Saju K. Scaria and Mohanan K. Scaria vs State of Kerala, The Kothamangalam Co-operative, The Kothamangalam Municipality and The Tribunal For Local Self Government

Antony Dominic, J.—Heard both sides.

Challenge in this writ petition is against Ext.P1, an order passed by the Tribunal for Local Self Government Institutions in Appeal No. 570/2009. Petitioners are owners of 8.83 cents of land in Sy. Nos. 1018/11 and 1018/9A of Kothamangalam Village. For the purpose of constructing a two storied building with shop rooms, they submitted Ext.P3 plan to the Municipality for approval and for a building permit. Municipality considered the matter and Ext.P2 building permit was issued. Ext.P3 plan was also approved.

It is stated that on the strength of Exts.P2 and P3 petitioners commenced construction and thereupon the 2nd respondent lodged a complaint with the Municipality against the work undertaken by the petitioners. It is stated that thereupon a stop memo was issued. Thereafter, enquiry was conducted and by Ext.P4, the stop memo issued by the Municipality was withdrawn. Second respondent thereupon filed Appeal No. 570/2009 before the Tribunal For Local Self Government Institutions. Tribunal entertained the appeal, heard the parties and rendered Ext.P1 order, allowing the appeal and setting aside Ext.P2 building permit issued in favour of the petitioners herein. It is this order which is under challenge.

A reading of Ext.P1 shows that the Tribunal found that the building proposed to be constructed by the petitioners was having a total plinth area of 357.35 square meters and that it fell under group-E as per the classification in Rule 30 of the Kerala Municipality Building Rules. It is therefore concluded that the maximum coverage and floor area ratio permissible was 40% and that as the building in question had a coverage and floor area ratio of 44%, the building permit was illegal.

Counsel for the petitioners contended that the reasoning of the Tribunal is illegal. According to the learned Counsel, Rule 30 provides for classification of buildings, according to use and character of occupation. It is stated that the building proposed to be constructed is consisting of shop rooms and therefore it is a Mercantile/Commercial building falling under group-F and is not one falling in the category Office/Business, categorized as Group-E. It is stated that if the building is classified as Mercantile/Commercial, the permissible maximum coverage and floor area ratio is 65%. On the other hand learned Counsel for the 2nd respondent, at whose instance Ext.P1 order was passed, contends that the classification has to be based on the floor area of the building concerned and if so classified, as the building in question is having total floor area of more than 300 square meter has to be categorized only under Group-E and if so, the permissible area of coverage is only 40%. On this basis counsel attempted to sustain the order.

I have considered the rival submissions made. Rule 30(2) of the Kerala Municipality Building Rules provides for classification of buildings, according to the use or character of its occupancy. It is not in dispute that the building in question consists of shop rooms. Building used for Office/Business and buildings used for Mercantile/commercial purposes, are classified under Group-E and F respectively. A reading of Group-E shows that it includes buildings having a total plinth area of more than 300 square meters, which is used for transaction of public or private business etc. On the other hand when it comes to Group-F it includes buildings used for display and sale of merchandise such as shops/markets either wholesale or retail. As rightly pointed out by the counsel for the petitioners, when the words of a statute are clear, plain and unambiguous and are reasonably susceptible to only one meaning, the Courts are bound to give effect to that meaning irrespective of its consequences and shall not attempt an interpretation leading to absurd results. In this case, having regard to the above law laid down by the Apex Court in various judgments, I am inclined to think that when shops/markets are included in Group-F, a building consisting of shop rooms has to be classified under Group-F, in the category of Mercantile/Commercial, especially when Rule 30(2) provides that classification has to be based on use of the building. If that be the case, the basis on which the Tribunal has proceeded that the building in question falls under Group-E is erroneous and is unacceptable.

Learned Counsel for the second respondent heavily relied on Note-1 to Rule 30(3)(g) which reads as under. "Any building with not more than 150 sq. meters built up area accommodating the use under Group C and with not more than 300 sq. meters built up area accommodating the use under Groups D, E and H shall be included in Group F. "

A Note cannot be understood as one diluting the plain meaning of the words of the Rule. If so, the Note can only be understood as one bringing in the buildings mentioned therein having the floor area mentioned in the Note within the respective categories and nothing more. If so, the note cannot improve the situation in favour of the 2nd respondent in any manner. If the building in question is understood as one falling under Group-F necessarily the conclusion of the Tribunal that there is violation of Rule 30 of the Kerala Municipality Building Rules is erroneous.

In the impugned order, the Tribunal has also found violation of Rule 34, but however the Tribunal has not stated in what manner the building in question offends the provisions of Rule 34. I do not find it possible to sustain Ext.P1 and it is set aside.

Writ petition is allowed.