Panchayat:Repo18/Law Manual Page0332
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- amended after the Municipality forwarded the application to other agencies for their NOCs. Here, it was held that forwarding of application would not create any vested tight in favour of the applicant. Building permit can be issued only in accordance with the Building Rules as it is in force on the date of disposal of the application. As per Rule 11(3), approval of site and plans shall be intimated to the applicant in writing and on remittance of permit fee, permit as in Appendix C shall be issued. Until such a permit is obtained and the approval of the plan is communicated, the applicant cannot develop or redevelop any parcel of land, in view of the prohibition contained in Rule 4 of the Building Rules. The various stages contemplated in Rule 11 cannot be segregated into different compartments an contend that at each of the stages, any right, much less any vested right, has accrued in his favour. Consequently, it has to be held that, the scheme of the Building Rules, do not entitle the appellants to claim any right on the basis that their plan was approved before it was sent to the other authorities for their NOC/clearance - Asset Homes Private Ltd. (M/s.) and Another v. State of Kerala and Another - 2011 (2) KHC 559 (DB): 2011 (2) KLT 1 : ILR 2011 (2) Ker. 211: 2011 (2) KLJ 473.
- Actual issuance of building permit happens only when the Secretary intimates his approval in writing to the applicant and he remits fees as provided in Rule 11(3). The said stage is reached only after the applicant procures necessary clearances from various authorities. Any decision taken by the Secretary prior to the receipt of necessary clearances/NOCs, would not entitle the applicant to a building permit. - Asset Homes Private Ltd. (M/s.) and Another v. State of Kerala and Another – 2011 (2) KHC 559 (DB): 2011 (2) KLT 1 : ILR 2011 (2) Ker. 211 : 2011 (2) KLJ 473. (Commissioner of Municipal Corporation, Shimla v. Prem Lata Sood and Others, 2007 KHC 3720 : 2007 (11) SCC 40 JT 2007 (7) SC 336; (Paras15,18)Howrah municipal corpn:and Others v. Ganges Rope Co. Ltd. and Others, 2004 KHC 405 : 2004 (1) SCC 663; (Paras 15, 16); State of Kerala v. Raveendran Pillai, 2010 KHC 352: 2010 (2) KLT 25: ILR 2010 (2) Ker. 106; (Paras 15, 18) Referred to).
- Building Rules as applicable on the date of grant of refusal of sanction would govern the subject matter. The existence of Building Rules (or its absence) does not create any vested right in favour of an applicant seeking permission of the Municipality/Panchayat to make a construction. The claim based on the alleged "vested right" or "settled expectation" cannot be set up against statutory provisions which were brought into force by the State Government by amending the Building Rules and not by the Corporation against whom such "vested right" or "settled expectation" is being sought to be enforced. The "vested right" or "settled expectation" has been nullified not only by the Corporation but also by the State by amending the Building Rules. Besides this, such a "settled expectation" or the so-called "vested right" cannot be countenanced against public interest and convenience which are sought to be served by amendment of the Building Rules and the resolution of the Corporation issued thereupon." In other words, the Supreme Court categorically declared that the existence of a law/building rules of Municipality do not create any vested right in favour of an applicant seeking permission of the Municipality to make a construction in accordance with such rules - notwithstanding the fact that the rules themselves stood amended subsequently during the pendency of the said application. Therefore, the submission of the 3rd respondent that they have a vested right itself is untenable. Consequently, the further question whether the extension of the Kerala Municipality Building Rules, 1999 would have the effect of retrospectively taking away such a vested right does not arise at all for consideration. - Meethian Kunju v. M.M. and Others v. State of Kerala and Others - 2011 (2) KHC-415 (DB): 2011 (2) KLT 185 : ILR 2011 (2) Ker. 342: 2011 (2) KLJ 533.
- In Howrah Municipal Corporation v. Ganges Rope Co. Ltd., the Supreme Court held as follows: "It is now well settled that where a statute provides for a right, but enforcement thereof is in several stages, unless and until the conditions precedent laid down therein are satisfied, no right can be said to have been vested in the person concerned. The law operating in this behalf, in our opinion is no longer res integra," and rejected the claim of the builder that the builder's application for construction must be considered in accordance with the law in force on the date of application of the builder. Meethian Kunju V. M.M. and Others v. State of Kerala and Others – 2011 (2) KHC 415 (DB): 2011 (2) KLT 185 : ILR 2011 (2) Ker. 342 : 2011 (2) KLJ 533. [Howrah Municipal Corporation v. Ganges Rope Co. Ltd., 2004 KHC 405 [2004 (1) SCC 663; (Paras 17, 27, 31); K. Eapen Chako v. Provident Investment Co., 1976 KHC 447 : 1977 (1) SCC 593: 1976 KLT SN 214: AIR 1976 SC 2610: 1977 KLT 1: 1977 (1) SCR 1026; (Paras 17, 21); Mather Projects Pvt. Ltd. and Another v. Government of Kerala and Another, 2010 (1) KHC 144: 2009 (4) KLT 986: ILR 2010 (1) Ker. 6; (Paras 14, 16); Municipal Corporation, Shimla v. Prem Lata Sood, 2007 KHC 3720 : 2007 (11) SCC 40: JT 2007 (7) SC 336; (Paras 17, 27); P. Mahendran v. State of Karnataka, 1990 KHC 724; AIR 1990 SC 405 : 1990 (1) SCC 411 : 1990 SCC (L&S 163 : 1990(12) ATC 727 1990 Lab IC 369 : 1990 (60) FLR 103: 1990 : 1990 (1) SLJ 48; (Paras 17, 18); Southern Petrochemical Industries co. Ltd v. Electricity Inspector & Etio, 2007 KHC 3615: 2007 (5) SCC 447: JT 2007 (7) SC 613 : AIR 2007 SC 1984; (Para 17); Sri. Vijayalakshmi Rice Mills v. State of A.P., 1976 KHC 793 : AIR 1976