IMPORTANT POINT
An open ramp for terrace parking is not included in the built-up area under the Kerala Building Rules, reflecting a purposive interpretation of parking regulations.

JUDGMENT :

NITIN JAMDAR, C.J.

The question that we are called upon to consider in this appeal is whether an open ramp/driveway leading to an open area parking on the terrace should be included in the total built-up area for the purpose of the Building Regulations.

2. The Respondents/Petitioners jointly own property in Sy. No.75/8-12 in Kunnamkulam village in the limits of the Appellant Municipality. They were interested in constructing a two-storey commercial building on the side of the property, with all the amenities. The Petitioners prepared a building plan through a licensed architect as per the Kerala Municipality Building Rules, 2019 (Rules of 2019) and submitted the same on 2 July 2022 to the Secretary of the Municipality. The Secretary issued an intimation on 12 August 2022, informing of deficiencies in the plan. The Petitioners, according to notice, submitted a revised plan on 3 January 2023 after curing the defects. Thereafter, another communication was issued by the Appellant Municipality, taking further objections. According to the Petitioners, the Petitioners removed these defects and again submitted a revised plan. Further communications were issued to the Petitioners under Exts.P6 and P7, intimating certain other shortcomings. On 11 September 2023, the ex-Secretary of the Appellant Municipality informed the Petitioners of another set of shortcomings. The main objection was that the open to air ramp proposed by the Petitioners leading to the parking space provided on the terrace has to be included in the built-up area coverage, and the coverage emphasised needs to be corrected.

3. The Petitioners filed W.P.(C)No.36922/2023, contending that the repeated objections is a harassment and primarily contending that the ramp leading to open-air parking on the terrace will not fall under the built-up area. Accordingly, the Petitioners sought to quash and set aside Ext.P7 and to direct the Appellant Municipality to consider the Petitioner’s application for the building permit, without including the ramp in the built up area.

4. The Appellants filed a counter affidavit and opposed the petition. In the counter affidavit, the Appellants took a stand that the vehicular ramp provided by the Petitioners to approach the parking on the terrace is included in the built-up area, and the plan submitted by the Petitioners omitting the same from the built-up area cannot be sanctioned.

5. The learned Single Judge examined the definition of the building under Rule 2(1)(n), the provisions of the Rules of 2019, and concluded that the ramp would not fall within the definition of Covered Area and, therefore, will not be part of the built-up area. Accordingly, the learned Single Judge allowed the petition directing the Appellant Municipality to consider the application for a building permit submitted by the Petitioners without taking the objection regarding the inclusion of the ramp in the built up area. Being aggrieved, the Appellant Municipality has filed this appeal under Section 5 of the Kerala High Court Act, 1958.

6. We have heard Mr. Haridas V. N., learned counsel for the Appellants, Mr. Ajith Prakash, learned counsel for Respondents 1 to 4 and Mr. V. Tekchand, learned Senior Government Pleader.

7. The Petitioners are proposing to construct a commercial building. The parking for the proposed building is shown on the terrace floor. On the terrace floor, 59 car parking spaces have to be provided. Access to the parking on the terrace floor would be made available through a 5.5-meter wide open ramp starting from the ground level to the terrace. The proposed ramp and the vehicular parking space on the terrace are not covered.

8. Certain positions have been made clear by the Chief Town Planner in his affidavit dated 11 November 2024 in this appeal. These are that parking is permissible inside the building at any floor level and on the terrace floor level with sufficient safety measures and driveway manoeuvring space, excluding the statutory space suc