Kerala High Court

M/S. Aditya Birla Retail Ltd vs Chengannur Municipality on 7 February, 2022

W. A. Nos. 874 and 2534 of 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
  MONDAY, THE 7TH DAY OF FEBRUARY 2022 / 18TH MAGHA, 1943
                        WA NO. 874 OF 2017
  AGAINST THE JUDGMENT IN WPC 21493/2012 OF HIGH COURT OF
                                  KERALA
APPELLANT/S:

             V.V.ABRAHAM
             AGED 79 YEARS, S/O. CHERIAN
             VARGHESE,VALUTHADATHIL,EDANADU, CHENGANNUR - 689
             121.
             BY ADVS.
             SRI.BABU KARUKAPADATH
             SMT.AMRIN FATHIMA
             SRI.K.M.FAISAL KALAMASSERY
             SRI.MITHUN BABY JOHN
             SRI.J.RAMKUMAR
             SMT.M.A.VAHEEDA BABU
             SRI.P.U.VINOD KUMAR


RESPONDENT/S:

     1       CHENGANNUR MUNICIPALITY
             CHENGANNUR - 689 121,REPRESENTED BY ITS
             SECRETARY.
     2       THE SECRETARY
             CHENGANNUR MUNICIPALITY,CHENGANNUR - 689 121.
     3       PRADEEP KOSHI
             AGED ABOUT 45 YEARS, S/O. P.V. KOSHI,EBENSAR
             VEEDU, EDANADU P.O.,CHENGANNUR - 689 121.

             BY ADVS. SRI.S.HARIKRISHNAN, SC FOR R1 AND R2
             SRI.C.B.SREEKUMAR, FOR R3



      THIS    WRIT   APPEAL   HAVING      COME   UP   FOR   ADMISSION   ON
07.02.2022, ALONG WITH WA.2534/2017, THE COURT ON THE SAME
DAY DELIVERED THE FOLLOWING:
 W. A. Nos. 874 and 2534 of 2017     -2-


            IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                  PRESENT
         THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR
                                     &
            THE HONOURABLE MR. JUSTICE SHAJI P.CHALY
  MONDAY, THE 7TH DAY OF FEBRUARY 2022 / 18TH MAGHA, 1943
                        WA NO. 2534 OF 2017
  AGAINST THE JUDGMENT IN WPC 21512/2012 OF HIGH COURT OF
                                  KERALA
APPELLANT/S:

            M/S. ADITYA BIRLA RETAIL LTD.
            FORMERLY KNOWN AS M/S. TRINETHRA SUPER RETAIL (P)
            LTD., HAVING ITS REGISTERED OFFICE AT 5TH AND 6TH
            FLOOR, SKYLINE ICON, 86/92, NEAR MITTAL
            INDUSTRIAL ESTATE, ANDHERI KURLA ROAD, ANDHERI
            EAST MUMBAI 400059, HAVING IT BRANCH OFFICE AT
            5/149/B, ALAYKKAPARAMBU, THURAVUR P.O.,
            CHERTHALA, ALAPPUZHA-688532, REPRESENTED BY ITS
            AUTHORISED SIGNATORY, MR. RANJITH CHANDRAN,
            COMMERCIAL HEAD.
            BY ADVS.
            SRI.P.RADHAKRISHNAN
            SRI.M.D.JOSEPH
            SRI.MADHU RADHAKRISHNAN
            SRI.NELSON JOSEPH
RESPONDENT/S:

     1      CHENGANNUR MUNICIPALITY
            CHENGANNUR-689121, REPRESENTED BY ITS SECRETARY.
     2      THE HEALTH INSPECTOR
            CHENGANNUR MUNICIPALITY,CHENGANNUR-689121.
     3      PRADEEP KOSHY
            EBEBAZER, EDANADU P.O., CHENGANNUR, PIN-689123.
     4      V. V. ABRAHAM
            VALUTHADATHIL, EDANADU P.O., CHENGANNUR, PIN-
            689123.
            BY ADVS. SRI.S.HARIKRISHNAN, SC FOR R1 AND R2
            SRI.C.B.SREEKUMAR, FOR R3

     THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON
07.02.2022, ALONG WITH WA.874/2017, THE COURT ON THE SAME
DAY DELIVERED THE FOLLOWING:
 W. A. Nos. 874 and 2534 of 2017   -3-



                          JUDGMENT

Shaji P. Chaly, J.

The captioned writ appeals are materially connected filed by the

petitioners in W. P. (C) Nos. 21493 of 2012 and 21512 of 2012

challenging the common judgment of the learned Single Judge dated

16.02.2017 whereby the writ petitions were dismissed. The appellants

are the landlord and tenant of a building bearing door No. XIV/536 of

Chengannur Municipality respectively.

2. The subject issue raised in W. A. No. 874 of 2007 is in regard

to the action initiated by the Secretary of the Chengannur

Municipality, the 2nd respondent, under Section 406 of the Kerala

Municipality Act, 1994 dealing with demolition or alteration of

building works unlawfully commenced, carried on, or completed, and

also challenging Exhibit P8 final order passed under Section 406 (3)

of Act 1994 directing the revenue inspector, to take action to demolish

the unauthorised construction, and other consequential actions thereto.

3. The appellant in the connected writ appeal, the tenant, had

filed the writ petition challenging the cancellation of D & O license

granted to conduct a supermarket, by the Secretary of the

Municipality, apparently invoking power under Section 447(3) of the

Kerala Municipality Act, 1994, in consequence to the order passed

against the landlord as above.

4. The learned Single Judge, after considering the factual and

legal circumstances raised by the appellants, dismissed the writ

petitions and thereby declined to interfere with the action initiated by

the Secretary. It is thus challenging the legality and correctness of the

common judgment the writ appeals are preferred.

5. The facts and documents contained in W. A. No. 874 of 2017

filed by the landlord are relied upon to dispose of the appeals.

6. The application of the appellant for construction of a three

storied building within the limits of the Chengannur Municipality was

forwarded by the Municipality to the Government for exemption from

various provisions of the Kerala Building Rules, 1984, which was then

in force in the State with regard to construction of buildings etc.

within the Municipal and Corporation areas.

7. As per the Kerala Building Rules, 1984, the State

Government was vested with powers to grant exemption from the

provisions of Act 1984. As per Ext. R2(a) Government Order dated

10.06.1993, the exemption sought for by the appellant from the area to

be set apart for car parking was rejected holding that the width of 'M.

C. Road' near the site is narrow and traffic is very high; the site is only

about 150 meters away from the bus stand; hence the provision of

adequate parking space is imperative; and permitting a major

shopping cum office building in the site as proposed would attract

more traffic problems in the area.

8. The case projected by the appellant is that, in the review

application submitted by the appellant, the Government as per Ext P1

Order dated 03.12.1993, granted exemptions and relaxations inter alia

in the matter of parking area as well. It appears a complaint was filed

before the Secretary of the Municipality by the 3 rd respondent namely

one Pradeep Koshi who is a resident within the Municipal area that

parking area provided for the building has been converted into a shop

room and thereby violated the Building Rules, however no action was

initiated.

9. Thereupon the 3rd respondent approached the Ombudsman for

Local Self Government Institutions by filing O. P. No. 743 of 2009

which was disposed of as per order dated 25.11.2011 holding that the

Ombudsman did not find any special reason for condoning the delay

in filing the petition. Anyhow it was observed by the Ombudsman that

the 3rd respondent would submit that there had been some fabrication

and forgery and if such a matter comes up before the Ombudsman by

a separate application, certainly it will be considered depending upon

the time factor.

10. To put a long story short, the Secretary of the Municipality

issued a notice to the appellant dated 27.08.2012 presumably on the

basis of a later direction issued by the Ombudsman in O. P. No. 170 of

2012, in regard to the conversion of the parking area into a building.

This is evident from Ext. R2(e) notice dated 27.08.2012. From Ext.

R2(g) produced by the Secretary dated 12.09.2012 it is evident that

notice and provisional order were issued under Section 406(1) and (2)

of the Kerala Municipality Act, 1994, specifying the illegal

constructions carried out by the appellant in the parking area.

11. It is specified in Ext. R2(g) that the appellant converted to a

316m2 parking area, after being raised by 20cms, improving the same,

fixing with rolling shutters and giving it for conducting a supermarket.

Therefore the appellant was thus directed to remove the six rolling

shutters put up preventing entry of cars and the raised floors, as per

the powers vested under Section 406(1) and Section 406(2) of Act

1994. Therefore it was directed to remove the illegal constructions or

to submit due explanation to the provisional order passed by the

Secretary.

12. The appellant has thereupon submitted Ext. R2(h) objection

dated 18.10.2012 basically contending that exemption was granted to

the appellant by the State Government as per Ext. P1 Government

Order dated 03.12.1993 on imposing certain conditions and that the

construction carried out by the appellant was in accordance with the

approved plan and permit issued by the Secretary of the Municipality.

13. The Secretary of the Municipality as per Ext. P8 order dated

10.09.2012 passed final orders apparently under Section 406(3) of the

Kerala Municipality Act, 1994, and issued the following directions:-

"(i) In view of the discussion held above the Revenue Inspector, Chengannur Municipality is hereby directed to re- assess building No.XIV/536 and carryout corrections in the assessment descriptions as stair room having a plinth area of 30m2 and assess the area of 316m2 as unauthorised super market under section 242 Kerala Municipality Act.

(ii) Initiate proceedings under Section 406 of Kerala Municipality Act against the unauthorisedly converted parking

space having a plinth area of 316 m2.

(iii) Since there is no parking space for the building issue notice to the party seeking show cause within 15 days why occupancy certificate in respect of building nos. XIV/534, XIV/536, XIV/565, XIV/537, XIV/566, XIV/567 shall not be revoked?

(iv) In view of the rejection of application cited as 6 th above, the applicant is hereby directed to close the business and report before the undersigned within 3 days from the date of receipt of this order failing which Health Inspector of Chengannur Municipality is directed to lock and seal the trade on issuance of a proper authorisation from the undersigned under section 532 (5) of Kerala Municipality Act 1994."

14. In that process, the D & O license application of the

appellant in the connected writ appeal was rejected by the Secretary. It

is thus challenging the legality and correctness of Ext. P8 order passed

by the Secretary the writ petitions were filed by the appellants.

15. The learned Single Judge, after assimilating the factual and

legal circumstances, has held as follows:-

"5. Perusal of Ext. P4 would show that the above matter came to be considered by the Secretary on the basis of the direction issued by the Ombudsman. The question considered was whether there was a conversion of the parking area into a

commercial complex. It is found that as per Rule 20(3) of the Kerala Building Rules, 1984, the building ought to have 11 parking spaces. No exemption was granted under Rule 20 of the Rules. The permit issued on 15/02/1994 is produced as Ext.R2(b) in W.P.C.No.21493/2012. It is observed that as per Government Order dated 22/01/1996, exemption has been granted to the third floor of the building since parking space was already provided to the existing ground floor plus two floors. From the assessment register also, it was noticed that the ground floor was having a hall without doors and windows. Further, the ground floor portion has been assessed only for Rs.7,007/- whereas the first floor was assessed at Rs.12,600/- and Rs.20,160/-.

6. Having taken note of all these factual aspects, it was observed that the area where the supermarket has been functioning was converted from parking area. Building number given to the ground floor area is XIV/536. Following are the directions issued in Ext.P4:

"(i) In view of the discussion held above the Revenue Inspector, Chengannur Municipality is hereby directed to re-assess building No.XIV/536 and carry out corrections in the assessment desc as stair room having a plinth area of 30 m2 and assess the area of 316m2 as unauthorised super market under Section 242 of the Kerala Municipality Act.

(ii) Initiate proceedings under section 406 of the Kerala Municipality Act against the unauthorisedly cvonverted parking space having a plinth area of 316 m2.

(iii) Since there is no parking space for the building issue notice to the party seeking show cause within 15 days why occupancy certificate in respect of

building nos.XIV/534, XIV/536, XIV/565, XIV/537, XIV/566, XIV/567 shall not be revoked?

(iv) In view of the rejection of application cited as 6th above, the applicant is hereby directed to close the business and report before the undersigned within 3 days from the dte of receipt of this order failing which Health Inspector of Chengannur Municipality is directed to lock and seal the trade on issuance of a proper authorisation from the undersigned under Section 532(5) of Kerala Municipality Act, 1994."

7. Learned counsel for the petitioners would, however, submit that a proper opportunity was not granted before passing the impugned orders. But, perusal of the orders would show that sufficient opportunity had already been granted. Even otherwise, it is an instance where a complaint was filed before the Ombudsman for Local Self Government Institutions and as per directions issued by the Ombudsman, the Secretary of the Municipality had conducted an enquiry. Thereafter, necessary notice had been issued calling upon the petitioner to undo the damages that has already been caused. On a perusal of the factual and legal aspects involved in the matter, I do not think that any error had been committed by the Municipality in arriving at a conclusion in terms of Ext.P4 dated 10/09/2012.

8. The main contention urged by the petitioner is that this is an instance where already licence had been issued by the Municipality. But, it is relevant to note that if a building had been constructed in violation of the Rules, it is always open for the Municipality to take appropriate action, in accordance with law. There is no dispute about the fact that the area was shown as car

parking space in the plan and the assessment was also done accordingly. It is, without permission from the Municipality that it has been converted to a commercial space. Though the Municipality had granted licence, when the matter is enquired into on the basis of the directions issued by the Ombudsman and when it is found that there had been illegal conversion especially when no exemption was obtained by the land owner, the Municipality was bound to take further action in the matter. Such action by the Municipality cannot be termed as ultra vires or illegal. I do not find any illegality in the order passed warranting interference by this Court."

16. In the appeal the paramount contention advanced by the

appellant is that as per Ext. P1 Government Order dated 03.12.1993,

the Government granted exemption and relaxation with respect to

various provisions of the Kerala Building Rules, 1984. It is also

submitted that as per the first condition in Ext. P1 order, it is only

stipulated that the front open space should be 12 meters from the edge

of the road inter alia for parking of cars, indicating that relaxation was

granted in respect of parking area.

17. It is also contended that as per the original plan submitted by

the appellant, the open space was only four meters which was directed

to be extended to 12 meters as per Ext. P1 Government Order as

parking space to grant relaxation under the Kerala Building Rules,

1984 and therefore the finding of the Secretary of the Municipality as

well as the learned Single Judge that relaxation was not granted in

respect of parking space is erroneous and incorrect.

18. That apart it is contended that Ext. P2 building plan would

show that the appellant was permitted to construct the ground floor

with shop rooms having a total area of 449.49m2 and so also the

assessment register would show that the ground floor was assigned

building No. 536 for the shop room portion and 537 for the back

residential portion and the entire ground floor is having a total area as

shown in Ext. P2 plan approved by the Secretary of the Municipality.

19. That apart it is contended that the appellant was paying tax

for the ground floor area and therefore the Secretary of the

Municipality at a later point of time cannot turn around and direct the

appellant to demolish an area of 316m 2 constructed by the appellant in

accordance with the approved plan.

20. On the other hand, the Secretary of the Municipality had

filed a detailed counter affidavit explaining the facts and

circumstances and also pointing out that there was no exemption

granted as per Ext. P1 Government Order dated 03.12.1993 in regard

to the parking area for the purpose of carrying out the construction. It

is also submitted that the relaxation granted by the Government as per

Ext. P1 order is only from Rules 15(5), 17 and 33(c) of the Kerala

Building Rules, 1984 and therefore the contention advanced that

relaxation was given to the parking area deviating from Ext. R2(a)

rejection order cannot be sustained.

21. It is also submitted that it is clear from Ext. R2(d) property

tax assessment register that there is an open area provided in the

ground floor of the building which is assigned with building No. 534

and it is clear from the assessment register that the 1 st floor and the 2nd

floor were assessed separately which were occupied by the State Bank

of Travancore and having building Nos. 536 and 537.

22. Therefore according to the learned counsel for the

Municipality, the Secretary of the Municipality was right in issuing the

directions and the learned Single Judge has appreciated Ext. P8

impugned order in the right perspective and dismissed the writ

petitions taking into account the attendant factual and legal

circumstances involved in the subject matter.

23. We have heard, Sri. Babu Karukappadath and Sri. Madhu

Radhakrishnan, learned counsel for the appellants in the respective

appeals, Sri. S. Harikrishnan for the Municipality and the Secretary

and perused the pleadings and material on record.

24. In order to appreciate the rival submissions, it is better that

Ext. P1 Government Order dated 03.12.1993 is extracted, and it reads

thus:-

"GOVERNMENT OF KERALA Abstract

Building- Construction of ground floor + two upper floors of shop-cum-office building in Sy,No,190/1 of Chengannoor village Chengannur Municipality by Sri. V.V. Abraham- Exemption from Kerala Building Rules, 1984 - Granted - Orders - issued

-------------------------------------------------------------------------------

Local Administration (E) Department

G.0.(RT) 7357/93/LAD. Dated, Thiruvananthapuram, 3/12/93

------------------------------------------------------------------------------- Read-1. Govt. letter No.23805/E3/93/LAD, dated. 10/6/93.

2. Review petition dated 21/6/93 from Sri. V.V, Abraham Valuthadathil House, Edanadu P..O, Chengannoor.

3. Letter No. D2/22024/93, dated 3/11/93 from the Chief Town Planner, Thiruvananthapuram.

ORDER

Under rule 5 of Kerala Building Rules, 1984 and in Consultation with the Chief Town Planner, Government on reconsideration of the orders issued in their letter read as first paper above are pleased to exempt the construction of ground floor + two upper floors of shop-cum-office building in Survey No.190/1 of Chengannur Village, Chengannur Municipality by

Sri. V.V. Abraham from rules 33 (c), 15(5), 17 of the said rules as per the plan submitted by him and approved by the competent authority subject to the following conditions.

i. Front open space should be increased to 12 M from the edge of M.C. road to facilitiate future widening of the road and parking of car.

ii. Open space on either side should be increased to 1.5 M with only 75cms sun shade projection

iii. Straight flight fire escape staircase should be constructed as per rules.

iv. No further addition or exemption of floors will be allowed in future.

v. Rear open space may be reduced to 3 M.

2. This order is not a sanction to start work. Before building permit from Chengannur Municipality should be obtained.

(BY ORDER OF THE GOVERNOR)

K.M. GOPALAKRISHNAN NAIR Under Secretary to Government"

25. The basic contention advanced by learned counsel for the

appellant relying upon Ext. P1 Government Order dated 03.12.1993

extracted above is that when exemption is granted by directing to

increase front open space to 12 meters from the edge of 'M. C. Road'

to facilitate future widening of road and parking of cars, the

requirement with respect to the parking of cars provided under Rule

20 of the Kerala Building Rules 1984 is given exemption.

26. We are unable to agree with the same because it is categoric

and clear that exemption is granted only from Rules 15(5), 17 and

33(c), of the Kerala Building Rules, 1984. The said Rules read thus:-

"15 (5) Open spaces for buildings above 10 metres height.-The open spaces given under sub-rules (3) (a), (b), (c) and (4) are for buildings upto 10 metres in height. For buildings above 10 metres height in addition to the minimum front, rear, side and interior open spaces required for height of 10 metres there shall be an increase in such minimum open space at the rate of 0.5 metre per every 3 metres height exceeding 10 metres or fraction thereof. The set backs so calculated shall be provided from the ground level."

"17. Coverage and floor area ratio (F. A. R.) (1) General.-The maximum percentage coverage permissible for each occupancy shall limit the plinth area of a building. The floor area ratio or F. A. R. value shall limit the total floor area. F. A. R.; shall be calculated as below:-

Total Floor Area On All Floors F.A.R. = Plot area

(2) Notwithstanding the provisions of rule 15 the percentage of coverage and the F. A. R. value of buildings under

different occupancies shall not exceed the maximum permissible values stipulated in table below:

Provided that the F. A. R. values so specified may be exceeded only in cases where there are specific provisions or otherwise contained in the development plan of the town or city or in the detailed town planning scheme for the locality:

Provided further that in case of buildings with more than one occupancy, the most restrictive value of any of these occupancies shall apply.

                                       TABLE
                   Coverage and Floor area ratio (F.A.R.)

     Sl. No.         Building use of            Maximum        Maximum
                       occupancy                permissible    permissibl
                                                (Coverage       e F.A.R.
                                               Percentage of
                                                 plot area)
       (1)                  (2)                     (3)            (4)
        1.      Residential                          50           1.50
        2.      Special Residential                  50           1.50
        3.      Educational                          30           1.20
        4.      Institutional (Medical)              25           1.00
        5.      Assembly                             40           0.70
        6.      Governmental or semi-                30           1.50
                public business
       7.       Mercantile (Commercial)             60           2.00
       8.       Industrial                          40           1.20
       9.       Storage                             70           2.00
       10.      Hazardous                           25           0.70"

"33(c) Open Spaces.- All buildings with floor area exceeding 75 square meters shall have open spaces not less than those prescribed below:

              Open Spaces                         Value

     Front yard                                 7.5 Metres
     Side yard on either side                   3.0 Metres
     Rear yard                                  7.5 Metres"

27. Evidently, parking area is guided by Rule 20 of the Kerala

Building Rules 1984, which reads thus:-

"20. Parking and loading/unloading space-(1) Each off-street parking space provided for parking motor cars shall not be less than 18 sq. metres are (6x3 metres) and for scooters and cycles the parking spaces provided shall not be less than 3 sq. metres and 1.4 sq. metres, respectively.

(2) For buildings of different occupancies off-street parking spaces for motor cars shall be provided within the plot as stipulated in Table below:

Provided that the requirement regarding parking space can be reduced to 75% of the above provision for 2 nd grade Municipalities and to 50% for 3rd grade Municipalities, township and Panchayats where these rules are made applicable.

(3) In addition to the parking spaces provided under sub- rule (2) 25% additional parking area shall be provided within the plot for parking other types of vehicles except item (1) to (3) of table below:

TABLE Off-street parking Space

Sl. No. Occupancy One parking space for every fraction of (1) (2) (3) 7. Group-F. Mercantile 100 sq. m. Of carpet (Exceeding 60 sq.m. of carpet area" area)

28. Rule 15(1) deals with building line and open spaces; which

specifies that every room intended for human habitation shall abut on

an exterior or interior open space or verandah open to such exterior or

open space and that such open space shall be maintained for the

benefit of such building exclusively and entirely within the owners

own premises and shall be open to the sky and is barred from being

subdivided, partitioned or legally bifurcated or transacted in any

manner whatsoever, till such date when the structure itself is

demolished, and shall be kept free from any erection thereon, subject

to the provisions in sub rules (6) and (7).

29. The provisions of Rule 15 deals also with minimum distance

between street and building, exterior open spaces that is to say a) front

yard, b) rear yard, c) side yard, interior open spaces, open spaces for

building about 10 meters height, projection into street and projections

into and constructions on open spaces.

30. Rule 17 deals with coverage and floor area ratio which

specifies that the maximum percentage coverage permissible for each

occupancy shall limit the plinth area of a building, whereas Rule 33

deals with special provisions in the case of certain occupancy groups

and it deals with the plot requirements, usage of plot, open spaces,

habitable rooms, kitchen, store, record room, laundry etc.

31. Therefore it can be seen that those Rules are not dealing with

the requirement of parking at all but on the other hand they are dealing

with other circumstances mandatorily necessitated to be maintained by

a plot owner for the construction of a building. Therefore the

contention advanced by the learned counsel for the appellant that as

per Ext. P1 the requirement of Rule 20 as per Rules 1984 is also met

with cannot be sustained under law. For the purpose of construction of

the 2nd floor of the building, admittedly, exemption was given from

Rule 20 of the Kerala Building Rules, 1984 which is clearly spelt out

in Ext. P8 impugned order passed by the Secretary.

32. As we have pointed out above, Ext. R2(a) Government

Order clearly declined permission to exempt the provisions with

regard to parking area holding that adequate parking area is imperative

since the property is abutting Main Central Road passing through the

Municipal area.

33. That apart, it is clear from the property tax assessment that

there is a clear ground floor area with partial completion bearing

building No. 534 and in the property tax assessment register the first

floor area and the second floor area are clearly mentioned, apart from

a residential building and a staircase room separately numbered in the

ground floor.

34. Therefore the contentions advanced by the appellant that the

construction in question was existing originally cannot be sustained

under law. In fact every aspect of the issues raised by the petitioner in

the objection was considered by the Municipal Secretary in Ext. P8

impugned order and has held that the construction is put up in an

extent of 316m2 area left apart for parking by enclosing the said area

by putting up doors, windows, rolling shutters etc.

35. In that view of the matter, it cannot be said that the findings

rendered by the Secretary are bad in any manner enabling the writ

court to have interfered with the impugned order passed by the

Secretary.

36. We also find that there is a clear procedure prescribed under

Section 406 of the Kerala Municipality Act, 1994 to deal with

unauthorized constructions and the Secretary has absolutely followed

the procedure contemplated thereunder before passing Ext. P8 final

order under Section 406(3) of Act 1994 taking into account the factual

circumstances also.

37. Even though learned counsel for the appellant has invited

our attention to Ext. P5 intimation dated 21.12.2010 imposing a fine

of Rs. 1,020/- for regularization of temporary constructions put up as

per Rule 10 of the Kerala Municipality Building Rules, 1999, it is also

clear from the said intimation that the appellant has constructed walls,

plastered the same, increased the area of the toilet, and internal

alteration work was done fixing three shutters without intimating the

Secretary of the Municipality.

38. Anyhow on a perusal of Rule 10 it is clear that exemption is

granted only for (i) providing or removing of windows or doors or

ventilators; (ii) providing inter communication doors; (iii) providing

(or removing of) partitions; (iv) gardening excluding any permanent

structure; (v) white or colour washing; (vi) painting; (vii) petty repairs

to the building and pitched roof; (viii) plastering and patch work; (ix)

interior decoration without any structural alterations and (x) changing

of the location of the building or construction within the plot.

39. The proviso thereto makes it clear that so far as the works as

per clause (ix) of Rule 10 in regard to interior decoration without any

structural alterations, it shall be intimated to the Secretary within at

least 10 days before the commencement of such work, with particulars

regarding the existing conditions in full so as to enable him to make

an assessment of the nature of the work.

40. Therefore it can be seen that the nature of constructions

carried out by the appellant would not come under the category of

permit not necessary as per rule 10. Anyhow we are not expressing

any opinion on the same, since it is immaterial in view of the

imperative nature of the order impugned; but we place on record that

the Secretary has clearly doubted the correctness of the said order in

the Ext P8 impugned order.

41. Be that as it may; we are of the view that when it is found

that illegal construction is carried out in violation of the provisions of

the Building Rules, 1984 or the Kerala Municipality Act, 1994 and the

Kerala Municipality Building Rules, 1999, the Secretary is vested

with ample powers to issue notice in contemplation of law and take

appropriate action irrespective of the regularisation of the petty work

as per Ext P5.

42. The learned Single Judge has also taken into account the

entire aspects with respect to the constructions carried out by

enclosing an open hall in the ground floor which was set apart for 11

parking space and it was after understanding the true import of the

Rules 1984, the exemption granted and other legal aspects involved in

the subject matter alone, the writ petition filed by the appellant in W.

A. No. 874 of 2017 was dismissed.

43. Therefore we do not really think that the appellant has made

out any case warranting interference in the judgment of the learned

Single Judge.

44. Insofar as W. A. No. 2534 of 2017 is concerned, it is only a

proceeding instituted by the tenant, a company incorporated under the

Companies Act; but the tenant cannot put forth any case over and

above the contentions put forth by the landlord in regard to

unauthorised constructions. However it has a contention that the

power invoked by the Secretary under Section 447(3) of the Kerala

Municipality Act, 1994 to terminate the D & O license cannot be

legally sustained for the reason that the said license is granted by the

Municipal Council.

45. We find force in the said contention; however we are of the

view that once it is found that there is an unauthorized construction,

then the procedure contemplated under Section 242 of the Kerala

Municipality Act, 1994 has to be followed, which reads thus:-

"242. Levying of tax for the building constructed unlawfully.- (1) Notwithstanding anything contained in this Act or the rules made thereunder, where any person has unlawfully constructed or reconstructed any building, such building shall without prejudice to any action that may be taken against that person, be liable to pay the sum of property tax that would have been paid, had the said building been constructed lawfully, together with twice the amount, towards property tax of the building constructed unlawfully with effect from the date of completion or utilisation of that for any of the purpose mentioned in sub-section (2) of section 233, whichever is earlier, till the date of demolition of that building.

(2) Nothing contained in sub-section (1) shall preclude the Secretary from proceeding against such person under Section 406 of the Act and the owner shall not have the right to get any

compensation due to any action taken by the Secretary under this section.

(3) No building number as provided under section 380 shall be affixed to the building constructed unlawfully and they shall be given special number as prescribed. Any delay in giving special number shall not be a bar to levy property tax retrospectively under sub section (1).

(4) Secretary shall maintain ward-wise special registers recording the survey number of the land on which the building has been constructed unlawfully, name and particulars of the owner of the land, special number given to the building, details of property tax levied and collected for the building.

(5) The Municipality shall not grant permit or licence to use the building constructed unlawfully and given a special number as provided in sub-section (3) and liable to be proceeded against under Section 406, for any trade, commerce or industrial purposes or any other purposes and if the Municipality has granted any permit or licence, that shall be reconsidered and cancelled after giving notice to the owner of the building and the licensee."

46. Therefore on a clear scrutiny of Ext. P8 impugned order

passed by the Secretary, it can be seen that the directions contained

therein with respect to the unauthorized construction is in accordance

with law. However as per sub section (5) of Section 242, the Secretary

of the Municipality was bound to give a notice to the licensee, that is

the occupier of the building. That exercise was not undertaken by the

Secretary and instead the Secretary usurped the powers of the Council

conferred under Section 447(3) of Act 1994, which is illegal.

47. Therefore to that extent, the tenant appellant is entitled to

succeed, and consequently there will be a direction to the Secretary of

the Municipality to follow the procedure contemplated under Section

242 (5) of the Act 1994 and proceed in accordance with law. We are