DORPHY Vs. STATE OF KERALA

JUDGEMENT

(1.) Challenge in this writ petition is against Ext. P3, P7 and P8 orders. The petitioner along with his wife had applied for building permit for construction of a Hospital building in a property situated within the limits of the second respondent Municipality. Through Ext. P3 letter the application was rejected and the petitioner was required to submit fresh plan, adhering to various stipulations contained in the Kerala Municipality Building Rules, 1999 (hereinafter referred to as the 'KMBR' for short). One of the main grounds on which the application was rejected is that the building contains more than 4 floors including the basement floor and hence it is a 'High Rise Building' coming within Rule 110 of KMBR. Therefore the applicants were required to satisfy all conditions and specifications enumerated in chapter XVII, especially in Rule 112 to 120. The petitioner challenged Ext. P3 in appeal before the Tribunal for Local Self Government Institutions. The appeal was dismissed through Ext. P7 holding that, in view of the amendment brought to Rule 110 with effect from 16.12.2009, the proposed building is a. 'High Rise Building' and the applicants are bound to comply the conditions and stipulations pertaining to 'High Rise Buildings'. Contentions of the petitioner before the Tribunal was that the unamended law is applicable, because the permit application was submitted prior to the amendment. Tribunal repelled the contention holding that the law prevailing as on the date of sanctioning is the law which is applicable, in view of settled legal precedents. In Ext. F Circular issued by the State Government also the said position was clarified. Subsequent to dismissal of the appeal the petitioner approached the State Government through a representation, which was rejected through Ext. P8, stating that there is no provision for exempting any building from the prescriptions contained in the KMBR. The petitioner is challenging Exts. P3, P7 and P8.

(2.) While assailing Ext. P7 order of the Tribunal, counsel for petitioner contended that, even assuming the amended Rule is applicable, the building in question cannot be considered as a 'High Rise Building'. As per Rule 110 (as amended) 'High Rise Building' means a building having more than four floors and/or 15 Metres of height. It further provides that, for the purpose of the said Rule the word 'height' shall be the height of the building as defined in clause (aq) in sub Rule (1) of Rule 2. In clause (aq) of Rule 2(1) the term 'height of building' is defined as the vertical distance measured from the average level of the ground contiguous to the building. In the 'Note' appended to clause (aq) it is clarified that in arriving the average level of ground the average of the levels of the lowest ground and the highest ground contiguous to the building shall be taken. In the case at hand the building in question is having basement floor, ground floor first floor, second floor and third floor. The meaning of "basement floor' under Rule 2(1)(j) is mentioned as the lower storey of a building below or partly below the ground floor, and it is synonymous with 'Cellar'. The meaning of ground floor' mentioned in Rule 2(1) (an) is, as the lowest storey of a building to which there is an entrance from the adjacent ground or street.

(3.) The Tribunal found that the omission of the words 'from ground level' brought in through the amendment to Rule 110 will indicate that the building will come within the definition of High Rise Building'. But contention of the petitioner is that for measuring the vertical distance from the average level of the ground contiguous to the building, the basement floor need to be excluded. This is especially because the definition of basement floor' will clearly indicate that it is a storey of the building below the ground floor and the definition of ground floor will indicate that it is a storey to which there; is an entrance from the adjacent ground or street. Hence it is clearly evident that even after omission of the words from ground level' in Rule 110, height of the building need be computed only from the average level of the ground contiguous to the building. Therefore it is evident that for the purpose of deciding the 'height of building' basement floor (cellar) has to be excluded.