Panchayat:Repo18/Law Manual Page0335
335 unauthorised. But, even in the absence of the said provision, the Kerala Municipality Building Rules will apply to the notified Panchayats, if a notification to that effect is issued under Section 274 of the Kerala Panchayat Raj Act. Therefore, the challenge against that sub-rule is only a futile attempt. Further, we are of the view that when a rule is framed, even if a wrong provision is quoted, or a relevant provision is not quoted still the rule is valid, if the Government have the power to frame the rule. The substance and not the form is important. In view of the provisions in Sections 235A and 254(2)(xviii) of the Kerala Panchayat Raj Act, the Government have the power to frame Building Rules for the Grama Panchayats. So, invoking that power, the Government can say that the Kerala Municipality Building Rules will apply to Grama Panchayat to which they are extended. So, sub-rule (iii) of Rule 3 of the Kerala Municipality Building Rules, 1999 is intra vires and does not suffer from any infirmity (Para 8) - Mather Projects Pvt. Ltd. and Another v. Government of Kerala and Another - 2010 (1) KHC 144 (DB): 2009 (4) KLT 986 : ILR 2010 (1) Ker. 6
- While the Government would not have any choice in the matter of acquisition for a Municipality and while any proposal of the Municipality to acquire would not depend upon any sanction of the Government, insofar as the owner of the land is concerned, the acquisition affects his interest only from the issuance of notification and declarations, under the LA Act and therefore, any attempt to curb the rights of the owners of lands, until the publication of those statutory notifications and declarations, would result in infraction of the right to property under Article 300A of the Constitution. On the face of the law settled by this Court in Padmini (supra), any infraction of the principle stated therein would also result in the violation of the equality principle in the matter of enforcement of laws as is contained in Article 14 of the Constitution. Any demand to create a rider over the title of the owner of the property under the pretext of a Town Planing Scheme which has not become operational by acquisition would, essentially, be oppressive and would not be countenanced on the face of Article 14 of the Constitution. (Paras 6 & 8) - Nasar P.K. and Others v. Malappuram Municipality - 2009 (3) KHC 35 : 2009 (3) KLT 92 : 2009 (2) KLJ 584 : ILR 2009 (3) Ker. 520. [Padmini v. State of Kerala, 1999 KHC 619 : [1999 (3) KLT 465 : ILR 1999 (3) Ker. 761; (Paras 6, 7, 8); Raju S. Jethmalani v. State of Maharashtra, 2005 KHC 1983 : 2005 (11) SCO 222; (Para 6) – Referred to]. Editors Note : Non issuance of Town Planning schemes by the concerned authorities will work as a loophole for the forced issuance of building permits as in the above case. A time frame may be fixed for the publication of Master Plan, if any for a particular area so that executive malpractices can be curtailed.
- Under Rule 15A, sub-rule (4) of the Kerala Municipality Building Rules, 'on application submitted within one year of the expiry of the permit' the Secretary shall grant renewal once, for a period of three years. Going by the plain meaning of sub-rules (2) & (4), it is abundantly clear that the two rules operate in different spheres. As per sub-rule (2), if a person applies for extension within the period of validity of the permit, the period of validity of the permit can be extended twice for periods of three years each. That is, if the application for extension is made on both occasions before the expiry of the period of validity of the permit, an applicant would get a total period of nine years time to complete the construction. But, if the applicant is not vigilant and allows the period of validity to expire, if an application for extension is submitted within one year of the expiry of the permit, the permit can be extended once for a period of three years. In other words, a vigilant applicant who submits application before the period of validity of the permit expires, would get nine years to complete the construction, whereas a person, who omits to apply for extension before the expiry of the period of validity and allows the period of validity of the permit expire, if applies within one year from the date of expiry, would get only six years to complete the construction. There is no ambiguity in the language used in the rule in that regard and the meaning is loud and clear obviating the necessity of any purposive interpretation. (Para 8) - George v. State of Kerala and Others – 2009 (2) KHC 120 : ILR 2009 (2) Ker. 131: 2009 (2) KLT 64. [Union of India and Another v. Hansoli Devi and Others, 2003 KHC 221 : [2002 (7) SCC 273: 2003 (1) KLT SN 43 : AIR 2002 SC 3240; (Paras 7, 8)- Referred to]
- Municipality Building Rules, 1999 (Kerala) - R. 143 – In a case of an unauthorised construction of a three storied building in the car parking area of the existing four storied hotel, there can be no regularisation, which under normal circumstances could never have come into existence, but for the fraud played on the Corporation. Request for regularisation of subsequent construction cannot be in gross violation of R.30 and R.31 - Lazer Robert T. v. C.M. Mohammed Sheriff and Others - 2008 (4) KHC 1016 (DB).
- Municipality Building Rules, 1999 (Kerala) – R.110, R. 117 - Any building having more than four floors above the ground level and any building having more than 15 metres of height above the ground level is a high rise building. Use to which the ground floor is put will be immaterial for deciding whether the building is a high rise building. If Rule 110 is ambiguous, and the arrangement of words in the Rules is not in consonance with the intention of the rule maker the Court interprets the Rule so as to remove