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Judgment
Sathish Ninan, J.
Alleging that the Municipality is attempting to construct a water pump house in violation of the Kerala Municipality Building Rules, 2019 (hereinafter referred to as “the Rules”), the occupiers of the adjacent building of the proposed site have filed W.P.(C) No.31416/2023. The contractor who is entrusted with the work in question has filed W.P.(C) No.31449 of 2023 seeking police protection for completion of the work.
I shall first deal with W.P.(C) No.31416/2023. Petitioners are the occupants of shop rooms bearing Nos.2379 and 2390, in Division 28 of the Thrikkakara Municipality. According to the petitioners, the first petitioner had been conducting business therein for more than 60 years and the second petitioner is conducting business for more than 35 years. Adjacent to the shop rooms is situated a well. The petitioners claimed that the title over the shop rooms, well and also the property wherein they are situated vests with them. However, since the well was being used by the public, there is a statutory vesting of the well in the Municipality, under Section 208 A of the Kerala Municipality Act, 1994. The contention is that the Municipality is going to construct a water pump house with a tank, adjacent to the well without maintaining the required side yard as mandated under Rule 26 of the Rules.
According to the Municipality, the petitioners are not the owners of the property or the shop rooms and they are trespassers. It is the further case that the Municipality is entitled for exemption from the Municipal Building Rules for the work in question in terms of Chapter II Rule 7(j) therein.
I have heard the learned counsel on either side.
That, a water pump house with a tank is proposed to be constructed at the disputed place, is admitted. That, two metre side yard is not available for the proposed construction, is also not in dispute. Essentially the contention is, exemption from the Building Rules under Rule 7(j).
The definition of 'building' in Rule 2(f) in Chapter I of the Building Rules includes a pump house with tank. So also, a “water pump house” falls within group “G1” 'occupancy' under Chapter IV Rule 25 of the Rules. Chapter IV Rule 26 of the Rules stipulates the minimum setback to be maintained for a building. Table 4 thereunder prescribes that, for a building with a built-up area upto 200 square metres, the minimum side yard to be maintained is 2 metres.
The claim of the Municipality is, of exemption under Chapter II Rule 7(j). The same reads thus:-
“7. Certain operational constructions by Government to be exempted from these rules. The operational constructions of the Central or State Government, whether temporary or permanent which is necessary for the operation, maintenance, development or execution of any of the following services shall be exempted from these rules, namely :
xxxxx xxxxx xxxxxx xxxxx
(j) Any other service which the State Government may, if it is of opinion that the operation, maintenance, development or execution of such service is essential to the life of the community, by notification, declare to be a service for the purpose of this clause.”
The learned counsel for the Municipality would, referring to the definition of “operational constructions” occurring in the Rule contend that supply of water is a service essential to the life of the community and this is a work for development of such service. Therefore, the Municipality is entitled for exemption in terms of Rule 7, is the contention.
Noticeably, the main part of Rule 7 refers only to the Central and State Governments. Rules 7(g) and 7(h) on the other hand make special mention about Local Self Government. The said clauses read thus :-
“(g) Roads, bridges, street furniture, toll plazas and wayside amenities by the Central Government, State Government and/or Local Self Government;
(h) Waterway amenities like boat jetties and other waterside facilities for transportation by the Central Government, State Government and/or Local Self Government.”
Therefore, the benefit of the other clauses is not extended to the Local Self Government Institutions. For the said reason, the Municipality cannot claim the benefit of Rule 7.
That apart, Rule 7(j) postulates a notification by the State Government declaring the service as, a service for the purpose of the clause. Here, the Municipality has no case that there is such a notification. All that the Municipality could place on record was Ext.R3(d) Government Order regarding the guidelines for implementation of the five year plan. It cannot be understood as the notification required under Rule 7(j) for the purpose of applicability of the said clause. Therefore, the Municipality cannot take shelter under Rule 7 to claim exemption from the operation of the building Rules.
The Municipality has a case that the petitioners have no right or title over the property and the shop rooms in question, and that they are trespassers. It is the argument that, being trespassers they are not entitled to raise the contention of, ‘violation of the Building Rules’. I am afraid that the said argument cannot be accepted. This Court is not required to decide on the question of title in this proceeding. It is not in dispute that the shop rooms wherein the petitioners are doing business had been in existence for years together and that the petitioners had been doing business therein. There is no case for the Municipality that the shop rooms were recently put up and is an illegal construction. The petitioners have produced tax receipts evidencing payment of tax in respect of the shop rooms. At any rate, so long as the building is in existence, the Municipality is bound to maintain the required setback as mandated under the Rules from the side of the building. Any citizen is entitled to object to the construction in violation of the Building Rules, even in the absence of personal injury. [See P. Saina and Ors. v . Konderi & Ors. (1984 KLT 428)]. The petitioners being adjacent occupiers, their locus standi cannot, at any rate, be challenged.
The construction proposed by the Municipality is thus, in violation of the Municipality Building Rules and cannot proceed. Consequently, the writ petition for police protection is bound to fail.
Municipality is restrained from effecting the construction in question without providing sufficient side yards as mandated under Rule 26 of the Rules. W.P.(C) No.31416/2023 is allowed as above, and W.P.(C) No.31449/2023 is dismissed.