ASSET HOMES PRIVATE LIMITED Vs. STATE OF KERALA

JUDGEMENT

(1.) The Petitioners are aggrieved by the refusal of the second Respondent to issue final building permit in terms of Ext.P-1 application. The prayer is to grant the building permit without reference to the amendment of the Building Rules brought in to effect as per Exts.P-14 and P-15.

(2.) The project in question is a joint venture development for developing an extent of 70.23 cents of land comprised in Sy. No. T.S. 77 in Ward No. 3, Block No. 2 in the Kannur Municipality. The proposed construction is of a commercial cum residential building comprising of a basement floor, ground floor and 18 floors and head room. The requisite plan was submitted along with Ext.P-1 application. After verification of the plan submitted, the Petitioners were directed to remit ' 43,695 being the fee for approval of the plan by the Fire Department and that was remitted as per Ext.P-2 chalan. Ext.P-3 letter evidences the fact that the second Respondent forwarded the plan for no objection from the Commandant General, Fire Force Headquarters, Thiruvananthapuram. After eight months NOC was granted as per Ext.P-4 by them. In the meanwhile, the second Respondent forwarded the plan to the Army Station Headquarters for their NOC under Rule 7(15) since the area being close to the Cantonment and Ext.P-5 dated 18-8-2008 is the NOC issued by them. By Ext.P-6, the second Respondent had forwarded three sets of plan to the Coastal Zone Management Authority for their approval and as demanded, the Petitioners remitted ' 5 lakhs as scrutiny fee for the CRZ clearance as evidenced by Ext.P-8. The Coastal Zone Management Authority, as per Ext.P-9 recommended the project to the Government of India. It was followed by an application dated 23-1-2009 to the Ministry of Environment and Forests, Government of India. Finally, after completing all formalities, by Ext.P-12 it was communicated that sanction is accorded for the project by the said Ministry also. The same is dated 22-1-2010. Since no action was forthcoming from the part of the Municipality, even thereafter, the Petitioner filed Ext.P-13 representation. Then he was made to understand that the rules, viz. Kerala Municipality Building Rules have been amended as per Ext.P-14 which is effective from 16-12-2009. It is accordingly the Petitioners have approached this Court seeking for various reliefs.

(3.) The second Respondent Municipality has filed a counter-affidavit. Heard learned Counsel for the Petitioners Shri Devan Ramachandran, Shri K. K. Chandran Pillai, learned Senior Counsel appearing for the Municipality and Shri C. M. Suresh Babu, learned Govt. Pleader. Learned Counsel for the Petitioners submitted that it is evident from the actions of the Municipality that the building plan has been approved long prior to the coming into force of the amended rules. All the steps and follow up actions were taken by the Municipality and what remained to be done is only the grant of permit. Therefore, every requisite step leading to the grant of permit having been completed, any amendment of the building rules cannot apply as far as the Petitioners' application is concerned. It is pointed out that even with regard to the grant of NO Cs by the various organizations, the time-limit has been fixed by the rules and any delay on their part cannot affect the rights of the Petitioners to get the permit. Herein, as far as the Municipality is concerned, there had been no objection for grant of permit. Therefore, the issuance of NO Cs will automatically lead to the grant of permit. It is therefore pointed out that the approved plan was ready for implementation leading to the right of the Petitioners to start construction. What is mainly pointed out by the learned Counsel is that the issuance of building permit is only formal. Even with regard to Ext.P-12 proceedings dated 22-1-2010 of the Ministry of Environment and Forests, learned Counsel submitted that para 1 therein will show that the decisions therein were taken by the Expert Appraisal Committee in their meetings held on 29th and 30th October, 2009 and 23rd and 24th November, 2009, well before the coming into force of the Municipality Building Rules, as per Ext.P-14. It is therefore pointed out that there is no question of the second Respondent rejecting the application as all the formalities have been duly fulfilled. After the approval of the plan, the statutory clearances were being awaited and the issuance of permit will relate back to the date of sanction of the building plan. Every activities on the part of the Municipality by way of inspection by the Engineer and other actions were completed long prior to the amendment of the rules.