Exemptions from building regulations must adhere to mandatory provisions of law; their violation leads to legally unsustainable orders.

Headnote:(A) Kerala Municipality Act - Sections 78-A and KBR (Kerala Building Rules) - Writ petitions challenging the legality of various building permits issued for additional construction in violation of mandatory statutory provisions - Court emphasizes that exemptions must not compromise public safety and convenience, and that mandatory recommendations must be adhered to for granting building permits. (Paras 1-39)

(B) Exemption Orders - Validity - The court finds that the order of exemption granted by the Government was without authority and was a colourable exercise of power, granted without necessary deliberations or recommendations from required authorities. (Paras 16-27)

(C) Delay in Challenge - Delay in filing the writ petitions does not bar relief when the impugned order is manifestly illegal and no vested rights have accrued to beneficiaries of illegal orders. (Paras 34-39)

Facts of the case:
The petitioners challenge several building permits related to a commercial project, alleging illegalities including lack of necessary safety features and failure to comply with building rules and regulations. Petitioners assert that the exemption orders granted to facilitate additional constructions violate mandatory conditions set forth by building regulations, endangering public safety and welfare.

Findings of Court:
The court ruled that the exemption and permits issued were not legally sustainable and set aside all challenged orders.

Issues: 1) Sustainability of exemption order issued in violation of building rules. 2) Validity of the Committee's decision on permit extension. 3) Timeliness of the challenge against the exemption orders.

Ratio Decidendi: The court underscored that statutory requirements are mandatory and exemptions must be justified by proper recommendations. The absence of such recommendations in this case rendered the decisions legally unsustainable and arbitrary.

Result: Writ petitions allowed, impugned orders set aside.

JUDGMENT

Construction of buildings is regulated to strike a balance between the built and the non-built environment. Planned constructions are essential to ensure sustainable growth and development of the country. However, human greed and utter disregard for law have led to rampant illegal constructions. Official nexus for such reprehensible activities has acted as a bridge for aiding the violators. Illegalities often turn into fait accompli and escape the clutches of law. Nevertheless, courts cannot turn a blind eye when such instances are brought to its notice.

2. The above prelude indicates the nature of disputes raised in these two writ petitions. Both writ petitions relate to the construction of a building at Broadway – a commercial hotspot in Kochi. The first writ petition challenged the building permits issued for the construction of additional floors to an existing building, while the second writ petition was filed subsequently after additional information was obtained. Since the issues are connected, both writ petitions are disposed of together.

3. Petitioners in W.P.(C) No.5712 of 2023 challenge a building permit dated 25-05-2022 (Ext.P12) issued to respondents 9 to 15 and also the building permit dated 26-07-2004 (Ext.P14). Petitioners in W.P.(C) No.23754 of 2023 challenge an order of exemption issued by the Government on 17-12-2002 (Ext.P11), allegedly granting exemption from various mandatory provisions of the KERALA BUILDING RULES , 1984 (for short KBR ), the decision dated 12-04-2018 (Ext.P14) of the Special Committee constituted under Rule 15A of the Kerala Municipality Building Rules, 1999 (for short KMBR 1999) and the consequential building permit dated 25-05-2022 (Ext.P15). The orders are challenged as being issued illegally, on extraneous and irrelevant considerations and that too with malafides.

4. Petitioners are the owners of different shop rooms in a building called “Koluthara Broadway Bazar.” The building is constructed on a total land area of about 51.373 cents in the centre of Kochi city. The original owners of the land were Sebastian Varghese and Grace Antony, who obtained a building permit on 24-11-1998 to construct three floors - the basement, the ground floor, and the first floor.

5. Petitioners had purchased undivided shares in the land along with the right to construct the rooms forming part of the larger three-storied building and thus became co-owners of the property. In the meantime, all the rooms of the shopping complex were constructed and completed in accordance with the building permit and the shop rooms were even assessed to property tax after allotting building numbers. Petitioners allege that though the construction of the outer structure was complete, a portion of the common facilities and amenities offered by the original owners had not been completed. In the meantime, since the original owners had incurred substantial liability with the Federal Bank, petitioners and others pooled money and cleared the liability on the assurance that two more floors would be constructed over the three-storied building as consideration for the payment made by them. Subsequently, the additional second and third floors were constructed. However, it was found that the additional constructions were not in terms of the approved plan since the building did not have clearance from the Fire Department, the required parking facilities or even the provision for a lift, apart from other required statutory clearances. The Corporation thus refused to issue the Occupancy Certificate for the additional two floors.

6. Petitioners alleged that the existing three floors have valid occupancy while the additional two floors have no such certificate. They allege that the initial three floors were constructed between the years 1998 and 2000, and any further construction now would be structurally unsafe and dangerous to its occupants, especially since there are cracks in every floor of the building.

7. While so, recently, petitio

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2024 Supreme(Online)(Ker) 67672

Exemptions from building regulations must adhere to mandatory provisions of law; their violation leads to legally unsustainable orders.

Cases Referred (6)