Kerala High Court
K.Somasekharan Nair vs The Secretary on 28 January, 2021
WP(C) No. 10818/2017 1
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR
&
THE HONOURABLE MR. JUSTICE SHAJI P.CHALY
THURSDAY, THE 28TH DAY OF JANUARY 2021 / 8TH MAGHA, 1942
WP(C).No.10818 OF 2017(S)
PETITIONER:
K.SOMASEKHARAN NAIR,
AGED 75 YEARS, S/O.K.K.KUNJAN PILLAI, BHAVANI,
CHERUPPORAKONAM, MELAMCODE, PAZHAKUTTY, P O NEDUMANGAD,
THIRUVANANTHAPURAM-695 565.
BY ADVS.
DR.S.GOPAKUMARAN NAIR (SR.)
SRI.D.S.SREEKUMARAN
SMT.T.S.MAYA (THIYADIL)
SRI.SOORAJ T.ELENJICKAL
SRI.K.ARJUN VENUGOPAL
RESPONDENTS:
1 THE SECRETARY,
THE NEDUMANGAD MUNICIPALITY, MUNICIPAL OFFICE,
NEDUMANGAD, THIRUVANANTHAPURAM-695 561.
2 THE CHIEF TOWN PLANNER,
GOVERNMENT OF KERALA, ERNAKULAM 695 001.
3 ABDUL RASHEED
S/O.ALIYAR, (KNOWN AS HEERA BABU), 'CITADEL', GOLF LINKS
ROAD, KOWDIAR, THIRUVANANTHAPURAM-695 003.
4 THE DIVISIONAL OFFICER
OFFICE OF THE DIVISIONAL OFFICER, FIRE AND RESCUE SERVICES,
THIRUVANANTHAPURAM-695 003.
WP(C) No. 10818/2017 2
5 BIJU RAMESH
S/O.RAMESH, PARTNER HOTEL MYTHRI, RAJADHANI BUILDING,
EAST FORT, THIRUVANANTHAPURAM-695 005.
6 ARUN DINAKAR
S/O.DINAKARAN, PARTNER, HOTEL MYTHRI, INDRAPRASTHA
BUILDING, NEAR KSRTC BUS STATION, NEDUMANGADU,
THIRUVANANTHAPURAM-695 541.
7 ASSISTANT DIRECTOR GENERAL (H&R),
MEMBER SECRETARY(HRACC), MINISTRY OF TOURISM ,
GOVERNMENT OF INDIA, C-1, HUTMENTS, DALHOUSIE ROAD,
NEW DELHI-110 011.
R1 BY ADV. SRI.P.RAMAKRISHNAN
R3, R5 BY ADV. SRI.ELVIN PETER P.J.
R3, R5 & R6 BY ADV. SRI.K.R.GANESH
R6 BY ADV. ELVIN PETER P.J.
R7 BY ADV. SMT.MINI R.MENON, ADDL.CGSC
R2 BY SRI. SURIN GEORGE IPE, SR. GOVERNMENT PLEADER
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 28-01-2021,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C) No. 10818/2017 3
JUDGMENT
Dated this the 28th day of January, 2021.
SHAJI P. CHALY, J.
This is a Public Interest Litigation filed by a person said to be a
social activist and former Vice Chairman of Nedumangad Municipality for
8 years and Acting Chairman for one year. He also claims to be the
Secretary of the Madhya Nirodhana Samithi (Anti Liquor Society), Kerala
State and Gandhiyan Vijana Vedhi, Nedumangad and seeks to quash
Ext.P7 No Objection Certificate (final) issued by the Divisional Fire
Officer, Thiruvananthapuram dated 30.10.2010, Ext.P8 order dated
07.01.2011 passed by the Secretary of the first respondent, Ext.P9
occupancy certificate issued by the Secretary of the Nedumangad
Municipality dated 12.01.2011 and Ext.P12 recommendation of the
Government of India, Ministry of Tourism dated 23.07.2012
recommending Four Star Classification to Hotel 'Indraprastha',
Nedumangad P.O., Thiruvananthapuram, apparently run by respondents
5 and 6 in a building owned by the 3 rd respondent, and further seeks
issuance of a writ of mandamus to the Secretary of the Nedumangad
Municipality to comply with the directions of this Court in Ext. P5
judgment dated 08.12.2009 in W.P.(C) No. 18134 of 2009 and Ext. P3
Government Order dated 05.11.2007 insofar as it is applicable to Rule
3(c) of the Kerala Municipality Building Rules, 1999 ('Rules, 1999' for
short) and for other related reliefs.
2. The public interest put forth by the petitioner is with regard to
an unauthorised construction of a building at Nedumangad, wherein
Hotel 'Indraprastha is functioning. The sum and substance of the
contention advanced is that respondent No.3, the owner of the building,
and respondents 5 and 6 partners of the aforesaid hotel, have secured
undue benefits exerting their undue influence, money power and corrupt
practices and carried out unauthorised construction of the building and
secured regularisation order and occupancy certificate from the Secretary
of the Nedumangad Municipality. It is also the case of the petitioner that
regularisation done and the occupancy certificate issued are in violation
of Ext. P3 Government Order and the directions issued in Ext. P5
judgment rendered by this Court. It is also contended that the Secretary
of the Municipality has abused the power vested in her by relying upon
Ext. P7 Fire and Safety NOC issued by the 4 th respondent containing
falsehood as to the height of the building recorded as 14.93 meters
against the actual 16.60 meters, which was found and reported by the
Advocate Commissioner appointed by this Court in a writ petition, who
has carried out physical measurement of the height of the building in the
presence of the Secretary of the Municipality, the Chief Town Planner and
the owner of the building.
3. It is also contended that the violations committed by the
Divisional Fire Officer and the Secretary of the Municipality are
substantiated by the new incumbent in the office of the Fire Officer by
declining to renew Ext. P7 No Objection Certificate, and in his letter
issued to the partner of the hotel, he undoubtedly said that the building
is a high rise building, which is an unauthorised one.
4. Other contentions are raised in regard to the enquiry conducted
by the State Police Vigilance and the observation of the Enquiry
Commissioner and Special Judge, Thiruvananthapuram, and relying
upon the same, it is also stated that prima facie findings in regard to the
height of the building as alleged by the petitioner are found to be correct.
It is also stated that against the directions contained in Ext. P5 judgment
and Ext. P3 order of the Government, the category of the building was
changed to mercantile against the category of 'restaurant, lodging
rooms, commercial office and ancillary parking falling under the category
of A1, A2 and D of Rule 16 of Kerala Building Rules, 1984 ('Rules, 1984"
for short) and further that the Government as per Ext. P3 and this Court
as per Ext. P5 judgment directed the Secretary, Chief Town Planner and
the Divisional Fire Officer to follow Rule 3(c) of the Rules, 1999, which
warrants 5 meters open space all around the building and which is not
available.
5. It is further pointed out that after securing Ext.P8 regularisation
and Ext.P9 occupancy certificate from the Secretary of Nedumangad
Municipality, owner of the building and the lessees namely respondents 5
and 6 made changes to the room size and other portions of the building,
in order to secure Four Star classification from the Government of India,
Ministry of Tourism. Therefore, according to the petitioner, the law
abiding public are mere onlookers and unless and until this Court
interferes, the illegalities would continue. It is also against the
public interest.
6. Respondents 5 and 6, the partners of the hotel, have filed a
detailed counter affidavit refuting the allegations and justifying the
construction carried out, additions and alterations made, and also
claiming that the certificate issued by the District Fire and Rescue Officer,
the regularisation done by the Secretary of the Municipality and the
occupancy issued thereto are in accordance with law. It is also contended
that the height of the building exceeding 15 meters as alleged by the
petitioner is not correct in terms of law and submitted that the entire
issues raised in this writ petition was considered by the Chief Town
Planner in accordance with the directions issued by this Court in Ext. P5
judgment, that the petitioner was aware of the challenge made to Ext. P8
regularisation order and Ext.P9 occupancy certificate issued by the
Secretary of the Nedumangad Municipality before the Tribunal for Local
Self Government Institutions by one Prabhula Chandran Nair, who also
was the Chairperson of the Nedumangad Municipality, and the
interference declined. However, the said vital aspect is suppressed in the
writ petition as an attempt to secure unmerited orders.
7. It was also submitted that the issue was brought to the attention
of the Vigilance and Anti Corruption Bureau, Thiruvananthapuram, which
had later conducted a quick verification as per the direction in Crl. M.P.
No. 426/2013/ECT dated 05.06.2013 issued by the Enquiry
Commissioner and Special Judge, Thiruvananthapuram, in which it was
found that the violations alleged by the complainant in regard to the
construction of the building, alterations and height of the building is not
correct. It was also found that there was no corrupt practice in the
matter of securing a 'No Objection Certificate' from the Divisional Fire
Officer, which also was suppressed. The order passed by the Tribunal, the
report of the Vigilance and the direction issued by the Enquiry
Commissioner and Special Judge to conduct investigation into the
complaint filed by the petitioner are all part of records, which would be
discussed hereafter.
8. Therefore, according to respondents 5 and 6, the issues raised by the
petitioner in this writ petition have attained finality pursuant to the order
passed by the Tribunal for Local Self Government Institutions in Appeal
No. 72 of 2011 filed by the said Prabhula Chandran Nair and therefore,
the issues cannot be reopened, especially when the entire aspects,
including the height of the building, were threadbare considered by the
Tribunal, and declined to interfere with the orders passed by the
Secretary of the Municipality regularising the construction and issuing
occupancy certificate. It is also submitted that the allegations raised by
the petitioner in regard to the violation of Ext. P3 Government Order and
Ext.P5 judgment of this Court are all baseless, imaginary and unfounded.
That apart, it is submitted that eleven writ petitions were filed before this
Court, in regard to the construction by various persons, which are
enumerated in detail, at paragraph 4 of the counter affidavit, and are as
under:
"W.P.(C) Nos. 3917/2009, 13026 of 2009, 1417 of
2010, 27585 of 2011, 2351 of 2008, 9871 of 2010,
409 of 2011, 793 of 2011,1766 of 2011, 34249 of
2011 and 646 of 2012."
9. Therefore, respondents 5 and 6 seek dismissal of the writ
petition. Though the Municipality has not filed a counter affidavit, learned
counsel appearing for the Municipality has supported its stand in regard
to Ext. P8 regularisation order and Ext. P9 occupancy certificate stating
that those orders were issued only in accordance with the provisions of
the Rules, 1999. Learned counsel has also submitted that the petitioner
has not produced any document or reliable evidence to establish that any
illegality was committed by the Secretary of the Municipality in the
matter of regularising the construction of the building and issuing
occupancy certificate. Therefore, according to him, the allegations raised
in the writ petition have no basis and no interference is warranted to the
orders passed by the Secretary of the Municipality.
10. We have heard learned Senior Counsel for the petitioner Sri.
S. Gopakumaran Nair assisted by Adv. Sooraj Elanjikkal, Sri. Prathap for
the Municipality, learned Senior Government Pleader Sri. Surin George
Ipe for the State and Sri. K.R. Ganesh for respondents 5 and 6, and
perused the pleadings and materials on record.
11. The paramount contention advanced by the learned Senior
counsel for the petitioner is that in Ext. P7 No Objection Certificate, the
height of the building is shown by the Divisional Officer, Fire and Rescue
Services as 14.93 meters; whereas from Ext. P4 Advocate Commission
report taken in the presence of the statutory authorities and the building
owner, it is clear that the height of the building is 16.60 meters, which is
in violation of Rule 110 of the Rules, 1999, wherein the height of a high
rise building at the relevant time is 15 meters. It is also pointed out that
the building was constructed with a height of 16.60 meters and
therefore, unless and until a constructed portion is demolished, the
height of the building cannot be reduced, which itself is an ultimate
indication that the height of the building shown in Ext. P7 No Objection
Certificate issued by the fire authority is not correct and further it was
done purposefully employing corrupt practice to help the party
respondents, and therefore, Ext. P8 regularisation granted by the
Secretary of the Municipality and consequential Ext. P9 occupancy
certificate issued can never be sustained under law. According to the
learned Senior counsel, it would, in turn, seriously, tell upon the
attempt of respondents 5 and 6 to secure Four Star classification to the
hotel in question illegally. Other contentions are also raised relying upon
Ext. P3 Government Order and Ext. P5 judgment rendered by this Court,
especially to the effect that none of the requirements directed to be
undertaken therein were taken into account by the District Fire Officer
and the Municipal Secretary.
12. On the other hand, learned Senior Government Pleader
submitted that Ext. P3 order was passed by the Government as early as
on 05.11.2007 noting that exemption was granted to the owner of the
building namely Abdul Rasheed, the 3 rd respondent, as per the provisions
of the Rules, 1984 bearing G.O (Rt.) No. 1563/19/LAD dated
06.04.1990, which rules were in force before the introduction of the
Rules, 1994, that the exemption was granted by the Government to the
said building, subject to the conditions incorporated thereunder;
however, fact remains, construction was started violating the conditions
stipulated by the Government and hence, the Municipality issued notice
under the Rules, 1984. Later, an application was submitted by the owner
of the building for the change of user of the building. Accordingly, the
Government obtained a report from the Chief Town Planner and granted
exemption from the provisions of the Rules 32(c)(2), 15(5) and 17(2) of
the Rules, 1984, subject to the condition that an emergency staircase
should be provided in the said building. Later, the owner submitted a
Review Petition dated 12.02.1999 requesting for the conversion of the
use of the basement floor and the second floor of the existing building
and for the construction of two storied additional building in the rear
side.
13. It is apparent from Ext. P3 order that in consultation with the
Chief Town Planner, the Government granted exemption from the
provisions of the Rules, 1984 and accorded sanction for the change of
use of the basement floor and second floor of the existing building into
restaurant and lodge rooms. Exemptions were also granted by the
Government in regard to the construction of additional building from the
provisions of the Rules, 1984 in Survey Nos. 1698/3 and 1697/4/4 of
Nedumangad Village, subject to the condition that a ramp should be
constructed on the southern side as recommended by the Nedumangad
Municipality as per its letter bearing No. TPI/7646/97 dated 16.08.1999
with a further rider that the ramp should not be blocked by using the
area as a parking space. It is evident from Ext. P3 that, later the
Government received a petition from one Santhakumar on 05.08.2006
alleging that unauthorised and illegal constructions were carried out by
the owner. Accordingly, the Government have referred the above petition
to the Regional Town Planner, Thiruvananthapuram and the Secretary,
Nedumangad Municipality for report.
14. In the meanwhile, the Senior Town Planner (Vigilance) had
made a site inspection and furnished a report on 27.10.2006 stating that
change of use of the building had already been done and some
conversions also were being done. Therefore, it was held that since the
Rules, 1999 have come into force, Rule 3(c) thereto shall apply to all
parts of the building affected by the change.
15. Anyhow, while the matters being so, in the judgment in W.P.(C)
No. 32222 of 2006 dated 09.03.2007, this Court directed that the
Government should, on receipt of report from the Nedumangad
Municipality, issue notice to all concerned and take a decision within
three months from the date of receipt of the report from the
Nedumangad Municipality. In compliance with the directions, proceedings
were initiated against the owner of the building under Section 406(1) of
the Kerala Municipality Act, 1994 and also under the provisions of the
Rules, 1999. To put it short, in the judgment in Writ Appeal No. 1043 of
2007 filed by the owner of the building impugning the judgment in the
writ petition specified above, the Government, was directed, to obtain a
report from an independent Officer after securing a report from the
Municipality and issuing notice to the petitioner therein, for taking a fresh
decision in the matter. Accordingly, the Government appointed the Chief
Town Planner Thiruvanthapuram as the Independent Officer to carry out
inspection. The Chief Town Planner, after taking into account the entire
aspects, has submitted a report before the Government and after
considering the report and the recommendation extended by the Chief
Town Planner, sanction was accorded for the construction work in the
property comprised in Survey No. 698/3 of Nedumangad Village on the
following conditions:
"i) since there are variations in the area and open space
provided between the approved plan and the existing building,
the Municipality should verify thoroughly all Government
orders, approved permits and plans in respect of the
construction of the building, and then issue necessary
directions so as to make it in conformity with the approved
plan, permit and Government Orders.
(ii) After ensuring that the existing building is altered so as to
make it in conformity with the Government Orders and
approved plans the Nedumangad Municipality may take action
to assess the remaining unassessed portion of the existing
building after obtaining necessary applications and documents
from the owners of the building. Before assessment NOC from
Fire Force Department should be obtained and verified.
iii)After ensuring the completion of the course of action as
suggested above, the Nedumangnd Municipality may consider
the application and plan of the petitioner for their proposed
renovations and change of occupancy, in accordance with the
relevant provisions in Kerala Municipality Building Rules,
1999 and Kerala. Municipality Act, 1994 and may issue permit
to those renovation, extension or change of occupancies if
permissible as per rules and regulations."
16. However, challenging Ext. P3 Government Order, W.P.(C) No.
2351 of 2008 was filed, in which, an Advocate Commissioner was
appointed and Ext.P4 report was accordingly submitted, wherein the
Advocate Commissioner has reported that the building is five storeyed
and has a total height of 16.60 meters. The case advanced by the
petitioner is that the inspection was done in the presence of the
petitioner in the said writ petition, the appropriate statutory authorities,
the advocate for the building owner, his site Engineer and the Officer of
the Town Planning Department and therefore, the said report is to be
accepted in all respects and if that be so, the building is a high rise
building, which is liable to follow the provisions of Rules, 1999
consequent to Rule 3(c) of Rules, 1999, including the one applicable to
high rise buildings and shall apply to all parts of the building affected by
the change. Admittedly, the said writ petition was disposed of directing
to remove the unauthorised construction.
17. Anyhow, it is seen that the Municipality again proceeded
against the building owner and thereupon, presumably the matter was
taken up before the Tribunal for Local Self Government Institutions by
the owner of the building. Challenging the Tribunal's order, the
Municipality approached this Court by filing W.P.(C) No. 18134 of 2009, in
which Ext. P5 judgment was rendered and the relevant portion of the
same is extracted hereunder for convenience:
"2. Following Ext.P8, different exercises have been
carried out by the Municipality and the petitioner leading
ultimately to two appeals before the Tribunal for Local Self
Government Institutions. Tribunal held that there is a deemed
licence in favour of the builder on account of lethargy to
decide on the building permit application(for revised
sanction) within time. It also interfered with the proceedings
of the Municipality requiring the builder to pull down certain
portions of the building.
3. The aforesaid decisions of the Tribunal stand stayed
by this court in this case.
4. While the Municipality would say that the question
of deemed licence does not arise at all, in view of the fact that
the builder stood notified of deficiencies in the rectification of
the building in terms of Ext.P8 Government order, the final
resolution of this dispute is necessary because a little bit of
public interest including through erstwhile Chairman of the
Municipality is also projected by way of impleading petitions
in this matter.
5. The facts of the case make it abundantly clear, as
already noted, that Ext.P8 is the decisive government order on
the basis of which further action has to follow. If that were so,
all that has to be ensured is that the terms of the directions
contained in paragraph 14 of Ext.P8 Government order are
complied with. On such compliance, the consequences have
to follow in terms of Ext.P8 Government order.
6. Therefore, the Chief Town Planner,
Thiruvananthapuram is hereby directed to conduct a site
inspection following the report referred to in Ext.P8 within a
period of two weeks from the date of receipt of a copy of this
order and file a report before this court within two weeks
thereafter, as to whether the directions issued by the
Government in paragraph 14 have been complied with by the
petitioner in relation to the construction in question.
7. If the answer of the Chief Town Planner to the
aforesaid is in the affirmative, Municipality has to do the
needful in terms of paragraph 14(3) of Ext.P8. If the answer is
in the negative, petitioner has to comply with the directions
contained in Ext.P8. This procedure will liquidate this
litigation finally. The aforesaid directions are accordingly
issued.
List after six weeks awaiting the report. Learned
counsel for the Municipality will ensure that a set of this writ
petition and other pleadings in this case is placed before the
Chief Town Planner, Thiruvananthapuram along with a copy
of this order."
2.Following that, the Chief Town Planner has placed on
record a report dated 17.11.2009, the relevant portion of
which reads as follows:
"In response to judgment in W.P(C).32222/06
dt.9.3.2007, Govt. have issued directions as per G.O.(Rt)
No.3011/2007/LSGD dt.05/11/2007.
As per this (G.O.) it was required to rectify the
deviations made in the building so as to make it in conformity
with approved plan and Govt. orders. Thereafter, Municipality
shall assess the building after verifying the required
documents ad NOC from Fire Force Department. This Govt.
Order has not yet been complied with.
During inspection the following points were noted.
1) There is no sufficient access width to rear parking
space. As per the approved pan, the access width varies from
2.45 m to 2.60 m. The actual available width are 2.40 m and
2.00 m at two points.
2) Since the level of the Rear yard has been lowered,
the fire escape stair is not connected to the ground level at
present. It is also noted that there is no proper and sufficient
access to the fire escape stair from all parts of each floor of
the building.
3) It has been noted that an additional stair case and
one lift has been provided inside the building in the north-
west corner. This will facilitate more vertical circulation and
is advisable in the safety point of view.
Along with this room & lift machine room an
additional area of 5.90m x 3.45m is seen covered with slab for
placing water tank. It is permissible if the structure is not used
for any purpose other than storage of water.
4) In the upper floors, it is seen that at certain places
the outer walls were shifted from the original position to the
edge of the projecting slabs which were only weather shades
as per approved plans. In certain places it is seen that door
ways are provided giving entry to weather shade slab
projections. This will cause serious violations of building
rules and deviation of approved plan especially with respect
to open space availability, coverage, FAR and Parking
requirement.
5) It was also seen that two telecommunication tower
along with accessories were erected as the Roof Top Terrace
of the building. Municipal authorities has informed, that
structures are authorised.
Based on the above observation, it can be seen that the
alteration as per G.O.(Rt) No.3011/2007/LSGD dt.5/11/2007
has not been affected to the building.
As per the Government exemption orders the following
uses only are permissible in this building.
Restaurant, lodge rooms, commercial office, residential
use and ancillary parking. If the use of the building is
intended to be changed to some other uses other than
specified above, Rule 3(c) of the KMBR1999 has to be
applicable. As per rule 3(c) "where the occupancy or use of
building is changed these rule shall apply to all parts of the
building affected by the change".
3.With the aforesaid, the first respondent has filed an
additional affidavit and through his learned counsel, he
undertakes today that he will carry out all necessary
rectifications in terms of the G.O. dated 5.11.2007 and would
rectify all the defects which have been noticed by the Chief
Town Planner. All that he wants is to complete the project and
start activities in the hotel building.
4.Taking the aforesaid into consideration, it is directed
that as and when the petitioner carries out the rectifications in
terms of G.O.(Rt) No.3011/2007/LSGD dated 5.11.2007, he
may notify about such completion to the Chief Town Planner
and to the secretary of the petitioner municipality. The Chief
Town Planner will then ensure that an inspection is again
made to certify whether all rectifications in terms of the
aforesaid Govt. Order have been carried out. If the Chief
Town Planner is satisfied that such rectifications have been
done, a certificate in that regard would be issued by him,
following which, the municipality will do the needful to
regularise the construction.
5.All interim orders will stand vacated to enable the
first respondent to do the needful in terms of this judgment.
This Court records its appreciation for the efficient efforts
taken by the Chief Town Planner in the matter. Exts.P18 and
P19 will stand quashed to pave way for what is stated above.
The writ petition is ordered accordingly."
18. Thus, the issues leading to the present writ petition started. As
per the directions in the aforementioned judgment, inspection was
conducted by the Chief Town Planner and a report was submitted evident
from Ext. P6 dated 05.10.2010, which reads thus:
"As per the direction of Honourable High Court in
WP (C) No.18134 of 2009 dt, 8th October, 2009, I
was.directed, to conduct a site inspection, within a period of
two weeks from the date of receipt of copy of this order and
file a report before the Honóurable High Court within two
weeks thereafter this direction.
Accordingly inspection was conducted and the
following points are observed.
As per vide G.O.(Rt) No. 1568/90/LAD dt.6.4.1990
Government exempted Rules 15(5), 34/3), 17(2),
34[2),21(11)c, 21(11)a of KBR 84 and insisted certain
conditions for the construction for a five storyed Ašsembly
cum special residential building in Sy.No. 1698/3 of
Nedumangad Municipality and Nedumangad Village by
Shri. Abdul Rasheed, Panayam House, Near Muttaramman
kol, Nedumangad.
Vide G.O.(Rt.) No. 4396/91/LAD dt. 1.11.1991
Government have modified the above order, granting further
exemption from Rule 32(C)2, 15 (5), and 17 ( 2) of KBR 84
for construction of five storied office cum lodge building.
Accordingly the Municipality had. issued building permit,
the applicant had constructèd the building and the
Municipality had assėssed the building.
Again, as per G.O(Rt) No. 1999/2000/ASGD
dt.17.5.2000, Government have further granted exemption
for conversion of use of Basement floor and Second floor to
Restaurant and lodge rooms of the already constructed
building from Rules 15(2) 34(3),15(5),15(7),17[2]5, (20)
(2)2,5, 20(3), 18,21(11)d, 21(12)e(ii), 22, 24(4), 34(7) &
34(8) in this G.O. it was mentioned that the rest of the area
of the building was still proposed as residential and
commercial.
In the same G.O. exemption was also granted for the
construction of a two storeyed building in the rear side of
the main building from Rules 35(2),21(11)b,c,d, 17(2) &
35(7), in an additional land comprised in Sy.No.1697/4/4 of
Nedumangad village purchased by the applicant. Since the
additional land have a higher level, it was directed in the
G.O that suitable ramp should be provided to reach the
parking area proposed there.
This additional two storeyed building has not yet
been constructed and the ground level has been found
lowered to that of the main building.
In response to judgement WP (C) No.32222/06
dt.9.3.2007, Govt. have issued directions as per G.0.
(Rt.)No.3011/20071/SGD dt.5.11.2007.
As per this (G.O) it was required to rectify the
deviations made in the building so as to make it in
conformity with approved plan and Govt. orders. Thereafter,
the Municipality shall assess the building after verifying the
required documents and NOC from Fire Force Department.
This Govt. Order has not yet been compiled with.
During inspection the following points were noted.
1. There is no sufficient, access width to rear parking
space. As per the approved plan the access width varies
from 2,45m, to 2.60m. The actual aväilable widths are
2,40m. and 2.00m at two points.
2. Since the levęl of the Rear Yard has been lowered,
the fire escàpe stair iš not connected to the ground level ät
present, It is also noted that there is no proper and. sufficient
access to the, fire escape stair from all parts of each floor of
the building.
3. It is been noted that an additional stair case and one
lift has been provided inside the building in the north-west
corner.: This will facilitate more vertical circulation and is
àdvisable in the safety point of view.
Along with this room & lift machine room an
additional area of 5.90 m x 3.45 m is seen covered with slab
for placing water tank. It is permissible if the strücture is not
used for äny purposėé other than storage of water.
4. In the upper floors, it is seen thät at certain places
the outer walls were shifted from the oríginal position to the
edge of the projecting slabs which were only weather shades
as per approved plans. In certain places it is seen that door
ways are provided giving entry to weather shade slab
projections. This will cause serious violations of building
rules and deviation of approved plan especially with respect
to open space availability, coverage, FAR and parking
requírement.
5. It was also seen that two telecommunication tower
along with açcessories were erected as the Roof Top Terrace
of the building Municipal authorities has informed, that
structures are authorised.
Based on the above observation, it can be seen that
the alternation as per G.O.(Rt.) No. 3011/2007/LSGD dt.
5/11/2007 has not been affected to the building.
As per the Government exemption orders the
following uses only are permíssible in this building.
Restaurant, lodge rooms, commercíal office,
residential use and ancillary parking. If the use of the
building is intended to be changed to some other uses other
than specified above, Rule 3(c) of the KMBR 1999 has to be
applicable. As per rule 3(c) "where the occupancý or use of
building is changed these rule shall apply to all parts of the
building affected by the change".
In accordance with the judgement WP(C) No.18134
of 2009 dated 8th December 2009, the respondent had again
submitted an application dated 8/7/10. Accordingly 6/8/10
the Chief Town Planner and Senior Town Planner
(Vigilance) inspected the site and found that the
unauthorised construction has not been completely
demolished in accordance with the judgement and give
direction to the respondent to complete the modification and
rectification in áccordance with the judgement and report
the same for further verification.
Again on 27/9/10, the respondent infôrmed that the
said rectification has been made and accordingly on 30/9/10
the Chief town Planner, Senior Town Planner (Vigilance)
and the Regional Town Planner (Trivandrum) jointly
inspectèd the site and observed that the modifications and
the rectification works are ongoing and not completely
carried out and it is also observed that there are certain
minor differences in plot meaşurements and open spaces
comparęd to the approved plan.
As per building rules the verifications of site
méasurements are vested with the Municipal authorities. In
this context the rèspondent has been directed to complete
the rectificätions anid modifications completely in
ačcordance with the júdgement and G.O(Rt). No
3011/2007/LSGD dt. 5/11/2007 and submit a revised plan
through the Municipal authorities. On receipt of the same
the Chief, Town Planner again will inspect the site and if
fully satisfied will issue the certificate to the municipality in
compliance with the judgement WP(C) No.18134 of 2009
Dt 8-12-2009."
19. Anyhow, Ext. P6(a) order dated 28.10.2010 was passed by the
Chief Town Planner taking into account the earlier Government orders
and permitting the Secretary of the Nedumangad Municipality to take
steps to regularise construction of the building. It is also clear that in
accordance with the directions in Ext.P5 judgment, inspection was
conducted thrice in the premises in question and instructed to remove
the unauthorised constructions, which has been carried out by the
building owner Sri. Abdul Rasheed. It is also seen that the Divisional
Officer, Fire and Rescue Services, Thiruvananthapuram, by Ext.P7 order
dated 30.10.2010, has issued a No Objection Certificate permitting
occupation of the building and with a direction that no construction be
allowed in the vacant spaces provided in the approved plan. Other
conditions are also incorporated for maintaining the fire fighting systems
continuously, in order to make it always functional, inter alia, among
other directions.
20. Matters being so, in accordance with the permission granted
by the Chief Town Planner, the Secretary of the Nedumangad Municipality
regularised the constructions carried out by the third respondent
invoking the powers conferred under the proviso to Section 406 (1) of
the Act, 1994 and also directing the owner to deposit an amount of
Rs.88,461/- towards compounding fee. Relevant portion of Section 406
is extracted for convenience:
"406. Demolition or alteration of building work unlawfully
commenced, carried on or completed.-- (1) Where the Secretary is
satisfied-
(i) that the construction, reconstruction or alteration of any
building or digging of any well-
(a) has been commenced without obtaining the permission of the
Secretary or in contravention of the decision of the Council; or
(b) is being carried on, or has been completed otherwise than in
accordance with the plans or specifications on which such permission
or decision was based;
or (c) is being carried on, or has been completed in breach of any
of the provisions of this Act or any rule or bye-law or order made or
issued thereunder or any direction or requisition lawfully given or
made under this Act, such rule, bye-law or order; or
(ii) that any alteration required by any notice issued under
section 395 has not been duly made; or
(iii) that any alteration of or addition to any building or any other
work made or done for any purpose in or upon any building has been
commenced or is being carried on or has been completed in
contravention of the provisions of Section 405,
he may make a provisional order requiring the owner or the
person for whom the work is done to demolish the work done, or so
much of it as, in the opinion of the Secretary, has been unlawfully
executed or to make such alterations as may, in the opinion of the
Secretary, be necessary to bring the work in conformity with the
provisions of this Act, bye-laws, rules, direction, order or requisition as
aforesaid, or with the plans and specifications on which such
permission or decision was based, and may also direct that until the
said order is complied with, the owner or such person shall refrain from
proceeding with the work.
[Provided that the Secretary may, on realisation of a
compounding fees as may be fixed by the Government, regularise any
constructions, reconstruction or alteration of any building or digging of
any well, commenced, carried on or completed without getting a plan
approved by the Secretary or in deviation of the approved plan, if such
construction, reconstruction or alteration of the building or digging of
the well does not contravene any of the provisions and specifications
mentioned in this Act or the Building Rules made thereunder.]
(2) The Secretary shall serve a copy of the provisional order
made under sub-section (1) on the owner or the person for whom such
work is done together with a notice requiring him to show cause within
a reasonable time, to be specified in such notice why the order should
not be confirmed.
(3) Where the owner or the person for whom the work is done
fails to show cause to the satisfaction of the Secretary, the Secretary
may confirm the order or modify the same to such extent as he may
think fit to make, and such order shall then be binding on the owner or
the person for whom the work is done and on the failure to comply
with the order, the Secretary may himself cause the building or part
thereof, demolished or the well dismantled, as the case may be and the
expenses therefore shall be recoverable from the owner or such person.
xxxxxxxxxxxxxxxxxxxxxxx
21. Thereafter, Ext.P9 occupancy certificate was issued on
12.01.2011 by the Secretary of the Municipality invoking the
powers conferred under Rule 22(3) of the Rules, 1999, which at present
reads thus:
"22. Completion certificate, development certificate and
occupancy certificate.-
Xxxxxxxxxxxxxxxxxxxxxxxxxxxx
(3) The Secretary shall, on receipt of the completion certificate
and on being satisfied that the construction or reconstruction or
addition or alteration has been carried out in conformity with the
permit given, issue occupancy certificate in the form in Appendix
H not later than fifteen days from the date of receipt of the
completion certificate:
Provided that, in case there is deficiency as per the provisions of
these Rules, in minimum width of mandatory open space/yard
after completion of the construction, other than the distance
stipulated as per Section 383A of the Kerala Municipality Act,
1994 and Rule 117 of these Rules, the Secretary may allow a
tolerance upto 5% of the minimum mandatory open space/yard to
be provided as per these Rules or twenty five centimeters,
whichever is less, for the building constructed.
Provided further that if no such occupancy certificate is issued
within the said fifteen days, the owner may proceed as if such
occupancy certificate has been duly issued to him."
22. Anyhow, it is seen that though a request was made by the 6 th
respondent, namely the partner of the Hotel 'Indraprastha' for renewal
of the fire NOC, it was declined by the fire officer by Exhibit P10 stating
that the building has a height of 16.60 meters, which is dated
20.08.2015. It is also undisputed that the petitioner therein has
approached the Enquiry Commissioner and Special Judge by filing Crl.
M.P. No. 426 of 2013 attributing corruption on the part of the officials in
granting NOC to the owner of the building. Evident from Ext. P11, a
direction was issued by the Special Judge on 05.06.2013 to the Director,
Vigilance and Anti Corruption Bureau, Thiruvananthapuram to conduct a
preliminary enquiry in regard to the allegations raised in the complaint
and submit a preliminary report within three months, and reserved the
question of registering FIR to be considered thereafter. Those alone are
the facts projected by the petitioner in the writ petition in order to secure
the reliefs discussed above.
23. But, in the counter affidavit of the partners of the hotel
'Indraprastha', Ext.R5(a) preliminary report submitted by the
Superintendent of Police, Vigilance and Anti Corruption Bureau is
produced along with a quick verification report on the basis of the
investigation conducted by the Inspector of Police Vigilance. On a reading
of the report and the quick verification report, it is evident that the entire
aspects with respect to the construction of the building and the
allegations raised were considered and ultimately it is stated thus at
paragraphs 12, 13 and 14:
"12.Issue of NOC to the alleged building by Fire and Rescue Services
Another allellegation mentioned in the petition is against the issuance of
NOC by the Fire and Rescue services to the alleged Building. Fire NOC was seen
issued on 30-10-2010 by Shri E B Prasad Divisional Officer Fire and Rescue
Services, Thiruvananthapuram. It is alleged in the petition that the building is a
high rise building having height of above 15 metres and issued the same without
following the procedure. Shri E B Prasad then Divisional Officer was questioned
in this regard and recorded his statement also. He stated that before issuing the
NOC a committee was constituted to inspect the building in which Shri Arun
Alphonse, Assistant Divisional Officer, Chairman, Shri Gopakumar Station
Officer and Shri TK Ajay as members. He also stated that as per the report of the
Committee the height of the building is 14.92 m and as per the standing order No
3/2009 dated 06-07-09 the power to issue NOC to a building having less than 15
metres height is vested with the Divisional Officer, hence he issued the Fire NOC
to the alleged building. In this regard Shri Arun Alphonse who was the Chairman
of the Committee and Shri Gopa Kumar a member in the team were also
questioned both of them stated that they had recommended for the issue of NOC
to that building since it satisfied all the requirements in connection with the fire
and safety arrangements. They also stated that the building is having a height of
less than 15 meters.
13. Inspection of the alleged building by the Director (Admin) in Charge)
Fire and Rescue Services:
In order to ascertain that there is any lapse in the issue of NOC to the
alleged building. Director(Administration) Fire and Rescue Services
Tinuvananthapuram was directed to inspect the alleged building and to verify that
whether there is any lapse in the issue of NOC to the building in question. After
conducting a inspection in the disputed building Shri R Prasad who is in Charge
of Director (Admn) Fire & Rescue Services Headquarters Thiruvananthapuram
submitted a report and the report read as follows:
"1 have conducted an inspection of a multi storied building named
Indraprastha at Nedumangad on 23. 10.2013 and came in the following facts.
The height of the building measured is the vertical distance measured from
the ground level to the terrace of the last livable floor of the building adjacent to
the external wall. As such the height of the building is 14.92 meters as shown
below:
(a) Height of the building from Basement to temace
(above slab) - 16.58 m
(b) Height irom the Basement to Ground Floor - 03.04
Therefore the height of the building from the ground floor to
terrace (above slab) - 13.54
c) Height from the ground level to ground floor - 01.38 m
Therefore the total height of the building from
ground level to terrace floor - 14.92 m
=======
Therefore this building comes under Hotel category having height less
than 15 metres and covered area exceeding 1000m2 in each floor. As
such the Fire Fighting arrangements provided in this building is as per
National building Code 2005 Part IV and in conformity with the height
of the building. The fire fighting arrangements provided are tested by me
and found working in satisfactory condition.
This rule is come into existence during 2005. Therefore there are no
lapses in the issuance of fire NOC to that building in 2010".
In this regard Shri R Prasad who conducted the site inspection was also
questioned and he started that he had inspected the building and no lapse
was found in fire safety arrangements installed in the building and he had
measured the height of the building from the fire point of view and the
same was found to be 14.92m. He also stated that there were no lapses in
the issuance of fire NOC during 2010 and the same was in conformity
with the existing rules. Regarding the difference in height of the building
explanation was sought from him and he stated that he measured the
height of the building as per the National Building Code 2005 Part IV
and as per his measurement from the fire point of view the height of the
buiging is 14.92 m. Fire and Rescue Services authorities are the ultimate
authority to explain about the technical aspect of the fire and safety
arrangements of a building. So that letter was given to the Director
Administration, Fire and Rescue Services to examine the alleged
building and to give a report regarding the inspection in the alleged
matter. As per the report received from that end no lapse was noticed.
Hence the report from the Fire and Rescue Services are to be relied upon
and in this state allegation against the issuance of NOC from the fire and
Rescue services to the alleged building could not be substantiated.
Thus it is clear that the NOC issued from the fire and Rescue Services
was in conformity with the Rules, hence no lapse was noticed in this
regard in evidence.
14. Pending Writ Petitions
As per the letter No.R3 7516/13 dtd 17-07-13 received from the
Secretary Nedumangadu, Muniçapality it is revealed that W.P(C)s
27585/11, 34249/11, 16776/12, 586/12 were pending before the Hon'ble
HIgh Court of Kerala regarding the alleged building.
IV. The likelihood of the allegations being true and persons if any, who
have prima facie committed the crime/irregularities.
Discussions made in the foregoing paragraphs revealed that the building
was regularised after a long legal process. As per the direction of the
Hon'ble HIgh Court of Kerala in W.P.(C) 18134/09 then Chief Town
Planner Shri. Eapen Varghese inspected the building three times and
finally issued direction to the Secretary, Nedumangadu Municipality to
take steps to regularise the Building as per Lr. No.6640 dtd 28. 12.2010.
Alter the receipt of such a letter from the CTP, then Secretary Smt. Anuja
after obtaining a report from the Municipal Engineer Shri Baburaj,
regularised the building on 07-01-2011 as per order No TP/6087/06 dtd
07-01-2011. Before regularising the building No Objection Certificate
from Fire and Rescue services was also obtained. Henee the allegation
against then Secretary Smt. Anuja regarding the regularisation of the
alleged building could not be substantiated in evidence. Then Chief
Town Planner visits the site as per the direction of the Hon'ble High
Court of Kerala and he had acts accordingly. Hence the allegation against
the Chief Town Planner also found to be baseless. Moreover the Hon'ble
Apex Court of the State in its judgement in W.P(C).No. 18134/09 dtd 8 th
December 2009, had recorded its appreciation for the efficient efforts
taken by the Chief Town Planner in the matter.
Regarding the allegation of NOC issued Irom the Fire and Rescue
Services, a report from the Divisional Officer who is in Charge of the
Director (Admn) after the site inspection was obtained, As per the report
the NOC issued to the building was legal and no lapse was found in that
regard, hence the allegation could not be substantiated in evidence.
It is important to note that a number of petitions were filed before the
Hon'ble High Court of Kerala and other legal forums against the
modifications and rectifications of the alleged building out of which 4
petitions are pending before the Hon'ble High Court of Kerala. The
regularisation of the building was also challenged belore Tribunal for
Local Self Government Institutions, Thiruvananthapuram, Ombudsman
for Local Self Government Institutions. Both the forums were dismissed
the petitions. Some petitions were also filed before the Hon'ble High
Court of Kerala and the same are pending before the Hon'ble Court. The
petitioner in this CMP also filed a petition before the Hon'ble High Court
of Kerala in the same subject matter on 17-07-2012 and afterwards he
filed a similar petition before the Hon ble Court ol Enquiry
Commissioner and Special Judge, Thiruvananthapuram during April,
2013.
Enquiry so far conducted revealed that the litigants in the petitions were
changed frequently but the subject matter was remaining unaltered in the
petitions. It is actually the fights between the two big guns in the Hotel
field in Thiruvananthapuram.
In short the allegations mentioned in the petitions could not be
substantiated in evidence, hene no action is recommended against the
Counter petitioners mentioned in the petition. Moreover petitions in the
same subject matter are pending before the HOn'ble HIgh Court of
Kerala.
Recommendation
1. No action is recommended against the Counter petitioners since
theallegations mentioned in the petitions could not be substantiated in
evidence."
24. In sum and substance, the report states that the allegations
made are baseless and without any foundation. Anyhow, we are not
stating anything in relation to the report further, for the reason that the
learned Senior Counsel for the petitioner submitted that further
proceedings on the basis of the said report is pending consideration
before the Special Judge. However, we make it clear that no such
documents are produced before us. That apart, along with I.A. No. 1 of
2021, the order passed by the Tribunal for Local Self Government
Institutions, Thiruvananthapuram in Appeal No. 72 of 2011 is produced.
On a perusal of the same, it is seen that the appeal was filed by the
Prabhulla Chandran Nair referred to by the petitioner in the writ petition
challenging Ext.P8 order of regularisation and Ext. P9 occupancy
certificate issued by the Secretary of the Municipality. After considering
the entire pros and cons of the matter, the Tribunal has dismissed the
appeal and the relevant portion of the same is to be extracted in order to
understand the real intricacies of the issues considered thereunder:
"7. Points (i) and (ii)
The 2nd respondent has a hotel building. With the idea of
renovating and altering the same he filed application before the
Nedumangad Municipality for a permit. He also had obtained
exemption from the Government with respect to certain
regulations.
8. While the construction was in progress a stop memo was
issued which was challenged before the Hon'ble High Court of
Kerala and the order of stop memo was set aside. For making
certain additions another application for permit was put in. As
there was no response to the same the 2 nd respondent filed a
reference and since there was no response he started
construction on the ground of a deemed permit. At that time the
1st respondent issued proceedings under Section 406 of the
Kerala Municipality Act which was challenged before this Tribunal
and the said challenge was upheld and the Appeal was allowed.
The 2nd respondent also filed an appeal before this Tribunal for
declaring deemed permit which also was allowed. These two
orders were challenged before the Hon'ble High Court of Kerala
by the 1st respondent by following W.P.(C) No. 18134/2009. The
said order of the Hon'ble High Court of Kerala is found on pages
269 to 280. The Hon'ble High Court of Kerala passed the
following:
"Taking the aforesaid into consideration, it is directed
that as and when the petitioner carried out the
rectifications in terms of G.O.(Rt.) No. 3011/2007/LSGD
dated 05.1.2007, he may notify about such completion to
the Chief Town Planner and to the Secretary of the
petitioner Municipalit. The Chief Town Planner will then
ensure that an inspection is again made to certify
whether all rectifications in terms of the aforesaid
Government Order have been carried out. If the Chief
Town Planner is satisfied that such rectifications have
been done, a certificate in that regard would be issued by
him, following which, the Municipality will do the needful
to regularise the construction."
9. It appears the Chief Town Planner has conducted an
inspection and filed a report. The report dated 28.12.2010 of the
Chief Town Planner is document No. 8 produced by the appellant.
The Chief Town Planner said that as per the direction of the
Hon'be High Court of Kerala in W.P.(C) No. 18134/2009
inspection was done thrice and it was found that the unauthorised
construction has already been demolished and the construction
now is in accordance with the Kerala Municipality Building Rules.
Basing on this report only the Secretary has issued the
occupancy certificate.
10. The Appellant has got a contention that the building in
question is a high rise building and therefore under Rule 117 of
the Kerala Municipality Building Rules a motorable space of 5
meters ought to have been provided all around the building. It is
also contended by him that under the approved plan there is no
cellar floor and giving of occupancy. Including a cellar floor is
incorrect. He would say that there is no motorable space all
around the building having a width of 5 meters. Document No. 2
produced by the Appellant is the original approved plan in respect
of the building of the 2nd Respondent. The same shows from the
ground level the height of the building is 16.60 meters. A high
rise building is defined under Rule 110 of the Kerala Municipality
Building Rules, as a building having more than 4 floors and or 15
metres of height. Under Rule 2(aq) height of building means the
vertical distance measured from the average level of the ground
contiguous to the building. The height of 16.60 metres is shown
in the plan already referred by me as calculated vertically from
the ground level.
11. The 2nd respondent applied for a revised permit along
with a revised plan. In the said revised plan the height of the
building has been shown as below 15 meters. The ground floor
mentioned in the original plan was converted as the cellar floor or
basement floor and including the said cellar floor there are 4
floors. The height also has been reduced to less than 15 meters.
If so, the report of the Chief Town Planner which I have already
referred would indicate that the construction is in accordance with
this plan. It would indicate that the respondent has re-submitted
the plan and constructed the building reducing the height and
making a cellar floor. Hence the building has escaped from the
mandate of Rule 117 of the Kerala Municipality Building Rules. In
that view basing on document 2 produced along with the appeal
done, the appellant cannot say that the building is a high rise
building and there is violation of Rule 117 of the Kerala
Municipality Building Rules.
12. No other violation has been highlighted by the appellant.
13. In view of the discussion made above, I find that the
present order has been passed only in accordance with the
statutory requirements and directions of the Hon'ble High Court of
Kerala, as also basing on the Chief Town Planner's report. The
said order does not warrant any interference by this Court.
In the result, the appeal is dismissed."
25. Therefore, according to respondents 5 and 6, the entire subject
matter now raised in this writ petition was considered by a competent
Tribunal, which cannot be reopened by filing a Public Interest Litigation.
So also, it is relevant to note that Ext. P6(a) order of the Chief Town
Planner granting permission to the Municipal Secretary to take steps for
regularising the construction of the building is not under challenge at all.
26. We have evaluated the rival submissions made across the Bar.
Section 110 of Rules, 1999 deals with 'high rise building' and the original
Rule was substituted as per SRO No. 18/2013 with effect from
05.02.2013 and after the amendment, it reads thus:
"110. High rise building.- For the purposes of this Chapter,
"high rise building" means a building having a height of 16
meters or more."
27. However, the subject matter of the issue raised in this writ
petition has arisen prior to the amendment and the provision, as it
originally stood, reads thus:
"110. High rise building:-- For the purpose of this chapter 'high
rise building' means a building having more than 4 floors and or
15 meters of height."
28. It is an admitted fact that in Ext. P4 report of the Advocate
Commissioner appointed by this Court and Ext. P10 communication of
the Station Officer of the Fire and Safety Office, Nedumangad, the height
of the building is shown as 16.60 meters. It is also an admitted fact that,
the question with respect to the violation of the Rules was the subject
matter of consideration by the Tribunal for Local Self Government
Institutions and the Vigilance Department and it was found that the
building in question has not violated any of the provisions of the Rules,
1999 and the height of the building is less than 15 meters. As far as a
high rise building is concerned, it has to undergo special requirements
over and above the other provisions of the Rules, 1999. In order to
understand the implications of the height of the building, relevant
provisions of the Rules, 1999 are liable to be discussed. Rule 2 (aq)
defines 'height of building' which reads thus:
(aq) 'height of building' means the vertical distance measured
from the average level of the centre line of the adjoining
street in the case where the plot abuts the street and the
average level of the adjoining ground in all other cases."
It is important to note, Rule 2(aq), as it originally existed, reads thus:
"Means the vertical distance measured from the lowest
point of the building touching the ground surface and if
any of the floor comes below the ground surface, from
the lowest floor level."
29. Therefore, it is quite clear and evident that the height of the
building was to be calculated from the lowest point of the building
touching the ground surface and if any of the floor comes below the
ground surface, from the lowest floor level. However, after the
amendment and which existed at the time of consideration of the
regularisation of the building, the height was liable to be measured from
the average level of the adjoining street, in case where the plot abuts the
street and the average level of the adjoining ground in all other cases.
Which thus means, the measurement of the height of the building from
the lowest floor level, if the floor comes below the floor surface was given
a go bye as per the amendment made in accordance with SRO No.
170/2001 with effect from 22.02.2001. Viewed in that circumstances, it
is unequivocal and clear that the petitioner is not having a case that after
measuring in accordance with the amended provisions as extracted
above, the height of the building exceeded 15 meters as it was then, for
applying the Special Rules to the high rise buildings in contemplation of
the Rule 110 and other consequential provisions of Chapter XVII of
Rules, 1999. This would further be substantiated by making a reference
to Rule 32 of the Rules, 1999, which reads thus:
"32. Height of buildings.-(1) The Maximum height of
any building or part thereof shall be limited according to
the width of the street as follows:-
(a) The maximum height of the building or part thereof
shall not exceed twice the width of the street abutting
the plot plus 2 times the width of the yard from the
building to the abutting street and this height may
further be increased proportionately at the rate of 3
metres for every 50 cms. by which the building or the
corresponding portion or floor of the building is set back
from the building line;
(b) If a building plot abuts on two or more streets of
different width, the building plot shall be deemed to abut
the street that has the greater width for the purposes of
this rule and the height of the building shall be regulated
by the width of that street and shall be continued at this
height along the narrower street:
Provided that the height restriction as per this rule
shall be compulsory only for buildings or part of building
coming within 12 metres of building line:
Provided further that appurtenant roof structures like
staircase tower over head tanks, air conditioning rooms,
lift rooms, cellular telecommunication equipment or
tower structures, cabin rooms, chimneys, parapet walls
and similar roof structures other than pent houses shall
not be included in the height of the building for the
purpose of this rule:
Provided also that architectural features serving no
other function except that of decoration shall not be
included in the height of the building for the purpose of
this rule.
(2) For buildings, structures and installations in the
vicinity of airports the stipulations with regard to height
shall be further limited subject to any notification as may
be issued by the Government of India under the Aircrafts
Act, 1934.
(3) In the case of construction or reconstruction of
buildings or alteration or addition to existing buildings
within any Security Zone, the overall height of building
upto its topmost point shall not exceed 10 meters or as
specified by the District Collector as per sub-Rule (6B) of
Rule 5 and/or sub-Rule (6B) of Rule 7, whichever is less.
Provided that, if the overall height of any existing
building in the Security Zone is 10 meters or more upto
its topmost point, further vertical extension of that
building shall not be permitted.
Provided further that the height of building shall be
measured from the average level of ground contiguous
to the building."
30. It is also relevant to note that the said provision was also
introduced as per SRO No. 170/2001 with effect from 22.02.2001. The
second proviso to sub-Rule (3) makes it clear that the height of the
building shall be measured from the average level of ground contiguous
to the building. The term 'contiguous' is not defined either under the
Rules, 1999 or under the Act, 1994. The dictionary meaning of the term
'contiguous' provided in the Chambers 20 th Dictionary Deluxe Edition is
as under:
" touching, adjoining; near; next;"
31. That apart, Rule 42 dealing with "fire escape staircase' is
relevant, which reads thus:
"42. Fire escape staircase.- Fire escape stair case
shall be provided for every buildings of,-
(a) residential occupancies exceeding three storeys
above ground level;
(b) occupancies other than residential exceeding two
storeys above ground level.
xxxxxxxxxxxxxxxxxxxx"
32. On a reading of the same, it is evident that fire escape stair
case shall be provided for every buildings of residential occupancies
exceeding three storeys above the ground level and occupancies other
than residential exceeding two storeys above the ground level. The
connotation 'above ground level' is very significant in the case on hand,
because even according to the petitioner, the height of the building
exceeds 15 meters only when it is measured from the basement floor,
which is the lowest floor of the building in question. Yet another aspect
arises in that regard is sub-Rule (3j) of Rule 56 dealing with 'Group F
occupancy', as it originally stood, reads thus:
"(3j) In the case of mercantile commercial occupancy
buildings other than parking buildings exceeding two
floors from ground level a certificate of approval from the
Director of Fire Force or an officer authorised by him in
this behalf shall be produced for obtaining building
permit;"
33. However, the said Rule has undergone a change only in the
year 2017 consequent to the introduction of G.O(P) No. 82/2017. Thus,
on a combined appreciation of the above said provisions, it can clearly be
seen that the contentions put forth by the petitioner that the height of
the building is to be calculated from the basement/cellar floor is baseless
and unfounded. It was bearing in mind the said provisions alone, the
Tribunal for Local Self Government Institutions has arrived at the
conclusion that the building is not exceeding the height of 15 meters and
therefore, the special provisions of Chapter XVII of the Rules, 1999
dealing with 'safety provisions for high rise buildings' would not be
applicable.
34. We do not find any illegality or irrationality in the order passed
by the Tribunal even assuming that a Public Interest Litigant is entitled to
canvass for the proposition that the order passed by the Tribunal would
not form as res judicata. We are also not inclined to consider the issues
applying the principles of res judicata, since W.P.(C) No. 27585 of 2011
filed by yet another K. Somasekharan Nair, Ex. MLA, was closed as per
Ext. P1 judgment of a learned Division Bench dated 25.01.2017
consequent to his death, leaving open the points raised in the Public
Interest Litigation to be raised by filing another writ petition.
35. Various other contentions were also raised by the petitioner in
respect of the alterations made in the building and making the rooms
more spacious. We do not think, petitioner was entitled to make any
legally sustainable case in that regard, because Rule 10 of Rules, 1999
permits certain works without securing any permit under the Rules,
which includes (i) providing or removing of windows or doors or
ventilators (iii) providing or removing of partitions (vii) petty repairs to
the building and pitched roof (viii) plastering and patch work and (ix)
interior decoration without any structural alterations etc. by obliging
certain conditions contained thereunder.
36. Moreover, the Secretary of the Municipality, at the stage of the
regularisation of the building as per Ext.P8 order and issuance of
occupancy, had occasion to consider those aspects and it can only be
legally presumed that the Secretary has exercised the powers in
accordance with law, being an official act protected under Section 114 of
the Evidence Act. Therefore, the factual and legal presumptions available
in favour of the official acts as per the orders referred to above were
bound to be rebutted by the petitioner by adducing satisfactory evidence
in the writ petition, especially due to the fact that the factual and illegal
circumstances attributed by the petitioner against the owner of the
building were considered by various fact finding bodies and rendered
favourable decisions to the owner, as discussed above. To put it plainly,
no such efforts were made by the petitioner.
37. So also, Rule 30 speaks about the occupancy of buildings and
the buildings are categorised in accordance with the occupancy, and
Group A1, Group A2 and continuously upto Group I(1) and Group I (2)
are prescribed. It is an admitted fact that the building in question is
categorised as Group F, which reads thus:
"(g) Group F. - Mercantile or commercial building shall
include any building or part of a building which is
used for display and sale of merchandise such as
shops, stores, markets, either wholesale or retail.
Banking and financial institutions, public and private
business houses, professional establishment of
doctors, dentist, engineers, architects, lawyers,
pathological laboratories, tailor shops, video shops,
barbershop, beauty parlors, news stands, milk
booths, restaurants and non-nuisance type of small
establishment like armature winding shops using
power motor or machine of capacity not exceeding 3
horse power are included in this group. Further,
buildings or part of buildings used exclusively for
parking of vehicles (parking buildings, parking plazas
etc.) are also included in this group."
38. The petitioner is not having any specific case that the
requirements as is provided under the Rules, 1999 for Group F buildings
are not complied with by the owner. Thinking so, it is clear that the
findings of the Chief Town Planner in Ext.P6(a), Ext.P7 NOC issued by the
Divisional Officer of the Fire and Rescue Services, the order passed by
the Secretary of the Municipality regularising the construction of the
building as per Ext. P8 and occupancy certificate issued as per Ext. P9
are illegal or bad as is claimed by the petitioner. The discussed
circumstances would also prove that the findings rendered by the
Advocate Commissioner that the building exceeds the height of 15
meters is not at all legalistic also, in view of the fact that the
measurement was taken from the cellar floor. It would also prove that
the measurement given as 16.60 meters by the Station Officer of the
Fire and Safety as per Ext. P10 is also not correct, though the
methodology adopted to carry out the measurement is not specified
thereunder. This we say because, after measurement of the height from
the cellar floor alone, the Advocate Commissioner has reported the
height as 16.60 meters, which would tally with the measurement
specified by the Fire Officer in Ext. P10 and therefore, it can only be
presumed that the measurement was taken by the Station Officer from
the cellar floor. The factual and legal circumstances would also show that
consequent to the change of the use of the building, none of the rules of
Rules, 1999 is violated by the owner of the building, nor any such
contentions are raised pinpointedly, except stating that due to the said
reason rules are violated. At this juncture, it is only appropriate to say
that the Rules, 1999 are absolutely of technical nature in regard to
building construction, and therefore until and otherwise it is established
that any of the rule or rules has any sort of technical flaw, it will not be
proper for a writ court to sit over the rules and hold it or them astray.
39. We are also of the view that the Secretary has regularised the
construction in accordance with the powers conferred under the proviso
to Section 406(1) of the Act, 1994 r/w Rule 143 of the Rules, 1999,
whereby the Secretary is empowered to regularise any construction
commenced, being carried on or completed without approved plan or in
deviation of the approved plan, provided that the construction shall not
be in violation of the provisions of the Act or the Rules. That apart, the
Tribunal for Local Self Government Institutions, had considered the
matter of regularisation of the construction and issuance of occupancy
certificate by the Secretary, by virtue of the powers conferred under Rule
160 of Rules, 1999, and the Tribunal was vested with all powers to re-
appreciate the matter in regard to the regularisation of construction or
reconstruction or alteration of building and therefore, it it can only be
legally presumed that the order passed by it is in accordance with law.
40. Thus, to conclude we have no hesitation to hold that the
petitioner has not made out any case of arbitrariness or illegality as is
alleged in the writ petition so as to exercise the discretionary power
conferred under Article 226 of the Constitution of India. Needless to say,
the writ petition fails, and accordingly it is dismissed.
However, we make it clear that the issue with respect to the
classification of the hotel in question is left open, since we are informed
that a writ petition in that regard is pending consideration before a
learned Single Judge.
sd/-
S. MANIKUMAR,
CHIEF JUSTICE.
sd/-
SHAJI P. CHALY,
JUDGE
Rv
APPENDIX
PETITIONER'S EXHIBITS:
EXHIBIT P1 TRUE COPY OF JUDGMENT IN WPCNO 27585/2011 DTD
25/1/2017 OF THIS HONOURABLE COURT.
EXHIBIT P2 TRUE COPY OF PEPER REPORT APPEARED IN MALAYALA
MANORAMA DAILY DTD 30/7/2011 WITH ENGLISH
TRANSLATION.
EXHIBIT P3 TRUE COPY OF GOVERNMENT ORDER
GO(RT)NO.3011/2007/LSGD DTD 5/11/2007
EXHIBIT P4 TRUE COPY OF REPORT SUBMITTED BY THE ADVOCATE
COMMISSIONER.
EXHIBIT P5 TRUE COPY OF JUDGMENT IN WPC NO 18134/2009 DTD
8/12/2009 OF THIS HONOURABLE COURT.
EXHIBIT P6 TRUE COPY OF REORT DTD 5/10/2010.
EXHIBIT P6(A) TRUE COPY OF NOC DTD 28/12/2010 ISSUED BY THE 2ND
RESPONDENT WITH ENGLISH TRANSLATION
EXHIBIT P7 TRUE COPY OF CLEARANCE CERTIFICATE ISSUED BY THE
4TH RESPONDENT NO. B1 6179/10 DTD 30/10/2010.
EXHIBIT P8 TRUE COPY OF REGULARIZATION ORDER NO. T P1
6087/06/VOL II DTD 7/1/2011 OF IST RESPONDENT.
EXHIBIT P9 TRUE COPY OF OCCUPANCY CERTIFICATE DTD 12/1/2011
WITH ENGLISH TRANSLATION.
EXHIBIT P10 TRUE COPY OF LETTER ISSUED BY THE NEW INCUMBENT
4TH RESPONDENT DTD 20/8/2015 WITH ENGLISH
TRANSLATION.
EXHIBIT P11 TRUE COPY OF ORDER IN CRIMINAL MP 426/2013 DTD
5/6/2013 OF THE ENQUIRY COMMISSIONER AND SPECIAL
JUDGE, THIRUVANANTHAPURAM.
EXHIBIT P12 TRUE COPY OF CLASSIFICATION LETTER NO 12-
HRACC(12)/12 DTD 23/7/2012.
RESPONDENT'S/S EXHIBITS:
EXHIBIT R5(A) TRUE PHOTOCOPY OF THE FINAL REPORT IN CRL.MP NO
426/2013 SUBMITTED BEFORE THE HON'BLE COURT OF
ENQUIRY COMMISSIONER AND SPECIAL JUDGE,
THIRUVANANTHAPURAM
/True Copy/
PS To Judge.
rv
