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2024 Supreme(Online)(KER) 8414
HIGH COURT OF KERALA
MOHAMMED NIAS C.P., J
UMESH SHENOY – Appellant
Versus
CORPORATION OF KOCHI – Respondent
WP(C) 9568/2023
Compliance with stipulated provisions in special rules is fundamental for property alterations under municipal regulations.
Headnote:
Building - Alteration - Kerala Municipality Building Rule, 2019 - Rule 72 - Summary: The court discussed Rule 72 of the Kerala Municipality Building Rule, 2019, emphasizing that alterations for buildings existing as of 30.03.2000 require compliance with specific provisions. The interpretation of 'alteration' was clarified, influencing the decision to uphold the necessity of adhering to detailed stipulations within Rule 72 for the petitioner’s request for construction.
Fact of the Case:
The petitioner owns a property and sought permission to construct additional floors. He relied on Rule 72 of the Kerala Municipality Building Rules, 2019, which permits certain alterations under specific conditions. The local authority denied the request, leading the petitioner to challenge this decision.
Finding of the Court:
The court determined that while the petitioner cited Rule 72, strict compliance with its provisions is necessary. The definition of 'alteration' does not override the specific stipulations outlined in Rule 72.
Issues: Whether the petitioner is entitled to benefits under Rule 72 of the Kerala Municipality Building Rules, 2019, without complying with its detailed stipulations.
Ratio Decidendi: The court held that compliance with the specific requirements of Rule 72 is essential for the petitioner to avail of the benefits it offers, underscoring the distinct categorization of alterations and special provisions.
Final Decision: The court directed the local authority to outline necessary requirements for compliance with Rule 72.
The petitioner is stated to be the owner in possession and enjoyment of property having an extent of 61 sq. metres in Survey No.841/12-7 of Rameshwaram Village, Kochi Taluk, Ernakulam District, under Ext.P1 sale deed. He contends that the building was constructed in the year 1995. The building has a tiled roof and he intended to construct two additional floors in the existing building, conversion of the tiled roof of the building to RCC and a toilet on the ground floor on the rear side of the existing building. For the above purpose, he submitted Ext.P4 plan to the second respondent on 6.10.2021. The petitioner relies on Chapter XIII, special provisions for certain constructions, in particular, Rule 72 of the Kerala Municipality Building Rule , 2019, to contend that notwithstanding, anything contained in these rules, alteration, addition or extension of the first floor or the second floor or both over the buildings existing as on 30.03.2000, shall be permitted subject to sub-rules 2 to 10 even though the existing building and the proposed floors or work does not satisfy the provisions under Rules 23, 26 and 28 or under the provisions under Chapter V.
2. The prayer in the writ petition is for quashing Ext.P7 which held that the benefits under Rule 72 cannot be granted to the petitioner and directed him to file a plan as per the general provisions in the Building Rules.
3. A reading of Rule 72 would clearly show that the maximum coverage area permissible shall, if the proposed is for the first and second floors, be that of the ground floor over which such floors are proposed and if the proposal is for the second floor, be that of the first floor over which such floor is proposed. If the petitioner intends to make an application under Rule 72 necessarily he has to comply with the provisions of the said rule, in particular, sub-rules 2 to 10. The learned Counsel for the petitioner places reliance on the definition 'alteration' in S. 2(f) of the KMBR,2019. The same cannot apply as the application under Rule 72 comes with the restrictions and stipulations stated therein. The definition 'alteration' as in Rule 2(f) would apply in all cases and not for a special rule like Rule 72, where the conditions in the said rule will have to be complied with to take advantage of Rule 72.
4. Learned counsel for the respondent Corporation submits that if he makes the application in conformity with Rule 72, the same shall be considered and appropriate orders passed without delay. This is recorded. There will be a direction to the Corporation to point out precisely the requirements to be met for availing the benefit of Rule 72, within a month from today, based on which, the petitioner may make necessary corrections/revisions in the plan and resubmit the same.
Appropriate orders will be passed on the application within a month from the submission of the revised plan as directed above.
