Remanded

Rajamanickam v. Shornur Muncipality

Kerala HC10 Jun 2016WP(C)/2750/2011

Case brief

AI extract

What is this about?

In this writ petition, the court examined the dispute regarding whether replacing a shed roof and reinforcing beams required a building permit under the Kerala Municipality Building Rules. The court doubted the Tribunal's failure to consider specific legal contentions regarding the definition of 'alteration' and 'repair' and remitted the matter for fresh orders.

What did the court decide?

The appeal order of the Tribunal was set aside, and the matter was remitted to the Tribunal for Local Self Government Institutions to pass fresh orders within three months after hearing parties.

Rajamanickam Vs Shornur Muncipality — Writ and Judicial Review | Kerala HC (2016)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE SMT. JUSTICE P.V.ASHA

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FRIDAY, THE 10TH DAY OF JUNE 2016/20TH JYAISHTA, 1938

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WP(C).No. 2750 of 2011 (P)

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PETITIONER(S):

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K.L.RAJAMANICKAM, AGED 59 YEARS, S/O.LAKSHMAN CHETTIAR, JAYALAYAM, KOONATHARA, POST, OTTAPALAM, PALAKKAD DISTRICT.

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BY ADVS.SRI.P.B.SAHASRANAMAN

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SRI.K.JAGADEESH SRI.T.S.HARIKUMAR

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RESPONDENT(S):

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1. SHORNUR MUNICIPALITY, REPRESENTED BY ITS SECRETARY, SHORNUR MUNICIPALITY, SHORNUR, PIN-679 121.

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2. K.GOPALAKRISHNAN, S/O.LATE P.NARAYANAN EZHUTHACHAN, PONATTIL HOUSE, KALLIPADAM P.O., PIN-679122, OTTAPALAM TALUK, SHORNUR.

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R1 BY ADVS. SRI.P.P.THAJUDEEN

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SRI.N.HARI KUMAR SRI.MANSOOR.B.H. R2 BY ADV. SRI.G.SREEKUMAR (CHELUR) R2 BY ADV.SRI.K.RAVI (PARIYARATH)

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THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 10-06-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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WP(C).No. 2750 of 2011 (P)

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APPENDIX

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PETITIONER'S EXHIBITS :

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P1:	COPY OF PROVISIONAL ORDER DT 26/11/2009 NO. E2-7703/2006.
P2:	COPY OF REPLY OF THE PETITIONER DT 31/12/2009.
P3:	COPY OF FINAL ORDER DT 10/6/2010.
P4:	COPY OF ORDER OF LSGT DT 16/8/2010 IN APPEAL NO. 578-A/2010.
P5:	COPY OF THE APPLICATION SUBMITTED BY THE PETITIONER BEFORE THE R1, DT 17/1/2011.
RESPOND	ENT'S EXHIBITS : NIL.

//TRUE COPY/

P.S. TO JUDGE

P.V. ASHA, J.

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W.P(C) No.2750 of 2011

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=================== Dated this the 10^th day of June, 2016

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J U D G M E N T

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The petitioner is challenging the order of

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the Tribunal which upheld Ext.P3 order passed by

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the Municipality on 10.06.2010 directing demolition of the shed in his possession. According to the petitioner he has been conducting a vehicle workshop within the area of the Shornur Municipality and he had been using the shed adjacent to the workshop for parking vehicles which were coming for repairs. The 1^st respondent Municipality issued a notice, Ext.P1 under Section 406(1) and (2) of the Kerala Municipality Act (for short, “the Act”) on 30.11.2006. Against the proposal to take action for demolition of the shed which was constructed without

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W.P(C) No. 2750 of 2011

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permit, the petitioner submitted Ext.P2, reply stating that he did not construct or reconstruct any shed. The tiled roof of a shed fell down in rain and he replaced the tiled roof without effecting any alteration in the length, width or height of the shed. According to him, there is no violation of the provisions contained in Sections 381, 387 or 383A of the Act as alleged in the notice. Petitioner stated that the shed was being used for the very same purpose and the provisions in Section 383A are

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not applicable. Petitioner stated that he had effected only some repairs with asbestos sheets in the place of tiles and reinforced the beams with steel pipes. Petitioner states that the above works would not come under the definition of

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construction or reconstruction and hence no

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permission was required. Regarding the

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applicability of Section 383A, he stated that he

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has done only repairs of the old shed which was in existence and therefore the provisions contained in

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the said Section which was incorporated on 24.03.1999 are not applicable to the shed in question which was put up before 30 years. Regarding the applicability of Rule 59 of the

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Kerala Municipality Building Rules, 1999, for short, (“the KMBR”), it was stated that that Rule applies only to hazardous occupancies of land having 0.5 hectares with layout of building about 500 sq.mts. In the case of petitioner, the shed in question does not have more than 500 sq.ft., and hence Rule 59(2) and (3) of the KMBR was not applicable. Petitioner stated that it was only on account of the influence of the 2^nd respondent that the

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Municipality had issued the notice.

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The Municipality thereupon issued Ext.P3 notice stating that the petitioner had already

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admitted that the tiled roof was replaced without obtaining a permit. It was found that the construction was in violation of Rule 59, 59(2) and (3) of the KMBR as well as Rules 25, 26 and 30 of the KMBR. It was also found that the construction comes under Group I(i) of hazardous occupancies and therefore permit is necessary which was also found in violation. Therefore it was directed that the shed should be demolished or else appropriate action will be taken. The petitioner thereupon approached the Tribunal for Local Self Government Institutions in appeal No.578 of 2010. The Tribunal by order Ext.P4, after perusal of the files, found that the petitioner had replaced the tiled roof of the shed with asbestos sheets and reinforced the beams with steel pipes even though he had not obtained permit. He had also admitted that he had effected the repairs using asbestos sheets in the place of tiles

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and reinforced the beams with steel pipes. All these revealed unauthorised construction by the petitioner in violation of the provisions contained in the KMBR. The Tribunal further found that the

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inspection report as well as the photographs and documents produced by the Municipality as well as the 2^nd respondent supported the case of the Municipality and did not interfere with the order of demolition.

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Petitioner challenges Ext.P4 order on the ground that the Tribunal passed the order without considering any of the contentions.

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I heard Shri P.B. Sahasranaman, learned

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counsel appearing for the petitioner, Shri G.Sreekumar, Cherlur appearing for the 2^nd respondent

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and Shri P.P.Thajudeen appeared for the Municipality, the 1^st respondent and considered their contentions.

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Learned counsel for the petitioner argued

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that as per Rule 7 of the KMBR, replacement of roof of the existing shed by asbestos sheets and reinforcing the beams with steel pipes do not come under the purview of KMBR and hence no building permit is necessary. Rule 7(1) of KMBR reads as follows:

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“7. Application for building permit .- (1) Every person other than a Central or State Government Department who intends to construct or reconstruct a building or make alteration or addition or extension to a building shall apply in writing to the Secretary in the form in Appendix A together with plans and statements in duplicate as required under these rules and documents to prove ownership of the land concerned and payment of application fee as in Schedule I along with a copy of the certificate of registration of the Architect, Building Designer, Engineer, Town Planner or Supervisor, as the case may be, who has prepared and signed the plans,

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drawings and statements.”

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Referring to the definition of alteration contained in Rule 2(f), it is argued that the work done by the petitioner would not come under the definition of alteration, under Rule 2(f) which is as follows:

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“2(f) Alteration means a structural change such as an addition to the area or height or addition of floor/floors or mezzanine floor within any existing floor height, or change of existing floor or changing the roof to concrete slab or re-construction of existing walls or construction of concrete beams and columns amounting to structural change.”

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In this case it is the case of the

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petitioner that there is no concrete roof or concrete slab provided by the petitioner and the

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roof with asbestos sheets and reinforcement of the beams with steel pipes would not come under the definition of alteration and hence he was not required to seek a building permit. It is pointed

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out that it does not come under hazardous occupancies under Group I(i) and the shed cannot be grouped under the hazardous occupancies as provided in the Rule 59(2) as it is a building situated in less than one cent of land and it is only having an area of less than 500 sq.ft.

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Rule 59(1) reads as follows:

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“59. Hazardous occupancy.-(1) Approval of District Town Planner shall be obtained for the usage of plot upto 0.5 hectares area and layout of building upto 500 sq.metres area under hazardous occupancy and approval of Chief Town Planner shall be obtained for the usage of plot exceeding 0.5 hectares area and lay out of buildings exceeding 500 sq.metres areas.”

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Learned counsel for the petitioner relied

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on the judgments reported in Padmanabhan v. State

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of Kerala (2009 [1] KLT 295) and Alphonsa Sreeder v. Pallippuram Grama Panchayat (2011 [3] KLT 49). While considering the question whether change of asbestos roof to concrete roof will amount to

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construction as defined in Rule 5 of the Environment (Protection) Rules, 1986 and Coastal Regulation Zone Notification 1991 & 2011, this Court in paragraph 9 of the judgment held as follows:

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“9. After hearing both the sides, this Court finds that the plea raised by the petitioner that there is no increase in the plinth area or FSI or density of the existing buildings stands unrebutted and that the above buildings are already numbered by the local authority, which are put to use by the petitioner, paying the 'taxes'. So also there is no case for the respondents that the present buildings (XI/1017-A,B,C, D and E) situated on the upstairs of the restaurant run by the petitioner is part of any unauthorised building having been constructed subsequent to the Notification (unlike the case of the building involved in Ext.P4 judgment, situated in the nearby property of the petitioner). On analysing the facts and figures, it is clear that changing of 'Asbestos roof' by 'Concrete roof' does not involve any increase in the existing plinth area or FSI of the building and that it is only a 'repair' of the existing authorised structure. In so far as there is no case for the respondents that the existing structure is unauthorised, the change in the 'Asbestos roof', replacing the same by a 'Concrete roof' cannot have any adverse effect with regard to the scope and object of the Coastal Zone Regulation Notification and the norms prescribed therein.”

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Therefore it can be seen that while considering the terminologies used therein it was found that the change effected by replacing the asbestos roof to concrete roof cannot have any adverse effect with regard to the scope and object of the Coastal Zone Regulation Notification. It was held that change of asbestos roof to concrete roof does not involve any increase in the existing plinth area or FSI of the building and that it is only a repair of the existing authorised structure. This Court was considering the provisions contained in another Act wherein it was provided that no construction will be permitted within the zone except for repairs of the existing authorised structures with the specification mentioned therein. Further relying on the judgment of this Court in State of Kerala and Others v. M/s.Southern Fisheries Corporation (2011 [1] KLT 956) it is argued that the work done

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by the petitioner would not attract the provisions contained in the KMBR which requires him to obtain a permit. In that case this Court was considering the provisions contained in Section 2(k) of the Kerala Building Tax Act, 1975 and whether the truss work over terrace of a commercial building would come within the exemption clause of the Act. It was held that mere covering of roof to protect the building from rain and sun does not make the terrace as part of plinth area for assessment. The judgment reported in Padmanabhan's case (supra) was also to the very same effect wherein it was held that covered terrace or residential buildings does not constitute plinth area for building tax assessment unless if such terrace in full or part is enclosed with bricks, walls, grills, wood or the like. Further the judgment in Sir Shadi Lal and Sons,

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Shamli v. Commissioner of Income-tax (AIR 1988 SC

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is also referred to, wherein in paragraph 7 the word 'repair' was considered and it was held as follows:

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“7. The oft-quoted observations in Lurcott v. Wakely and Wheeler(1911) 1 KB 905 as to what is meant by 'repairs' are generally considered apposite. This has been referred to and relied upon by the High Court. The observations in Lurcott's case was referred to with approval by the Privy Council in Rhodesia Railway Ltd. v. Income-tax Collector (1933) AC 368.

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The idea of 'repair' may include replacement or even a renewal. But the converse may not be true. All replacements or renewals need not necessarily be 'repairs'. In the case of a building, restoration of stability or safety of a subordinate or subsidiary part of it or any portion of it can be considered as repair while the reconstruction of the entirety of the subject matter may not be so regarded. The somewhat comprehensive import of the word 'repair' in this context is evident from the reliance by Forbes. J. In Ravenseft Properties Ltd. v. Davstone (Holdings) Ltd. (1980) QB 12. On the following observations of Sir Harbert Cozens-Hardy MR in Lurcott's case (supra) :

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"It seems to me that we should be narrowing in a most dangerous way the limit and extent of these covenants if we did not

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hold that the defendants were liable under covenants framed as these are to make good the cost of repairing this wall in the only sense in which it can be repaired, namely, by re-building it according to the requirements of the county council."

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Having regard to somewhat comprehensive nature of the obligations that go with and are attached to and recognised under the tenant's covenants for 'repairs', it must be held that the covenant in the present case is one under which the tenant has undertaken 'substantial repairs' and it must, accordingly, be held to fall within S. 24(1)(i)(b) of the Act and that the allowance for repairs must be one under, and limited to, that provision. The case of the assessee that it should fall under Section 24 (1)(i)(a), we are afraid, is very nearly unarguable. There is no substance in the contention.

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This is clearly not a case where the burden of carrying out repairs as understood in the context of Section 24(1)(i)(b) is shared between the lessor and the lessee. The obligation is on the lessee alone. The obligation under the latter part of the covenant does not relate to such repairs. The appellant's reliance on Commr. of Income-tax v. Parbutty Churn Law (1965-57 ITR 609) (Cal) is in the facts of the present case misplaced.”

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In yet another judgment in Khimchad Parshottm v.

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Shah Bhupatray Nathalal (AIR 1971 Gujrat 81), the

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High Court of Gujrat was considering the alternate meaning of the word 'repair' under the Rent Control Act. In paragraph 7 the Division Bench after considering the interpretation of the word 'renovation' given in an earlier judgment and the meaning of the word 'repair' in the judgment in Inglis v. Buttery And Co. ([1878] 3 Ac 552) held that repair and renovation express two separate meanings.

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Shri G.Sreekumar Cherlur, learned counsel

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appearing for the 2^nd respondent stoutly opposed the contentions of the petitioner and pointed out that Rule 10 provides for the works which do not require building permit and that the work already carried out by the petitioner does not come under any of the items provided in Rule 10. Moreover, referring to the definition of building given in Rule 2(l) it is pointed out that the petitioner's shed which is

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completely replaced by another structure comes under the definition of building under Rule 2(l) and therefore permit is required. It is argued that the whole structure does not exist there and it is completely replaced and even according to the petitioner, the tiled roof fell down in rain and hence he replaced it. For such a replacement it is necessary to get permit from the Municipality. It is also pointed out that this will come under the definition of garage as defined under Rule 59(2) and it is liable to be grouped under hazardous occupancies under Group 1(i) of the KMBR. It is also pointed out that the petitioner does not have any exemption from the requirement of getting a permit and nothing prevents him from seeking a permit from the Municipality.

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Regarding the judgments relied on by the petitioner, it is argued that none of the judgments

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relate to the provisions contained in the KMBR.

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Learned Standing Counsel for the

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Municipality has also seriously opposed the contentions of the petitioner and argued that it was only after inspection of the shed in question and finding unauthorised construction that notice was issued. Even after notice was issued, petitioner did not take any steps for submitting any application for permit. Notice was issued in accordance with the Tribunal's order in accordance with law since violations were found. It is also

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argued that the judgments rendered by this Court while considering the cases in respect of building tax with respect to plinth area cannot be made applicable in this case.

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I have considered the contentions. It is seen that the petitioner had in his explanation to the show cause notice as well as in the appeal

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raised his contentions with reference to the provisions contained in Rule 7 and it was all along his case that replacement of tiled roof by asbestos sheets and providing reinforced beams with steel pipes would not amount to any construction or reconstruction of the shed which requires permit. It was also the case of the petitioner that the said building had been in existence for the last 30 years. The Tribunal does not appear to have considered any of these contentions. A perusal of Ext.P4 order would reveal that the Tribunal came to

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the conclusion that permit was required in a case where petitioner himself admitted that there was change of roof of the shed with asbestos sheets and steel pillars. It was on the basis of the admission made by the petitioner that permit was not obtained for the change of roof with asbestos sheets and reinforcement of beams with steel pipes that the

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Tribunal entered into a conclusion that the order passed by the Municipality was proper and the appeal preferred by the petitioner was dismissed. In view of the contentions raised by the petitioner with reference to Rule 7 read with Rule 2(f) and the judgments relied on by him it is necessary that the Tribunal reconsiders the matter after hearing all the parties and pass fresh orders.

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Similarly, the respondents also have got a contention that the Rules relied on by the petitioner do not apply or are not correct.

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In these circumstances the order Ext.P4 is set aside and the matter is remitted to the Tribunal for Local Self Government Institutions for passing fresh orders within a period of three months from

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the date of appearance of the parties before it. Till orders are passed, the Municipality shall not execute Ext.P3 order.

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The parties shall appear before the Tribunal on

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01.07.2016.

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Writ Petition is disposed of as above.