R.Rengaraja Iyengar vs The Secretary, Trivandrum ...
2022 Latest Caselaw 2448 Ker

W.P.(C) No. 14843/2011            :1:



                IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                PRESENT

                THE HONOURABLE MR. JUSTICE SHAJI P.CHALY

         FRIDAY, THE 4TH DAY OF MARCH 2022 / 13TH PHALGUNA, 1943

                         WP(C) NO. 14843 OF 2011

PETITIONER/S:

           R.RENGARAJA IYENGAR
           AGED 59 YEARS,T.C.40/1565,SREEVALSAM,EAST PUTHEN, STREET,
           MANACAUD POST OFFICE,THIRUVANANTHAPURAM,, PIN-695 009.

           BY ADVS.
           SRI.R.S.KALKURA
           SRI.M.AJAY IRUMPANAM
           SRI.HARISH GOPINATH
           SRI.M.S.KALESH
           SRI.V.VINAY MENON

RESPONDENT/S:
     1    CORPORTION OF THIRUVANANTHAPURAM, REP.
          BY SECRETARY,THIRUVANANTHAPURAM-695 033.

     2     CHIEF TOWN PLANNER, OFFICE OF THE CHIEF
           TOWN PLANNER, PALAYAM,THIRUVANANTHAPURAM - 695 001.

     3     R.RAGHAVA IYENGAR, T.C.42/902, CHEPPIL
           ROAD, SREENAGAR (R.A.NO.113),SREEVARAHAM,, VALLAKADAVU
           POST OFFICE,THIRUVANANTHAPURAM-695 008.

     4     THE TRIBUNAL FOR LOCAL SELF GOVERNMENT
           INSTITUTIONS,THIRUVANANTHAPURAM-695 004.

           BY ADVS.
           SRI.P.K.MANOJKUMAR
           R1 BY SRI.N.NANDAKUMARA MENON SR.
           SRI.S.NARAYANAN NAIR


            R2 BY SRI.RIYAL DEVASSY,GOVERNMENT PLEADER

      THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 04.03.2022,

      THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 W.P.(C) No. 14843/2011              :2:


                         Dated this the 4th day of March, 2022.

                                    JUDGMENT

This writ petition is filed basically challenging Ext. P2 building

permit dated 20.07.2010 granted by the Corporation of

Thiruvananthapuram, the first respondent, to the third respondent

namely R. Raghava Iyengar, Vallakadavu P.O., Thiruvananthapuram,

who is none other than the brother of the petitioner, and for other

consequential reliefs.

2. In fact, against the grant of permit, the petitioner had

approached the Tribunal for Local Self Government Institutions by

filing Appeal No. 1035/2010, which was dismissed by the Tribunal as

per Ext. P9 order dated 3rd March, 2011 holding that the building

permit granted by the Thiruvananthapuram Corporation to the third

respondent is in accordance with law; and even though Ext. P2 permit

is challenged in the writ petition, there is no relief sought against the

order passed by the Tribunal .

3. Brief material facts for the disposal of the writ petition are as

follows:

The petitioner and the third respondent were in absolute

possession and enjoyment of their respective shares of immovable

property along with portions of a building with wide road frontage

obtained by them as per a partition deed. It was on the death of one

R. Narayana Iyengar, the eldest brother of the petitioner, the property

was partitioned among the legal heirs and as per which the eastern

2.300 cents and a fully constructed building with frontage was allotted

to the share of the third respondent as 'A' Schedule, and the balance

2.045 cents along with a portion of the building therein behind plot A --

the share of the third respondent, was allotted to the petitioner as 'B'

schedule. According to the petitioner, for the ingress and egress of the

petitioner to the property, a pathway having a width of about 3 feet

was provided commencing from east Puthen Street road lying on the

west of A & B Schedule properties belonging to the third respondent

and the petitioner respectively.

4. The case of the petitioner is that the permit was granted

without taking into account the relevant provisions of the Kerala

Municipality Building Rules, 1999 dealing with row buildings,

consequent to which the privacy and safety of the petitioner's property

and the passage through the same was seriously affected. That apart,

it is contended that the permit secured by the third respondent is

against the understanding entered into at the time of partition of the

property and further that right from the commencement of the

construction, the third respondent has violated the permit conditions

one after the other. Thereupon, the petitioner has submitted a

complaint before various authorities. However, no action was initiated,

which constrained the petitioner to approach the Tribunal.

5. The Tribunal, after considering the rival submissions made

across the Bar, has raised one point for consideration as to whether

the impugned building permit issued in favour of the third respondent

is legally sustainable.

6. After assimilating the factual and legal situations and taking

into account the rival submissions, the Tribunal, as per Ext. P9 order

dated 03.03.2011, held as follows:

"10. The building permit issued to the 3rd Respondent

who is the elder brother of the appellant is in challenge in this appeal. True copy of application for building permit is filed by the appellant. The nature of construction shown in the application is 'new construction'. I have perused the file produced by the 1st respondent. The plan of the proposed building is pages 69 to 78 of the file. It is very clearly stated in the plan that the existing tiled roof building is to be demolished and in its place a new building is to be constructed. This plan is approved which shows that it is after demolishing an old building that the new building is to be set up. The site plan produced would show that a row

building is to be demolished and that on both sides of the streets there are various row buildings. Page 69 would show that the permission was granted under Rule 72 of the Kerala Municipality Building Rules.

11. Page 12 of the file contains the inspection report of the Work Inspector of the Municipality. The same shows that the building is a row building. In the light of these aspects it is idle for the Appellant to contend that demolished structure is not a row building.

12. Page 17 of the file is the information supplied by the Chief Town Planner to the 1st respondent. It is stated therein that if the construction is the reconstruction of an existing row building the same can be allowed under Rule 72 of the Kerala Municipality Building Rules.

13. I may quote Rule 72 of the Kerala Municipality Building Rules as below:

72. Reconstruction, etc. of existing row buildings.- Notwithstanding anything contained in these rules, in the case of existing row buildings, [under Group A1-Residential occupancy] reconstruction, repair, alternation or addition, both horizontal and vertical shall be permitted irrespective of whether it is on the side of a street where row buildings are permitted or not, and irrespective of the plot area, (XXX) and setbacks provided. (In such case, the number of floors shall be limited to two.)"

14. I may say that this provision of law is clearly applicable to the facts of the case. Hence, even though a pathway is existing on the north, which the appellant would say the Appellant has no exclusive right on it but the same was meant for scavenging, basis he is not liable for providing set back. Even then, the 3rd respondent has provided some area as set back as made out from the plan I have already referred.

15. Thus the contention of the Appellant that the building is not a row building is to be negatived. Rule 72 of the Kerala Municipality Building Rules would clearly apply to the facts as held by the Chief Town Planner also. It is by considering all these and by invoking statutory provision that permission was granted to the 3 rd respondent for constructing the building. The challenge made to the said building permit is not based on any legal grounds. if so the Appeal only to be dismissed. The points are found so.

In the result, the appeal is dismissed."

7. The paramount contention advanced by the petitioner is that

the order passed by the Tribunal is grossly illegal and wrong and the

conclusions were arrived at by misinterpreting Rule 72 of the Rules,

1999. It is also contended that none of the officials of the

Thiruvananthapuram Corporation had verified the eligibility of the third

respondent to put up the construction and also as to whether the

proposed construction of the third respondent would come within the

purview of Rule 72 of the Rules, 1999, especially when the petitioner

had taken a contention that the building sought to be demolished and

reconstructed was not a row building.

8. It is also contended that the Tribunal has failed to consider

the impact of G.O.(Ms.) 144/07/LSGD dated 31.05.2007, wherein the

Fort area has been declared as a heritage zone and if any construction

to be made, clearance from the Art and Heritage Commission is

required. It is also submitted that even if it does not come under the

heritage zone, undoubtedly it would fall within the mixed zone as

provided under the aforesaid order and it squarely falls within the

definition of the 'heritage building' and therefore, permission is

required from the appropriate authorities before the permit for

construction would be granted.

9. It is further contended that the definition of row building is

contained in Rule 2(b)(n) of the Rules, 1999, as per which row building

means a row of buildings with only front and rear open spaces with or

without interior open spaces. According to the petitioner, in the case

on hand, there is a side open space by way of a lane and therefore, it will

not come under the category of the row buildings, which is not

appreciated by the Tribunal.

10. The third respondent has filed a detailed counter affidavit

refuting the allegations and the claims and demands raised by the

petitioner and supporting the findings rendered by the Tribunal. In the

affidavit, it is inter alia stated that the entire construction is carried out

in terms of Ext. P2 permit and the approved plan. It is also submitted

that Ext. P1 plan makes it clear that it allows the third respondent to

pass through the pathway on the northern side of his property and

that there is absolutely no violation of the Building Rules in the

construction carried out and small deviations from the approved plan

have been regularised by the Secretary of the Thiruvananthapuram

Corporation under the provisions of the Act, 1994 and the Rules, 1999.

11. I have heard Sri. Harish Gopinath appearing for the

petitioner, Sr. Adv. Sri. N. Nandakumara Menon assisted by Adv. P. K.

Manoj Kumar appearing for the first respondent and the learned Senior

Government Pleader Sri. Riyal Devassy for the second respondent and

appreciated the rival submissions made across the Bar and perused

the pleadings and materials on record.

12. The issue raised by the petitioner is basically relying upon

Rule 2(b)(n) of the Rules, 1999, which defines the row buildings to

mean a row of buildings with only front and rear open spaces with or

without interior open spaces. According to the petitioner, there is a

road by the side of the building in question and therefore, it cannot be

treated as a row building. Rule 65 onwards of Chapter IX of the Rules,

1999 deals with row buildings, which reads thus:

"65. Row buildings to be allowed on declared streets.­ The Secretary shall permit the construction or reconstruction of row buildings only on the sides or part of a side or sides of any street, where the Municipality, has by declaration published, decided to allow row buildings.

66. Number of units that can be permitted.­ The Number of dwelling units in a row of buildings shall not exceed ten. Note :­ A row building with separate entry and exit and separated by a common wall from other row buildings abutting it shall be deemed to be one unit for this purpose.

67. Plot Area.­ The area of plot for one unit shall not exceed 85 Sq. metres.

68. Distance from street, etc.­ The minimum distance between the plot boundary abutting any street other than National Highways, State Highways, district roads and other roads notified by the Municipality and the building other than a compound wall or fence or outdoor display structure shall be 1.5 metres.

69. Maximum floors.­ The Maximum number of floors permitted shall be two and a staircase room.

70. Certain provisions not to apply.­ Provisions regarding F.A.R., Coverage, distance from the central line of road, access width, height restriction with regard to width of road and the yard abutting the road, dimension of building parts, light and ventilation and parking contained in these rules shall not be applicable to row buildings.

71. Submission of applications etc.­ (1) Application for permit and other matters required as per these rules may be submitted either jointly or individually. (2) The provisions for submission and disposal of application, filing of completion certificate, extension and renewal of permit and similar matters shall be as in Chapter II.

(3) The application fee and permit fee shall be as in Schedule 1 and Schedule 11 respectively.

72. Reconstruction, etc. of existing row buildings.­ Notwithstanding anything contained in these rules, in the case of existing row buildings, [under Group A1­Residential occupancy] reconstruction, repair, alteration or addition, both horizontal and vertical shall be permitted irrespective of whether it is on the side of a street where row buildings are permitted or not, and irrespective of the plot area, use and setbacks provided in such case, the number of floors shall be limited to two."

13. On an analysis of the said provisions, it is clear that the

contention advanced by the petitioner, relying upon Rule 2(b)(n) of the

Rules, 1999 is not legally correct. The manner in which the

constructions are to be carried out to constitute the same as row

building is taken care of actually under Chapter IX, which is extracted

above, and the petitioner has no case that the construction is carried

out by the third respondent violating the provisions of Chapter IX.

14. It was taking into account the provisions of Chapter IX that

the Tribunal had arrived at the conclusions, and that too, after

verifying the original files produced by the Thiruvananthapuram

Corporation before the Tribunal. It is also quite clear and evident that

the adjudication made by the Tribunal was dependent upon various

factual circumstances in order to apply the provisions of Chapter IX of

Rules, 1999.

15. Going through the pleadings put forth by the rival parties

and the findings rendered by the Tribunal, I am of the considered

opinion that the petitioner has not made out any case of illegality,

arbitrariness or other legal infirmities on the part of the Secretary of

the Municipal Corporation or the Tribunal.

16. It is well settled in law that in a proceeding under Article

226 of the Constitution of India, the writ court needs to ascertain only

as to whether the basic legal requirements are followed by the

statutory authorities while exercising their powers conferred under law.

I am convinced that the Tribunal has passed the order after providing

sufficient opportunity of hearing and participation to the petitioner,

Thiruvananthapuram Municipal Corporation and the third respondent

and applying the provisions of law correctly .

Upshot of the above discussion is that the writ petition has no

legal or factual foundation in order to grant any reliefs as are sought

for in the writ petition. Needless to say, the writ petition fails and

accordingly, it is dismissed.

sd/- SHAJI P. CHALY, JUDGE.

Rv

APPENDIX

PETITIONER'S EXHIBITS:

EXT.P1 TRUE COPY OF THE PERMIT APPROVED BY THE 2ND RESPONDENT

EXT.P2 TRUE COPY OF THE COMPLIANT SUBMITTED TO THE FIRST RESPONDENT.

EXT.P3 TRUE COPY OF THE COMPLAINT SUBMITTED TO THE FIRST RESPONDENT.

EXT.P4 TRUE COPY OF THE COMPLAINT SUBMITTED TO THE 2ND RESPONDENT.

EXT.P5 TRUE COPY OF APPEAL NO. 1035/2010 ON THE FILE OF THE FILE OF 4TH RESPONDENT SUBMITTED BY THE PETITIONER.

EXT.P6 TRUE COPY OF WRITTEN STATEMENT IN APPEAL NO. 1035/2010 FILED BY THE SECOND RESPONDENT.

EXT.P7 TRUE COPY OF THE WRITTEN STATEMENT IN APPEAL NO.

1035/2020 FILED BY THE SECOND RESPONDENT.

EXT.P8 TRUE COPY OF THE WRITTEN STATMENT IN APPEAL NO. 1035/2020 FILED BY THE THIRD RESPONDENT.

EXT.P9 TRUE COPY OF THE ORDER DATED 03.03.2011 IN APPEAL NO.

1035/2010 ON THE FILE OF THE 4TH RESPONDENT.

EXT.P10 TRUE COPY OF G.O.(MS) NO. 144/07/LSGD DATED 31.05.2007.

RESPONDENTS' EXHIBITS:

EXT.R3(a) COPY OF PARTITION DEED NO. 3742/01 DATED 09.11.2001.

EXT.R3(b) COPY OF REGULARIZATION ORDER NO. FE3/66/12 DATED 08.03.2012.

EXT.R3(c) COPY OF COMPLETION PLAN SUBMITTED BY R3 TO R1 DULY REGULARISED AND APPROVED BY R1.

EXT.R3(d) COPY OF LETTER NO.D3/5016/2010 DATED 25.06.2010 FROM R2 TO R1 REGARDING APPLICATION OF R72 IN THIS CASE.

EXT.R3(e) PHOTOGRAPH OF OLD ROW HOUSE OF R3 WITH THE BLUE GATE TO THE SCAVENGING PATHWAY.

EXT.R3(f) PHOTOGRAPH OF THE INTERIOR OF SCAVENGING PATHWAY SHOWING THE HOUSES OF R3 AND PETITIONER.

/True Copy/

PS To Judge.

rv