Kerala High Court
Jewel Homes Pvt.Ltd vs The Regional Fire Officer on 29 July, 2019
Author: Shaji P.Chaly
Bench: Shaji P.Chaly
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE SHAJI P.CHALY
MONDAY, THE 29TH DAY OF JULY 2019 / 7TH SRAVANA, 1941
WP(C).No.8535 of 2019
PETITIONER/S:
JEWEL HOMES PVT.LTD.,
CASAGRANTE BUILDINGS, II FLOOR, OPP. TVS SHOWROOM,
DESHABHIMANI JUNCTION, KALOOR, KOCHI REP. BY ITS
MANGING DIRECTOR MR. P.A. JIHAS AGED 49 YEARS, S/O.
P.K. ABDUL RAHIMAN, JEWEL NEST, EROOR VASUDEVA ROAD,
KALOOR KOCHI 682 017.
BY ADVS.
SRI.K.R.VINOD
SMT.M.S.LETHA
RESPONDENT/S:
1 THE REGIONAL FIRE OFFICER,
FIRE AND RESCUE SERVICES,
KOTTAYAM 686 001.
2 THE DIRECTOR
TECHNICAL FOR COMMANDANT GENERAL, FIRE AND RESCUE
SERVICES HEADQUARTERS, HOUSING BOARD,
THIRUVANANTHAPURAM 695 014.
*3 THE DEPUTY CHIEF ENGINEER, (CONSTRUCTION)
ERNAKULAM SOUTH RAILWAY,
ERNAKULAM JUNCTION -682 031.
*IMPLEADED AS ADDTIONAL RESPONDENT NO. 3 AS PER ORDER
DATED 21-06-2019 IN I.A. 1/2019
R3 BY SRI.C.S.DIAS,SC, RAILWAYS
R1 AND R2 - SMT.VINITHA.B,GOVERNMENT PLEADER
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
29.07.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C).No.8535 of 2019 2
JUDGMENT
Petitioner has secured a building permit from the Kottayam Municipality for construction of a multi-storied building. Construction is complete, according to the petitioner in all respects, however, when the fire authority was approached for securing fire clearance, the same is not granted for the reason that, some acquisition proposal are made by the railway, consequent to which, there is a likelihood of the access road being acquired by the railway for the expansion work. It is thus seeking appropriate directions, this writ petition is filed.
2. A statement is filed by the 1st respondent, virtually justifying the stand adopted by the fire authority and it is also pointed out that, since the railway has acquired the existing road along with the surrounding land, the existing road itself has seized to exist, hence the demand of the petitioner to consider the existing road is not practical, and only when the road if any formed by the railway comes into existence and has a necessary width of 5 meters, then it can be taken into consideration.
3. The 3rd respondent railway has filed a detailed counter affidavit, wherein, the proposal WP(C).No.8535 of 2019 3 for acquisition is admitted, however it is submitted that, the discussions are going on and it may take one to two years to complete the acquisition proceedings and doubling of track at the junction in question. It is also pointed out that, during that period, there will be shift in the road alignment at the present junction of completed service road and Illikadvu road. So the area at the junction can be demarcated in the presence of all stake holders.
4. A reply affidavit is also filed by the petitioner, reiterating the stand adopted in the writ petition and also producing Ext.P7 series of photographs to contend that, there is an access road as of now, which has sufficient width enabling the fire authority to consider the application submitted for the fire clearance and No Objection Certificate.
5. I have heard learned counsel for the petitioner, learned Government Pleader as well as learned Standing Counsel appearing for the railway and perused the pleadings and the documents on record.
6. The discussion of facts made above would make it clear that, as of now, there is an access road having sufficient width. The railway has stated in WP(C).No.8535 of 2019 4 its counter affidavit that, there is a likelihood of acquisition, but it may take at least one to two years to finalize the proceedings and measurement will be conducted in the presence of all stake holders.
7. Taking into account the aforesaid aspects and bearing in mind that the multi-storied building constructed by the petitioner is a residential apartment, in which lot of customers have made investments, I am of the considered opinion that, if the fire clearance is delayed for want of sufficient clearances from the railway, it will cause irreparable loss and untold miseries to the people who have invested in the apartment complex.
8. In that view of the matter, there will be a direction to the 1st and 2nd respondents to consider any application forwarded by the Municipality /petitioner, at the earliest and at any rate, within three weeks from the date of receipt of a copy of this judgment and finalize the same, taking into account, the access road now prevailing in the area to access the building in question.
9. I also make it clear that, the permission granted will be provisional and subject to the WP(C).No.8535 of 2019 5 developments that will take place in due course as is specified above.
The writ petition is disposed of accordingly.
Sd/-
SHAJI P.CHALY JUDGE uu 29.07.2019 WP(C).No.8535 of 2019 6 APPENDIX PETITIONER'S/S EXHIBITS:
EXHIBIT P1 TRUE COPY OF THE BUILDING PERMIT OF THE PETITIONER.
EXHIBIT P2 TRUE COPY OF THE SKETCH OF ILLIKKADAVU ROAD HAVING THE WIDTH OF MORE THAN 5 METER AVAILABLE TO THE BUILDING OF THE PETITIONER.
EXHIBIT P3 TRUE COPY OF THE COMMUNICATION DATED 4.12.2018 OF THE 1ST RESPONDENT.
EXHIBIT P4 TRUE COPY OF THE ROAD REGISTER OF KOTTAYAM MUNICIPALITY IN NAGAMPADAM SOUTH WARD SHOWING THE WIDTH OF ILLIKKADAVU ROAD.
EXHIBIT P5 TRUE COPY OF THE APPLICATION SUBMITTED BY THE PETITIONER DATASET 8/12/2018 AFTER RECTIFYING ALL THE DEFECTS WITH PRAYER TO RECONSIDER THE DECISION OF THE 1ST RESPONDENT.
EXHIBIT P6 TRUE COPY OF THE COMMUNICATION DATED 5.1.2019 OF THE 1ST RESPONDENT.
EXHIBIT P7 TRUE COPY OF THE COMMUNICATION ISSUED BY DEPUTY CHIEF ENGINEER, CONSTRUCTIONS, SOUTHERN RAILWAYS. EXHIBIT P7 SERIES THE PHOTOGRAPHS OF THE SAID ROAD AND THE PROPERTY IN WHICH THE BUILDING SITUATES EXHIBIT P8 THE GOOGLE MAP SATELLITE IMAGE OF THE BUILDING AND THE ROAD EXHIBIT P9 THE AERIAL IMAGE OF THE ROAD AND THE BUILDING