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IN THE HIGH COURT OF KERALA AT ERNAKULAM
S.MANIKUMAR, SHAJI P.CHALY, JJ.
SUKU, S/O MATHEW KUNJAPPAN - Appellant
Versus
THE TRIBUNAL FOR LOCAL SELF GOVERNMENT INSTITUTIONS – Respondent
WA NO. 332 OF 2021
Decided on : 24-06-2021
Kerala Municipality Building Rules, 1999 – Rules 11, 20 – Construction – No technical expert committee constituted – Appeal is preferred by petitioner in W.P.(C) challenging judgment of learned Single Judge, whereby learned Single Judge dismissed writ petition affirming order passed by Tribunal for Local Self Government Institutions, by which complaint raised by petitioner in regard to building permit secured by 3rd respondent in appeal was declined holding that it was secured in accordance with law – It was contended by appellant that proposed construction endangers existing building of appellant and accordingly he preferred a petition under rule 11A of Kerala Municipality Building Rules, 1999 which is a provision dealing with securing a development permit if earth cutting is required exceeding 1.5 metres – Tribunal, however, did not entertain appeal preferred by appellant but disposed of appeal with a direction to Municipality to ensure appropriate inspection, if and when construction is started by 3rd respondent, with further directions to 3rd respondent to ensure safety measures in contemplation of Rule 20 of rules 1999 – Contending that Tribunal has not appreciated point of law raised by appellant, writ petition was filed
Finding of the court:
Rule 11A of Rules, 1999 deals with approval of site and plans and issue of permit where excavations to a depth of more than 1.5 metres is involved – Merely because 3rd respondent has secured building permit under rule 4(2) of Rules, 1999, he cannot proceed with work unless he secures a development permit in contemplation of rule 11A of Rules, 1999 – Rule 4(1) makes it clear that no person shall develop or redevelop any parcel of land by sub dividing into plots or cause same to be done without obtaining a permit for each such development or redevelopment from Secretary – There is a clear distinction by and between a permit for construction and development. – It can be seen that apprehension voiced by appellant in complaint and proceedings instituted before Tribunal are all premature in nature – This court say because a written complaint is to be entertained by Secretary of Municipality and is liable to be proceeded with in accordance with stipulations contained thereunder only after issuance of a development permit – Having not issued development permit, there is no requirement at all for entertaining a complaint under sub-rule (5) of rule 11A as is argued by learned counsel for appellant. – It is vivid and clear that merely because building permit was secured, earth work to a depth of 1.5 meters and above cannot be proceeded with unless development permit is secured and follows duties and responsibilities in contemplation of rule 20 of Rules, 1999 – No doubt secretary is vested with duty and responsibility to identify as to whether any action is to be taken in contemplation of rule 11A if any complaint is received after issuance of a development permit, which is yet to arrive in instant case. – Court is of clear opinion that learned Single Judge has rightly dismissed writ petition and appellant has not made out any case for interference in an intra court appeal filed under section 5 of Kerala High Court Act, 1958, there being no jurisdictional error or other legal infirmities.
Result :Appeal Dismissed
JUDGMENT :
SHAJI P.CHALY, J.
This appeal is preferred by the petitioner in W.P.(C) No.2264/2020 challenging the judgment of the learned Single Judge dated 28.1.2020, whereby the learned Single Judge dismissed the writ petition affirming the order passed by the Tribunal for Local Self Government Institutions, by which the complaint raised by the petitioner in regard to the building permit secured by the 3rd respondent in the appeal was declined holding that it was secured in accordance with law. Brief material facts for the disposal of the appeal are as follows;
2. Appellant is the absolute owner in possession and enjoyment of 6 cents of landed property situated in Sy.No.473/3C of Punalur Village. The 3rd respondent owns a property abutting the western side of the property of the appellant admeasuring 1 Are and 61 Sq.mts together with an old building, purchased in the year 2018. Later 3rd respondent demolished the old building for constructing a commercial building having Cellar, and ground + two floors, and accordingly he applied for building permit, which was granted by the 2nd respondent-Secretary of the Municipality, for construction of a building having a total plinth area of 273.4 Sq.mts., which according to the appellant, was granted without conducting appropriate inspection. Therefore, it was contended by the appellant that the proposed construction endangers the existing building of the appellant and accordingly he preferred a petition under rule 11A of the Kerala Municipality Building Rules, 1999 (hereinafter called, “the Rules 1999”) , which is a provision dealing with securing a development permit if earth cutting is required exceeding 1.5 metres .
3. The grievance highlighted by the appellant was that in spite of the complaint, no technical expert committee was constituted by the Punalur Municipality, which is a requirement of rule 11A. It was thereupon that the appellant approached the Tribunal for Local Self Government Institutions to ventilate his grievances. The Tribunal, however, did not entertain the appeal preferred by the appellant but disposed of the appeal with a direction to the Municipality to ensure appropriate inspection, if and when the construction is started by the 3rd respondent, with further directions to the 3rd respondent to ensure safety measures in contemplation of Rule 20 of the rules 1999. Therefore, contending that the Tribunal has not appreciated the point of law raised by the appellant, the writ petition was filed.
4. The learned Single Judge taking into account the provisions of rule 11A of the Rules, 1999, which was inserted w.e.f. 21.6.2016 and rule 20(6) of the Kerala Municipality Building Rules, 1999, has found that the Tribunal was right in holding that owner of the property is obliged to take adequate safety precautions at all stages of construction or reconstruction or addition or alteration or repair of the building; that the 3rd respondent shall ensure protective measures of the adjoining property; that the 2nd respondent shall take adequate safety precautions at all stages of the construction of the building; he shall ensure the protection and safety of the adjoining properties i.e., the appellant's properties; 3rd respondent shall also comply with the undertaking made by him in the objection filed before the Tribunal; further the 3rd respondent was directed that 3rd respondent shall not deviate from the conditions contained in the permit or violate the rules. The Municipality was also directed to supervise each stage of construction made by the 3rd respondent; to ensure protection and safety of the life and property of the appellant and a further direction to the Municipality to conduct periodical inspection during various stages of the construction. That apart the Municipality was given liberty to initiate any action against the 3rd respondent, if any violation occurs and also declared that the findings in the appeal will not preclude the Municipality from taking such proceedings
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