MOTHER SUPERIOR, DEVAMATHA CARMELITE CONVENT PALA Vs. PALA MUNICIPALITY, MUNICIPAL OFFICE, PALA AND OTHERS

JUDGEMENT

(1.) The petitioner is stated to be the owner of 1.4796 hectares of dry land in block No.80, Sy.Nos.102/58/5, 102/58-3, 102/52-2-A, 102/54B, 102/52-2B, 102/58-1, 102/48-1, 102/55, 102/52G and 102/52F under the respondent Municipality. Pursuant to a building permit that was obtained from the respondent Municipality, the petitioner is stated to have completed a construction of a hospital building having an extent of 8499.65 Sq.meteres. After the completion of the said construction, the petitioner by an application dated 04.03.2017, applied for further construction to the extent of 1957.07 sq.metres. The proposed construction is stated to be for housing a residence for nuns, for a nurses' hostel, a service building, regularisation of a drying area and in connection with extension of the first floor. It is stated that the proposed construction would take the total area of the construction to 10556.72 sq.metres. The application submitted by the petitioner was not considered by the respondent Municipality, which by Ext.P1 communication, informed the petitioner that the application could not be considered since, as per the Master Plan published for the respondent Municipality, the minimum access width and the width of the road that was required for issuing a building permit for the construction proposed by the petitioner had to be 8 metres. It is aggrieved by the said stand of the respondent Municipality that the petitioner has approached this Court seeking a direction to the respondent Municipality to process the application for building permit submitted by the petitioner in accordance with the provisions of the Kerala Municipality Building Rules and without reference to the 8 metre width contemplated under the Master Plan.

(2.) A statement has been filed on behalf of the respondents, wherein it is stated that, as per the published Master Plan of Pala Municipality, the area of the proposed construction comes within a residential zone and an access road to the proposed site, with a width of not less than 8 metres, is required for construction of buildings having plinth area above 1000 metres. It is pointed out that the width of the A.O.Joseph Road leading to the property of the petitioner is only 7 metres, and hence the permit as sought for by the petitioner cannot be granted. With reference to the width indicated in the Kerala Municipality Building Rules, 1999 (hereinafter referred to as 'the Rules'), it is stated that Rule 3 A of the Rules clearly indicates that the provisions of any Town Planning Scheme in force under the Town Planning Act will prevail over the respective provisions of the Rules, and hence the petitioner cannot take umbrage under the provisions of the Rules.

(3.) I have heard the learned counsel appearing for the petitioner and also the learned Standing counsel appearing for the respondent Municipality. On a consideration of the facts and circumstances of the case as also the submissions made across the Bar, I find that, in the instant case, the original building, for the construction of which a permit was granted by the respondent Municipality, was completed much earlier, and in respect of the said construction, no objection has been raised by the respondent Municipality either with regard to violation of any of the provisions of the Rules or violation of the terms of any Master Plan that was in vogue. The presumption therefore must be that the said building was constructed in accordance with the legal provisions that then prevailed. The objections raised in Ext.P1 communication are based on the new Master Plan published for the respondent Municipality, which mandates that for any construction of a hospital with 10 beds, the floor area shall be limited to 1000 sq.metres and the minimum width of access and existing width of street shall be 8 metres or as prescribed in the building Rules whichever is higher for all these uses. It is apparent, therefore, that in respect of new constructions, of the kind referred above, the application for building permit would necessarily have to show compliance with the conditions stipulated in the Master Plan for the respondent Municipality. On the facts of instant case, I am of the view that the insistence on a minimum width of access and existing width of the street of 8 metre cannot be expected of the petitioner, whose application seeks only for a permit for additional construction to an existing building, the construction of which is already completed. In fact, the stipulation of minimum width in the Master Plan can have application only in relation to buildings that are proposed to be constructed after the publishing of the Master Plan and not to buildings that have already been constructed before the publishing of the Master Plan. Under such circumstances, and finding that the application submitted by the petitioner pertains to an extension/addition to an existing construction, I am of the view that the application submitted by the petitioner for building permit for the additional construction needs to be examined by the respondent Municipality de hors the limitation with regard to access width limit in the published Master Plan. Ext.P1 is therefore quashed and the respondent Municipality is directed to consider the application submitted by the petitioner for additional construction in the light of the observations in this judgment and in accordance with the provisions of the Building Rules. The respondent Municipality shall pass fresh orders as directed within a period of one month from the date of receipt of a copy of this judgment.