Partly allowed

James K.Joseph v. State of Kerala

Kerala HC9 Nov 2016WP(C)/3278/2012

Case brief

AI extract

What is this about?

This writ petition sought extension of time for completing a building construction due to delays spanning from 1994 to 2016. The court examined applicability of municipality building rules and dismissed the claim for extension given the gross delay, but allowed the petition in part to consider regularisation of additions made within the original permit's validity.

What did the court decide?

The writ petition was partly allowed; the claim for extension was dismissed due to gross delay, but the petition was allowed to submit a fresh application for regularisation of additions made within t

James K.Joseph Vs State of Kerala — 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 MR.JUSTICE K.VINOD CHANDRAN

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WEDNESDAY, THE 9TH DAY OF NOVEMBER 2016/18TH KARTHIKA, 1938

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WP(C).No. 3278 of 2012 (H)

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PETITIONER:

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JAMES K.JOSEPH, KANNAMPADAM HOUSE, KIDANGOOR SOUTH.P.O, KOTTAYAM.

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BY ADVS.SRI.S.MANU SMT.PRIYANKA VARGHESE

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RESPONDENT(S):

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1. STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, LOCAL SELF GOVERNMENT DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM - 695 001.

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2. KOTTAYAM MUNICIAPLITY, REPRESENTED BY ITS SECRETARY, KOTTAYAM.686001.

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R1 BY GOVERNMENT PLEADER SRI K.J.MANURAJ R2 BY ADVS. SRI.SIBY MATHEW

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SRI.PHILIP J.VETTICKATTU

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SRI.B.PREMNATH (E)

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THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 09-11-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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K.V.

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WPC NO 3278 OF 2012:

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APPENDIX

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PETITIONER(S) EXHIBITS: ----------------------

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EXHIBIT-P1-TRUE COPY OF THE SKETCH

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EXHIBIT-P2- TRUE COPY OF THE ORDER NO.LB/189/86-87 DATED 11/05/1987 OF THE MUNICIPAL COMMISSIONER, KOTTAYAM. EXHIBIT-P3- TRUE COPY OF THE G.O(RT) 404/87/LAD DATED 06/02/1987. EXHIBIT-P4- TRUE COPY OF THE CERTIFICATE DATED 07/04/1988 ISSUED BY THE CONSULTANT. EXHIBIT-P5- TRUE COPY OF THE PHOTOGRAPH EXHIBIT-P6- TRUE COPY OF THE BUILDING TAX RECEIPTS EXHIBIT-P7- TRUE COPY OF THE BUILDING TAX RECEIPT. EXHIBIT-P8- TRUE COPY OF THE G.O(RT) 1862/91/LAD DATED 19/04/1991. EXHIBIT-P9- TRUE COPY OF THE ORDER NO. LB 77/91-92 DATED 19/06/1991 OF THE MUNICIPAL COMMISSIONER, KOTTAYAM.

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EXHIBIT-P10- TRUE COPY OF THE PLAN.

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EXHIBIT-P11- TRUE COPY OF THE RECEIPT NO. 10800 DATED 19/06/1991.

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EXHIBIT-P12- TRUE COPY OF THE PETITION DATED 17/06/1994 SUBMITTED BY THE PETITIONER BEFORE THE MUNICIPAL COMMISSIONER, KOTTAYAM.

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EXHIBIT-P13- TRUE COPY OF THE ORDER NO. P W 1/677/86 DATED 27/02/1986 OF THE MUNICIPAL COMMISSIONER, KOTTAYAM (DISTRICT COLLECTOR).

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EXHIBIT-P14- TRUE COPY OF THE JUDGMENT PASSED BY THIS HONOURBALE COURT IN W.P(C) 27505 OF 2007 DATED 19/02/2010.

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EXHIBIT-P15- TRUE COPY OF THE PETITION DATED 12/09/2006 SUBMITTED BY THE PETITIONER BEFORE THE 2ND RESPONDENT. EXHIBIT-P16- TRUE COPY OF THE INTIMATION NO. 14850 DATED 12/09/2006 ISSUED BY THE PETITIONER BY THE 2ND RESPONDENT.

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EXHIBIT-P17- TRUE COPY OF THE DECISION NO. AD-122/11 DATED 03/02/2011 TAKING IN THE ADALATH.

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EXHIBIT-P18- TRUE COPY OF THE PETITION DATED 18/10/2011 SUBMITTED BY THE PETITIONER BEFORE THE 2ND RESPONDENT.

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-2-

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-2WPC NO 3278 OF 2012:

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EXHIBIT-P19- TRUE COPY OF THE MEMO NO. PW3/227360/11 DATED 01/12/2011 ISSUED BY THE 2ND RESPONDENT.

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RESPONDENTS' EXHIBITS: NIL ---------------------

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/TRUE COPY/ P.A.TO JUDGE K.V.

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K. VINOD CHANDRAN, J.

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===================== W.P.(C) No.3278 of 2012 - H

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======================

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Dated this the 09^th day of November, 2016

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J U D G M E N T

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The petitioner is aggrieved with the refusal of the Municipality, to consider extension of the period for completion of construction. The petitioner owns 1 Ares and 45 Sq.M of property in Muttambalam Village, which is seen from the sketch of the Assistant Director of Survey and Land Records, Kottayam, produced as Ext.P1.

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The petitioner by Ext.P2 dated 11.05.1987 obtained a building permit for construction of a five storied building with cellar, ground floor and three upper floors. The petitioner was also granted some exemptions as per Ext.P3. In compliance with Exts.P2 and P3, there was a building constructed. Later, the petitioner sought for additional construction to be made on the

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W.P.(C) No.3278 of 2012 - H

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five storied building. The Government granted permission to build two additional floors by Ext.P8, exempting the DTP scheme for Nagambadam Area. The Municipality too granted permit as per Ext.P9. The proposed extension was not only of the additional two floors but also some additions to be made to the existing five storied building, is the contention of the petitioner.

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Ext.P9 order was issued on 19.06.1991 and the

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petitioner had commenced the construction, but however could not complete it due to financial constrains. The petitioner is said to have moved an application at Ext.P12 dated 17.06.1994, within the validity period of Ext.P9 permit for extension of time. The petitioner, then relies on clause (9) of Rule 15A of the Kerala Municipality Building Rules, 1999 (for brevity 'KMB Rules, 1999) to contend that the petitioner would be entitled to seek for extension of the period for completion of the construction as per the permit.

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W.P.(C) No.3278 of 2012 - H

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Clauses (4) and (9) of Rule 15A of the KMB Rules, 1999

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is extracted hereunder:-

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Rule 15A (4): The Secretary may, if he deems fit, grant renewal for a period of three years on application submitted after the expiry of the permit, subject to the condition that the total period of validity of permit from the date of issue of original permit shall not exceed 9 years.

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Provided that in case the permits need to be extended/renewed beyond the period of nine years, the applicant shall submit an application in writing to the Committee constituted under Chapter X-A of these Rules and the committee may, after having satisfied with the genuineness of the application, recommended for extension or renewal of the permit, as the case may be, with or without conditions(s) as it deems fit

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xxx xxx xxx

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(9) A development permit or a building permit issued before or after the commencement of the Kerala Municipality Building Rules, 1999 or these rules or under the Kerala Building Rules, 1984 including that under the orders of Government or District Collector granting exemption from rule provisions, shall be extended or renewed, on proper application, on like terms and for like periods as a permit issued under these rules.

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4. The contention raised by the learned Counsel for

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the petitioner is that as per clause (9) of Rule 15A of KMB Rules,

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W.P.(C) No.3278 of 2012 - H

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1999, even permits issued earlier under the Kerala Building Rules 1984 (for brevity, KB Rules, 1984) could be extended or renewed on proper application being made, on the terms as indicated in Rule 15A of the KMB Rules, 1999 which would apply equally to the permits granted under KMB Rules, 1999 and KB Rules, 1984. Clause(4) of Rules 15A of KMB Rules, 1999 provides for extension, subject only to the condition that no extension shall be granted, exceeding 9 years from the date of issuance of the original permit. The proviso also was relied on by the learned Counsel for the petitioner to contend that in fit cases, the Committee could consider extension even beyond 9 years.

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Whether the said provision could be made

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applicable in the present case, is the first question to be considered. The petitioner had obtained a revised permit at Ext.P9 on 19.06.1991 with a period of validity of 3 years. The period expired on 18.06.1994 and one day prior ie., on 17.06.1994, a renewal application was granted. The petitioner

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W.P.(C) No.3278 of 2012 - H

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did nothing after the renewal application was made. The petitioner is said to have made various representations before the Municipality, which however cannot save the gross delay occasioned in attempting to get the construction completed and the period extended. The petitioner after the expiry of the initial validity period did nothing at all to obtain extension or seek consideration of an application filed before the date of expiry. The position remained so till 2011, as we will presently see, ie: for 17 years; a decade and 7 years.

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Eventually, by Ext.P19, a further application filed in the year 2011 ie., dated 21.10.2011 was rejected. It is contended that the provisions above extracted under Rules 15A of the KMB Rules, 1999 would enable the Committee to make a fresh consideration. This Court is not satisfied that any such consideration can be made, especially the permit itself having expired; far back in the year 1994. The petitioner could have moved a further application, proximate to the introduction of

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W.P.(C) No.3278 of 2012 - H

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KMB Rules, 1999. That having not been made, the petitioner slept over for another 12 years, before a further application was made on 21.10.2011, which was rejected rightly by Ext.P19. There could be no extension granted as of now. If at all the petitioner requires any further construction to made the same has to concede to KMB Rules, 1999 and the petitioner could definitely make such an application.

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The further contention is based on Rule 143 of KMB

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Rules, 1999 ie., the third proviso; which is extracted hereunder:-

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Provided also that where the construction or work was commenced, being carried on or completed after the statutory period specified in Rules 15, 97, 126 or 141 and as per rules, such construction or work shall be considered as duly permitted and not one requiring regularisation.

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The petitioner contends that there were some additions made as permitted in Ext.P9 before the expiry of the validity of the permit and the same had not been regularised by the Municipality. It is also submitted that such constructions were made long prior within the period of validity. In such

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W.P.(C) No.3278 of 2012 - H

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circumstance, the petitioner could make an application before the Municipality, producing sufficient documents to show that the additions made to the building constructed as per Ext.P2 was in compliance with Ext.P9 and within the validity period of Ext.P9. The Municipality would then consider the regularisation.

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The writ petition would stand partly allowed. Parties

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to suffer their respective costs.

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Sd/-

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K. VINOD CHANDRAN, JUDGE

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SB/09/11/2016

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// true copy //

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P.A to Judge

James K.Joseph v. State of Kerala

Case brief

What is this about?

What did the court decide?

James K.Joseph v. State of Kerala

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

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