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2021 Supreme(Online)(KER) 40140
HIGH COURT OF KERALA
SHAJI P.CHALY, J
MOHAMMED HABEEBULLA – Appellant
Versus
CORPORATION OF COCHIN – Respondent
WP(C)/2472/2010
SRI.P.K.SURESH KUMAR (SR.), SMT.BINDU GEORGE, SRI.P.K.SOYUZ, SRI.S.RAMESH BABU, SRI.RAAJESH S.SUBRAHMANIAN, SRI.R.HARISHANKAR, SRI.SURIN GEORGE IPE
The court affirmed that minor violations of building regulations can be resolved through fines, rather than demolition, provided public safety is not compromised.
Headnote:
Building - Construction Permit - Kerala Municipality Building Rules - Rules 117, 42(4), 56(2) - The court examined the validity of a revoked construction permit and the necessity of compliance with building regulations, concluding that violations were minor and imposing a fine for regularization.
Fact of the Case:
The petitioner built a five-story building but had its construction permit revoked by the Kochi Corporation for violating the Kerala Municipality Building Rules. The court considered previous orders, the construction's compliance, and subsequent discussions with officials.
Issues: Whether the revocation of the building permit was justified, and if the violations were material enough to warrant demolition or if a fine for regularization could suffice.
Ratio Decidendi: The court established that violations of building regulations that do not pose a serious threat to public safety could be rectified through fines instead of demolition, emphasizing public interest and the need for compliance.
Final Decision: The petition was disposed of with a directive to impose a fine of Rs. 7,50,000 for the construction irregularities.
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:
“ORDER
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 P 6 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
