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IN THE HIGH COURT OF KERALA AT ERNAKULAM
Shaji P.Chaly, J.
Mohammed Habeebulla, 'Habeebina' and ors. – Petitioners
Versus
Corporation Of Cochin Represented By Its Secretary and ors. – Respondents
WP(C).No.2472 OF 2010(H)
Decided On : 09-04-2021
Kerala Municipality Building Rules, 1999 – Kerala Municipality Act, 1994 – Section 406 – Juvenile Justice (Care and Protection of Children) Act, 2015 – Calcutta Municipality Act – Section 363 – Kerala Municipality Building Rules, 1999 – Rules 117, 56 – Writ petition is filed by petitioner, who has constructed a five storied building, seeking to quash Ext. P6 order passed by Secretary of the Kochi Corporation cancelling permit granted to petitioner for construction of building
Finding of the court: This is a case where the constructions were carried out after securing permit and approved plan from the Corporation of Kochi above the existing building having cellar plus four floors, however, later found that since building is coming under high rise building, the Rules contained under Rule 117 of Kerala Municipality Building Rules had to be followed and it was thus directed petitioner to show cause as to why permit granted shall not be cancelled – It is clear that the building is situated in the heart of the city at M.G Road, which is a vantage point of commercial and other activities. – Court also find that as per Section 407 of the Act, 1994, the State Government is vested with powers to regularise any construction carried out in consultation with the Municipality on realisation of compounding fee as prescribed under the provisions of the Act and the Rules, and the notification issued consequent to the same, which is prevalent and in force due to the timely extension of the time period prescribed as per the notification, and may be true which cannot be done overlooking public interest. – So also, the Secretary of the Municipality is vested with powers to regularise any construction by virtue of the powers conferred under Section 406 of the Kerala Municipality Act, 1994 r/w Kerala Municipality Building Rules, 1999 provided it is not violative of the Rules. – An amount of Rs. 7,50,000 is imposed as fine and additional petitioners 2 to 6 are directed to pay the amount to Balanidhi fund – On production of sufficient evidence for payment/ acknowledgement in respect of the payment and on being satisfied with the same, the Secretary of the Corporation is directed to regularise the construction resorting to the suitable provisions of law and pass appropriate orders at the earliest and, at any rate, within two months thereafter, failing which the Corporation is at liberty to proceed against the illegal construction in accordance with law – It is made clear that it is taking into account peculiar facts and features of this case directions are issued and it would not have any general application and court further direct Secretary of Corporation of Kochi to be careful hereafter, while granting permits and approving the plans
Result: Writ Petition Disposed of
JUDGMENT :
This writ petition is filed by the petitioner, who has constructed a five storied building, seeking to quash Ext. P6 order passed by the Secretary of the Kochi Corporation cancelling the permit granted to the petitioner for the construction of the building.
2. The subject issue has a chequered history. Anyway, consequent to the objections filed to Ext. P6, the petitioner has approached this Court by filing W.P.(C) No. 28267 of 2007 and on the basis of the directions issued, the subject matter was considered by the State Government and has passed Ext. P10 order dated 30.10.2009, by which it was found that there is lack of sufficient set back in contemplation of Rule 117 of the Kerala Municipality Building Rules, 1999 ('Rules, 1999’ for short) and also Rule 42(4) in respect of the Fire Escape Staircase and other consequential requirements. The order of the Government reads thus:
As per the Government order read 4th paper above permission was granted to construct a building (BF+GF+3) near Ernakulam Maharajas College ground in MG Road in Sy No. 685/15 exempting provisions of Rule 33(¢) 15(5) 17(1) (2) and 20 of KBR 1984. Later vide permit No. MOP1/207/05 permission was granted to construct 4,5,6, floors in addition to the existing one. Thus, when 3 more floors were added to the building it became a high-rise building. As the additional 3 floors violate rule provisions that have to be observed in the category of high rise building. Government vide paper 2nd read above directed the Secretary, Corporation of Kochi to revoke the permit issued to the said construction, and as per reference 3rd above, Secretary, Corporation of Kochi revoked the permit of the high-rise building.
(2) Subsequently Sri. Muhammed Habeebulla the owner of the building filed WP(C) No 28267/07(M) before the High Court. The Hon'ble High Court in the judgment dated 11.2.09 in WP(C) 28267/07 had directed the Government, the 2nd respondent to consider the matter finally and to pass speaking orders considering Ext P6 after affording an opportunity of being heard to the petitioner.
(3) In compliance of the directions of the Hon’ble High Court the petitioner was heard on 24.07.2009. Mr. C.J. Solaman, Assistant Manager, Habeeb Towers appeared for the hearing on behalf of Mr. Mohammed Habeebulla, the building owner. Building Inspector Mr. R Prakasan from Corporation Office, Kochi, Smt. P.R Jayasree, District Town Planner, Ernakulam, Chief Town Planner and Senior Town Planner (Vigilance) also participated in the hearing. It was argued from the part of the petitioner that Permit was granted after completion of all official procedures and also after remitting the required fee. It was also argued that fire NOC was obtained and, in the issue of lack of sufficient parking space, an agreement has been signed between the neighbouring plot owner and the petitioner for providing sufficient space for car parking. But the District Town Planner and the Corporation Officials stated that violations in respect of Rule 117, 56(2), 42(4) were not yet rectified. Chief Town Planner and Senior Town Planner (Vigilance) were also of the view that without rectifying the above violations, it is against the rules to consider the issue.
4. In the Judgment, it is also observed that "Ext P6 is the letter from the Regional Joint Director of the Town Planning Department to the Director of Town Planning, Trivandrum..." But It is to be pointed out that the Regional Joint Director is not an official of the Town Planning Department. He is an official under the Director of Urban Affairs, and the letter was addressed to the Director of Urban Affairs. The contentions raised in-Ext P6 may also be considered to arrive at a final decision, as detailed by the Hon'ble High Court.
5. The lower five storeys (BF+GF+3floors) of the building were constructed with exemption from certain provisions of Kerala Building Rules, 1984. This will not come under the category of high rise building. When 3 more floors
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