GEORGE JOSEPH Vs. STATE OF KERALA

JUDGEMENT

(1.) This Original Petition was adjourned for being heard by a Division Bench in terms of S.3 of the Kerala High Court Act by a learned Single Judge on the ground that a question of general importance regarding the powers of the Government to exempt buildings or owners of buildings from the various provisions of the Kerala Building Rules arises for consideration.

(2.) The petitioner and respondent No. 3 are owners of neighbouring properties within the second respondent Municipality. Petitioner has challenged the orders of exemption, dated 4.6.1998 and 23.10.1999, granted by the Government to respondent No. 3 for putting up a construction in his property. Under the first order dated 4.6.1998 the Government exempted respondent No. 3 from complying with R.15(2), 34(3), 15(5), 17(2)(5), 20(6), 21(ii)(a) and (b), 21(14), 34(4) and 22(6) of the Kerala Building Rules and by the second order dated 23.10.1999 also from complying with R.21(13) of the Rules. The petitioner questions the competence of the Government to grant exemption in the manner in which it was done. He also challenges the power to grant exemption as annihilative of the Kerala Building Rules which is enacted in public interest and such an uncanalised and unrestrained power was liable to be struck down as violative of Art.14 and 21 of the Constitution. The petitioner also complains that the two orders were passed in violation of principles of natural justice since he was not heard before the grant of exemptions and he was entitled to be heard in the circumstances of the case. The further contention is that an ex post facto exemption under R.5 of the Kerala Buildings Rules was not contemplated and a person who has put up a building in violation of all the Rules is not entitled to seek or obtain an exemption subsequent to making an illegal construction. It is also contended that in view of the changes brought about in the relevant provisions of the Kerala Municipalities Act, the Government had lost its power to grant exemption and that in any event the exercise of power in this case is totally arbitrary and requires to be struck down. Respondent No. 1, the State of Kerala has not filed any counter affidavit in the Original Petition. Thus the allegations in the Original Petition are not specifically controverted by the first respondent State.

(3.) Respondent No. 2, the local authority, Palai Municipality, has submitted that it had granted permission to respondent No. 3 for construction of a five storeyed building. But the local authority found on inspection based on a complaint by the petitioner that there was violation of the Building Rules. Hence an order dated 2.11.1996 was passed by the local authority suspending the permission granted to respondent No. 3 for making the construction. The local authority further points out that subsequent to the suspension of the building permit by the local authority, respondent No. 3 had filed an application for exemption under R.5 of the Kerala Buildings Rules before the Government and the Government had granted the exemptions which are challenged by the petitioner in the Original Petition. It is further stated that an order dated 5.6.1999 from the Government was received by the local authority directing the local authority to ensure strict compliance with the order of exemption dated 4.6.1998 and that it was found that there was no strict compliance with the order of exemption. Respondent No. 3 had again sought exemption from R.34(8) of the Rules and that had been granted by the Government. It is pointed out that a parapet or compound wall should be constructed on the western side of the plot avoiding rain water flowing into the property of the petitioner and that no nuisance shall be caused to the neighbouring plot on the western side and drainage facility should be provided for the flow of rain water from each floor to the ground floor slab. It is submitted that while granting permission or issuing a building permit the local authority had insisted that the construction should be strictly in accordance with the orders of the Government and that no nuisance should be caused to the neighbouring plot on the western side.