Whether building permission can be refused on ground of subsequent change of rules?

 T. Vijayalakshmi also held thus:

"18. It is, thus, now well-settled law that an application for grant of permission for construction of a building is required to be decided in accordance with law applicable on the day on which such permission is granted. However, a statutory authority must exercise its jurisdiction within a reasonable time".

10. An amendment brought in must be possible of practical compliance. When a high rise building is constructed on a valid permit issued by the local authority and cleared for construction by the Fire and Rescue Services, then if a drastic change to the rules are brought about; like in the present case, increase in width of access, then it cannot be said that the entire project has to be scuttled.

IN THE HIGH COURT OF KERALA AT ERNAKULAM

W.P.(C) No. 7620 of 2017 (B)

Decided On: 22.06.2017

 Desai Homes Vs.  The Divisional Officer, Fire & Rescue Services and Ors.

Hon'ble Judges/Coram:

K. Vinod Chandran, J.

Citation: AIR 2017(NOC) 905 kerala

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Whether tenant can be evicted if he has done construction of permanent nature without permission of municipal corporation?

Insofar as the finding on the issue of carrying out permanent construction in the suit premises without written consent of the plaintiff is concerned, the learned trial Judge has taken into consideration the evidence of the Constituted Attorney of the plaintiff, wherein she has stated that defendant has closed the western side gallery by putting the grill and the door and removed the old doors. She has further stated that for access to the said premises, there was door from eastern side and defendant has put new doors from western side for access to the suit premises. The learned trial Judge also relied on the photographs, which are at exhibit 41 to 46 and negatives are at exhibit 47. The learned trial Judge has further considered the evidence of the plaintiff, that the construction on the western side gallery is on the land a measuring 13X4 feet and the construction of northern gallery is on the land admeasuring 14X4 feet. It is to be noted that defendant has flatly denied making such construction. It is to be noted that it is the case of the defendant that the plaintiff and her son permitted the defendant to put iron rods to the galleries and windows of the suit premises. However, the learned trial Judge found that, what was required under Section 13(1)(b) of the said Act was a written consent and since the defendant had not placed on record any such written consent, the contention of the defendant could not be accepted. The learned trial Judge in this respect has relied on the judgment of the learned Single Judge of this Court Somnath Krishnaji Gangal vs. Moreshwar K. Kale & ors. {MANU/MH/0707/1994 : 1995 MLJ 675}. However, the learned Appellate Court coming to an erroneous conclusion has observed that, the said grills were for safety purpose and the same are not permanently injurious to the suit premises and saved by explanation to Section 13(1)(b) of the Bombay Rent Act. In this respect, it will be relevant to refer to the judgment of the learned Single Judge of this Court in the case of Dr. C.C. Yi vs. Smt. Jankidevi An. Gupta & ors. {MANU/MH/0324/2001 : 2001 (3) ALL MR. 324}. The learned Judge observed in paras 24 and 25 thus:

24. Apart from the aforesaid endorsement of the findings of the Courts below, if, each item of construction is taken into account separately, even then no fault can be found with the findings of the Courts below. The construction and erection of loft, if viewed, taking into account the mode, degree of annexation and intention of the parry putting up the structure, it can hardly be said that it is not a construction of permanent nature or a permanent structure. It has brought a substantial improvement and change in the nature and form of the accommodation. The loft appears to have been constructed without prior permission of the Municipal Authorities. As a matter of fact, under the Standardised Building Byelaws and Development Control Rules for A Class Municipal Councils of Maharashtra, such construction needs prior permission of the Municipal Council. No material was placed on record to show that any such prior or subsequent permission was obtained. The construction of Potmala or loft has an effect of increasing load on the wall on which it was constructed and can prove fatal to the wall or the structure on which additional load was created. This single act of permanent construction is sufficient to sustain the findings of both the Courts below in this behalf.

25. The second item of construction i.e. removal of wooden doors and replacement thereof by plywood doors; even if considered separately, the result cannot be different. Once the door is fitted to the permanent structure, it becomes part of the immovable property, viz. building. It does not remain a movable item or a distinct item of furniture. Therefore, removal of door or replacement thereof is nothing but a change in the permanent structure. The judicial note can always be taken of the fact that durability of wooden doors is much more than that of the plywood doors. Life of the plywood doors cannot match with that of wooden doors. Thus, this act of tenant has also been prejudicial to the interest of the landlord and has diminished the value and life of the doors and consequently of the suit premises. As such, the act of replacement of the wooden doors with that of plywood doors that too without written permission of the landlord has rightly been treated as an act in violation of Section 13(1)(b) of the Act by both the Courts below.

The construction which has been carried out by the defendant has been reproduced by me in earlier paragraph 4 of this judgment. In view of the judgment of the learned Single Judge of this Court cited supra, even removal of wooden door and replacing them by plywood door without consent and construction of loft by making Potmala, has been held to be a construction of permanent nature. Undisputedly, since the construction referred herein above was made by the defendant without obtaining the written consent of the landlord, the finding of the learned trial Court in that regard could not have been unseated by the learned Appellate Court.

IN THE HIGH COURT OF BOMBAY

Writ Petition No. 5202 of 2002 with Civil Application No. 673 of 2013

Decided On: 10.05.2013

 Smt. Sudha Sumant Barve Vs. Smt. Ranjana Ramesh Padhye

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Whether details about building proposals which are approved by municipal corporation can be denied under RTI?

The contention of Mr.Kamdar is that the provisions of section 8 (1) (d) (g) (j) are clearly attracted qua the application of the 3rd respondent in seeking the information in question and there is a clear exemption from providing this information. This submission in our opinion is not well founded. We have observed above that the nature of the information as sought by the 3rd respondent in no manner would fall under the prohibition under section 8 (1)(d) (g) and (j) of the Act. We are certain that once building proposals are considered and plans are sanctioned, by the Municipal authorities, such permission, plans and documents pertaining to the same form part of public record. Once the approvals are granted such information as in the present case in our opinion, is not of the nature of any trade secret or of a commercial confidence or of a nature which would harm the competitive position of the petitioner.

If the contention as urged on behalf of the petitioners is accepted to be the position in law, then in that event, plans submitted for development to any authority would always remain a secret, sacrificing public interest, transparency and accountability in public offices. The information as sought by the 3rd respondent was also not in the nature which would endanger life or physical safety of any person so as to attract section 8 (1) (d) and (g) of the Act. The petitioners in our opinion cannot stretch the meaning of sub-section

(g) to this extent. As regards the submission of violation of section 8 (1) (g) that the information as sought by the 3 rd respondent is personal information also cannot be countenanced in view of our observations that the same pertains to sanctions/approvals granted by the Municipal Corporation on plans and proposals of the petitioners. The order of a permission or approval cannot be separated from its essential ingredients namely proposals and plans submitted in that regard which form the basis on the decisions and any citizen subject to requirement being fulfilled under the Act would be entitled to such information. Moreover, the observations in para 11 of the decision of the Delhi High Court in the case of Harish Kumar vs Pro Vost Marshal cum-Appellate Authority & ors (supra) militates against the submission of the petitioner in as much as it has been held that only personal information which has no nexus with any public activity or interest cannot be provided. Such is not the situation in the present case. Also in the decision in the case of Bihar Public Service Commission vs.Saiyed Hussain Abbas Rizwi & anr (supra) the Supreme Court considering the provisions of section 8 (1) (j) of the Act has observed that personal information which has no relationship to any public activity or interest or which  would cause unwarranted invasion of the privacy of the individual would fall within the exempted category unless the authority concerned is satisfied that larger public interest justifies the disclosure of such information. It is also observed that "public interest" has to be understood in its true connotation so as to give complete meaning to the relevant provisions of the Act. Taking into consideration these principles of law it cannot be said that there is no public interest involved when the petitioner would undertake developments on the basis of approved plans to sell flats and commercial premises to the public at large. Moreover, the Municipal authorities are required to act upon these proposals and in terms thereof have passed orders granting sanction which shows involvement of public element as also public interest.

Bombay High Court

Ferani Hotels Pvt Ltd vs The State Information ... on 30 October, 2015

WRIT PETITION (L) NO.1806 OF 2015

CORAM: M.S.SANKLECHA AND G.S.KULKARNI, JJ

JUDGMENT PRONOUNCED ON : 30th OCTOBER 2015

Citation;2016(2) ALLMR 26

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Whether municipality can reject building permission on the ground of proposed Development plan?

  The Kerala High Court on Thursday, 30 July 2015 in a judgment titled ‘Havva T.P. Vs. Tirur Municipality‘ has opined that the Municipality is not at liberty to saddle the land owners by the proposed public purpose provided under a Detailed Town Plan Scheme (D.T.P.), without the land being acquired by the State Government or the Municipality for the purpose notified under the Scheme.
   On a reading of Rule 3, it is clear that the

applicability of the rule is for the purpose of carrying out

construction of public or private buildings and for other related

purposes. Therefore, the stipulation contained under Rule 3A

with regard to the supremacy of the Town Planning Scheme

can only be relating to the Rules regarding construction of the

buildings provided under Rule 3 referred supra. So also, in all

the afore cited judgments rendered by the Hon'ble Apex Court

as well as this Court, the Courts were largely considering the

question of Town Planning Schemes propounded under the

Town Planning Acts with reference to Article 300A of the

Constitution and held that without acquisition of the land, the

schemes so launched cannot be put into effect. Therefore,

the contention put forth by the Respondent that consequent to

introduction of Rule 3A, the Respondent was justified in

declining permit cannot be sustained. According to me, such a

principle was evolved by the Courts taking into account the

protection provided for enjoyment of the property conferred

under Article 300A of the Constitution.


     Taking into account all these circumstances and

settled legal position in accordance with the principles so laid

down by the Courts in the judgments cited supra, I am of the

considered opinion that the stand adopted by the Respondent -

Municipality that permit cannot be granted consequent on the

pendency of D.T.P. Scheme can never be sustained under law.



     Therefore, I set aside Ext.P3 order passed by the

Respondent - Municipality and direct the Municipality to take a

decision in the application submitted by the petitioners seeking

permit for construction of the building on production of

requisite order from the competent authority under the

K.L.U.O for use of the land for a different purpose in

accordance with law, taking into account the observations

made above.
           IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                               PRESENT:

                         MR. JUSTICE SHAJI P.CHALY

                 THURSDAY, THE 30TH DAY OF JULY,2015
                                   W.P.(C).No. 4050 of 2014 (E)
                                   

         HAVVA T.P, Vs TIRUR MUNCIPALITY,
            

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How application for grant of permission for construction of a building is required to be decided?

It is, thus, now well-settled law that an application for grant of permission for construction of a building is required to be decided in accordance with law applicable on the day on which such permission is granted. However, a statutory authority must exercise its jurisdiction within a reasonable time. [See Kuldeep Singh v. Govt. of NCT of Delhi  2006 (6) SCALE 588].

Supreme Court of India

T. Vijayalakshmi & Ors vs Town Planning Member & Anr on 19 October, 2006

Bench: S.B. Sinha, Dalveer Bhandari

 Citation;(2006) 8 SCC502

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