KRISHNAKUMAR Vs. COPORATION OF THIRUVANANTHAPURAM

JUDGEMENT

(1.) The respondent in W.P.(C).No.18889 of 2014 is the appellant before us, impugning the judgment dated 12.11.2015 in the said writ petition. The writ petition was preferred by the Corporation of Thiruvananthapuram impugning Ext.P6 order dated 23.10.2013 of the Tribunal for Local Self Government Institutions that found the appellant herein entitled to a deemed permit for construction of a multi-storeyed building. The facts in the writ petition would indicate that the respondent therein had, through an application dated 15.02.2013, sought an approval of the site plan pertaining to the land where he intended to put up a construction, as also an approval to the ground plan, elevation and sections of the building and specification of the work with a view to getting permission to execute the work. The said application was rejected by the Secretary of the Corporation, on the ground that, the property in question was included in the Green Strip Zone of the revised town planning scheme of the Thiruvananthapuram city, and in such areas only a residential building having 300 sq.metres plinth area could be sanctioned. It was also pointed out that, the prior concurrence of the Regional Town Planner was required before putting up the construction as applied for. The respondent in the writ petition, being aggrieved by the order passed by the Secretary of the Corporation, preferred an appeal before the Council of the respondent Corporation. The said appeal, however, was rejected, and therefore, a further appeal before the Tribunal for Local Self Government Institutions was preferred, which came to be allowed by Ext.P6 order that was impugned in the writ petition, by the Corporation. A perusal of Ext.P6 order would show that the Tribunal found that, the application submitted by the petitioner for approval of site plan/permission for construction of the building was dated 15.02.2013, and the 30 days period contemplated in Sec. 390 of the Kerala Municipalities Act, 1994 expired on 17.03.2013. The order of the Secretary of the respondent Corporation, rejecting the application of the petitioner, although dated 13.03.2013 was served on the applicant only on 25.03.2013. The applicant had, in the meanwhile, made a reference to the Municipal Council in terms of Sec. 392 of the Kerala Municipalities Act read with Rule 15(1) of the Kerala Municipality Building Rules, on 21.03.2013. While the said reference application ought to have been disposed by the Municipal Council on or before 21.04.2013, no such order was passed by the Council but the applicant was served with a rejection order dated 13.05.2013 that was communicated to him on 01.06.2013. The Tribunal, therefore, found that the applicant was entitled to the benefit of the deeming provision contemplated under Sec. 392 of the Kerala Municipalities Act, 1994 and consequently, to a deemed permission for the purposes of Sec. 387 of the Act. As already noted above, the Corporation impugned the said order of the Tribunal in W.P(C).No.18889 of 2014. The learned Single Judge who considered the matter, found that the Secretary of the Corporation had passed the order rejecting the application of the applicant under Sec. 387, on 13.03.2013, although the order was communicated to the applicant only on 25.03.2013. Referring to the provisions of Sec. 392(2) of the Act read with Rule 15 (2), the learned Judge found that the deeming provision would apply only if the Council did not determine the issue as to whether or not the permit sought for by the applicant could be granted, within a period of 30 days from the date of reference. In the case on hand, it was found that there was no need for a reference to the Council since the Secretary's order dated 13.03.2013 had to be seen as passed within 30 days for the purposes of Sec. 392 of the Kerala Municipalities Act, although the communication of the said order was beyond the period of 30 days. In other words, the learned Single Judge construed the statutory provisions under Sec. 392 as only requiring the Secretary to pass an order on an application under Sec. 387 within the period of 30 days envisaged in Sec. 390 and 391, thereby holding that there was no requirement, under the statutory provisions, for communicating the order so passed to the applicant within the period of 30 days. Consequently, the writ petition was allowed, by setting aside the order of the Tribunal for Local Self Government Institutions, and directing the Secretary to pass fresh orders after issuing a notice to the applicant, and giving reasons as to why the building permit sought for by the applicant could not be granted. The process of considering the application of the applicant was directed to be completed within a period of six weeks from the date of receipt of the copy of the judgment, and the Secretary was to pass an order within 30 days after hearing the applicant.

(2.) In the writ appeal filed by the applicant, the main ground of challenge is against the interpretation placed on Sec. 392 and Rules 13, 14 and 15 of the Kerala Municipality Building Rules in the matter of determining when the deeming provision came into effect. It is contended that the statutory provisions have to be interpreted in such a manner that the period of 30 days, for the deeming provision to come into effect, had to be seen as including the date of communication of any order passed by the Secretary. It is stated that inasmuch as the Secretary's order was not communicated to the applicant within 30 days, the reference to the Council, at the instance of the applicant, was a valid one, and on account of non-consideration of the reference by the Council within the further period of 30 days envisaged in Sec. 392, the Tribunal was correct in holding that the appellant was entitled to the benefit of the deeming provision. We note that when the writ appeal came up for admission, by an interim order dated 21.01.2016, this court had, taking note of the balance of convenience, permitted the Corporation to pass orders based on the judgment of the learned Single Judge, and acting on the said permission, the respondent Corporation has since, by an order dated 12.08.2016, rejected the application for building permit submitted by the appellant herein.

(3.) We heard Sri. R.S. Kalkura, the learned counsel for the appellant and the learned Senior counsel Sri.P.Nandakumara Menon duly assisted by Sri.P.K.Manoj Kumar on behalf of the respondent Corporation.