The Court dismissed a writ petition challenging the validity of an exemption granted to the fourth respondent under the repealed Kerala Building Rules, 1984, relying on the saving clause in the Amendment Act.
No costs.
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT :
THE HONOURABLE MR. JUSTICE K.T.SANKARAN
MONDAY, THE 11TH FEBRUARY 2008 / 22ND MAGHA 1929
OP.No. 15553 of 2001(B)
PETITIONERS:
RESPONDENTS:
R4 BY ADV. SRI.S.GOPAKUMARAN NAIR
R1 & R2 BY GOVERNMENT PLEADER SRI.S.DILEEP R3 BY ADV. SRI.C.J.JOY
THIS ORIGINAL PETITION HAVING COME UP FOR HEARING ON 11/02/2008, ALONG WITH CRP NOS.963 AND 2249 OF 2001, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
THOTTATHIL B.RADHAKRISHNAN, J.
O.P.No.15553 OF 2001
------------------------------------------Dated this the 8th day of June, 2009
JUDGMENT
OP.15553/01
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was thereafter, i.e., on 5.11.1999, that the impugned Ext.P4 was issued. On the strength of Ext.P1, the Panchayat granted permit.
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proceedings on the basis of applications which were already pending before the competent authority for exemption.
7.But, Section 172 of the Amending Act provided that
“notwithstanding the repeal of Section 410 of the Principal Act, actions or the petitions, appeal petitions or review petitions seeking exemption from the provisions or rules relating to building construction filed and pending before the Government or any Officer authorised by Government immediately before such repeal shall be continued in accordance with the provisions of the said Section and disposed of accordingly”.
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This essentially enables exercise of authority under Section 410 of the Principal Act, notwithstanding the repeal, in relation to matters which were already pending with the Government. Therefore, the power to grant exemption as done in the case in hand was available.
8.The consequential question then would be as to whether the coming into force of KMBR, 1999 with effect from 1.10.1999 and the resultant repeal of KBR,1984, would result in lack of power to make an order of exemption relying on the similar clause in Section 172 of the Amending Act and referable to Section 410 of the Principal Act read with Rule 5 of the KBR, 1984, in cases then pending with the Government. The saving clause contained in Section 172 of the Amending Act essentially saves the continuance of the provisions of Section 410 along with the provisions in the KBR, 1984 for the purpose of consideration and disposal of applications, appeals, revisions, reviews etc. pending in relation to the grant of exemption. That would work in terms of Section 172 of the
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Amending Act only if KBR, 1984 is also held to be alive concurrently and limited by the operational impact of Section 172 of the Amending Act. Therefore, in relation to matters which fall under Section 172 of the Amending Act, Section 410 of the Principal Act; and Rule 5 and the other provisions of the KBR, 1984 would continue to operate, notwithstanding the coming into being of KMBR, 1999, which included the repeal of KBR, 1984.
Sd/-
THOTTATHIL B.RADHAKRISHNAN, Judge.
kkb.9/6.
2 issues framed by the court
Whether an exemption granted under the repealed Kerala Building Rules, 1984 is valid when the applicant applied before the repeal of Section 410 of the Kerala Municipality Act, 1994.
Whether the saving clause in Section 172 of the Kerala Municipality (Amendment) Act, 1999 permits the continuance of proceedings under the repealed rules for pending applications.
3 provisions across 3 enactments
Albert Jerone
Lornisa
State of Kerala
District Collector
Secretary, Balaramapuram Gramapanchayat
V. George
K.T. Sankaran
Thottathil B. Radhakrishnan
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
