Abdul Fathah vs The State Of Kerala
2022 Latest Caselaw 9234 Ker

          IN THE HIGH COURT OF KERALA AT ERNAKULAM
                          PRESENT
        THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN
  WEDNESDAY, THE 10TH DAY OF AUGUST 2022 / 19TH SRAVANA,
                            1944
                   WP(C) NO. 6076 OF 2022
PETITIONER:

          ABDUL FATHAH
          AGED 67 YEARS
          S/O. LATE KAMAL, RESIDING AT FAHEEDAS HOUSE,
          CHENGALAYI P.O., (VIA) SREEKANDAPURAM,
          KANNUR-670 631
          BY ADVS.
          T.C.SURESH MENON
          B.DEEPAK


RESPONDENTS:

    1     THE STATE OF KERALA
          REPRESENTED BY THE SECRETARY TO GOVERNMENT,
          LOCAL SELF GOVERNMENT DEPARTMENT, SECRETARIAT,
          THIRUVANANTHAPURAM-695 001

    2     THRISSUR CORPORATION,
          REPRESENTED BY ITS SECRETARY, CORPORATION
          OFFICE, THRISUR-680 001.

    3     THE DISTRICT TOWN PLANNER,
          OFFICE OF THE DISTRICT TOWN PLANNER, THRISSUR-
          680 001

    4     THE CHIEF TOWN PLANNER,
          NANTHANCODE, THIRUVANANTHAPURAM-695 003

          BY ADVS.
          SHRI. SANTHOSH P.PODUVAL, SC, THRISSUR
          CORPORATION
          SMT.DEEPA NARAYANAN SR.GP


     THIS WRIT PETITION (CIVIL) HAVING COME UP           FOR
ADMISSION ON 10.08.2022, THE COURT ON THE SAME           DAY
DELIVERED THE FOLLOWING:
                                                     -2-
W.P.(C). No. 6076 of 2022



                            P.V.KUNHIKRISHNAN, J.
                            ======================================================

                              W.P.(C) No. 6076 of 2022
                        =============================================================

                   Dated this the 10th day of August, 2022

                                         JUDGMENT

The above writ petition is filed with following prayers:

"(i) call for the records leading to the passing of Ext.P2 by the 3rd respondent and quash the same by the issue of a writ of certiorari or other appropriate order or direction;

(ii) call for the records leading to the passing of Ext.P4 by the 2nd respondent and quash the same by the issue of a writ of certiorari or other appropriate writ, order or direction;

(iii) issue a writ in the nature of mandamus directing the 1st respondent to consider on merit Ext.P5 and pass orders on the same expeditiously after affording to the petitioner a reasonable opportunity of being heard;

(iv) issue a writ in the nature of mandamus directing respondents 2 and 3 to renew Ext.P1 building permit invoking the powers under Rule 15, Chapter II of the Kerala Municipality Building Rules, 2019; and

W.P.(C). No. 6076 of 2022

(v) issue such other writ, order or direction as this honourable court deems fit and proper in the circumstances of the case." (sic)

2. The petitioner obtained a building permit for

construction of a commercial building. According to the

petitioner, the construction could not be completed during the

validity period of the building permit and the petitioner invoked

the provisions under Rule 15, Chapter II of the Kerala

Municipality Building Rules, 2019 to get the permit renewed

since the statutory period had expired. The application was

rejected by the committee stating that the same violates Rule

117 of KMBR, 1999. According to the petitioner, Rule 117 is

applicable only to high rise buildings and the building

constructed by the petitioner does not fall in this category. It is

also the case of the petitioner that even if Rule 117 has to apply,

then necessarily the Rule as it stood on the date of grant of

building permit alone is applicable which means that there is no

W.P.(C). No. 6076 of 2022

violation of the provisions of Rule 117. The committee also

says that the land in question is included in the paddy zone

according to the master plan, though there was no such case

when the permit was initially granted. The petitioner submitted

that the same will not stand because, it is covered in favour of

the petitioner as per Ext.P3 circular issued by the Government.

Aggrieved by Exts.P2 and P4 this writ petition is filed.

3. Heard the counsel for the petitioner, the learned

Government Pleader and the Counsel appearing for the 2 nd

respondent.

4. This Court considered the contentions of the

petitioner and the Government Pleader. It is an admitted fact

that the original building permit issued to the petitioner is

expired and the renewal application is filed after nine years. In

such circumstances, Rule 15, Chapter II of the Kerala

W.P.(C). No. 6076 of 2022

Municipality Building Rules, 2019 is applicable. It will be

better to extract Rule 15 (2) and its proviso hereunder:

15. Extension and renewal of period of permits.--

(1) xxx xxx

(2) The Secretary shall,on application submitted within the valid period of the permit, grant extension once, for further period of five years:

Provided that, in case the permit needs to be extended beyond the period of ten years, the applicant shall submit an application in writing to the Committee constituted under Chapter IX of these Rules and the committee may, after having satisfied with the genuineness of the application, recommend for extension of period of the permit once, with or without condition(s) as it deems fit.

5. A perusal of the same would show that the

jurisdiction of the Committee constituted under Chapter IX of

the Rules is only to satisfy about the genuineness of the

application and recommend for extension period. The

Committee has no other role as per the proviso to Rule 15(2).

The Committee has no jurisdiction to find out whether there is

W.P.(C). No. 6076 of 2022

any violation of the building rules while granting the original

building permit. A perusal of Ext.P2 would show that the

rejection of the extension application is mainly for the reason

that there is violation of the building rules. If that be so, the

Municipality has to take action, in accordance to law in a

separate proceedings, that also in accordance to law. That

cannot be considered by the Committee invoking the powers as

per the proviso to Rule 15(2) of the Kerala Municipality

Building Rules. According to me, Ext.P2 will not sustain for

that simple reason itself. Moreover, the other reason relating to

the inclusion in paddy zone mentioned in Ext.P2 is covered by

Ext.P3 circular issued by the Government. Therefore, Exts.P2

and P4 can be set aside and the 3rd respondent can be directed to

reconsider the matter, in the light of the observations in this

judgment.

W.P.(C). No. 6076 of 2022

Therefore, this writ petition is allowed in the following

manner:

1. Exts.P2 and P4 are set aside.

2. The 3rd respondent is directed to reconsider the matter, in the light of the observations in this judgment. The above exercise will be completed by the 3rd respondent, as expeditiously as possible, at any rate, within one month from the date of receipt of a copy of this judgment.

3. Based on the decision of the 3 rd respondent, the 2nd respondent will pass consequential orders.

Sd/-

P.V.KUNHIKRISHNAN JUDGE das

W.P.(C). No. 6076 of 2022

APPENDIX OF WP(C) 6076/2022

PETITIONER EXHIBITS:

Exhibit P1 TRUE COPY OF THE BUILDING PERMIT ISSUED BY THE 2ND RESPONDENT CORPORATION DATED 16.2.2010 Exhibit P2 TRUE COPY OF THE MINUTES OF THE COMMITTEE MEETING, DATED 20.12.2021 Exhibit P3 TRUE COPY OF THE ORDER NO.LSGD-406/R.A./2018-LSGD ISSUED BY THE 1ST RESPONDENT, DATED 13.8.2018 Exhibit P4 TRUE COPY OF THE COMMUNICATION NO.DW3/BA/647/08-09 ISSUED BY THE 2ND RESPONDENT, DATED 20.1.2022 Exhibit P5 TRUE COPY OF THE APPEAL PREFERRED BY THE PETITIONER BEFORE THE 1ST RESPONDENT DATED NIL