THRIPOONITHURA MUNICIPALITY Vs. ANSAL BUILDWELL LTD

JUDGEMENT

(1.) The Thripunithura Municipality challenges Ext.P6 order passed by the Tribunal for Local Self Government Institutions allowing an appeal filed by the 1st respondent-builder against the Municipality s order declining building permit for the construction of an additional floor over a four storied building already permitted to be construed under Ext.P2 dated 27.6.2007. Ext.P 1 is true copy of the certificate from the Fire Department issued in favour of the 1st respondent in respect of the four storied building permitted under Ext.P2. Ext.P3 is copy of the revised plan submitted by the 1st respondent to the Municipality proposing to add one more floor to the building under construction on the strength of Ext.P2. The Municipality points out that the building is proposed to be construed by the 1st respondent on a plot has got access from public road through a 5.5 meter wide road and that the building does not abut any public road. That being the position, the Municipality could not have granted permission for construction of additional floor since such permission would violate Rules 117 and 50 of the KMBR, 1999. Accordingly, Ext.P4 order declining permit was issued. Against Ext.P4 the builder filed W.P.C. No. 36901/06 before this court. In that Writ Petition Ext.P5 counter affidavit was filed by the Municipality. During the court of the arguments, the 1st respondent opted for filing appeal before the 2nd respondent-Tribunal against Ext.P4 and it is accordingly that the 1st respondent approached the Tribunal. The Tribunal on considering the appeal has passed the impugned order Ext.P6 finding inter alia that the proposed building with the additional floor sought to be constructed will not be a high rise building as defined under Rule 110 of the KMBR and that the requirement of open space for fire fighting under Rule 117 cannot be insisted upon. As regards Rule 50 of the KMBR relating to recreation space, the petitioner-Municipality is directed to reconsider the issue and pass fresh orders. Impugning Ext.P6 on various grounds the Municipality prays that Ext.P6 order of the Tribunal be quashed and a declaration that the ground floor of the petitioner s building proposed to be constructed as per Ext.P3 plan is also a floor and hence the proposed building will be a high rise building as defined under Rule 110 of the KMBR, 1999. It is also prayed that a general declaration be issued that any building having more than four floors and also any building having more than 15 meters of height are high rise buildings for the purpose of Rule 110 of the KMBR, 1999 requiring compliance of Rule 117.

(2.) V.M. Kurian, learned Counsel for the petitioner-Municipality submitted that the short point which arises for decision in this case is whether the building which is proposed to be constructed by the petitioner by adding one more floor to the four floors already permitted will be a high rise building as defined under Rule 110 of the KMBR. The learned Counsel referred to the definitions given to the terms basement floor , storey , floor , ground floor , height of building , high rise building and open space for fire fighting under Rule 2 dealing with definitions and Rule 110 which defines the term high rise building. Mr. Kurian also referred to Rule 117 of the KMBR which insists on open space for fire fighting for every high rise building. Mr. Kurian argued that the view of the Tribunal that for counting the number of floors for the purpose of determining whether the building is a high rise building or not, the ground floor is to be excluded, is erroneous. The provisions of Section 9 of the General Clauses Act has been wrongly applied to hold that the word from is akin to after . The provisions of Section 9 of the General Clauses Act are only for interpretation of the enactments referred to in that Section. The interpretation of the word from used for the purpose of and in reference to computation of time is not of universal application. The application of that interpretation should depend on the context in which the word from occurs. In Rule 110 the word from is used as a function word to indicate a starting point. Mr. Kurian also argued that the rule has to be understood in the light of the object for which it is made. According to Mr. Kurian, a high rise building has to comply with the provisions under Rule 117 which is essentially a provision for fire fighting. A building having more than four floors or 15 metres of height is treated as high rise building. The basement floor is also part of the building. Therefore, in order to exclude the basement floor while counting the number of floors of the building the starting point is the ground floor. The words "and" "or" used in Rule 110 has to be understood as either or both. Therefore a building having more than four floors as well as a building having more than 15 metres of height will be a high rise building for the purpose of the rules. To treat the word "from" as meaning "after" in the context of the rule will be a great anomaly. Mr. Kurian exemplified the matter by submitting that a High Court notice to the effect that a particular Judge will be sitting in Division Bench from 1 -4-2008 is not to be understood as meaning that there will not be D.B. sitting on 1.4.2008.

(3.) Sri. Joseph Markose, senior Counsel for the respondent would submit that a writ petition under Article 226 of the Constitution challenging the Tribunal s order is not maintainable. According to the learned senior Counsel, the Municipality while considering application for building permit submitted by the respondent under Rule 7 and rejecting the said application under Rule 12 of the KMBR has been discharging a quasi judicial function. Having acted as quasi judicial authority the Municipality cannot be allowed to wear the garb of a party. The Tribunal is superior appellate authority and the order of the Municipality has merged with the order of the Tribunal. The learned Counsel relied for the above proposition on the judgments of this Court in District Executive Officer v. State of Kerala,1991 1 KLT 390, Karur Panchayat v. State,1996 1 KLT 12 and also the judgment of the Supreme Court in M.M. Ismail v. Spl. Director, Enforcement Directorate and Anr., 2007 8 SCC 254. The senior Counsel referred to Section 509(9) of the Municipalities Act and submitted that the order of the Tribunal shall ordinarily be final under the scheme of the statute. According to the learned Counsel, the above Section read with Rule 21 of the Tribunal s Rules makes it clear that as far as the Municipality is concerned its order gets merged with the order of the Tribunal and attains finality. Learned Counsel also pointed out that the position which obtained prior to the constitution of appellate tribunal was that many of the appeals under the Act were heard by the Government and orders of the Government were accepted by the Municipality which had no right to challenge those appellate orders.