ASHALATHA Vs. COMMISSIONER CANNANORE MUNICIPALITY

JUDGEMENT

(1.) The petitioner was granted permission Ext. P1 on October 17, 1980 to construct a three storeyed building, namely a building with ground floor, first floor and second floor. This licence was valid upto October 13, 1981 but its validity was extended from time to time upto October 13, 1988 by subsequent proceedings of the Municipality, evidenced by Exts. P2 to P7. The permission had been granted as per the provisions of the Kerala Building Rules, 1968, hereinafter referred to as the 1968 Rules. These Rules were replaced by the Kerala Building Rules, 1984, (the 1984 Rules) with effect from. May 15, 1984. The petitioner had started the construction on the basis of Ext. P1, and the ground and first floors had been completed before October 13, 1987, upto which the permission had been extended by Exts. P2 and P6. The second floor remained to be constructed. Ext. P7, the last of the renewals for the period upto October 13, 1988, related to the construction of the second floor, having an area of 795.70 Sq. Metres.

(2.) The petitioner could not complete the construction of the second floor within the period of time allowed by Ext. P7. Therefore, she made an application Ext. P8 along with the requisite fee, for further extension of time by a period of one year. The receipt of this application, on September 23, 1988, was acknowledged by the Municipality by their letter Ext. P10. But, on November 18, 1988, the first respondent, Commissioner of the Municipality refused the extension prayed for and directed the petitioner to stop the work forthwith. The reason stated was that the construction will violate R.15(3)(b), 15(5) and 20(2) of 1984 Rules. Inter alia, reference was made to a government circular dated October 12, 1988, a copy of which is produced by the first respondent as Ext.R1(a). A copy of the first respondent's letter is Ext. P11 and that is under challenge in this original petition. The relevant portion of Ext. P11 reads:-

(3.) The petitioner points out that the ground and first floors have been constructed with the necessary set off and other requirements as per the 1968 Rules and in strict compliance with the permission Ext. P1. The first respondent Commissioner has himself extended the time for construction upto October 13, 1988 and it is therefore not open to him at this stage to insist that there should be compliance with the 1984 Rules so far as the second floor is concerned. It is pointed out that when the construction of the ground and first floor have been completed, in accordance with the 1968 Rules, the Municipality is insisting on the impossible by requesting larger rear open space and car parking space at the stage of construction of the second floor. R.41 of the Kerala Building Rules, 1984 exempts a building permit issued under the 1968 Rules from the operation of the 1984 Rules if the period specified in the permit had not expired at the commencement of the 1984 rules, namely on May 15, 1984. The permit Ext. P1 issued under 1968 rules, was still in force on May 15, 1984 and therefore, and in any event, R.41 saves the permit in question from the operation of the 1984 rules.