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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE
MONDAY, THE 11TH DAY OF MARCH 2013/20TH PHALGUNA 1934
WP(C).No. 25537 of 2012 (N)
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PETITIONER(S) :
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1. M/S. SAFE HOMES DEVELOPERS PRIVATE LIMITED
MT VIII/402F, MIS BUILDING, P.O. THANA, KANNUR -670 012
REPRESENTED BY ITS PROJECT CO-ORDINATOR
K. SADANANDAN, AGED 49 YEARS, S/O. LATE KORAGAN
RESIDING AT SADGURU NILAYAM, BATTAMBARA, KASARAGOD.
2. K. SADANANDAN, AGED 49 YEARS,
S/O. LATE KORAGAN, PROJECT CO-ORDINATOR
M/S. SAFE HOMES DEVELOPERS PRIVATE LIMITED MT VIII/402 F
MIS BUILDING, P.O. THANA, KANNUR - 670 012
RESIDING AT SADGURU NILAYAM, BATTAMBARA, KASARAGOD.
BY ADVS.SRI.M.RAMESH CHANDER
SRI.ANEESH JOSEPH
SMT.P.M.SHIJI
RESPONDENT(S) :
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1. KANNUR MUNICIPALITY
REPRESENTED BY ITS SECRETARY - 670 001.
2. THILLERY RESIDENTS ASSOCIATION
REPRESENTED BY ITS PRESIDENT, C. ABDUL RAHEEM
VRINDAVAN, NEAR MILITARY HOSPITAL, THILLERY
KANNUR - 670 001.
3. THE SECRETARY TO GOVERNMENT LOCAL SELF (RB)
DEPARTMENT, IRUVANANTHAPURAM 695001
4. SRI.KADAMKANDY SURENDRAN, RESIDING AT THILLERI,
WARD III, KANNUR MUNICIPALITY - 670001
R1 BY ADVS. SRI.K.K.CHANDRAN PILLAI (SR.)
SRI.ARUN ANTONY
SRI.R.ANAS MUHAMMED SHAMNAD
R2 BY ADV. SRI.V.R.KESAVA KAIMAL
SMT.C.S.RAJANI
R3 BY GOVERNMENT PLEADERSRI. K.A. JALEEL
R BY SRI.A.S.SAJUSH PAUL
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD
ON 11-03-2013, THE COURT ON THE SAME DAY DELIVERED
THE FOLLOWING:
BP
WP(C).No. 25537 of 2012 (N)
APPENDIX
PETITIONER(S) EXHIBITS :
EXHIBIT-P1- TRUE COPY OF THE PERMIT ISSUED BY IST RESPONDENT
DATED 31/03/2011
EXHIBIT-P2- TRUE COPY OF THE PERMIT TRANSFERRED IN FAVOUR OF K.P.
MUHAMMEDKUNHI DATED 29/03/2012
EXHIBIT-P3- TRUE COPY OF THE STOP MEMO ISSUED BY IST RESPONDENT
DATED 28/11/2011.
EXHIBIT-P4- TRUE COPY OF THE ORDER ISSUED BY IST RESPONDENT
DATED 17/03/2012.
EXHIBIT-P5- TRUE COPY OF THE STOP MEMO ISSUED BY THE IST RESOPNDENT
DATED 21/04/2012
EXHIBIT-P6- TRUE COPY OF THE ORDER ISSUED BY THE IST RESPONDENT
DATED 06/10/2012
EXHIBIT-P7- TRUE COPY OF THE NOTICE NO. E3/13467/11 ISSUED BY IST
RESPONDENT DATED 17/10/2012.
RESPONDENTS' EXHIBITS : NIL.
//TRUE COPY//
P.A. TO JDUGE
BP
A.M. SHAFFIQUE, J
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W.P.(C). NO. 25537 OF 2012
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Dated this the 11th day of March, 2013
JUDGMENT
Petitioners challenge Ext. P7 stop memo issued by the local authority and seeks to continue the construction work in terms of Ext. P2. Petitioners also challenge Ext. P8 and P9 order. Ext. P7 is the stop memo issued by the Secretary of Kannur Municipality on 17.10.2012 stating that they have received a complaint in respect of construction of a multi- storied complex, being constructed in Survey No. 456/9 of Kannur Municipality and until the complaint is disposed of, the construction activity should be kept in abeyance.
2. Ext. P8 is the direction issued by the Government on 25.10.2012 directing the Secretary of the Municipality to stay the operation of the permit and furnish a report to the Government in that regard. Ext. P9 dated 02.11.2012 is another stop memo issued by the Secretary of the W.P. (C) NO. 25537 OF 2012 2 Municipality pursuant to Ext. P8.
3. The facts as narrated in the writ petition would disclose that the 1st petitioner and the 2nd petitioner had acquired an extent of 42 cents of land in the Survey No. aforesaid, along with a building permit issued in favour of the earlier owner. The permit was transferred in their name as per Ext .P2 dated 29.03.2011 and Ext. P1 dated 31.03.2011. The permit is renewed from 12.08.2011 for a period of 3 years.
4. Subsequently, petitioners were faced with a stop memo alleging that the road access was less than 5 meters which was later withdrawn as per Ext. P4, on a finding that the road access was having more than 5 meters width. They were again faced with another stop memo dated 21.04.2012 which was also withdrawn as per Ext. P6 dated 06.10.2012 This was followed by another stop memo Ext. P7. In Ext. P7 also no specific reason had been pointed out for the issuance of stop memo. Hence the writ petition was filed aggrieved by repeated stop memo's without showing any W.P. (C) NO. 25537 OF 2012 3 reason.
5. Ext. P7 was stayed by this Court on 31.10.2012 and during the pendency of the writ petition on the basis of Ext. P8 issued by the Government, Ext. P9 stop memo was again issued. The writ petition was therefore amended challenging Ext. P8 and P9 as well.
6. The main contention urged by the petitioners is that they have obtained all necessary licenses/permission for construction of the building and without showing any reason for cancelling the permit or suspending the permit Ext. P7, P8 and P9 have been issued. Apparently on a reference to Ext. P7, P8 and P9 no specific reason is pointed out as to why the stop memo is issued, rather than stating that some complaints were received regarding the construction. In Ext. P8 Government Order there is reference to certain complaints received in that regard.
7. Counter affidavit is filed by the 3rd respondent inter alia contending that Government has received many complaints against the construction done by the petitioners W.P. (C) NO. 25537 OF 2012 4 from representatives of the Thillery Residents Association. An enquiry was conducted through the Regional Joint Director of Urban Affairs, Kozhikode and on the basis of the enquiry it was found that there is violation of Rule 24(8) of Kerala Municipality Building Rules (hereinafter referred to as KMBR). Further it is stated that the existing area comes under CRZ II Zone and since the value of construction will be more than Rs. 5 crores, it required permission from the Coastal Zone Management Authority (CZMA) and the petitioners had not obtained any such 'No objection Certificate'.
8. Further it is stated that the concurrence of the Defence Authority has not been obtained as per Rule 5(5) of the KMBR. A reference is made to letter dated 03.08.2012 from the Defence Station Commander (DSC) informing that as per the latest guidelines from the Head Quarters the distance from land for construction of multi-storied building has been increased from 100 to 500 meters and since the permit was obtained by considering 100 meter distance, the W.P. (C) NO. 25537 OF 2012 5 same requires to be cancelled. The Ground Water Authority also pointed out that the construction affects the level of ground water in neighbouring areas.
9. Counter affidavit is filed by the party respondent, the Residents Association as well. According to them, the Municipality has the power to suspend or revoke the building permit in terms of Rule 16 and the Government had power to direct the Secretary to issue order in terms of Rule 18(5) of KMBR. It is further contended on basis of Ext. R2
(b) that the minimum distance from defence land should be 500 meters and such a requirement had not been taken into consideration by the Municipality while issuing the permit. Further reference is made to Ext. R2(d) by contending that the construction of the building will affect the water aquifer in the area which will ultimately lead to disastrous situation and scarcity of water in the wells in the nearby locality. The report of the Regional Joint Director is produced as Ext. R2
(g) as well as Ext. R2(j) in which grounds taken by the Government is specifically indicated. Therefore according to W.P. (C) NO. 25537 OF 2012 6 the party respondent, the building permit had been issued without any basis and without proper materials on record and that it is in violation of various provisions of law and that the construction will lead to scarcity of water in the locality.
10. Heard the learned Senior Counsel Sri. M. Ramesh Chander appearing for petitioners, the Additional Advocate General Sri. K. A. Jaleel and the learned counsel for the 2nd respondent Sri. V.R. Kesava Kaimal.
11. It is not in dispute that Ext. P1 is the renewal of the permit already granted on 13.08.2008. The Rules governing the grant of permit alone will apply as far as renewal is concerned. It is the contention of the party respondent that the construction of the building had not started and that is why a change of opinion is required in the matter. I do not think so. If a building permit has been granted on 13.08.2008, necessarily if the building is not completed and the permit is to be renewed it cannot be based on any change of law that occurred after the issuance W.P. (C) NO. 25537 OF 2012 7 of the original permit. The learned counsel for petitioners relies upon the 'No Objection Certificate' issued by the Cantonment authority as Ext. P13 in order to indicate that during the relevant time as per the Rules prevailing the construction was possible within a distance of 100 meters. Ext. P13 is dated 02.08.2008 issued by one Col. P.K. Vasudevan, addressed to the Municipality indicating that they have no objection for granting permission for construction of Ground Floor + 13 Floor + Terrace of residential flats in T.S.No. 456 in Cannanore Municipality. They have also approved the plan which was enclosed along with the application. That being the situation, the arguments of the Additional Advocate General as well as the party respondent that subsequently there is a change in the Rules governing the construction of structures and the distance factor is enhanced from 100 meters to 500 meters, will not help the Government or the party respondent to contend for the position that the building permit has to be cancelled. It is not in dispute that the building permit had been granted W.P. (C) NO. 25537 OF 2012 8 with reference to the Rule position governing as on 2008 and admittedly the change had occurred only after the issuance of the building permit on 12.08.2008. This is evident from Ext. R2(b) issued on 03.04.2012 which states that as per the latest instructions from the Higher Head Quarters, issuance of NOC for any construction in respect of multi-storied building, the minimum distance from defence land will be 500 meters. Apparently this instruction had been received after Ext. P1 dated 31.03.2011 when the building permit was even renewed. Therefore such a contention is not available to the Government as well as the party respondent.
12. In regard to the allegation of violation of CRZ norms, there is no clarity in the objection statements filed by the Government or the party respondent. There is a contention that the property is situated in CRZ II area. But there is no material to indicate the same. However, this is a matter to be enquired into by the appropriate authority and cannot be decided at this point of time.
W.P. (C) NO. 25537 OF 2012 9
13. In regard to the allegation that the water source of the neighbouring locality will be affected on account of the building being constructed, cannot be a reason for revoking a building permit already granted. When a building permit is granted it is supposed to have issued in terms with the Rules governing the issue. That the construction of the building will affect the water source in the area can never be an issue which will be considered while issuing a building permit. For that reason itself Rule 16 cannot be invoked by stating that the water source will be affected. That apart petitioners had obtained consent from the Pollution Control Board as evident from Ext. P15 which includes the consent to establish issued under the Water (Prevention & Control of Pollution) Act as well. That apart if the Ground Water Department has any objection in respect of drawing of water by the petitioners from the said property it is open for them to take appropriate proceedings under the Kerala Ground Water (Control and Regulation) Act, 2002. But the learned counsel for petitioners submits that the property in W.P. (C) NO. 25537 OF 2012 10 question is not a notified area. At any rate it is a matter pending before the Division Bench in W.A. No. 1109 of 2012 and that issue is not considered now.
14. On an overall consideration of the aforesaid factual circumstances involved in the matter, it is clear that the Government had invoked Rule 18(5) and directed the Secretary to stop the construction. The materials relied upon by the Government in this regard does not seem to be satisfactory to invoke such a drastic step. But the question is whether this Court can interfere with a stop memo issued on the basis of Ext. P8. As far as the Secretary is concerned he is under obligation to comply with the directions issued by the Government in terms of Rule 18(5). That apart even otherwise the Secretary had issued Ext. P7 stop memo.
15. Going by the factual circumstances involved in the matter and in the light of my findings as stated above I do not think that this is a fit case in which the Secretary or the Government was justified in stopping the construction of a multi-storied complex without a clear understanding of the W.P. (C) NO. 25537 OF 2012 11 factual circumstances involved in the matter. If at all the Secretary has to consider this issue, a proper notice has to be issued to the petitioners narrating the alleged deficiencies, they have to be heard in the matter and then a final decision can be taken. Without any material on record or without any material suggesting that there is a possible violation of any of the Rules governing the issue, stopping construction of an activity which is already permitted as early as in 2008 is bad in law and is liable to be set aside. In that view of the matter, I am of the opinion that the impugned orders are liable to be set aside. However reserving the right of the Secretary to initiate fresh action if it is felt that there is any violation of the building permit or they can invoke Rule 16 of the KMBR. However any such action shall precede a proper notice and only after hearing of the petitioners and other connected parties that such drastic steps should be taken.
In the result the writ petition is allowed and Ext. P7, P8 and P9 are quashed, reserving the right of the Secretary of W.P. (C) NO. 25537 OF 2012 12 Municipality to take proper action after issuing notice to the petitioners and after hearing them and any other interested parties.
SD/-
A.M. SHAFFIQUE JUDGE DCS