Building height and setbacks calculated from widest/main abutting road with entry, per Kerala Municipality Building Rules.

JUDGMENT

Heard Sri. T.C. Suresh Menon, the learned counsel for the petitioner, Sri. Suman Chakravarthy, the learned Standing Counsel for the 2^nd respondent Corporation, as well as Sri. N.B.Sunil Nath, the learned Government Pleader.

2. The petitioner has sought an occupancy certificate with respect to a residential building constructed on the basis of Ext.P1 building permit. In reply, Ext.P11 has been issued by the 4^th respondent herein. A reading of Ext.P11 shows as many as four violations with respect to the building in question. It is seeking to challenge Ext.P11 issued as above that the petitioner has filed the captioned writ petition.

3. On 11.01.2024, the matter was heard by this Court and, for ease of reference, the interim order passed by this Court on that date is extracted as under:

“Having heard the learned counsel for the petitioner, learned Government Pleader and the learned counsel appearing for the respondent- Corporation, prima facie I am of the view that the petitioner is entitled to an interim order directing respondents 2 and 3 to issue a provisional occupancy certificate to the building constructed in terms of Ext.P1 building permit subject to final orders to be passed in this writ petition. I am inclined to grant this interim order on account of the following facts:

It appears from Ext.P11 that the vigilance has essentially found four violations namely:

(1) Rear open space (2) Side open space (South)

(3) Minimum distance of Ramp from boundary (4) Recreation space at ground.

The learned counsel appearing for the petitioner has submitted that objections in relation to (3) and (4) namely, minimum distance of Ramp and recreation space at ground has been rectified by the petitioner. Thus, the only remaining objections are relating to rear open space and side open space (South). The learned counsel for the petitioner has pointed out that, from Ext.P11, it is clear that the objection has been raised on the basis that, the setback requirement, as per the sanctioned plan, has been taken after calculating the height of the building from KIMS-Pulayanarkotta road (to be 26 meters) without considering other road/roads abutting the building. According to the learned counsel, a reading of Rule 24, Chapter- IV of the Kerala Municipality Building Rules (hereinafter referred to as ‘the Rules’) would indicate that the maximum height of any building shall be calculated with reference to the width of the street abutting the plot in question and if the building plot abuts two or more streets of different width, the building plot shall be deemed to abut the street that has a greater width for the purposes of the Rules and the height of the building shall be regulated by the width of that street and shall be continued at this height along the narrower street. It is clear from Ext.P9 communication issued by the Municipality that in terms of Rule 24 of Chapter IV of the Rules, if the height of the building is only 26 or 26.30 meters (both are mentioned in Ext.P9), the requirement of rear and side spaces have been met.”

4. Thus, as regards the violations at Sl. Nos. 3 and 4, the petitioner has subsequently rectified them. As regards the defects at Sl. Nos. 1 and 2, this Court notices that the defects have been noted, ignoring the fact that the building has been constructed abutting KIMS-Pulayanarkotta road, also taking into account certain side roads. It is taking that into account, as well as the provisions of Rule 24, Chapter IV of the Kerala Municipality Building Rules, 1999, that the interim order has been issued by this Court directing issuance of a provisional occupancy certificate.

5. The learned Government Pleader