Kerala High Court

Seethi Sajar @ Sajar N.S vs Corporation Of Kochi on 20 July, 2021

         IN THE HIGH COURT OF KERALA AT ERNAKULAM
                         PRESENT
           THE HONOURABLE MR.JUSTICE N.NAGARESH
   TUESDAY, THE 20TH DAY OF JULY 2021/29TH ASHADHA, 1943
                  WP(C) NO. 2701 OF 2021


PETITIONERS:

    1    SEETHI SAJAR @ SAJAR N.S., AGED 49 YEARS,
         S/O LATE SEETHI, 16/1034 C SITHARA HOUSE,
         THOPPUMPADI, THOPPUMPADI P.O.,
         ERNAKULAM-682 005.

    2    SEETHI KABEER @ S KABEER, AGED 53 YEARS,
         S/O LATE SEETHI, 16/1034 C SITHARA HOUSE,
         THOPPUMPADI, THOPPUMPADI P.O.,
         ERNAKULAM-682 005.

         BY ADVS.
         BABU KARUKAPADATH
         SMT.M.A.VAHEEDA BABU
         SHRI.P.U.VINOD KUMAR
         SMT.ARYA RAGHUNATH
         SMT.VAISAKHI V.
         SRI.T.M.MUHAMMED MUSTHAQ
         SHRI.MOHAMED HISHAM P


RESPONDENTS:

    1    CORPORATION OF KOCHI
         ERNAKULAM-682 011,
         REPRESENTED BY ITS SECRETARY

    2    THE SECRETARY,
         CORPORATION OF KOCHI,
         ERNAKULAM-682 011.

    3    THE VILLAGE OFFICER,
         THOPPUMPADY VILLAGE OFFICE,
         KAZHUTTUMUTTU, ERNAKULAM-682 005.

    4    INDIAN OIL CORPORATION LTD,
         PANAMPILLY AVENUE, PANAMPILLY NAGAR,
         KOCHI-682 036, REPRESENTED BY
         ITS TERRITORY MANAGER.
 WP(C) No.2701/2021
                            :2 :


           BY ADVS.
           R1-R2 SRI.ARUN ANTONY
           R3 GOVT.PLEADER SRI.MANU RAJ
           R4 SRI.M.GOPIKRISHNAN NAMBIAR
           R4 SRI.K.JOHN MATHAI
           R4 SRI.JOSON MANAVALAN
           R4 SRI.KURYAN THOMAS
           R4 SRI.PAULOSE C. ABRAHAM
           R4 SRI.RAJA KANNAN

     THIS WRIT PETITION (CIVIL) HAVING COME UP   FOR
ADMISSION ON 20.07.2021, THE COURT ON THE SAME   DAY
DELIVERED THE FOLLOWING:
 WP(C) No.2701/2021
                                 :3 :




                        JUDGMENT

~~~~~~~~~

Dated this the 20th day of July, 2021

The petitioners wanted to start an LPG Distribution

agency for which the 4th respondent issued Ext.P1 Letter of

Intent on 10.01.2019. The petitioners state that there were

two existing buildings in the land where they proposed to start

the business, as is evident from Ext.P5. The petitioners made

certain alterations to the existing building. The Assistant

Engineer of the 1st respondent-Kochi Corporation issued

Ext.P3 show-cause notice to the 1 st petitioner alleging that the

construction work now made is in violation of the Building

Rules. To Ext.P3 show-cause notice, the 1 st petitioner gave

Ext.P4 explanation. The petitioners also submitted Ext.P6

application for regularisation of the construction of the building

on 20.02.2020.

WP(C) No.2701/2021

2. As no action was taken on Ext.P6, the petitioners

approached this Court filing W.P.(C) No.24294/2020 and this

Court directed the 2nd respondent to consider Ext.P6

application submitted by the petitioners for regularisation of

the building. Respondents 1 and 2, however, rejected the

application submitted by the petitioners for regularisation of

construction, as per Ext.P11. The rejection as per Ext.P11 is

based on two factors. Firstly, it was stated that the petitioners'

building does not satisfy requisite access width. Secondly, the

building set back is not as required under the Kerala

Municipality Building Rules. It is challenging the said Ext.P11

order that the petitioners have approached this Court.

3. The learned counsel for the petitioners submitted

that the road has a width of 6.5 metres as per Ext.P16 Road

Court has held in Ext.P12 judgment in W.A. No.249/2016 that

if originally a road has the requisite width, the subsequent

encroachment over the road made by the third parties cannot

be a reason for the Local Self Government to decline a WP(C) No.2701/2021

building permit for want of access width. The learned counsel

for the petitioners further pointed out that as per Ext.R1(e)

Site Inspection Report of the Executive Engineer, the gas

godown is situated in a small portion of the petitioners' leased

land and the shifting of boundary wall is in progress for getting

the required set back of 7.5 metres in the north side. The

petitioners would submit that as of now, the requisite set back

is available and their application for regularisation cannot be

rejected on that ground.

4. The learned Standing Counsel appearing for the

respondent-Corporation opposed the writ petition vehemently

and contended that access width is required taking into

account safety of the godown as well as the citizens residing

nearby. It is required for easy access for firefighting

measures. A gas godown indeed is a hazardous activity and

access width to the godown is very important. That

requirement cannot be watered down. According to the

learned Standing Counsel for the Corporation, the physical

availability of requisite access width is sine qua non for issuing WP(C) No.2701/2021

a building permit or for regularisation of an illegal construction.

5. The learned Standing Counsel for the Corporation

pointed out that the petitioners have not so far obtained Fire

NOC from the concerned Department and respondents 1 and

2 will not be able to entertain the application for regularisation

in the absence of Fire NOC issued by the competent authority.

For that reason also, the petitioners' application cannot be

considered. The learned Standing Counsel further pointed out

that at the time of inspection, admittedly there was no

sufficient set back for the godown building. Prescribed set

back is also a requirement under the Kerala Municipality

Building Rules and as long as sufficient set back is not made

available, the question of regularisation of the construction

does not arise. For the above reason, the writ petition is liable

to be dismissed, contended the learned Standing Counsel for

respondents 1 and 2.

6. Heard the learned counsel for the petitioners, the

learned Standing Counsel appearing for respondents 1 and 2,

the learned Government Pleader representing the 3 rd WP(C) No.2701/2021

respondent and the learned Standing Counsel for the 4 th

respondent-IOCL.

7. As regards the access width, a Division Bench of

this Court in Ext.P12 judgment in W.A. No.249/2016

considered the matter and held that if originally the road had

sufficient access width, the rejection of such access width due

to the subsequent encroachments cannot be a reason for

denying building permits. In paragraph 5 of Ext.P12 judgment,

a Division Bench of this Court held as follows:-

"5. Having considered, we find force in the submission. It is not denied that originally the road is shown to have a width of 8 metres. It appears that due to encroachments, the width of the road is reduced to less than 8 metres now. But that does not mean that right of a person to establish his industry which is conditioned upon an approach road of 8 metres can be denied. It would be something like saying that because the Panchayat has failed in its duty to keep the road free of encroachment, a person is denied his right to use his land in the manner he would like. For default of another, the right of a person cannot be frustrated."

The judgment of the Division Bench will squarely apply to the

case. If originally in the records of the Corporation the road

has the requisite access width, the Corporation will have to WP(C) No.2701/2021

accept the regularisation request. It will be the duty of the

Corporation to remove encroachments, if any, on the road and

maintain the width of the road as contained in their Registers.

According to the learned counsel for the petitioners,

subsequent to the amendment to Rule 28, the requisite

access width as on date is 6 metres. Ext.P16 would show that

the road in question has 6.5 metres width. Therefore,

respondents 1 and 2 are liable to reconsider that issue in the

light of Ext.P12 judgment.

8. As far as the issue of set back is concerned, the

Executive Engineer of the 1st respondent-Corporation has

found in Ext.R1(e) that the shifting of boundary wall is under

progress, for getting the required set back of 7.5 metres in the

north side. The learned counsel for the petitioners submits

that that shifting is completed and as on date, sufficient set

back space is made available.

9. In view of the above, this writ petition is disposed of

directing respondents 1 and 2 to reconsider Ext.P6 application

for regularisation in the light of Ext.P12 Division Bench WP(C) No.2701/2021

judgment of this Court and also taking into account Ext.R1(e)

Site Inspection Report of the Executive Engineer.

Respondents 1 and 2 shall cause inspection of the premises

for satisfying the set back before taking a decision in the

matter. The final order by the Corporation in this regard shall

be passed within a period of two months. To enable

respondents 1 and 2 to take an independent decision in the

matter afresh taking into consideration the subsequent

developments, Ext.P11 order is set aside.

If Ext.P1 Letter of Intent issued by the 4 th

respondent is still in force, the 4 th respondent shall maintain

status quo as regards Ext.P1 for a period of two months. The

learned Standing Counsel representing the 4 th respondent

pointed out that the petitioners have not so far obtained Fire

NOC. The petitioners undertake that Fire NOC will be

obtained and produced before the authorities as soon as it is

received.

Sd/-

N. NAGARESH, JUDGE

aks/22.07.2021 WP(C) No.2701/2021

APPENDIX OF WP(C) 2701/2021

PETITIONER'S EXHIBITS

EXHIBIT P1 A TRUE COPY OF THE LETTER OF INTENT DATED 10/01/2019 ISSUED BY THE IOC TO THE PETITIONER EXHIBIT P2 A TRUE COPY OF THE RECEIPT DATED 2.4.2019 RECEIVED ONLINE FROM THE 1ST RESPONDENT, EVIDENCING SUBMISSION OF APPLICATION SEEKING PERMIT FOR ROOF CHANGING EXHIBIT P3 A TRUE COPY OF THE SHOW CAUSE NOTICE DATED 7.9.2019 UNDER SECTION 406(10 OF THE KERALA MUNICIPALITY ACT, ISSUED TO THE 1ST PETITIONER FROM THE 1ST RESPONDENT CORPORATION EXHIBIT P4 A TRUE COPY OF THE WRITTEN EXPLANATION DATED NIL, SUBMITTED BY THE PETITIONERS AT THE TIME OF HEARING ON 28.11.2020 EXHIBIT P5 A TRUE COPY OF THE ASSESSMENT DETAILS WITH RESPECT TO THE BUILDING DATED 24/1/2020, ISSUED BY THE 1ST RESPONDENT CORPORATION.

EXHIBIT P6              A TRUE COPY OF THE RELEVANT PORTION OF
                        THE     APPLICATION     FOR     BUILDING
                        PERMIT/REGULARIZATION         20.2.2020

SUBMITTED BY THE PETITIONERS BEFORE THE 1ST RESPONDENT CORPORATION EXHIBIT P7 A TRUE COPY OF THE SHOW CAUSE NOTICE DATED 1.10.2020 PROPOSING TO CANCEL THE LETTER OF INTENT ISSUED TO THE 1ST PETITIONER BY THE 4TH RESPONDENT IOC.

EXHIBIT P8              A TRUE COPY OF THE REQUEST DATED
                        14.10.2020    SUBMITTED   BY  THE    1ST
                        PETITIONER BEFORE THE 4TH RESPONDENT
                        IOC
EXHIBIT P9              A TRUE COPY OF THE NOC DATED 20.10.2020
                        ISSUED BY THE KERALA ZONE MANAGEMENT

AUTHORITY IN FAVOUR OF THE PETITIONERS WP(C) No.2701/2021

EXHIBIT P10 A TRUE COPY OF THE JUDGMENT DATED 23.11.2020 OF THIS HON'BLE COURT IN WPC NO 24294/2020 EXHIBIT P11 A TRUE COPY OF THE INTIMATION/ORDER DATED 8.1.2021 ISSUED BY THE 2ND RESPONDENT TO THE 1ST PETITIONER ON 29.1.2021 EXHIBIT P12 A TRUE COPY OF THE JUDGMENT DATED 31.10.2017 IN WA NO 249/2016 OF THIS HON'BL COURT EXHIBIT P13 A TRUE COPY OF THE JUDGMENT DATED 6.12.2017 IN WPC NO 38929/2015 OF THIS HON'BLE COURT