YESODHARAN Vs. PUNALUR MUNICIPALITY

JUDGEMENT

(1.) Petitioner challenges the order passed by the Tribunal for Local Self Government Institutions allowing the appeal filed by the 3rd respondent.

(2.) The facts involved in the above case would disclose that the petitioner had constructed a two storied building in his property. The building was not constructed in accordance with the approved plan. The 3rd respondent who is the neighboring property owner had complained regarding the same and ultimately the petitioner was forced to submit a revised plan. The revised plan was also approved. Thereafter, a complaint came to be filed stating that the building was constructed without complying with the provisions of the Kerala Municipality Building Rules (hereinafter referred to as the 'KMBR Rules'). The 3rd respondent, however contended that though there was a direction by the Tribunal in an earlier occasion calling upon the Secretary of the Municipality to take action under Section 406 of the Kerala Municipality Act (hereinafter referred to as the 'Act') no such action had been taken by the Municipality and the intention of the authorities is to help the petitioner herein. When the petitioner filed an application for getting the Occupancy Certificate, the Secretary called upon the petitioner to close down the windows on the western side of the building to enable the grant of Completion Certificate. The petitioner agreed to close down the said windows by using cardboard sheets and part of it was closed. Thereafter, the Municipality had granted numbers to the building. Alleging that it was a wrong grant the appeal came to be filed. The Tribunal on a consideration of factual situation involved in the matter formed an opinion that there was violation of Rule 24(5) of the KMBR Rules as the petitioner does not have the minimum required space on the side yard. What was required was 1 metre, but there is a provision to grant exemption upto 75 cms provided that there is no opening either by way of window or door into the said yard.

(3.) According to the petitioner, though he had agreed to close down the said windows and doors on that side of the building in order to enable him to get the exemption under the Rule 24(5) of the KMBR Rules, the Tribunal had taken a view that there has to be a permanent closure by laterite, granite, bricks etc. According to the petitioner, there is no such requirement as per the KMBR Rules as the definition of building inter alia includes any structure either temporary or permanent and steel frames, cardboards etc., are also included to form a permanent closure.