“C. R.”
W.P.(C) No.23843 of 2009 has been filed for a declaration that the petitioner is entitled to renewal of Ext.P1 Building Permit and for other reliefs. W.P.(C) No.5964 of 2008 has been filed challenging the order dated 03-10-2007 in Appeal No.369 of 2007 passed by the Tribunal for Local Self Government Institutions, Thiruvananthapuram, and for other reliefs. The petitioner in this Writ Petition is the second respondent and the respondent is the petitioner in the other Writ Petition. For the sake of convenience, the parties and the documents will be referred to in this judgment as they are arrayed and marked respectively in W.P.(C) No.23843 of 2009.
2. Heard the learned counsel appearing on both the sides.
3. The facts that are necessary for disposing of these Writ Petitions are briefly stated as follows: Ext.P1 Building Permit dated 12-04-1999 was granted by the third respondent in the joint names of the petitioner and another for constructing a commercial building. The period of the permit was from 12-04-1999 to 11-04-2002. Ext.P1 was granted based on Ext.P2 interim order dated 31-03-1999 passed by this Court. Thereafter, based on Ext.P3 interim order dated 12-04-2002 of this Court, the Building Permit was extended for a period of three years from 12-04-2002 to 11-04-2005. A further extension of the period of Ext.P1 applied for was rejected by the third respondent. The petitioner challenged that order in appeal before the first respondent. Thereafter, based on Ext.P5 order dated 23-12-2005 passed by the first respondent, the period of Building Permit was extended for three years from 12-04-2005 to 11-04-2008 as per Ext.P4 dated 17-03-2006.
By the time such extension was granted, nearly one year of the extended period already elapsed. Stringent conditions have been imposed in Ext.P4 rendering it impossible to complete the construction of the building. Simultaneously, the petitioner was issued with a provisional order dated 17-03-2006 of the third respondent directing him to demolish four pillars of the building erected at its south-west corner. This was imposed as a precondition to restart the construction of the building. That provisional order was followed by a final order dated 10-04-2006 confirming the provisional order. Being imposed with such stringent conditions rendering it impossible for the petitioner to restart construction, challenging them he had preferred an appeal on 26-04-2006 before the first respondent. That appeal was allowed by Ext.P6 order dated 23-08-2006 of the first respondent. The relevant portion of the order reads as follows:
“In the result, Order No. A2-170/05 dated 17.03.2006 and 10.04.2006 of the Secretary; New Mahe Grama Panchayat are set aside and the Secretary is directed to identify the excess construction made by the Appellant in deviation from the approved plan based on the measurements shown in the approved site plan and building plan with the assistance of a qualified Engineer with notice to the Appellant and initiate proceedings under Section 235 W of the Kerala Panchayat Raj Act or Rule 18 of the Kerala Municipality Building Rules in relation to the deviated construction and pass final order therein after rendering opportunity of being heard to the Appellant. If the Appellant submits application for regularisation of the deviated construction decision thereon shall also be taken on passing final Order. If a qualified Engineer is not available in the service of the Respondent Panchayat, the 2nd Respondent can avail of the service of an Assistant Executive Engineer in the Local Self Government Department or the Public Works Department. Identification of the deviated construction shall be made within 30 days from getting a copy of this Order, and final Order shall be passed within 30 days thereafter. The Appellant will co-operate for the identification of the deviated structures.”
Thereafter, at the instance of the respondents 2 and 3, the time limit for compliance of Ext.P6 has been extended till 30-03-2007 by Ext.P7 order dated 28-02-2007 of the first respondent. Thereafter also, at their instance, a further extension of 30 days from 20-06-2007 was granted by Ext.P8 order dated 20-06-2007 of the first respondent for complying with Ext.P6 order.
4. The third respondent issued final orders on 18-07-2007, in purported compliance of Ext.P6 order, directing the petitioner to demolish 30.08 Sq.M. comprising 8 concrete pillars and foundation alleging that those constructions were effected deviating from Ext.P1 Building Permit. Since that order was passed violating Ext.P6 order, the petitioner challenged the same before the first respondent by filing an appeal. The first respondent, by Ext.P9 order dated 03-10-2007 (this order is challenged in the other Writ Petition), allowed that appeal. The relevant portion of the order reads as follows:
“In the result, the Appeal is allowed. The impugned order bearing No.A2-650/07 dated 18.07.2007 of the Secretary; New Mahe Grama Panchayat is set aside. The Respondent is at liberty to initiate fresh proper proceedings as indicated above under Section 235 W of the Kerala Panchayat Raj Act without any unnecessary delay if there are any grounds for doing so.”
By the time Ext.P9 order was passed, two and a half years, out of three years of extended period of permit granted as per Ext.P4, already elapsed. While so, the second respondent filed the other Writ Petition challenging Ext.P9 order. While the matters were going on like this, the extended period of Ext.P1 Building Permit expired on 11-04-2008. The petitioner could not complete the construction of the building during the original tenure or the extended tenure of the permit. After the period was extended by Ext.P4, the petitioner was prevented from construction owing to the impossible conditions imposed in it. Moreover, continuous litigations were going on in respect of the matter.
5. Before the expiry of the period of permit, the petitioner approached the third respondent with an application for regularising the construction effected deviating from the approved plan. But, that application has not been considered and, instead, intimated him by Ext.P10 letter dated 24-05-2008 to submit a fresh application for permit along with a plan showing the present position of the building being constructed. In these circumstances, the petitioner preferred Ext.P11 application dated 20-01-2009 before the third respondent for granting renewal of Ext.P1 Building Permit and for considering his application for regularising the construction effected deviating from the approved plan. But, by Ext.P12 letter dated 05-02-2009, the third respondent rejected that application and intimated the petitioner that the Building Permit cannot be renewed as the total period of a permit cannot go beyond nine years. Also intimated that he can apply for permit and regularisation of the construction already effected, along with a new plan and necessary documents for the purpose of consideration. Aggrieved by Ext.P12, the petitioner filed an appeal before the second respondent challenging the same. The second respondent rejected that appeal by resolution dated 20-04-2009 confirming Ext.P12 and issued Ext.P13 communication, along with that resolution, intimating that fact to the petitioner. Aggrieved by Exts.P12 and P13, the petitioner preferred a Revision Petition before the first respondent on 08-06-2009 challenging them. The first respondent disposed of that Revision Petition by Ext.P14 order dated 14-07-2009 finding that the appeal filed by the petitioner challenging Ext.P12 letter of the third respondent before the second respondent was not maintainable and hence modified the decision of the second respondent as a decision rejecting the appeal filed by the petitioner. In these circumstances, the petitioner has approached this Court invoking its jurisdiction under Article 226 of the Constitution of India for the reliefs prayed for.
6. Learned counsel for the petitioner submitted that the only reason stated by the third respondent for not considering the application submitted by the petitioner for regularising the construction effected deviating from the approved plan was that the period of Building Permit expired and it cannot be renewed beyond the period of nine years. The third respondent is empowered under Rule 15A(4) of the Kerala Municipality Building Rules, 1999 (for short, the Rules) to grant renewal of the Building Permit for a period of three years on application submitted after the expiry of the permit. Therefore, considering the application submitted by the petitioner, the third respondent could have granted renewal of the permit after its expiry for a period of three years. But, the third respondent has not allowed such a renewal applied for by the petitioner on a misunderstanding of Rule 15A. This argument of the learned counsel cannot be countenanced. The Rules were made applicable to the Panchayats as well before issuing the Kerala Panchayat Building Rules, 2011. The relevant Sub Rules of Rule 15A, as they existed at the relevant time, read as follows:
“15A. Extension and renewal of periods of permits.— (1) A development permit or a building permit issued under these rules shall be valid for three years from the date of issue.
(2) The Secretary shall, on application submitted within the valid period of the permit, grant extension twice, for further periods of three years each.
(3) The fee for extension of period of permits shall be ten per cent of the development permit fee or building permit fee, [excluding the fee for additional Floor Area Ratio] as the case may be, in force at the time of granting extension.
(4) The Secretary shall, on application submitted within one year of the expiry of the permit, grant renewal, once, for a period of three years.
xxxx xxxx xxxx xxxx xxxx” Going by these provisions, a Building Permit will be valid for a period of three years from the date of its issue. But, the Secretary of the Panchayat, on application submitted within the valid period of the permit, shall grant extension for a further period of three years. Such extension can be granted twice. Therefore, if applied during the valid period of the permit, extension of the permit can be granted for six years. The Secretary shall also grant renewal of a Building Permit, as provided under Sub Rule (4), for a period of three years on an application submitted within one year of the expiry of the permit. But, such renewal can be granted only once.
7. A conjoint reading of Sub Rules (1), (2) and (4) of Rule 15A clearly shows that a permit will remain valid for a period of three years from the date of its issue. But, the Secretary can grant extension of the original period twice, for further periods of three years each. Such extension of period can be granted by the Secretary only on an application submitted within the valid period of the permit. The extensions, as provided under Sub Rule (2), cannot be granted by the Secretary if applied for after the expiry of the Building Permit. In a case where the validity period of the Building Permit expired, Sub Rule (4) comes into play. In such a case, on an application submitted within one year of the expiry of the permit, the Secretary can grant renewal of the permit for a period of three years. Such a renewal can be granted only once. Therefore, under Sub Rule (1), a Building Permit is valid for three years. Under Sub Rule (2), by way of granting extensions, the life of such permit can be extended for a further period of six years. Sub Rule (2) operates only in cases where applications for extension of period of permit are submitted within the valid period of the permit. Two such extensions of three years each are available under Sub Rule (2). Thus, a Building Permit gets, without any break in its validity, a total life of nine years under Sub Rules (1) and (2). This is one side of the matter.
8. The cases where the Building Permits stand expired by efflux of time are not covered by Sub Rule (2). Such cases are dealt with under Sub Rule (4). There may be different situations, in cases where Building Permits expired, such as:
(1) The period of validity of the permit expired, but one year is not over after such expiry. In such a case, invoking Sub Rule (4), a renewal of the Building Permit can be applied for within one year of the expiry of the permit. Such an application can be granted by the Secretary by renewing the permit for a period of three years. But, this can be done by the Secretary only once. Therefore, after availing of such a renewal for three years, a further renewal of the permit is not possible under Sub Rule (4). In such a circumstance, a Building Permit gets only six years' life, i.e. original period of three years and renewed period of three years. (2) A permit holder applied for extension of his permit for a further period of three years invoking Sub Rule (2) within the validity period of three years from the date of its issue. The Secretary granted extension for three years. In such a case, the validity period of the Building Permit runs into six years. But, before the expiry of that period, the permit holder did not apply for further extension as provided under Sub Rule
(2) and the permit expired. Thereafter also, the permit holder can apply for renewal of his permit for a period of three years within one year of the expiry of the permit invoking Sub Rule (4). The Secretary can grant renewal of that permit for a period of three years invoking his power under Sub Rule (4). In such a case, by way of the original period of three years, extended period of three years under Sub Rule (2) and the renewed period of three years under Sub Rule (4), the permit holder gets a total valid period of nine years for his permit. But, he cannot aspire for one more renewal under Sub Rule (4) as renewal under that Rule is possible only once. (3) In a case where the validity period of nine years, i.e. original period of three years and extended period of six years under Sub Rule (2), of a Building Permit remains expired. Can the permit holder apply for renewal of such a permit within one year of the expiry of the permit invoking Sub Rule (4)? According to the learned counsel for the petitioner, such a renewal is possible under Sub Rule (4).
9. The scheme of the Rules clearly indicates that the maximum period of validity of a Building Permit is only nine years. Sub Rule (10) of Rule 15A of the Rules reads as follows:
“(10) In case the period of validity stipulated in a permit issued before the commencement of the Kerala Municipality Building Rules, 1999 is different from that stipulated in sub rule (1), then the extension or renewal of the permit shall be granted in such a way that the total valid period of the permit shall not exceed nine years.”
Therefore, the Rules contemplate only a maximum valid period of nine years either by way of extension or by way of renewal of the permit. The provisions under Sub Rule (2) and under Sub Rule (4) are operating in different fields. The provisions under Sub Rule (4) are not in addition to the provisions under Sub Rule (2). If the argument of the learned counsel for the petitioner is accepted, even after obtaining a renewal of the period of Building Permit under Sub Rule (4), within its validity period, a person can apply for extension of the period of his permit invoking Sub Rule (2), if he has not already availed of such extension or availed of only one extension. If the scope of the provisions under Sub Rule (2) and under Sub Rule (4) are interpreted in that fashion, the results would only be abnormal and unintended.
10. Sub Rule (4) of Rule 15A of the Rules has been substituted by another Sub Rule with effect from 05-02-2013. The substituted Sub Rule (4) reads as follows:
“(4) The Secretary may, if he deems fit, grant renewal for a period of three years on application submitted after the expiry of the permit, subject to the condition that the total period of validity of permit from the date of issue of original permit shall not exceed 9 years:
Provided that in case the permits need to be extended/renewed beyond the period of nine years, the applicant shall submit an application in writing to the Committee constituted under Chapter X-A of these Rules and the committee may, after having satisfied with the genuineness of the application, recommend for extension or renewal of the permit, as the case may be, with or without condition(s) as it deems fit.”
Going by this Sub Rule, the Secretary may grant renewal of a Building Permit for a period of three years on an application submitted after the expiry of the permit. But, this is subject to the condition that the total period of validity of permit from the date of issue of original permit shall not exceed nine years. The limitation prescribed by the old Sub Rule (4) that an application for renewal under that provision should be submitted within one year of the expiry of the permit has been taken away by the new Sub Rule (4). Moreover, by the new Sub Rule (4), the maximum period of validity of permit including the renewal for three years under this Sub Rule is determined to be nine years from the date of issue of the original permit. Thus, the scheme of the Rules, especially indicated by Sub Rule (10) of Rule 15A that the total valid period of the permit shall not exceed nine years either by way of extension or by way of renewal, is specifically made clear by incorporating the new Sub Rule (4). After incorporating this Sub Rule, the maximum period that a Building Permit can live by way of extension granted by the Secretary under Sub Rule (2) or by way of renewal granted by him under Sub Rule (4) can only be nine years. The Proviso to new Sub Rule (4) operates in a different field which need not be dealt with in the case on hand.
11. In view of the aforesaid position of law, if a person secured extension of period of Building Permit twice, as happened in this case, he cannot invoke old Sub Rule (4) or new Sub Rule (4) of Rule 15A for renewal of the Building Permit for a further period of three years. If a person secured extension only once invoking Sub Rule (2), then the total valid period of the permit would be six years from the date of its issue. After the expiry of that period, that person cannot apply for extension under Sub Rule (2). In such a case, he can apply for renewal of his permit within one year of the expiry of the permit for a period of three years under old Sub Rule (4). If such an application is received, the Secretary shall grant renewal of the permit for a period of three years. Thus, the total valid period of that permit will be nine years. The validity of the permit cannot be extended or renewed beyond that period. If the application for renewal of the period of permit is submitted after the expiry of the permit invoking new Sub Rule (4), the period of limitation prescribed under old Sub Rule (4) is not applicable. But, in that case also, even after the renewal of permit for a period of three years, the total period of validity of the permit shall not exceed nine years from the date of issue of original permit. In the case on hand, the application preferred by the petitioner invoking old Sub Rule (4) was for renewal of his Building Permit beyond the admissible total period of nine years. Hence, the third respondent rightly rejected such a renewal applied for by the petitioner.
12. Here is a person who was granted a Building Permit as per Ext.P1. He was also granted extension of the period of permit twice, i.e. for a further period of six years. Ext.P1 Building Permit was granted based on an interim order passed by this Court. Its first extension was also granted based on an interim order passed by this Court. The second extension was granted based on the direction issued by the first respondent. By the time the second extension was granted, nearly one year of the extended period already elapsed. Moreover, owing to stringent conditions like demolition of different portions of the building imposed, practically, the petitioner was prevented from continuing the construction during the rest of the period available under Ext.P4. He was also crippled with many litigations in respect of the construction of the building. Therefore, there were genuine reasons for not completing the construction of the building within the period of validity of the permit granted. But, as already found, his application for renewal of the permit could not be granted by the third respondent for the reason that the maximum period of validity of the permit stood expired on 11-04-2008.
13. The third respondent pointed out in Ext.P12 letter that the petitioner can apply for fresh permit and regularisation of the construction, along with a renewed plan of the building and other documents. And, if applied so, that can be allowed in accordance with law. There is no bar for applying for a fresh Building Permit after the expiry of the permit already granted, under the Rules. In the light of such a right of the petitioner, it can be presumed that, that was the reason for the third respondent to issue Ext.P12 to the petitioner. Neither the Kerala Municipality Building Rules, 1999 nor the Kerala Panchayat Building Rules, 2011 prohibit an application for a fresh Building Permit after the expiry of the permit already granted. The right of a person to apply for a fresh permit was upheld by this Court in Abdulla, K.M.
v. Secretary [ILR 2010 (1) KER 897]. Learned counsel for the petitioner, in this background, finally submitted that, as pointed out by the third respondent in Ext.P12, the petitioner wants to submit an application for a fresh permit along with the required documents. Learned counsel for the respondents 2 and 3 has no objection in considering such an application if submitted by the petitioner. This Court does not find any reason for not granting such an opportunity to the petitioner. Therefore, the petitioner shall be at liberty to submit such an application to the third respondent within 30 days from the date of receipt of a copy of this judgment. If such an application is submitted by the petitioner, the third respondent shall consider and dispose of the same in accordance with law. Needless to say that such an application shall be processed and finalised as early as possible as the matter was being agitated quite a long time. Previously the matter was dealt with under the Kerala Municipality Building Rules, 1999 as they were applicable to the Panchayats then. Since the Kerala Panchayat Building Rules, 2011 came into force, such application of the petitioner shall be dealt with in the light of the provisions under these Rules. W.P.(C) No.23843 of 2009 is disposed of accordingly. In view of the disposal of W.P.(C) No.23843 of 2009, the other questions raised in both the Writ Petitions do not survive for consideration. Therefore, W.P.(C) No.5964 of 2008 is closed.
These Writ Petitions are disposed of as above.
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BABU MATHEW P. JOSEPH JUDGE //TRUE COPY// P.A. TO JUDGE