Building Rules at Time of Regularization Application, Not Later Amendments, Apply to Pre-Existing Structures: Kerala HC - 2025-09-20

Kerala High Court Upholds Regularization of Crusher Unit, Sets Aside Single Bench Order

Ernakulam: In a significant ruling on the applicability of building regulations, a Division Bench of the Kerala High Court has set aside a Single Bench judgment and allowed a metal crusher unit in Kizhakkambalam to continue operations. The court held that the legality of the structure, built before stringent building rules were enacted, should be assessed based on the laws in force at the time the application for regularization was submitted, not subsequent amendments.

The judgment was delivered by a bench of Justice Amit Rawal and Justice P. V. Balakrishnan in an intra-court appeal filed by A.M. Subair, the owner of Robust Granites, against a complaint initiated by M.V. Joy.

Case Background

The case revolves around a metal crusher unit established in 1993, well before the Kerala Municipality Building Rules (KMBR) were made applicable to the Kizhakkambalam Gram Panchayat in 2007. The dispute arose after the previous owner, Sunny Varghese, applied in 2008 to construct a small machine room and simultaneously sought to regularize the existing structure. This structure included walls that were heightened as per directives from the Kerala State Pollution Control Board to mitigate noise and dust.

A key point of contention emerged in 2009 when stone crushers were reclassified as 'Hazardous Buildings' under the KMBR, mandating a minimum access road width of 7 meters. The Chief Town Planner initially approved a layout plan with this condition but later cancelled it, citing non-compliance. This led to a series of complaints and legal challenges by M.V. Joy, who alleged unauthorized construction and non-compliance with the 7-meter access rule.

The matter eventually reached the Tribunal for Local Self Government, which dismissed the complaint against the unit, leading Joy to file a writ petition in the High Court. A Single Bench allowed the petition, holding that the regularization was improper and that the rules in force at the time of consideration of the application would apply. This decision was challenged by the unit owner in the present appeal.

Arguments from Both Sides

Mr. S. Sreekumar, Senior Counsel for the Appellant (A.M. Subair) , argued that the Single Bench erred by misinterpreting the facts. He contended that:

- The initial application in 2008 was for regularizing minor modifications (raising side walls for pollution control) made to a pre-existing building, not for new construction.

- The plan to build a new machine room was dropped, so the conditions attached to its approval, like the 7-meter access width, were irrelevant.

- The 7-meter access width rule for crusher units was introduced only in December 2009, after the regularization application was filed in June 2008. Therefore, the law as it stood in 2008 should apply, as directed by a government order (Ext.P25).

Mr. Ranjit Thampan, Senior Counsel for the Respondent (M.V. Joy) , countered that:

- The regularization granted was invalid as it pertained to the wrong building number and did not cover the industrial unit itself.

- The cancellation of the layout plan by the Chief Town Planner was never challenged and had become final.

- The law in force at the time of consideration, not application, should govern the permit process, citing the precedent in Asset Homes Private Limited v. State of Kerala .

Court’s Pivotal Findings

The Division Bench found merit in the appellant's arguments, concluding that the Single Bench had overlooked crucial factual details. The court's reasoning hinged on several key observations:

• Misconception of Construction: The court noted that the authorities had confused the application for regularizing the heightened side walls with the separate, and later abandoned, proposal to build a new machine room. The judgment stated, "...the authorities at the helm of affairs have confused the matter by clubbing the prayer of the appellant/7th respondent for construction of the machine room vis-a-vis the regularization of the side walls..."

• No Increase in Plinth Area: A review of the case revealed that there was no expansion of the building's plinth area. The only modification was raising the walls to comply with Pollution Control Board directives, an act which the court did not consider a major unauthorized construction.

• Timing of Rules: The court emphasized the government's own directive (Ext.P25), which instructed the Panchayat to examine the access width "as per the then existing law at the time of submitting the application" in 2008. Since the 7-meter rule for hazardous buildings was introduced in late 2009, it could not be retroactively applied.

• Lack of Evidence for Violations: The bench observed a lack of concrete evidence, such as site plans or inspection reports, to substantiate the claims of significant unauthorized construction. It noted that the unit has consistently received consent to operate from the Pollution Control Board, which found no pollution issues.

Final Decision

In allowing the appeal, the High Court set aside the Single Bench's judgment and dismissed the original writ petition filed by M.V. Joy. The court effectively upheld the order of the Tribunal for Local Self Government, thereby allowing the crusher unit to continue its operations based on the licenses and regularizations granted by the Panchayat. The decision reaffirms the principle that applications for regularization should be judged by the legal standards in place at the time of their submission, particularly for structures that predate later, more stringent regulations.