The petitioner has filed this writ petition challenging Ext.P10 order of the Tribunal for Local Self Government Institutions, Thiruvananthapuram in appeal No: 949/2013. The appeal was filed by the petitioner challenging the proceedings issued by respondents 1 and 2 directing demolition of a septic tank constructed by the petitioner, without leaving sufficient space from the well of respondents 3 and 4. 2. According to the petitioner, she had constructed a residential building in her property admeasuring 5.750 cents comprised in survey No: 670/2 of Nadama village. The construction was made on the strength of a building permit dated 12.10.1998. The approved plan of the petitioner is Ext.P2. The petitioner started occupation of the building in the year 2012 after the construction was completed. She had not constructed a septic tank at that time. In 2013, when the petitioner started the work of a septic tank, respondents 3 and 4 complained against the location of the same. The Municipality initiated action and directed the construction to be stopped. Though the petitioner submitted her explanation, Ext.P7 order was passed. The petitioner then challenged the same before this Court in WPC 23709/2013. The said writ petition was disposed of relegating the petitioner to her statutory remedy before the Tribunal for Local Self Government Institutions, Thiruvananthapuram. Accordingly, the petitioner filed appeal No:949/2013 before the said Tribunal. The petitioner's appeal has been dismissed by Ext.P10.
3. According to Adv.T.B.Thankappan who appears for the petitioner, the Tribunal has omitted to take note of the fact that the petitioner had been duly permitted to undertake the construction of a house by a valid building permit dated 12.10.1998. The plan submitted by her also had been approved. For want of sufficient financial resources, the petitioner could not construct a septic tank. Therefore, she completed construction of the house and started residing therein after making some alternative arrangements. The septic tank according to the learned counsel has been constructed in accordance with the building permit. Therefore, the construction is perfectly legal. It is also pointed out that, the objection that has been taken on the basis of Sub Rule (4) of Rule 104 of the Kerala Municipality Building Rules, 1999 (the 'Rules' for short) is not available against the petitioner for the reason that, Sub Rule (4) was incorporated into the statute book only with effect from 22.2.2001. A further contention is raised that even as per Sub Rule (4) of Rule 104, it is sufficient that a distance of 1.20 metres is maintained from the plot boundary. The commission report in the present case, Ext.P9 shows that the distance from the septic tank to the petitioner's well is 2.80 meters. In view of the above, it is contended that the mandate of Sub Rule (4) of Rule 104 is satisfied in the present case. Since the Tribunal has not considered the above aspects, it is contended that Ext.P10 order is liable to be set aside.
4. Adv.V.M.Kurien appears for respondents 1 and 2. According to the counsel, upon receipt of complaints from respondents 3 and 4, the petitioner had been directed to stop the construction. However, the construction was carried on ignoring the stop memo and was completed in violation thereof. The petitioner had earlier approached this Court and as per orders of this Court, the parties were heard again and Ext.P7 order was passed. It was the said order that was under challenge before the Tribunal for Local Self Government Institutions, Thiruvananthapuram. According to the counsel there are no grounds to interfere with Ext.P10.
5. Adv.Rajesh Vijayendran appears for respondents 3 and 4. According to the counsel, the petitioner had commenced construction of the septic tank only in the year 2013. Complaints were submitted to respondents 1 and 2 immediately thereafter. On 14.2.2013, the petitioner had been issued with a stop memo. Thereafter, the Municipality had also directed demolition of the septic tank but, the construction was carried on and completed in violation of the stop memo. The petitioner had approached this Court complaining that the said order was passed without hearing her. This Court thereupon directed the matter to be considered again. Accordingly, the matter was reconsidered with notice to all parties and Ext.P7 order was passed. The said order has been found to be proper and valid by Ext.P10. It is contended that there are no grounds to interfere with the same.
6. Heard. As already noticed above, the first contention of the petitioner is that, the construction of the petitioner was made pursuant to a building permit that was granted to her on 12.10.1998. It is not in dispute that, the petitioner had undertaken the construction of a house pursuant to the building permit and had completed the same. Even according to the petitioner, she has started occupation of the building in the year 2012. It is not in dispute that, the construction of the septic tank was started only in the year 2013. Sub Rule (4) of Rule 104 was incorporated into the rules with effect from 22.2.2001. Therefore, the said Rule was in force when the petitioner commenced construction. The building permit granted in the year 1998 has obviously expired by the said time. The petitioner could not have therefore undertaken a construction in violation of Sub Rule (4) of Rule 104.
7. Apart from the above, the petitioner had been issued with Ext.P3 on 14.2.2013 intimating her that the construction was unauthorised. Thereafter, by Ext.P5 dated 16.5.2013, demolition of the septic tank was ordered. It is true that the petitioner had a contention that she was not heard before the said order was passed. Therefore, pursuant to the direction issued by this Court, in Ext.P6 judgment, the parties were heard and the matter was reconsidered. Ext.P7 is the order passed thereafter directing the petitioner to demolish the septic tank. The order was challenged before the Tribunal in appeal No:949/2013. I notice that, the Tribunal had appointed an Advocate Commissioner to make a local inspection. The report of such inspection is Ext.P9. Ext.P9 shows that, the petitioner's septic tank was only one year old and that the distance of the septic tank from the well of respondents 3 and 4 is 2.80 meters. The distance from the septic tank to the petitioner's boundary is 1.06 meters as per Ext.P9. The above measurements show that, the septic tank has been constructed in violation of the stipulations contained in Sub Rule (4) of Rule 104. The matter has been considered by the Tribunal elaborately. I do not find any infirmity in Ext.P10 justifying an interference with the same in exercise of the jurisdiction under Art.226 of the Constitution.
For the above reasons this writ petition fails and the same is accordingly dismissed.
jj /True copy/ Sd/-
K. SURENDRA MOHAN Judge