Ashalatha Divakaran vs Commissioner Cannanore Municipality and Others

T.L. Viswanatha Iyer, J.—The petitioner was granted permission Ext.P1 on October 17, 1980 to construct a three storeyed building, namely a building with ground floor, first floor and second floor. This licence was valid upto October 13, 1981 but its validity was extended from time to time upto October 13, 1988 by subsequent proceedings of the Municipality, evidenced by Exts.P2 to P7. The permission had been granted as per the provisions of the Kerala Building Rules, 1968, hereinafter referred to as the 1968 Rules. These Rules were replaced by the Kerala Building Rules, 1984, (the 1984 Rules) with effect from May 15, 1984. The petitioner had started the construction on the basis of Ext.P1, and the ground and first floors had been completed before October 13, 1987, upto which the permission had been extended by Exts. P2 to P6. The second floor remained to be constructed. Ext.P7, the last of the renewals for the period upto October 13, 1988, related to the construction of the second floor, having an area of 795 70 Sq Metres. The petitioner could not complete the construction of the second floor within the period of time allowed by Ext. P7. Therefore, she made an application Ext. P8 along with the requisite fee, for further extension of time by a period of one year. The receipt of this application, on September 23, 1988, was acknowledged by the Municipality by their letter Ext P10. But, on November 18, 1988, the first respondent, Commissioner of the Municipality refused the extension prayed for and directed the petitioner to stop the work forthwith. The reason stated was that the construction will violate Rule 15 (3) (b), 15 (5) and 20 (2) of 1984 Rules. Inter alia, reference was made to a government circular dated October 12, 1988, a copy of which is produced by the first respondent as Ext. R1(a). A copy of the first respondent''s letter is Ext. P11 and that is under challenge in this original petition. The relevant portion of Ext. P11 reads :-

The original permit of even No. dated 17-10-1980 was issued based on the Kerala Municipal Building Rules 1968. The construction violates rules 15 (3)(b), 15(5), 20,(2), of Kerala Building 1984. The rear open space available to the building is only 2. 50 M to 2. 80 M against this minimum requirement of 3.50 M as required under rule 15 (3) (b) and 15(5) of KBR 1984. The car parking space available is only 10 Nos. against the minimum requirement of 22 Nos. as required under rule 20 (2) of KBR 1984. The Government as per circular cited above have directed that when extension of time is granted to the cases for which building permit was issued under the Kerala Municipal Building Rules 1968, it shall be issued only as per rule 9 (2) of Kerala Building Rules 1984.

The petitioner points out that the ground and first floors have been constructed with the necessary set off and other requirements as per the 1968 Rules and in strict compliance with the permission Ext.P1. The first respondent Commissioner has himself extended the time for construction upto October 13, 1988 and it is therefore not open to him at this stage to insist that there should be compliance with the 1984 Rules so far as the second floor is concerned. It is pointed out that when the construction of the ground and first floors have been completed, in accordance with the 1968 Rules, the Municipality is insisting on the impossible by requesting larger near open space and car parking space at the stage of construction of the second floor. Rule 41 of the Kerala Building Rules, 1984 exempts a building permit issued under the 1968 Rules from the operation of the 1984 Rules if the period specified in the permit had not expired at the commencement of the 1984 rules, namely on May 45, 1984. The permit Ext.P1 issued under 1968 rules, was still in force on May 15, 1984 and therefore, and in any event, rule 41 saves the permit in question from the operation of the 1984 rules.

Counsel raised a further contention that u/s 363(15) of the Kerala Municipalities Act, 1961, the renewal prayed for by Ext.P8 should be deemed to have been granted as the petitioner had not been intimated by the first respondent of any order thereon within thirty days of its receipt. The application Ext. P8 had been received by the first respondent on September 23, 1988 as evident from. Ext. P10, but no order had been communicated within thirty days thereof Ext P11 proceedings issued long thereafter has therefore, no validity in law.

Sri. K. J. Joseph, counsel for the first respondent, points out however, that the second respondent, State, had issued a circular Ext. R1 (a) directing that "extension of time" in cases of building permits issued under the 1968 Rules should be only as per rule 9(2) of the 1984 rules. Rule 9 (2) stipulates that a permit can be revalidated only "Subject to the rules then in force". The first respondent was therefore obliged to refuse the extension prayed for, for the construction of the second floor as it could not be constructed in accordance with the 1984 rules.

It is not necessary for me to go into the first and the third of the contentions raised by the petitioner as I am of the opinion that she is entitled to succeed on the second point based on Rule 41. I shall extract Rules 41 and 9(2) of the 1984 rules to which reference has been made by the parties :

Saving - Nothing in these rules shall apply to a building permit issued under the Kerala Municipal Building Rules, 1968, the period specified in which had not expired at the commencement of these rules.

"9(2) The permit once sanctioned shall remain valid upto three years. The development/redevelopment/building construction/alteration shall be commenced during the first year of such period and shall be completed not later than the valid period of the permit. If the construction is still not completed, the permit shall be revalidated on application subject to the rules then in force.

It is clear from Rule 41 that nothing in the 1984 Rules will apply to a building permit issued under the 1968 Rules, if the period specified in it had not expired at the commencement of the 1984 rules. This applies to all cases where a permit issued under the 1968 rules was in force on May 15, 1984, when the 1984 Rules came in to force, whether by original grant or by extension. This rule has been enacted with a specific purpose, namely that a construction already commenced or undertaken complying with the provisions of the 1968 rules should not be put in jeopardy by virtue of the stringent requirements of the 1984 rules, which may be impossible to comply with, on the construction already carried out. Rule 9(2) relates to permits issued under the 1984 rules The exemption under rule 41 is wide in its sweep by providing that "nothing" in the 1984 rules shall apply to a permit in force, issued under the 1968 rules. Rule 9 (2) is also therefore excluded and the first respondent was not justified in rejecting the prayer for extension based on rule 9 (2).

The building permit Ext. P1 issued to the petitioner continued to be valid till October 13, 1988, having been renewed from time to time. The construction had started before May 15, 1984 and the ground and first floors had been constructed before October 13, 1988. It has been done as per the stipulations in the 1968 rules. It is not thereafter possible to apply the 1984 rules so far as the second floor alone is concerned. The insistence on such compliance will virtually nullify the effect of the grant of permit under the 1968 rules. When rule 41 is intended to subserve such cases, Government could not have issued the circular Ext. R1 (a) insisting that no extension could be granted for a building permit issued under the 1968 rules without complying with the terms of the 1,984 rules. The circular is contrary to the provisions of Rule 41 of the 1984 Rules,

There is no other objection raised to the extension of the period of the permit. If so, the validity of the permit Ext. P1 was liable to be renewed in spite of its non-compliance with the 1984 Rules. The rejection of the request for renewal was not legal. Ext. P11 has therefore to be quashed. The original petition is therefore allowed. Ext. P11 is quashed. The first respondent is directed to deal with the application for renewal, namely Ext. P8, without reference to the conditions imposed by the Kerala Building Rules, 1984. He shall pass orders in the matter within a period of two weeks from today. There will be no order as to costs.