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Issue Directions On Procedure For Building Permits When Mechanical Jacks Used To Move Building: Kerala High Court To State Government

Lydia Suzanne Thomas
9 April 2021 3:34 AM GMT
Thattekkadu Capsize

The Kerala High Court recently directed the State government to issue directives to local self-government institutions on the procedure to be followed when faced with applications seeking permission to raise buildings by the use of mechanical jacks.

Pointing out that there was a gap in the law in relation to the use of mechanical jacks, Justice P.B. Suresh Kumar directed the State Government to make specific provision for this issue as per the Kerala Municipality Building Rules 2019 (the Rules).

This was all the more necessary since mechanical jack lifting technology is widely employed in the State for the movement of buildings vertically as well as horizontally, the Court stated.

"In the light of the said provision in the Rules, according to me, it is a matter for the State Government to issue appropriate clarifications in this regard either under Rule 109 of the Rules or by making appropriate amendment to the Rules."

The Court issued the directive while disposing of a writ petition filed by a person challenging the raising of a villa apartment adjacent to his land. The petitioner apprehended that the work undertaken would be likely to cause damage to the adjacent villas and the abutting road.

It was argued that the work undertaken amounted to an alteration of the building as per the Rules, which required a building permit from the Municipal Corporation.

The respondent informed the Court that he employed a mechanical jack to raise his property after noticing after that the land on which the villa is constructed is low-lying and prone to water logging. When he inquired as to whether a building permit was necessary, the Corporation maintained that a permit was not necessary for strengthening the foundation. Apart from this, he had applied for a No-Objection Certificate as well to undertake the work. In Court, the respondent expressed his willingness to applying for a building permit if the same was needed.

Justice Suresh Kumar referred the definition of 'alteration' under the Rules and noted that term took into its ambit structural changes, such as additions to area or height. Therefore, the use of a mechanical jack to raise the level of the building could be termed an alteration, it was reasoned.

"There is no doubt that when the floor level of the building is raised applying mechanical jack lifting technology, the work would certainly result in an addition to the height of the building. If so, the work would amount to "alteration", requiring building permit in terms of Rule 5(1)(b) of the Rules."

However, there was no procedure to deal with such alterations, the Court noted.

In the circumstances, the Court ruled that the respondent's alteration could not be interdicted under the provisions of the Rules.

On facts, the Court also stated that there was no substance in the apprehension of safety concerns. However, to assuage the concerns raised by the petitioner, representatives of the Corporation were directed to visit the worksite and ensure that safety was maintained.

The government had the power to clarify doubts or to issue directives if any doubt arose regarding the interpretation of any provision in the Rules, the Court observed. Therefore, it was for the State government to issue clarifications in this regard either under rule 109 of the Rules or by making appropriate amendment to the Rules, the Court ultimately directed. The same was to be done immediately, it was stated.

With this direction, the proceedings were closed.

Click here to download the judgment

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