Panchayat:Repo18/Law Manual Page0327

the mandate of R.3A of the Rules, which begins with a non obstante clause is that, notwithstanding anything contained in these rules, provisions or regulations in any Town Planning Scheme in force under Town Planning Acts shall prevail over the respective provisions of these rules wherever such schemes exist, the reasoning of the Tribunal in view of sub-rule (2) of R. 140A of the Rules, telecommunication towers shall be permitted in any zone or over any building irrespective of its occupancy, cannot be sustained. - Secretary, Maradu Municipality v. M/s. ATC Telecom Tower Corporation Pvt. Ltd. and Others – 2015 (5) KHC 901 : 2016 (2) KLT 899 : 2016 (3) KLJ 148. KERALA TOWN AND COUNTRY PLANNING ORDINANCE, 2014 - S.113 - Draft Master Plan prepared under the repealed Town Planning Act does not survive in the light of saving or transitional provision of Ordinance. - Joy Thomas and Others v. Pala Municipality and Others - 2015 (4) KHC 473 : 2015 (3) KLJ 823 : 2015 (4) KLT 340 : ILR 2015 (4) Ker. 544. MUNICIPALITY BUILDING RULES, 1999 (KERALA) - R.89 - An owner of property has indefeasible right to enjoy his property the way he wants, when his right to enjoy the same has been declared by Civil Court. Third parties cannot be heard to say that the construction would shorten the pathway thus causing inconvenience to them and hence permit cannot be granted. It is cardinal to observe at this juncture that the first respondent cannot be prevented from enjoying his property in a legitimate manner; if at all there is an insurmountable inconvenience caused to the petitioners once the first respondent raises a compound wall, in the absence of any encroachment by the first respondent, the petitioners could as well make necessary application to the civic authorities to take recourse to any acquisition to ameliorate their hardship. Unless the State or the civic authorities take recourse to such remedy of acquisition, the first respondent cannot be restrained from enjoying his property, especially given the previous adjudication by this Court and also the establishment of his rights through the judgment of the Civil Court. It is axiomatic to observe that recourse can be taken to public law remedy for protecting an established right, rather than for establishing the very right itself. In other words, if any disputed question of fact is to be resolved, the appropriate forum can be a Civil Court. Precisely for the said reason, a learned Division Bench of this Court has observed in that, it is for the petitioners to take appropriate measures by approaching the Civil Court, if they have still any grievance with regard to the first respondent's constructing a compound wall. - Karakunnummal Babu and Others v. T. P. Raghavan and Others - 2015 (2) KHC 410 : 2015 (2) KLT 416: 2015 (2) KLJ 572. MUNICIPALITY BUILDING RULES, 1999 (KERALA) - R. 143, R.34 - In George Joseph and Another v. Pala Municipality and Others, the petitioner was having a valid permit and construction was completed according to that. While the said construction was going on certain portion of land was acquired causing reduction in parking area. Later the Municipality refused to give occupancy certificate stating violation of Rules. The question that arose here was whether there was any justification on the part of Municipality in refusing occupancy certificate. Herein it was held that the permit holder can be penalised if he deviates from, only if deviation has been occasioned out of his voluntary act. In the present case, deviation happened as an outcome of subsequent acquisition of land, the steps for which were initiated only after commencement of construction. Hence in this case, reduction in parking area should not stand in the way of granting occupancy certificate. - George Joseph and Another v. Pala Municipality and Others – 2015 (2) KHC 431 : 2015 (2) KLT 551 : 2015 (2) KLJ 721 : ILR 2015 (2) Ker. 735. MUNICIPALITY BUILDING RULES, 1999 (KERALA) -- R. 11(3), R. 106 - When demand was made for the permit fee and when Rules were subsequently amended, Municipality would be justified in making a fresh demand in terms of the amended Rule, if no payment has been effected by the permit holder in terms of the initial demand. As permit fee was not paid as per earlier demand, the Municipality could not process the application. Hence, Municipality was fully justified in raising a subsequent demand in terms of the subsequent amendment, when no amount was paid as per the earlier demand. When permit fee was remitted as per the orders of the Tribunal and the Municipality issued a receipt, without noting its protest, the Municipality is estopped from raising a further challenge to the orders of the Tribunal. - Corporation of Thiruvananthapuram v. S. I. Property (Kerala) (P) Ltd., Tvm and Another - 2015 (2) KHC 473 : 2015 (2) KLT 568. MUNICIPALITY BUILDING RULES, 1999 (KERALA) - ZONING - In Muthoot Finance Ltd. (M/s. ), Kochi v. Corporation of Cochin and Others, it was held that to subserve public purpose, properties owned by individuals, having been earmarked for public use are to be acquired before they could be dedicated for declared purpose. In the absence of acquisition proceedings, objection regarding 'Ground and Public Open Space Zone' cannot be sustained and there is no impediment in putting the property to mixed use. When the Authorities, wherever they have permitted the use of culvert, have treated the property on either side of the canal as contiguous, there is no reason why property of the petitioner

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