Jayachandra Kumar vs Attingal Municipality
2021 Latest Caselaw 14574 Ker

         IN THE HIGH COURT OF KERALA AT ERNAKULAM
                         PRESENT
         THE HONOURABLE MR. JUSTICE SHAJI P.CHALY
 WEDNESDAY, THE 14TH DAY OF JULY 2021 / 23RD ASHADHA, 1943
                 WP(C) NO. 24737 OF 2017
PETITIONER:

         JAYACHANDRA KUMAR
         AGED 61 YEARS
         S/O. THANKAPPAN NAIR,KESAVA MANDIRAM,
         MAMOM,KIZHUVILAM P.O., ATTINGAL-695 104.

         BY ADVS.
         SRI.T.M.ABDUL LATHEEF
         SRI.A.MOHAMED RASHEED


RESPONDENTS:

    1    ATTINGAL MUNICIPALITY
         REPRESENTED BY ITS SECRETARY,ATTINGAL-695 101.

    2    THE SECRETARY
         ATTINGAL MUNICIPALITY,ATTINGAL-695 101.

    3    SAJEEV SATHYAVRATHAN
         PRASANATH, THOTTAKKADU DESOM,KARAVARAM VILLAGE,
         KARAVARAM P.O.,PIN-695 605.

    4    THE DIRECTOR
         FIRE AND RESCUE SERVICES,
         FIRE FORCE JUNCTION,THIRUVANANTHAPURAM-695 001.

    5    THE DIVISIONAL OFFICER
         FIRE AND RESCUE SERVICES,
         FIRE FORCE JUNCTION,THIRUVANANTHAPURAM-695 001.
 WP(C) NO. 24737 OF 2017
                                     -2-



 ADDL R6 THE ASSISTANT DIVISIONAL OFFICER
         FIRE AND RESCUE SERVICES, THIRUVANANTHAPURAM-
         695001.

             ADDL R6 IMPLEADED AS PER ORDER DATED 03.07.2018
             IN I.A.NO.14196/2017

             R4 TO 6 - SRI SURIN GEORGE IPE,SGP

             R1 AND 2 - SRI.AYYAPPAN SANKAR

             R3 - SRI.M.R.SASITH


       THIS     WRIT      PETITION   (CIVIL)   HAVING   COME    UP    FOR
ADMISSION       ON    14.07.2021,    THE   COURT   ON   THE    SAME   DAY
DELIVERED THE FOLLOWING:
 WP(C) NO. 24737 OF 2017
                                      -3-



                                JUDGMENT

This writ petition is filed by the petitioner

seeking the following reliefs:-

"(i) To call for the records relating to Exts.P-1 to P-4 and P-6 to P-10 and to issue a writ of certiorari canceling Ext.P7 Certificate of Approval issued by the Respondents 4 and 5 as it was issued in violation of the Municipal Building Rules;

(ii) To issue a writ of mandamus commanding the Respondents 1 and 2 to pass orders stopping the further construction by the 3rd Respondent in his property which is adjacent to the Petitioer's property in Ward No.XVII of Attingal Municipality.

(iii) To issue a writ of mandamus commanding the Respondents 1 and 2 to demolish the illegal construction made totally in violation of the permit issued including the violation in the open space provided at the rear side of the 3rd Respondent's building which is put up in violation of the Municipality Building Rules"

WP(C) NO. 24737 OF 2017

2. The case projected by the petitioner is

that, the 3rd respondent i.e. one Sajeev

Sathyavrathan has started construction of a

building with four floors adjacent to the

petitioner's building and property. It is the case

of the petitioner that, the 3rd respondent obtained

a plan for constructing basement + ground + 2

floors from the Attingal Municipality and the

intention behind the same was not to provide very

many statutory facilities including fire escape

facilities, emergency staircase etc. Now the

construction effected is B+ Ground + 4 floors and

therefore the height is more than 10 meters, in

which case sanction from the Town Planning

authorities are to be obtained apart from No

Objection Certificate from the Fire and Rescue

Department. Therefore the sum and substance of

the contention put forth by the petitioner is

that, the construction carried out by the 3rd WP(C) NO. 24737 OF 2017

respondent is illegal and liable to be interfered

with by this Court exercising the power of

judicial discretion under Article 226 of the

Constitution of India.

3. The Divisional Fire and Rescue Officer -

the 5th respondent has filed a detailed counter

affidavit submitting as follows:-

"2. The above Writ Petition is filed for among other reliefs to quash Ext.P10 Certificate of Approval (Final NOC) issued by this respondent with respect to the construction of basement + Ground + 2 Floors mercantile building constructed by the 3rd respondent. The allegation in the Writ Petition against this respondent as averred in paragraph 9 and 10 is to the effect that even though Ext.P8 initial NOC was issued for a building having a height of 12.75 ms., in Ext.P9 Certificate of Approval (final NOC), the height of the building is noted as 9.75 ms. The discrepancy in Ext.P8 & P9 according to the petitioner is deliberate to approve an illegal construction which is otherwise impermissible.

3. It is submitted that the 3rd WP(C) NO. 24737 OF 2017

respondent had approached this respondent for the sanction of site NOC for a 4 storied mercantile building (B + G +2) in survey No.1857/3-1 of Attingal Village which comes within the jurisdiction of the 1st respondent Municipality. It is submitted that the said application for site NOC was submitted through the Local Authority and the same was verified with respect to the Civil plan and the Fire plan submitted by the petitioner and was found to be in accordance with the fire regulations applicable for the said building. Accordingly Ext.P8 site NOC was issued for the petitioner to proceed with the construction in accordance with the Municipal plan approved imposing certain conditions as set forth in Ext.P8. It is submitted that the height of the building is mentioned as 12.75 ms. from the ground level whereas for the same building when the height is considered from the road level, it is at a height of 9.75 ms. Difference in the height viz-a-viz road level and ground level is due to the peculiarity of the terrine being sloppy in nature. It is submitted that this respondent had issued fire NOC for the building in terms of R2(aq) of the Kerala Municipal Building Rules 1999 wherein the height of the building should be considered from the road level. Therefore, the height WP(C) NO. 24737 OF 2017

was calculated 9.75 ms. and NOC was issued after testing all fire fighting arrangements provided in the building.

4. It is submitted that for obtaining the Certificate of Approval (final NOC) the 3rd respondent has submitted application through the 1st respondent Municipality which fully confirmed with the Fire Plan of the building. It is submitted that in accordance with Part- IV of National Building Code 2005, the fire fighting arrangement to be provided for a mercantile building up to a height of a 15 ms.

is the same. Therefore whether the building is of a height of 9.75 ms. or 12.75 ms. does not make any difference as the requirement for a mercantile building upto 15 ms. being the same. It is submitted that this respondent had issued Ext.P8 & P9 Certificates only for fire fighting arrangements to be provided in the subject building which is required as per the height approved for the building by the Local Authority. It is submitted that there is no discrepancy with respect to the height mentioned as 9.75 mts. In Ext.P8 taken from the ground level and that mentioned in Ext.P9 as 12.75 ms. which is with respect to the height taken from the road level. In the light of the above facts, it is submitted that this respondent had issued Ext.P8 & P9 No WP(C) NO. 24737 OF 2017

Objection Certificate strictly in terms of the National Building Code 2005 and the Kerala Municipal Building Rules. It is submitted that if the petitioner had violated any requirement with respect to set back to be maintained, it is for the Local Body to take note of the same. It is submitted that as far as from the fire point of view is concerned, this respondent is only concerned with the front set back to be maintained which has a set back of 5.06 ms. when the requirement under the Kerala Municipal Building Rules is 3 ms.alone. In the light of the above, there is no flaw on the part of this respondent in issuing Ext.P8 and P9 and the discrepancy pointed out by the petitioner is due to not taking note of the fact that the height of the building is referred to in Ext.P8 & P9 differently on account of the ground level and road level respectively which is due to the peculiar terrine of the land in which construction is undertaken. Therefore as far as the fire NOC is concerned there is no ground to challenge the same and therefore the writ petition is liable to be dismissed as against this respondent and it is prayed for accordingly."

4. The learned counsel for the petitioner WP(C) NO. 24737 OF 2017

submitted that petitioner would be satisfied, if

the writ petition is disposed of recording the

submissions made in the counter affidavit of the

Divisional Fire Officer, especially due to the

fact that the violation of the Building Rules is a

subject matter of challenge before the Tribunal

for Local Self Government Institutions and

therefore without causing prejudice to the

petitioner to take up all contentions in the

proceeding before the Tribunal, this writ petition

may be closed.

In that view of the matter after having heard

learned counsel for the petitioner Sri.T.M.Abdul

Latheef, learned Senior Government Pleader

Sri.Surin George Ipe and the learned counsel

appearing for the Municipality Sri.Ayyappan

Sankar, this writ petition is disposed of

recording that the Divisional Fire Officer is of

the opinion that the height of the building is WP(C) NO. 24737 OF 2017

calculated from the road level, which is the

manner in which it is to be done and the height of

the building is only 9.75 meters an NOC was issued

after testing all fire finding arrangements

provided in the building. All other questions in

regard to the violation of the Building Rules are

all left open to be considered by the Tribunal for

Local Self Government Institutions.

Sd/-

SHAJI P.CHALY JUDGE hmh WP(C) NO. 24737 OF 2017

APPENDIX OF WP(C) 24737/2017

PETITIONER'S ANNEXURE

EXHIBIT P1 TRUE COPY OF THE LAND TAX RECEIPT NO.

0342929 DATED 24-02-2016.

EXHIBIT P2                TRUE PHOTOGRAPH.

EXHIBIT P3                TRUE PHOTOGRAPH

EXHIBIT P4                TRUE COPY OF THE COMPLAINT DATED

10-03-2016 SUBMITTED BEFORE THE 1ST RESPONDENT.

EXHIBIT P5 TRUE COPY OF THE JUDGMENT DATED 15-03-

2016 PASSED BY THIS HONOURABLE COURT IN WPC 9774/2016.

EXHIBIT P6 TRUE COPY OF THE PROCEEDINGS NO.A2-

168/06 DATED NIL ISSUED BY THE PUBLIC INFORMATION OFFICER, ATTINGAL MUNICIPALITY

EXHIBIT P7 TRUE COPY OF LETTER NO. PW2-5349/16 DATED 23-02-2017 ISSUED BY THE 1ST RESPONDENT.

EXHIBIT P8 TRUE COPY OF THE LETTER NO.A-856/2017 DATED 28-04-2017 ALONG WITH THE CERTIFICATE OF APPROVAL NO.G-6384/2016 DATED 26-08-2016 ISSUED BY THE 5TH RESPONDENT (WITH THE READABLE COPY OF THE 3RD PAGE).

EXHIBIT P9 TRUE COPY OF THE NO OBJECTION CERTIFICATE NO.B-1108/2015 DATED 10- 03-2015 ISSUED BY THE 5TH RESPONDENT. WP(C) NO. 24737 OF 2017

EXHIBIT P10 TRUE COPY OF THE PETITION DATED 15-06-

2017 SUBMITTED BY THE PETITIONER BEFORE THE 4TH RESPONDENT.

RESPONDENT'S NIL ANNEXURE