Suku vs The Tribunal For Local Self ...
2021 Latest Caselaw 13198 Ker

W.A.NO.332 of 2021                      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 24TH DAY OF JUNE 2021 / 3RD ASHADHA, 1943
                                WA NO. 332 OF 2021
      AGAINST THE JUDGMENT IN WP(C) 2264/2020 OF HIGH COURT OF KERALA
APPELLANT/PETITIONER IN W.P.(C) NO.2264/2020:

             SUKU
             AGED 58 YEARS
             S/O MATHEW KUNJAPPAN,
             KANDAMATHU HOUSE, ALAYAMON MURI, ANCHAL, PUNALUR, KOLLAM
             DISTRICT-691306, FROM KANDAMATHU BABU VILASOM,
             CHEMMANTHUR ,PUNALUR, KOLLAM DISTRICT.
             BY ADVS.
             S.SHANAVAS KHAN
             SMT.S.INDU


RESPONDENTS/RESPONDENTS IN W.P.(C) NO.2264/2020:
     1     THE TRIBUNAL FOR LOCAL SELF GOVERNMENT INSTITUTIONS
           CHALAKUZHY ROAD, CHALAKUZHY, THIRUVANANTHAPURAM-695011.
     2     THE PUNALUR MUNCIPALITY
           REPRESENTED BY ITS SECRETARY, MUNICIPAL OFFICE, PUNALUR,
           KOLLAM DISTRICT-691305.
     3     K PHILIPKUTTY
           S/O M M PHILIP,
           MUNDANI KUNNATHIL BETHEL HOUSE, ELAMBAL P O,
           VILAKUDI VILLAGE,
           PATHANAPURAM,
           KOLLAM-689695.

             BY ADV SHRI.MANOJ RAMASWAMY, STANDING COUNSEL, PUNALUR
             MUNICIPALITY
             SRI.SURIN GEORGE IPE, SENIOR GOVERNMENT PLEADER FOR R1,
             SRI.MANOJ RAMASWAMY, STANDING COUNSEL FOR R2


THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 24.06.2021, THE COURT ON
THE SAME DAY DELIVERED THE FOLLOWING:
 W.A.NO.332 of 2021                            2




                                                                                 CR

                                     JUDGMENT

Dated this the 24th day of February 2021

SHAJI P.CHALY,J

This appeal is preferred by the petitioner in W.P.(C) No.2264/2020 challenging

the judgment of the learned Single Judge dated 28.1.2020, whereby the learned

Single Judge dismissed the writ petition affirming the order passed by the Tribunal for

Local Self Government Institutions, by which the complaint raised by the petitioner in

regard to the building permit secured by the 3 rd respondent in the appeal was

declined holding that it was secured in accordance with law. Brief material facts for

the disposal of the appeal are as follows;

2. Appellant is the absolute owner in possession and enjoyment of 6 cents of

landed property situated in Sy.No.473/3C of Punalur Village. The 3 rd respondent

owns a property abutting the western side of the property of the appellant

admeasuring 1 Are and 61 Sq.mts together with an old building, purchased in the

year 2018. Later 3rd respondent demolished the old building for constructing a

commercial building having Cellar, and ground + two floors, and accordingly he

applied for building permit, which was granted by the 2 nd respondent- Secretary of

the Municipality, for construction of a building having a total plinth area of 273.4

Sq.mts., which according to the appellant, was granted without conducting

appropriate inspection. Therefore, it was contended by the appellant that the

proposed construction endangers the existing building of the appellant and

accordingly he preferred a petition under rule 11A of the Kerala Municipality Building

Rules, 1999 (hereinafter called, "the Rules 1999") , which is a provision dealing with

securing a development permit if earth cutting is required exceeding 1.5 metres .

3.The grievance highlighted by the appellant was that in spite of the complaint,

no technical expert committee was constituted by the Punalur Municipality, which is a

requirement of rule 11A. It was thereupon that the appellant approached the Tribunal

for Local Self Government Institutions to ventilate his grievances. The Tribunal,

however, did not entertain the appeal preferred by the appellant but disposed of the

appeal with a direction to the Municipality to ensure appropriate inspection, if and

when the construction is started by the 3 rd respondent, with further directions to the

3rd respondent to ensure safety measures in contemplation of Rule 20 of the rules

1999. Therefore, contending that the Tribunal has not appreciated the point of law

raised by the appellant, the writ petition was filed.

4. The learned Single Judge taking into account the provisions of rule 11A of the

Rules, 19999, which was inserted w.e.f.21.6.2016 and rule 20(6) of the Kerala

Municipality Building Rules, 1999, has found that the Tribunal was right in holding

that owner of the property is obliged to take adequate safety precautions at all stages

of construction or reconstruction or addition or alteration or repair of the building;

that the 3rd respondent shall ensure protective measures of the adjoining property;

that the 2nd respondent shall take adequate safety precautions at all stages of the

construction of the building; he shall ensure the protection and safety of the adjoining

properties i.e., the appellant's properties; 3 rd respondent shall also comply with the

undertaking made by him in the objection filed before the Tribunal; further the 3 rd

respondent was directed that 3rd respondent shall not deviate from the conditions

contained in the permit or violate the rules. The Municipality was also directed to

supervise each stage of construction made by the 3 rd respondent; to ensure

protection and safety of the life and property of the appellant and a further direction

to the Municipality to conduct periodical inspection during various stages of the

construction. That apart the Municipality was given liberty to initiate any action

against the 3rd respondent, if any violation occurs and also declared that the findings

in the appeal will not preclude the Municipality from taking such proceedings in

future, if any. That apart the Municipality was also directed to ensure that the 3 rd

respondent is starting the construction only after adopting the protective measures.

5. Anyhow the learned Single Judge on appreciation of provisions of rule 11A

and rule 20(6) has arrived at the conclusion that the Secretary of the Municipality has

considered the matter exercising the powers conferred under rule 16 of the Kerala

Municipality Building Rules, 1999, and it was after securing an undertaking from the

3rd respondent that he would start the work only after issuance of development

permit and would take all the precautionary measures, the permit for construction

was issued. Therefore, the learned Single Judge was of the opinion that the

apprehension of the appellant that the 3rd respondent has not adhered to the

provisions of rule 11A is far-fetched. It was also noted by the learned Single Judge

that the Village Officer, as per the report dated 31.12.2018, after having issued the

stop memo found that there is no truth in the allegations levelled against the 3 rd

respondent. It is thus challenging the legality and correctness of the judgment of the

learned Single Judge, the appeal is preferred.

6. We have heard Sri.S.Shanavas Khan, learned counsel for appellant, Sri.Surin

George Ipe, learned Senior Government Pleader, Sri.Manoj Ramaswamy, learned

Standing Counsel for the Punalur Municipality and perused the pleadings and

materials on record.

7. In fact the writ petition was dismissed by the learned Single Judge at the

admission stage itself and therefore, no notice was issued to the party respondent

viz., 3rd respondent. The paramount contention advanced by the appellant is that the

Tribunal did not decide the point raised by the appellant in Exhibit P9 complaint.

According to the learned counsel, sub-rule (1) of rule 11A of the Kerala Municipality

Building Rules (hereinafter called, "the Rules, 1999) specifically pertain to the

constructions involving earth excavation to a depth of more than 1.5 meters and in

the case at hand, going by the said provision, as the construction proposed to be

made by the 3rd respondent is Cellar + Ground +2 floors, necessarily the earth

excavation involves more than 1.5 meters depth. In that context it is also submitted

that sub-rule (5) of rule 11A stipulates that any written complaint received after the

date of issue of the permit from owners or occupants in the adjoining properties on

the actual or possible damages to their life and property shall be acted upon by the

Secretary as per the provisions in the said rule.

8. The sum and substance of the contention advanced is that in the case on

hand the construction proposed commences from the Cellar floor, which means the

construction is to take place underneath the foundation made for appellant's building.

Therefore, it was contended that the apprehension explained in Exhibit P9 complaint

was genuine and the Municipality was duty bound to refer the matter to an expert

committee as per sub-rule (8) of rule 10 of the new Rules, 2019 (Rule 11A of Rules

1999 referred to by the Tribunal as well as the learned Single Judge is a provision

pari materia to the above provision). It is also submitted that as per the rules

specified above, a committee has to be constituted which includes two technical

experts having qualifications in Structural Engineering and Geo Electrical Engineering.

Therefore, according to the appellant, a direction issued to the 2 nd and 3rd

respondents to ensure safety of the building of the appellant is not at all sufficient as

the Secretary is not a qualified or expert person and the requirement of the

provisions of the rules cannot be met with, merely because a direction was issued to

a non-technical person. Other contentions are also raised.

9. Learned counsel for the Punalur Municipality submitted that the Tribunal has

considered the entire aspects raised by the appellant in regard to the permit issued

by the Secretary of the Municipality to the 3 rd respondent and has arrived at the

conclusion that the permit was issued in accordance with law. Anyhow learned

counsel submitted that a development permit is required as is contemplated under

Kerala Municipality Building Rules, 1999 or the Kerala Municipality Building Rules,

2019 to proceed with the construction, and the Secretary of the Municipality is

vested with ample powers to look into the matter and take appropriate decisions in

contemplation of rule 11A of Rules, 1999 or rule 10 of Rules, 2019. It was also

submitted that no reference of the complaint to the expert committee is required as

there is no bonafides in the contentions raised by the appellant and the Secretary

need not in a mechanical manner refer the matter to the expert committee and the

Secretary has the power and liberty to identify whether the complaint is a genuine

and bonafide one and then take appropriate decision as per the provisions of rule 11A

or rule 10 of the respective Municipality Building Rules specified above. Therefore,

according to the learned standing counsel for the Municipality, the learned Single

Judge was right in holding that the appellant has not made out a case for

interference in regard to the grant of construction permit by the Secretary of the

Municipality.

10. So also it was contended that rule 20(6) encompasses a duty on the property

owner to carry out constructions by making appropriate and suitable safety measures

so as to protect the interests of any adjoining property owner and the learned Single

Judge has rightly found that the directions issued by the Tribunal to adhere to the

provisions of rule 20(6) of Rules, 1999. Therefore, no interference to the judgment is

required, is the final submission made by the learned standing counsel for the

Municipality.

11. The paramount contention advanced by the appellant is relying upon rule

11A of the Kerala Municipality Building Rules, 1999 dealing with approval of site and

plan and issue of permit where excavations to a depth of more than 1.5 meters is

involved. The said provision reads thus:

[11A. Approval of site and plans and issue of permit where excavations to a depth of more than 1.5 metres is involved.-- (1) In the case of constructions/land developments which involve any earthwork excavation to a depth of more than 1.5 metres, if the depth of cutting is more than the horizontal distance of such cutting from the plot boundary, the following provisions shall apply:

Provided that, such provisions are not necessary in cases where such excavation is carried out for construction of structures such as wells, septic tank, recharge pits, drainage works compound walls and the like.

(2) The application for Development and/or building permit shall be submitted by the applicant as per the provisions of these rules, along with a certificate of the Architect, Building Designer Engineer, Town Planner, Supervisor as the case may be, who has prepared and signed the plans, drawings, statements etc. as to whether permit as envisaged under rule 11A is required.

(3) The application for permit shall also include sufficient copies of,--

(i) dimensioned plan(s) and sectional drawing(s) showing the levels and depths of cutting at all places in respect of excavations for building construction and land development works,

(ii) drawings, specifications and details of temporary and permanent protective measures proposed and

(iii) drawings, specifications and details of slabs, beams, columns, retaining walls etc. proposed at the ground floor level and below.

(iv) details of piles if any, including their drawings, specifications, erection methods and the like.

(4) The Secretary shall issue permit as laid down in these rules:

Provided that, if any changes or deviations are to be made, it shall satisfy the provisions of these rules and the same shall be intimated to the Secretary with revised drawings, specifications and details as the case may be.

(5) Any written complaint received after the date of issue of the permit(s) from owners or occupants in the adjoining properties on the actual or possible damages to their life and property shall be acted upon by the Secretary as per the provisions in this rule. (6) Once the earthworks and/or constructions up to the ground level are completed as per the approved plans, the applicant may in writing intimate the same to the Secretary and request for concurrence for carrying out rest of the works.

(7) The Secretary shall, if convinced that the works are carried out satisfactorily as per the permit(s) and provisions of this rule and no written complaint is received as in sub rule (5), issue concurrence as in Appendix C1 for carrying out the remaining works above the ground level as per approved plans within 7 days after intimating the completion of works upto ground level,

(8) If any complaint is received as in sub rule (5), the Secretary shall:

(i) refer the matter within 5 days to the Technical Expert Committee constituted as

per sub rule (12) and convene a meeting of the Committee;

(ii) intimate the nature of complaints to the applicant and call for details and explanation so desired by the Committee;

(iii) arrange for site inspections, hearing of the applicants and/or petitioners, verification of records and arrange for tests if so required by the Committee and

(iv) take up further action as per the recommendations of the Committee,

(9) The applicant(s) and/or the petitioner(s) shall attend the hearing and shall also produce any details called for within the time specified, if so required by the Committee or the Secretary on its behalf.

(10) The Committee shall evaluate the damages and fix the compensation and/or suggest further protective measures, if any, to be taken by the applicant to solve the issues raised by the petitioner(s). The amount of compensation shall include the actual cost of restoration as decided by the Committee and an additional 30% as solatium: Provided that the process of the Committee shall be completed within a total duration of 3 weeks.

(11) Concurrence shall be issued by the Secretary, after ensuring that the protective measures are carried out to the satisfaction of the Committee and the compensation is paid by the applicant as per the decision of the Committee. The actual expenses of the Committee as intimated by the Secretary shall be paid by the applicant. (12) For the purpose of this rule, Government may, constitute municipal level Technical Expert Committee(s) comprising of the Secretary (convener), Municipal Engineer/Town Planning Officer and two experts, one each in Structural Engineering and Geotechnical Engineering (to be nominated by the Government) to assess the damage, suggest protective measures and fix the compensation)."

12. On an analysis of rule 11A, it is categoric and clear that, if any earth work is

involved having an excavation to a depth of 1.5 meters, an application for

development and/or building permit shall be submitted by the applicant as per the

provisions of the rules along with a certificate of an Architect, Building Designer,

Engineer, Town Planner, Supervisor as the case may be, who has prepared and

signed the plans, drawings, statements etc. as to whether permit as envisaged under

rule 11A is required. Sub-rule (3) further specifies that application for permit shall

also include sufficient copies of dimensioned plan(s) and sectional drawing(s)

showing the levels and depths of cutting at all places in respect of excavations for

building construction and land development works and other drawings and

specifications in order to clearly understand the nature of the construction and the

manner in which the construction is to be carried out. If the Secretary is satisfied,

then the Secretary shall issue the development permit in accordance with rules.

13. True, sub-rule (5) therein specifies that any written complaint if received

after the date of issue of the permit(s) from owners or occupants in the adjoining

properties on the actual or possible damages to their life and property,- shall be

acted upon by the Secretary as per the provisions in rule 11A. It is also true that as

per sub-rule (8), if any complaint is received as in sub-rule (5), the Secretary shall

refer the matter within 5 days to the technical expert committee constituted as per

sub-rule(12) and convene a meeting of the committee. However in order to proceed

with the earth work a development permit is required as is contemplated under rule

11A, which is quite clear and evident from the rule extracted above. It is made clear

that since rule 11A of Rules, 2019 is typical or similar to rule 10 of the new Rules,

2019 we do not propose to consider it separately .

14. In our view, rule 11A of Rules, 1999 deals with approval of site and plans

and issue of permit where excavations to a depth of more than 1.5 metres is

involved. In fact, the permit for construction of the building is regulated under rule 4

read along with the relevant provisions of the Kerala Municipality Act, 1994. Sub-rule

(1) thereto clearly specifies that no person shall develop or redevelop any parcel of

land or cause the same to be done without obtaining a permit for each such

development or re-development permit from the Secretary. Sub-rule (2) is very

significant to decide the issue raised by the appellant in the context of rule 11A of

Rules, 1999, which stipulates that no person shall construct or reconstruct or make

addition or extension or alteration to any building or cause the same to be done

without first obtaining a separate building permit for each such work from the

Secretary.

15. The said rule we have specifically referred to points out that the building

permit issued by the Secretary of the Municipality for the construction of a building is

different from the development permit issued by the Secretary of the Municipality. It

is an admitted fact that whenever there is an excavation involved to a depth of more

than 1.5 meters, a development permit along with a building permit is required.

Merely because the 3rd respondent has secured the building permit under rule 4(2) of

Rules, 1999, he cannot proceed with the work unless he secures a development

permit in contemplation of rule 11A of Rules, 1999. Rule 4(1) makes it clear that no

person shall develop or redevelop any parcel of land by sub dividing into plots or

cause the same to be done without obtaining a permit for each such development or

redevelopment from the Secretary. Therefore, there is a clear distinction by and

between a permit for construction and development.

16. It is also an admitted fact that the 3 rd respondent has not submitted any

application seeking a development permit as is required under rule 11A of Rules,

1999. Therefore, it can be seen that the apprehension voiced by the appellant in the

complaint and the proceedings instituted before the Tribunal are all premature in

nature. This we say because a written complaint is to be entertained by the Secretary

of the Municipality and is liable to be proceeded with in accordance with the

stipulations contained thereunder only after the issuance of a development permit.

Having not issued the development permit, there is no requirement at all for

entertaining a complaint under sub-rule (5) of rule 11A as is argued by the learned

counsel for appellant. It was in that background, the Tribunal considered and held

that it would suffice, if a direction is issued under rule 20 of the Rules, 1999, dealing

with the duties and responsibilities of the owner of property while carrying out

constructions, rule 20 of Rules, 1999 reads thus:

"20. Duties and responsibilities of the owner.- (1) The granting of permit or the approval of the drawings and specifications or inspections made by the Secretary during the erection of the building or structure or digging of well shall not in any way relieve the owner of such building of responsibility for carrying out the work in accordance with the requirement of these rules.

2. Every owner shall, - (a) permit the Secretary or any person authorized by him for this purpose to enter the plot or building or premises at any time between 7 a.m, and 6 p.m. normally or at any other time as may be deemed necessary for purpose of enforcing the rules;

(b) submit a proof of ownership of the plot;

(c) obtain from the Secretary, sanction for any other allied matter connected with the development or redevelopment of land or construction reconstruction or addition or alteration of building;

(d) give notice to the Secretary of the intention to start work in form Appendix D;

(e) x x x]

(f) give written notice to the Secretary regarding completion of work in the form in Appendix E; and

(g) obtain a development certificate from the Secretary prior to any sale or transaction of the plot subdivision or building construction in developed or redeveloped plots as given in Appendix G or obtain an occupancy certificate from the Secretary prior to any occupancy of the building or part thereof, after construction or reconstruction or addition or alteration of the building or part thereof, or change of occupancy of any building or part thereof as given in Appendix H.

3. Every owner shall, as soon as any development or redevelopment of land or construction or reconstruction or addition or alteration of building is completed, remove all rubbish, refuse or debris of any description from the plot or plots on which such operation have been carried out or from any adjoining land which may have been used for depositing of materials and debris.

4. Every owner shall keep in safe custody the permit, approved plans and drawings and specifications, and results of tests, if any, on any material used for construction, and

produce before the Secretary or any officer authorized by him for inspection or demand.

5. Every owner shall display the permit number in the site in a visible place in a visible manner.

6. Every owner shall take adequate safety precautions at all stages of construction or reconstruction or addition or alteration or repair or demolition or removal of the various parts of the building for safeguarding the life of workers and public against hazards consequent on any aspect of the work.

7. Every owner shall ensure that all protective works carried out safeguard the adjoining properties during construction are sufficient and in good order to ensure safety.

(7a) The owner and or developer shall also comply with the provisions contained in sub rule (1a) of Rule 5 and sub-rule (1a) of Rule 7 wherever applicable. In addition, in driven piles, vibration is set up which may cause damage to adjoining structures or service lines depending on the nature of soil condition and the construction standard of such structures and service lines Possible extent of all such damages shall be ascertained in advance, and operation and mode of driving shall be planned with appropriate measures to ensure safety. Where, in the vicinity of a site where bored or driven piling works are to be carried out there are old structures which are likely to be damaged, tell-tales shall be fixed on such structures to watch their behaviour and timely precautions taken against any undesirable effect.

[X X X]

[(7c) If the owner engages any developer(s) at any time for the construction, reconstruction repairs, additions or alterations of buildings or development or redevelopment of land, the same shall be intimated to the Secretary within a week from the date of agreement (executed between the owner and the developer) along with the copy of such agreement by which the owner authorises the developer to undertake construction, reconstruction, repairs, additions or alterations of buildings or development or redevelopment of land in that plot, on behalf of the owner.]

(7d) Every owner and developer shall include the following details as part of all advertisements

through [xxx] website [xxx] pertaining to the building and or land development:

(i) name and address of the owner and developer;

(ii) number and date of layout approval and or approval of usage of plot and layout of building wherever applicable;

(iii) number and date of the development and of building permits;

(iv) name of the Local Self Government Institution issuing the permits;

(v) date till which the building permit is valid;

(vi) number of floors permitted;

(vii) conditions if any stipulated in the permits;

(viii) following details shall be furnished as against the respective provisions of the rule.

(a) coverage and FAR of the construction;

(b) area of recreational space inside and outside the building with area in the case of apartment houses/flats under Group A1 occupancy;

(c) number of parking and loading and unloading spaces and area earmarked for such spaces;

(d) minimum width of access to the site and building;

(ix) any other occupancy other than Group Al-Residential in the case of apartment houses flats, with details of floor area of such occupancy:

(7e) In the case of advertisements pertaining to building construction or land developments through visual -print media and boardings, the owner or developer shall include the details mentioned in item (i) to (vi) in sub rule (7d) of rule 20 and the address of the website carrying details under sub rule (7d) of rule 20 .

(7f) The Secretary may also publish the details of the permits issued in the website of the municipality as required under Section 517B(3) of the Kerala Municipality Act, 1994.

(7g) if any such advertisements are made in contravention to sub rules (7d), 7(e) and (7) of this rule, the Secretary or the Government may interfere in the matter. (8) Every owner shall be responsible for the loss or injury caused to any person or property due to the lapse on his part to provide safety precautions or protective

measures or safeguards."

17. On an analysis of rule 20 also, it is vivid and clear that merely because the

building permit was secured, the earth work to a depth of 1.5 meters and above

cannot be proceeded with unless the development permit is secured and follows the

duties and responsibilities in contemplation of rule 20 of Rules, 1999. No doubt the

secretary is vested with the duty and responsibility to identify as to whether any

action is to be taken in contemplation of rule 11A if any complaint is received after

issuance of a development permit, which is yet to arrive in the instant case.

18. Therefore we are of the clear opinion that the learned Single Judge has

rightly dismissed the writ petition and the appellant has not made out any case for

interference in an intra court appeal filed under section 5 of the Kerala High Court

Act, 1958, there being no jurisdictional error or other legal infirmities. Needless to

say, writ appeal fails, accordingly it is dismissed.

Sd/-

S.MANIKUMAR

CHIEF JUSTICE

Sd/-

                                                        SHAJI P.CHALY

smv                                                         JUDGE