amended Rules. 3. A statement and additional statement are filed by the 2nd and 3rd respondents, refuting the allegations and claims and demands raised by the petitioner. Among other contentions, it is stated that, petitioner did not submit the structural stability certificate, NOC from Pollution Control Board and the Fire Service Department, which was intimated to the petitioner on 15.05.2008 itself. 3. A statement and additional statement are filed by the 2nd and 3rd respondents, refuting the allegations and claims and demands raised by the petitioner. Among other contentions, it is stated that, petitioner did not submit the structural stability certificate, NOC from Pollution Control Board and the Fire Service Department, which was intimated to the petitioner on 15.05.2008 itself. The respondents while scrutinizing the application, found that though it comes under residential zone, the application cannot be entertained as per the provisions of Rule 30(3) of the Rules, 1999. It was thereupon, petitioner was asked to file a fresh application establishing that it is suitable for carrying out construction of a commercial building. 4. That apart, it is stated that, petitioner has given Ext.P3 consent that he is willing to surrender the above area for the development of Perandoor canal road. However, requisite forms are not submitted. Therefore, the Corporation cannot treat the willingness projected by the petitioner as free surrender of land. Thereafter, petitioner produced initial Fire NOC. But, he has not rectified the revised plan as suggested by the respondents as per Exts.P4 and P6 notices, and thereby it has become difficult for the Corporation to approve the application and plan submitted by the petitioner. 5. An additional statement is also filed by respondents 2 and 3, stating that, the delay in processing the application is due to laches on the part of the petitioner, since the revised plan was submitted by the petitioner belatedly. As per Ext.P5, petitioner was informed of the defects noted in the plan submitted by him. According to the said respondents, petitioner has consciously omitted to mention the date on which he submitted the revised plan for consideration. Actually, petitioner has submitted the revised plan only on 15.12.2009 for approval. In the meanwhile, while the application was being processed, amendments were brought as per the notification specified above. It is also pointed out that, petitioner is not having any vested right merely on submitting the application. Petitioner was duty bound to carry out the correction in the application as well as the plan submitted, enabling the respondents to process the application in a legalistic manner. 6. It is also pointed out that, petitioner is not having any vested right merely on submitting the application. Petitioner was duty bound to carry out the correction in the application as well as the plan submitted, enabling the respondents to process the application in a legalistic manner. 6. A reply affidavit is filed by the petitioner, reiterating the stand adopted in the writ petition and also justifying his action in submitting the revised plan consequent to the delay occurred in intimating the defects noted by the respondents. 7. I have heard learned counsel for the petitioner and perused the pleadings and the documents on record. 8. The facts discussion made above would make it clear that, the sole question to be considered is, whether the petitioner is liable to pay the permit fee in accordance with the notification issued by the State Government with effect from 16.12.2009. It is an admitted fact that, petitioner submitted application for building permit prior to the amendment brought out by the State Government, as per the notification specified above, i.e., on 07.05.2008. It is also an admitted fact that, there was some defects pointed out by the respondents and the petitioner did not submit the plan curing the defects before the amendment was carried out by the State Government. The amendment came into force on and with effect from 16.12.2009. The said aspect is also not disputed by the petitioner. 9. In my considered view, if the petitioner had a case that the plan was submitted by the petitioner before the Secretary of the Corporation in accordance with the Rules, 1999, and if the Secretary delayed processing of the application, in terms of Sections 390 and 391 of Act, 1994, and in accordance with Rule 14 of the Kerala Municipality Building Rules, 1999, corresponding to the afore-provisions of the Act, exceeding a period of thirty days, there was a clear remedy left with the petitioner under Sec.392 of Act, 1994, and Rule 15 of Rules, 1999, to submit an application before the Council and get the issue sorted out. The said provisions read thus: “390. The said provisions read thus: “390. Period within which approval or disapproval shall be intimated.--Within thirty days after the receipt of an application made under section 387 for approval of a site or of any information or further information required under any rules or bye-laws made under this Act, the Secretary shall, by written order, either approve or refuse to approve the site on any of the grounds mentioned in section 393 and intimate the fact to the applicant. 391. Period within which Secretary is to grant or refuse to grant permission to execute work.--Within thirty days after the date of receipt of an application under section 387 for permission to execute any work or of any information or of document or further information or documents required under the rules or bye-laws made under this Act, the Secretary shall, by written order either grant or refuse to grant such permission on any of the grounds mentioned in section 393 and intimate the fact to the applicant in writing: Provided that the said period of thirty days shall not begin to run until the site has been approved under section 390. 392. Reference to Council where Secretary delays grant or refusal of approval or permission.--(1) Where, within the period specified in section 390 or section 391, as the case may be, the Secretary has neither given nor refused his approval of a building site, or his permission to execute any work, as the case may be, the Council shall be bound, on the written request of the applicant, to determine whether such approval or permission should be given or not. (2) Where the Council does not, within one month from the date of receipt of such written request, determine whether such approval or permission should be given or not, such approval or permission shall be deemed to have been given, and the applicant may proceed to execute the work, but not so as to contravene any of the provisions of this Act or any rules or bye-laws made there under. 14. 14. Period within which Secretary is to grant or refuse permission to execute work.--The Secretary shall within thirty days from the date of receipt of an application for permission to execute any work or any information or document or further information or further document required under these rules or bye-laws made under the Act, by written order either grant or refuse to grant such permission on any of the grounds mentioned in rule 12 and intimate the same to the applicant: Provided that the said thirty days shall not begin to run until the site has been approved under rule 13. 15. Reference to council where the Secretary delays to grant or refuse to approve or permit.-- (1) The Council shall, if the Secretary neither approves nor disapproves a building site, neither gives nor refuses permission to execute any work within thirty days from the date of receipt of the application, on the written request of the applicant, be bound to determine whether such approval or permission should be given or not. (2) Where the Council does not, within one month from the date of receipt of such written request, determine whether such approval or permission should be given or not, such approval or permission shall be deemed to have been given, and the applicant may proceed to execute work, but not so as to contravene any provision of the Act or these rules or bye-laws made there under. Provided that such execution of work shall be considered as duly permitted and not one for regularization and permit shall be issued as per rules even if the work has been commenced, being carried on or completed if it otherwise complies with rule provisions.” 10. There is no case for the petitioner that petitioner has made any such application before the Council. Since it is admitted that the revised plan was submitted on 15.12.2009, a day before the introduction of amended Rules and considered thereafter, in my considered view, respondents were duty bound to take into account the amended Rules for consideration of the application. It is also a settled legal position that the rule that is to be taken into account is the rule when the application submitted by the petitioner was granted, and the building permit was approved, and not the date on which the application was submitted by the petitioner. 11. It is also a settled legal position that the rule that is to be taken into account is the rule when the application submitted by the petitioner was granted, and the building permit was approved, and not the date on which the application was submitted by the petitioner. 11. It is also evident that, the application submitted by the petitioner was having deficiencies, liable to be corrected, and unless and until a defect free application is submitted, the statutory authority is not duty bound to consider the same. In the case on hand, though defects were pointed out, petitioner did not rectify the same uptil 15.12.2009, on which date a revised plan was submitted. Petitioner has also not cared to take any action against the alleged illegalities of the Corporation, and finally this writ petition was filed on 21.05.2010 only. Accordingly, having slept over the issue, petitioner cannot complain that, no action was taken by the authority in the application submitted prior to the amendment notification, and the belated action can only be viewed as an after thought to wriggle out of the impasse caused consequent to the amendment. 12. Taking into account all these aspects, I am of the considered opinion that, petitioner has not made out any case justifying interference of this Court under Article 226 of the Constitution of India. When the writ petition was admitted to the files of this Court, an interim order was passed by this Court on 29.07.2010, directing the Corporation to finalize the building plan within one month on the petitioner remitting an amount of Rs.5 lakhs, with a rider that, if the petitioner is not entitled for the benefit of the rule position prior to the amendment, the remaining amount will be paid by the petitioner. 13. According to learned counsel for the petitioner, now petitioner has produced all the requisite clearances from the respective statutory authorities before the Secretary of the Corporation and has also submitted an application seeking issuance of occupancy certificate and numbering the building. 14. 13. According to learned counsel for the petitioner, now petitioner has produced all the requisite clearances from the respective statutory authorities before the Secretary of the Corporation and has also submitted an application seeking issuance of occupancy certificate and numbering the building. 14. Taking into account the said position, there will be a direction to the Secretary of the Corporation to finalize the proceedings pertaining to the application submitted by the petitioner for issuance of occupancy and numbering the building, on the petitioner remitting the entire balance amount towards building permit fee in accordance with the Rules that were brought into force on and with effect from 16.12.2009. Therefore, the Secretary of the Corporation is directed to raise a demand with respect to the amount due from the petitioner, taking into account the amount of Rs.5 lakhs paid by the petitioner, as per the interim order passed by this Court, within a period of two weeks from the date of receipt of a copy of this judgment. There will be a further direction to finalize the proceedings in respect of the application for occupancy submitted by the petitioner within a month from the date of receipt of the amount from the petitioner, as demanded by the Secretary, after providing an opportunity of hearing to the petitioner. The writ petition is disposed of accordingly.