AGY GEORGE Vs. STATE OF KERALA AND ORS.

JUDGEMENT

(1.) THE dispute in both these writ petitions relate to the claim of the petitioner in W.P.(C). No. 33600/2009 that, he is entitled to construct an eleven storied building in his property. In W.P.(C). No. 27777/2008, an association of residents of the locality has challenged the construction activities of the petitioner in the former writ petition. Since both writ petitions relate to the same subject matter, they are considered and disposed of together. W.P.(C). No. 33600/2009 is treated as the leading case and the parties as well as documents are referred to in the manner in which they are referred to the said writ petition.

(2.) THE petitioner had obtained a no objection certificate from the Secretary of the erstwhile Thrikkakkara Grama Panchayat, to construct a eleven storied apartment complex in an extent of 30 cents of land owned by him. At that time, the Kerala Municipality Building Rules, 1999 (hereinafter referred to as 'the KMBR' for short) had not been made applicable to the Panchayat. While so, on 06.11.2006, the KMBR was made applicable to the Panchayat. According to the petitioner, after obtaining a no objection certificate on 12.10.2006, he had commenced construction. It is contended that Ext.P8 photographs show the constructions made by the petitioner. However, the petitioner has not been able to carry on his construction, in view of Ext.P7 order issued by the Senior Town Planner, the 5th respondent.

(3.) ADV . Sri. S. Shanavas Khan appears for the 3rd respondent. According to the 3rd respondent, though it is true that a no objection certificate had been issued on 12.10.2006 as alleged, the petitioner had not commenced construction on the strength thereof. It is pointed out that Ext.P1 photographs produced in W.P(C). No. 27777 of 2008 show that only boundary fencing had been put up, no construction activity having commenced. It is therefore contended that, the factual assertion made on behalf of the petitioner of having commenced construction shortly after the issue of Ext.P1 is without any basis. My attention is also drawn to Ext.P7, a Circular issued by the 2nd respondent containing detailed directions regarding the manner in which orders are to be passed in cases where no objection certificates had been granted before the KMBR was made applicable. It has been directed in Ext.P7 Circular that, in cases where a no objection certificate had been granted, but no construction had commenced, the construction could be commenced and carried on only after obtaining proper permission under the KMBR. In cases where a no objection certificate had been granted, but the construction had not proceeded beyond the ground level also, further construction could be permitted only after obtaining a building permit as per the KMBR. The above being the position of law, according to the counsel, no permission could be granted to the petitioner to carry on his construction without obtaining a proper building permit under the KMBR. It is further pointed out that, the petitioner's property lacks road access in accordance with the stipulations contained in the KMBR. The width of the road leading to the petitioner's property is only 3.8 metres wide. For permitting the construction of an eleven storied building, a road access of 6 metres width is necessary. It is also pointed out that, the Senior Town Planner has in the impugned order considered all the contentions and has entered definite findings, which include that the petitioner had not commenced any construction, when the site was inspected on 01.03.2007. Therefore, the counsel seeks dismissal of the writ petition.