V RAMAN Vs. STATE OF KERALA

JUDGEMENT

(1.) This Writ Petition raises a question of law relating to the power of the Government to grant exemptions in the matter of construction of buildings under the provisions of the Kerala Municipal Corporations Act, 1961, read with the Kerala Building Rules, 1984. This Writ Petition was heard along with O.P. No. 12929 of 1991, which related to a building in Ernakulam Corporation. The building in the present case with regard to which exemption was granted by the Government is located in Kozhikode Corporation. In this case, the Government passed various orders of exemption under R.5 of the Kerala Building Rules, 1984, which confers power on the Government to grant exemptions. The Kerala Buildings Rules, 1984 were issued in exercise of the powers conferred under S.367 read with S.238 of the Kerala Municipal Corporations Act, 1961 and also in exercise of the powers conferred under S.344 read with S.222 of the Kerala Municipalities Act, 1960. In the present case, we are concerned with the above said Building Rules, 1984, in so far as they are traceable to the powers under the Kerala Municipal Corporations Act, 1961.

(2.) In this O.P., which relates to the building in Kozhikode Corporation, the petitioner is one V. Raman, who claims to be the Secretary of the Kozhikode District Committee of the Kerala Kshethra Samrakshna Samithi (Temple Protection Committee). The said Samithi is registered under the Societies Registration Act. The Samithi owns and is in possession of lands and temple situated in Nagaram amsom desom in Kozhikode Town. The property owned by the Samithi is located in the Kiliparamba Hindu Temple. Respondents 5 to 8, namely, Sri Kozhiparambathu Abubacker Haji and three others purchased the property on the front side of the temple from one Velayudhan between whom and the above said Samithi, there was considerable litigation which ended in favour of the Hindu Samithi in S. A. No. 284 of 1990. The purchase by respondents 5 to 8 from Velayudhan was in respect of 8 cents of land in R.S. No. 208/ 5 of Kozhikode Nagaram amsom desom. The 8 cents was purchased on 24-8-1989. Even before the construction was started respondents 5 to 8 submitted a representation to the Government seeking exemption from the various provisions of the Kerala Building Rules, 1984. This was submitted through the office of the Calicut Development Authority and the office of the Corporation Of Calicut in regard to the construction of three storied 'shop cum lodge' building. On 23-1-1990, the Calicut Development Authority made its remarks on the proposal for construction of 'shop cum lodge' building in T.S.No. 243 in Ward No. 13 stating that the area is reserved for public and semi-public use as per the sanctioned detailed Town Planning Scheme for ward No. 13 of the Calicut corporation. On 5-3-1990 the Commissioner of the Corporation rejected the application of respondents 5 to 8, as the proposal as per the plan submitted by respondents 5 to 8 was in violation of various provisions of the Kerala Building Rules. On 29-3-1990, the petition of respondents 5 to 8 for exemption above mentioned was referred to the Government.- on 29-5-1990, the Chief Town Planner, Trivandrum, recommended exemption from the Zoning Regulations of the Master Plan and the relevant provisions of the Kerala Building Rules, subject to certain conditions vide reference No. D4-5883/90/K. Dis. dated 26-5-1990. The said recommendation was accepted by the government, which issued G.O. Rt. No. 2368/90/LAD dated 6-6-1990 granting exemption from the operation of R.15(7), 35(1), 22(6)(b),17(2) and 20 of the Kerala Building Rules, and also granting exemption from Zoning Regulations of sanctioned Master Plan.

(3.) Thereafter, respondents 5 to 8 did not start construction, but felt that some minor exemptions could also be got, so that the construction could be made within the area in their possession. They, therefore, made a further representation, which was received by the Government on 13-7-1990. In that representation, since the Calicut Corporation considered the building as as residential category building, respondents 5 to 8 requested for exemption from R.15(3)(b) and (c) of the Kerala Building Rules and in the alternative sought for a direction to treat the lodge building as a commercial building. On that the Government wrote a letter on 3-11-1990 to the Corporation of Calicut for its remarks. On 14-11-1990 the Corporation also received petition from respondents 5 to 8 for permission to construct the building with endorsement dated 30-10-1990 of the Secretary, Calicut Development Authority granting development permit. This would also show that respondents 5 to 8 did not start construction immediately after the issuance of G.O. Rt. No. 2368/90 LAD dated 6-6-1990. On 7-1 -1991 the Commissioner of Calicut Corporation wrote a letter to the Government forwarding his remarks. This was received by the Government on 14-1-1991. On 16-1-1991 the Government addressed a further letter No. 36315/M3/90/LAD dated 1991, and called for his remarks. On 2-2-1991 the Chief Town Planner as per his letter No. D4-1161/91/K.Dis. recommended grant of exemption from R.15(3)(b), 15(3)(c) and 15(2) of the Kerala Building Rules, 1984. On 13-2-1991 the Government issued G.O. (Rt.) No. 684/9 I/LAD dated 13-2-1991 granting exemption from the above said Rules as recommended by the Chief Town Planner.