Kerala High Court
A.M.Kharim vs State Of Kerala on 14 August, 2020
Author: Alexander Thomas
Bench: Alexander Thomas
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS
FRIDAY, THE 14TH DAY OF AUGUST 2020 / 23RD SRAVANA, 1942
WP(C).No.15502 OF 2020(K)
PETITIONER/S:
A.M.KHARIM
AGED 67 YEARS
S/O.A.K.MOIDEEN HAJI, ANJIKKATH HOUSE,
KAITHAPADATH,COCHIN UNIVERSITY.P.O., KOCHI-682022.
BY ADVS.
SRI.S.ABHILASH VISHNU
SRI.ATHUL SHAJI
SHRI.NIKHIL SUNNY MOOKEN
SHRI.ANWIN JOHN ANTONY
RESPONDENT/S:
1 STATE OF KERALA,
REPRESENTED BY THE ADDITIONAL CHIEF SECRETARY TO
GOVERNMENT, LOCAL SELF GOVERNMENT DEPARTMENT,
SECRETARIAT, THIRUVANANTHAPURAM-695001.
2 THE CHIEF TOWN PLANNER,
OFFICE OF THE CHIEF TOWN PLANNER, THIRUVANANTHAPURAM-
695001.
3 THE DISTRICT TOWN PLANNER,
ERNAKULAM, PIN-682030.
4 THE CORPORATION OF KOCHI,
ERNAKULAM, CORPORATION OFFICE, P.O. PB NO.1016, PIN-
682011, REPRESENTED BY ITS SECRETARY.
5 THE DIVISIONAL OFFICER,
FIRE AND RESCUE SERVICES, OFFICE OF THE DIVISIONAL
OFFICER, ERNAKULAM-682020.
R4 BY SRI.K.ANAND, SC, COCHIN CORPN.
OTHER PRESENT:
SRI.C.M.NAZAR, SPL.GP(LSGD)
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
14.08.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C).No.15502 OF 2020(K) 2
ALEXANDER THOMAS, J.
-----------------------------------------
W.P.(C.) No. 15502 of 2020
-----------------------------------------
Dated this the 14th day of August, 2020
JUDGMENT
The case of the petitioner in the above Writ Petition (Civil) is as follows :
That the petitioner's predecessor, on 14.10.2005 and in continuation thereof the petitioner obtained permit to construct a residential apartment building of Ground + 6 Floors. The permit was granted after complying with all the legal requirements in terms of the Kerala Municipality Act and the Kerala Municipality Building Rules, 1999 and after due enquiry mandated under the Rules. Presumably in view of the amendments in the building rules, when the petitioner approached for the Occupancy certificate and Fire NOC it was told by the Corporation authorities that regularization of the building was necessary for obtaining the Occupancy Certificate and forwarding papers for Final Fire NOC. Therefore, the petitioner was constrained to make application for regularization to the Regional Town Planner on 14.01.2016 and to the Chief Town Planner and then to the Government on 22.06.2016. However, it was rejected by order dated 03-08- 2016 on the reason that it violated the provisions of Kerala Municipality Building Rules 2014. Though the defects were rectified now, it is again rejected raising a sole objection that Rule 117 is not complied with, required as per the amended Rules.
2. It is in the light of these averments and contentions that the petitioner has filed the instant W.P.(C.) with the following prayers : WP(C).No.15502 OF 2020(K) 3
i. issue a writ of certiorari quashing Ext- P8;
ii. issue a writ of mandamus or any other writ, order or direction
commanding the 4th respondent to issue occupancy/completion certificate to the residential apartment building constructed by the petitioner as per Ext- P2 building permit forthwith;
iii. issue a writ of mandamus or any other writ, order or direction commanding the 5th respondent to issue Final Fire NOC to the residential apartment building constructed by the petitioner in the land comprised in Sy. No. 341/2,5,6,8 in Ernakulam village, Kanayannoor Taluk, Ernakulam District, within the limits of the Corporation of Kochi as per Ext-P2 building permit forthwith;
iv. declare that the petitioner's application for occupancy/completion certificate and Final Fire NOC for the residential apartment building in Sy. No. 341/2,5,6,8 in Ernakulam village, Kanayannoor Taluk, Ernakulam District is liable to be considered as per the Kerala Municipality Building Rules as it stood as on the date of granting Ext-P2 permit:
v. issue such other writ, order or directions as this Hon'ble Court deems fit to be granted in the facts and circumstances of the case including the cost of this proceedings."
3. Heard Sri.T.A.Shaji, learned senior counsel instructed by Sri.S.Abhilash Vishnu, learned counsel appearing for the petitioner, Sri.K.Anand, learned Standing Counsel for Kochi Municipal Corporation appearing for respondent No.4 and Sri.C.M.Nazar, learned special Government Pleader (LSGD) appearing for respondents 1 to 4.
4. The case of the petitioner is that his predecessor has initially obtained Ext.P2 permit dated 14.10.2005 to construct the residential apartment complex in question. Later, the petitioner had purchased the property and thereupon, the said permit was transferred in the name of the petitioner. The petitioner has now completed the construction and has applied for grant of occupancy certificate as per Ext.P10 application dated 12.6.2020 before the 4th respondent-Secretary of the Kochi WP(C).No.15502 OF 2020(K) 4 Municipal Corporation as per the procedural norm/application for final fire NOC submitted by the petitioner will have been forwarded by the 4 th respondent-Secretary of the Kochi Municipal Corporation to the 5 th respondent -Divisional officer, Fire and Rescue Services. That earlier, when the petitioner has completed the construction in the year 2015, the officials of the 4th respondent-Kochi Municipal Corporation had raised the objection that the completed construction made by the petitioner will not comply with the requirement of leaving 5 metres open space on two sides, including the front side and that therefore, the petitioner will have to get the benefit of regularization from the competent authority of the respondent-State Government in terms of the provisions contained in the Kerala Municipality Buildings (Regularization of unauthorized construction) Rules, 2014. That the petitioner has made the said application, which has been denied by the 1 st respondent-State Government as per the impugned Ext.P5 dated 3.8.2016 and later reiterated as Ext.P8 dated 10.1.2020 issued by the 1 st respondent. The main ground of rejection in the impugned Ext.P8 dated 10.1.2020 issued by the 1st respondent is that the completed construction made by the petitioner does not comply the requirements of Rule 117 of the Kerala Municipal Building Rules, 1999 etc.
5. The case of the petitioner is that the said objection raised by WP(C).No.15502 OF 2020(K) 5 the respondents is that the petitioner does not comply with the requirements of Rule 117 of the Kerala Municipal Building Rules as amended as it stood at the time of the completion of the construction in the year 2015. The petitioner would urge that the completed construction would fully comply with the requirements of the Rule 117 of the Kerala Municipality Building Rules, 1999 as it stood at the time of the issuance of Ext.P2 building permit dated 14.10.2005 and that the subsequent amendments made to Rule 117 of the KMBR, 1999 both in the year 2009 and subsequently, in the year 2013 will have no application in this case. That therefore, it is pointed out that the stand of the respondents that the petitioner should secure regularization under the Regularization Rules was completely untenable and the petitioner was misguided in that effort and it is evident from Ext.P8 dated 10.1.2020 issued by the 1 st respondent that the only objection is that the petitioner's completed construction does not comply with the requirements of Rule 117 of the Kerala Municipality Building Rules. It is pointed out that Rule 117 of the Kerala Municipality Building Rules, 1999 at the time of grant of Ext.P2 building permit dated 14.10.2005 provided as follows :
Rule 117 : Open space for fire fighting : Every high rise building, if it does not abut on two or more motorable roads, shall be provided with a minimum of 5 metres wide open space on any one of its sides contiguous to the road abutting it to facilitate fire fighting.WP(C).No.15502 OF 2020(K) 6
Provided that if a road is available on the side which can be made motorable by providing sufficient open space to make its width to not less than 5 metres wide, and space on that side is kept open by not constructing any compound wall, fence or structure, then no separate open space as specified above need be provided."
6. Further that, the provisions contained in Rule 117 (1) of the Kerala Municipality Building Rules as it stood at the time of the completion of the construction in the year 2015 provided as follows :
"Rule 117(1) : A clear motorable open space of minimum 5 metres width shall be provided for the building at the front side as well as at any one of its sides contiguous to the road abutting it, so as to facilitate fire fighting, which shall be kept free of vehicle parking or any other erections or projections thereon other than projections of roof or weather shade or cornices of not more than 75 cetimetres width."
7. It is asserted by the learned senior counsel appearing for the petitioner that an inspection would make it clear like the blue sky that the petitioner's completed construction has provided the requisite 5 metres open space on the front side, even though the completed construction may not comply with the subsequently prescribed norm that the construction should provide open space on front side and on another side as well.
8. Further, the petitioner would point out that in an identical case, the 1st respondent-State Government has also taken the stand that the norm or rule that is to be applied in such cases is the rule as it stood at the time of the grant of the building permit and not the subsequently amended norms and Rules and the benefit of the said stand of the 1 st respondent has been given to another similarly situated person as per WP(C).No.15502 OF 2020(K) 7 decision No.31 appended to Ext.P9 proceedings dated 5.6.2019 issued by the 1st respondent-State Government. The decision appended to item No.31 of Ext.P9 proceedings dated 5.6.2019 issued by the 1 st respondent- State Government reads as follows :
"æÉVÎßxí ÈWµßÏ ØÎÏæJ ÈßÏÎÎÈáØøߺîí ²µcáÉXØß ¥ÈáÕÆßAÃæÎKí çµÞ¿Äß ÈßVçgÖÎáUÄßÈÞW ÕÝßçÏÞ¿í çºVKí dËaí èØÁßW 5 ÎàxV ÕàÄß ÜÍcÎÞÏÄßÈÞÜᢠèËÈW ËÏV ®X.².Øß ÜÍcÎÞÏßGáUÄßÈÞÜᢠÉïÞÈßW ùßdµßçÏ×X ¯øßÏ µâ¿ß ÎÞVAí æºÏñí ¥çÉf ØÎVMßAáK ÎáùÏíAí 3 ÆßÕØJßȵ¢ ²µcáÉXØß ÈWµáKÄßÈí æØXd¿W çØÞY ¥Øß.®µíØß.®FßÈàÏV dÖà.øÞç¼×í ®Øí.Áß.ÏíAí ¥ÆÞÜJßW ÈßVçgÖ¢ ÈWµß ÄàVMí µWMߺîá."
9. It is by now well established by a series of rulings of this Court and that of the apex Court that in cases like this, it is only those restrictions that are in force as per the statutory norms at the time of the grant of building permit that has been taken into account and not restrictions which have been incorporated after the grant of the building permit.
10. In the case in decision of this Court in Sathyadas v. Divisional Officer, Fire and Rescue Services [2017 (3) KLT 54], this Court considered the question of height of the interior staircase and after examining the relevant provision of the Kerala Municipality Building Rules, this Court found that the building was given a preliminary NOC by the Fire and Rescue Service Department, after WP(C).No.15502 OF 2020(K) 8 verifying the site plans, the building plan and the structural plan as well as the section drawings, which would have clearly indicated how the staircases are to be constructed or proposed to be constructed and it was held that until and unless there is an allegation that the construction is in violation of the building permit, the final certificate of the Fire and Rescue Service cannot be denied.
11. This Court has also held decisions as in Desai Homes v.Fire & Rescue Services [2017 (3) KLT 143] that there cannot be any insistence of provision of 10 metres width to the road access and the same would have been considered on the basis of the requirements as laid down in the Building Rules at the time of the issuance of the building permit. In the said case, the Fire and Rescue Service Department was directed to decide access to the building as on the date of the grant of the building permit. In other words, this Court has held that subsequent amendments made after the grant of building permit cannot be taken into consideration and the applicants cannot be insisted to conform something which was brought into statute only subsequently after the grant of the building permit. This Court in Desai Homes's case (supra) has placed reliance on various judgments of the Apex Court in cases as in T.Vijayalakshmi and others v. Town Planning Member and anr. [2006 (8) SCC 502], Howrah WP(C).No.15502 OF 2020(K) 9 Municipal Corporation v. Ganges Rope Comp.Ltd. [2004 (1) SCC 663], Kuldeep Singh v. Govt. of NCT, Delhi [2006 (5) SCC 702] etc.
12. In the light of these aspects, it is clear that it is provision of the Building Rules that stood at the time of the building permit that has to be taken into consideration and not the subsequently framed norms after the grant of the building permit. From a reading of Ext.P8, it is seen that the only objection raised by the respondents including 1st respondent is that the construction completed by the petitioner does not satisfy the requirements of Rule 117 of the Kerala Municipality Building Rules. Since the 1st respondent has not stated in Ext.P8 that it is the only the provision of Rule 117 of the Kerala Municipality Building Rules that was in force at the time of the completed construction that is being taken into account, there is no necessity to quash Ext.P8. So also, there is no necessity to quash impugned Ext.P8 order since, the only issue is as to whether the petitioner would satisfy the requirements of open space as laid down in Rule 117 of the Kerala Municipal Building Rules, 1999 as it stood at the time of issuance of the building permit, then the issue of regularization itself is unnecessary. Accordingly, the following directions and orders are passed :
1. The 4th respondent-Secretary of the Kochi Municipal WP(C).No.15502 OF 2020(K) 10 Corporation should ensure that the application submitted by the petitioner for grant of final fire NOC should be immediately forwarded to the 5th respondent-Divisional Officer, Fire and Rescue Services Department. While forwarding, the 4 th respondent-Secretary of the Kochi Municipal Corporation should clearly give his remarks as to whether petitioner has complied with provisions of Rule 117 of the Kerala Municipal Building Rules, 1999 as it stood at the time of grant of the building permit for the construction in question and any other relevant aspects of the matter and a copy of the report so forwarding with the application for fire NOC by the 4 th respondent should also be given to the petitioner in advance.
This process of forwardal of the application for fire NOC should be duly completed by the 4th respondent-Secretary of the Municipal Corporation within 10 days from the date of receipt of the certified copy of this judgment.
2. Thereafter, the 5th respondent-Divisional officer, Fire and Rescue Services Department will afford reasonable opportunity of being heard to the petitioner and then should pass orders on the request for grant of final Fire NOC, taking into consideration the issue as to whether the petitioner has complied with the provisions of the Kerala Municipality Building Rules, 1999 as it stood at the time of grant of the building permit and then pass orders thereon, without much delay, preferably within a period of 2 weeks from the date of receipt of the report of the 4th respondent forwarding the application for fire NOC and shall duly communicate the same to the petitioner forthwith.
3. Thereafter, the 4th respondent-Secretary of the Kochi Municipal Corporation will afford reasonable opportunity of WP(C).No.15502 OF 2020(K) 11 being heard to the petitioner and should take up for consideration the matters in Ext.P10 application dated 12.6.2020 for grant of occupancy certificate/completion certificate, should pass orders thereon and to grant the same in case, petitioner complies with the requirements of the Kerala Municipality Building Rules, 1999 as it stood at the time of issuance of the building permit, without much delay, preferably within a period of 10 days from the date of receipt of the proceedings of the 5th respondent-Divisional Officer regarding the final fire NOC.
13. The petitioner will produce certified copies of this judgment along with copies of the memorandum of this W.P.(C.) with all the exhibits before the 4th respondent-Secretary of the Kochi Municipal Corporation and 5th respondent-Divisional Officer, Fire & Rescue Services Department for necessary information and further action.
With these observations and directions, the above W.P.(C.) will stand finally disposed of.
Sd/-
ALEXANDER THOMAS, JUDGE SKS WP(C).No.15502 OF 2020(K) 12 APPENDIX PETITIONER'S/S EXHIBITS:
EXHIBIT P1 TRUE COPY OF THE FIRE NOC DATED 21.9.2005 GRANTED BY THE DIRECTOR, FIRE AND RESCUE SERVICES, HQ. THIRUVANANTHAPURAM.
EXHIBIT P2 TRUE COPY OF THE REVISED PERMIT GRANTED BY THE 4TH RESPONDENT DATED 14.10.2005 TO THE PETITIONER.
EXHIBIT P3 TRUE COPY OF THE MEMO DATED 9.11.2011
ISSUED BY THE CORPORATION OF COCHIN
EXTENDING THE TIME OF CONSTRUCTION FROM
25.8.2011 TO 24.8.2014.
EXHIBIT P4 TRUE COPY OF THE COVERING LETTER DATED
14.1.2016 OF THE SECRETARY, CORPORATION
OF COCHIN.
EXHIBIT P5 TRUE COPY OF THE ORDER DATED 3.8.2016 OF
THE GOVERNMENT.
EXHIBIT P6 TRUE COPY OF THE ORDER DATED 13.10.2018
OF THE GOVERNMENT.
EXHIBIT P7 TRUE COPY OF DOCUMENT NO.391/2019 DATED
1.2.2019 OF ERNAKULAM SRO.
EXHIBIT P8 TRUE COPY OF THE COMMUNICATION DATED
10.1.2020 OF THE GOVERNMENT.
EXHIBIT P9 TRUE COPY OF THE PROCEEDINGS DATED
16.7.2019, CONTAINING ITEM NO.31 ALONG
WITH THE COMMUNICATION DATED 5.6.2019
ADDRESSED TO THE CORPORATION.
EXHIBIT P10 TRUE COPY OF THE REPRESENTATION DATED
12.6.2020 ALONG WITH THE APPLICATION FOR
GRANT OF OCCUPANCY/COMPLETION CERTIFICATE
SUBMITTED TO THE CORPORATION.