Kerala High Court
Thomson Jacob vs The Kothamangalam Municipality on 3 March, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR
WEDNESDAY, THE 03RD DAY OF MARCH 2021 / 12TH PHALGUNA, 1942
WP(C).No.37295 OF 2018(J)
PETITIONER/S:
1 THOMSON JACOB,
AGED 52 YEARS,
S/O. V.T JACOB,
KALAPPILLIL HOUSE,
PAITTAKULAM,
KOOTHATTUKULAM,
ERNAKULAM DISTRICT.
2 SAXON JACOB,
AGED 46 YEARS,
S/O. V.T.JACOB,
KALAPPILLIL HOUSE,
PAITTAKULAM,
KOOTHATTUKULAM,
ERNAKULAM DISTRICT
BY ADVS.
SHRI.GEORGE SEBASTIAN
SRI.ARUN LUCKOSE ABRAHAM
RESPONDENT/S:
1 THE KOTHAMANGALAM MUNICIPALITY,
REPRESENTED BY ITS SECRETARY,
KOTHAMANGALAM- 686 691.
2 THE SECRETARY,
KOTHAMANGALAM MUNICIPALITY,
KOTHAMANGALAM-686 691
3 THE ASSISTANTEXECUTIVE ENGINEER,
KOTHAMANGALAM MUNICIPALITY,
KOTHAMANGALAM-686 691
W.P.(C)No.37295 of 2018
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4 THE STATE OF KERALA,
REPRESENTED BY ITS SECRETARY TO THE DEPARTMENT OF
LOCAL SELF GOVERNMENT,
SECRETARIAT,
THIRUVANANTHAPURAM-695 001
5 THE DISTRICT TOWN PLANNER,
KAKKANAD,
ERNAKULAM-682 030
R1-2 BY ADV. SRI.PEEYUS A.KOTTAM, STANDING COUNSEL
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
03-03-2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
W.P.(C)No.37295 of 2018
3
W.P.(C)No.37295 of 2018
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JUDGMENT
Petitioners purchased a land within the limits of the first
respondent Municipality. The vendors of the petitioners had a building
permit in respect of the land and after purchase of the land, the
petitioners got the building permit transferred to their name. Ext.P20 is
the building permit obtained by the vendors of the petitioners which was
transferred to the name of the petitioners. As per Ext.P20, the
predecessors of the petitioners were permitted to construct only a
basement floor measuring 948 square metres and a ground floor
measuring 948 square metres. On the strength of Ext.P20, the
petitioners constructed an additional floor also and preferred an
application before the Municipality thereafter for regularization of the
additional floor constructed by them. The application for regularization
preferred by the petitioners was initially rejected by the Secretary of the
Municipality as per Ext.P11 order on the ground that sufficient parking
space is not available in the premises. Ext.P11 order was challenged by
the petitioners in W.P.(C)No.26834 of 2018. In the meanwhile,
petitioners acquired land sufficient for providing parking space for the
building and annexed the same to the land where the building has been
constructed. W.P.(C)No.26834 of 2018 was disposed of later directing the
Secretary of the Municipality to consider the application for
W.P.(C)No.37295 of 2018
regularization afresh. Ext.P12 is the judgment in W.P.(C) No.26834 of
2018. Pursuant to Ext.P12 judgment, Ext.P13 order has been passed.
Though it is found in Ext.P13 order that sufficient parking space is
available for the building, in terms of the said order, a decision on the
application for regularization was deferred for obtaining appropriate
clarification from the Town Planning Department of the State
Government as to the requirement for No Objection Certificate of the Fire
and Rescue Services Department of the State Government for
considering the application for regularization. Ext.P13 is under challenge
in the writ petition.
2. Heard the learned counsel for the petitioners, the
learned counsel for the Municipality as also the learned Government
Pleader.
3. The learned counsel for the petitioners contended that
the building is one constructed prior to 31.10.2017 and there was no
requirement then for obtaining No Objection Certificate of the Fire and
Rescue Services Department for a building having two floors. According
to the learned counsel, if there was no requirement for obtaining No
Objection Certificate from the Fire and Rescue Services Department for
construction of the building, No Objection Certificate from the said
Department cannot be insisted for considering the application for
regularization as well. Alternatively, it was pointed out by the learned
counsel that even if it is found that the building is one constructed after
31.10.2017, No Objection Certificate of the Fire and Rescue Services
Department cannot be insisted for the building of the petitioners since
W.P.(C)No.37295 of 2018
its plinth area is less than 1000 square meters and the height is less
than 15 meters.
4. The learned Standing Counsel for the first respondent
Municipality pointed out that there is nothing on record to indicate that
the building of the petitioners is one constructed prior to 31.10.2017.
5. As noted, the only issue arising for consideration is as
to whether the Municipality was justified in insisting No Objection
Certificate of the Fire and Rescue Services Department of the State
Government for the purpose of considering the application for
regularization of the building. Rule 56(3j) of the Municipality Building
Rules, 1999 (the Rules) as it stood prior to 31.10.2017 reads thus :
"(3j) In the case of mercantile/commercial occupancy
buildings other than parking buildings exceeding two floors from
ground level a certificate of approval from the Director of Fire
Force or an officer authorised by him in this behalf shall be
produced for obtaining building permit."
As revealed from the extracted rule, No Objection Certificate of the Fire
and Rescue Services Department can be insisted only for building above
two floors. As indicated, there are only two floors for the building of the
petitioners. In other words, if the building is one constructed prior to
31.10.2017, No Objection Certificate of the Fire and Rescue Services
Department cannot be insisted.
6. Rule 56(3j) of the Rules is amended with effect from
31.10.2017. The amended provision reads thus :
W.P.(C)No.37295 of 2018
"(3j) In the case of mercantile/commercial occupancy
buildings other than parking buildings [exceeding 1000 sq.metres
plinth area or exceeding 15 metres height] a certificate of
approval from the Director of Fire Force or an officer authorised
by him in this behalf shall be produced for obtaining building
permit;] [and in case of buildings exceeding 300 sq.metres and
below 1000 sq.metres as also in case of buildings not exceeding
15 metres height a self-declaration form in Appendix P* from the
applicant along with a certificate from the architect/engineer who
had prepared the plan to the effect that the construction of the
building shall conform to the fire and safety norms specified
under sub-rule(6) below shall be submitted.
The definition of 'plinth area' has now been amended. The definition of
'plinth area' reads thus :
"2(1)(bf) 'plinth area' means area of the building at the plinth
level, does not include the area of open porch [(not enclosed by
wall)] uncovered staircase and the like."
If the amended provision is understood in the light of the definition of
'plinth area' contained in the Rules, No Objection Certificate of the Fire
and Rescue Services Department can be insisted only if the plinth area
of the building exceeds 1000 square metres or the height of the building
exceeds 15 metres. On a specific query from the court, the learned
counsel for the Municipality submitted that the plinth area of the building
does not exceed 1000 square meters and the height of the building is
less than 15 meters. If that be so, according to me, even if the building is
treated as one constructed after 31.10.2017, No Objection Certificate of
the Fire and Rescue Services Department cannot be insisted for such a
building.
W.P.(C)No.37295 of 2018
In the said view of the matter, Ext.P13 is quashed and the
Municipality is directed to regularize the building of the petitioners, if the
application of the petitioners is otherwise in order. The petitioners shall
also be assigned building number accordingly. This shall be done within
six weeks from the date of receipt of a copy of this judgment.
Sd/-
P.B.SURESH KUMAR, JUDGE
rkj
W.P.(C)No.37295 of 2018
APPENDIX
PETITIONER'S/S EXHIBITS:
EXHIBIT P1 A TRUE COPY OF THE ORDER DATED
10.12.2014 ISSUED BY THE 2ND RESPONDENT
EXHIBIT P2 A TRUE COPY OF THE ORDER DATED 27.7.2017
IN IA 1346/2017 IA APPEAL 685/2017 OF
THE TRIBUNAL FOR LOCAL SELF GOVERNMENT
INSTITUTIONS, THIRUVANANTHAPURAM
EXHIBIT P3 A TRUE COPY OF THE COMMUNICATION DATED
7.3.2018 ISSUED BY THE 3RD RESPONDENT
EXHIBIT P4 A TRUE COPY OF THE REPLY DATED 8.3.2018
SUBMITTED BY THE PETITIONERS
EXHIBIT P5 A TRUE COPY OF THE RECEIPT DATED
8.3.2018 SHOWING THE FILING OF EXHIBIT
P4 REPLY
EXHIBIT P6 A TRUE COPY OF THE COMMUNICATION DATED
4.4.2018 ISSUED BY THE 3RD RESPONDENT TO
THE PETITIONER
EXHIBIT P7 A TRUE COPY OF THE REPLY DATED 11.4.2018
ISSUED BY THE 1ST PETITIONER
EXHIBIT P8 A TRUE COPY OF THE RECEIPT DATED
11.4.2018 ISSUED FROM THE OFFICE OF THE
1ST RESPONDENT
EXHIBIT P9 A TRUE COPY OF THE AFFIDAVIT DATED
8.5.2018
EXHIBIT P10 A TRUE COPY OF THE JUDGMENT DATED
26.06.2018 IN W.P(C) NO.21032/2018
EXHIBIT P11 A TRUE COPY OF THE ORDER DATED
28.07.2018 PASSED BY THE 2ND RESPONDENT
EXHIBIT P12 A TRUE COPY OF THE JUDGMENT DATED
08-08-2018 IN WP(C) 26834/2018
EXHIBIT P13 A TRUE COPY OF THE ORDER DATED
22.10.2018 PASSED BY THE 2ND RESPONDENT
W.P.(C)No.37295 of 2018
ADDL.EXHIBIT P14 A TRUE COPY OF THE LETTER DATED
16.04.2019 ISSUED BY THE DIRECTOR
GENERAL OF FIRE AND RESCUE SERVICES.
ADDL.EXHIBIT P15 A TRUE COPY OF THE RELEVANT EXTRACT OF
THE DECISION IN THE ADALATH CONDUCTED
BY THE 1ST RESPONDENT DATED
02.09.2019.
ADDL.EXHIBIT P16 A TRUE COPY OF THE RELEVANT EXTRACT OF
THE OFFICE FILE NOTE KEPT AT THE
OFFICE OF THE 1ST RESPONDENT IN
RESPECT OF THE PETITIONERS BUILDING.
ADDL.EXHIBIT P17 A TRUE COPY OF THE COMMUNICATION DATED
31.01.2020 ISSUED BY THE 2ND
RESPONDENT TO THE PETITIONER.
ADDL.EXHIBIT P18 A TRUE COPY OF THE DECLARATION DATED
07.09.2019 GIVEN BY THE ARCHITECT AND
THE PETITIONERS.
ADDL.EXHIBIT P19 A TRUE COPY OF THE CERTIFICATE
REGARDINGTHE INSTALLATION OF
FIREFIGHTING EQUIPMENTS DATED
18.11.2019.
ADDL.EXHIBIT P20 A TRUE COPY OF THE PERMIT DATED
23.04.2014 ISSUED BY THE 2ND
RESPONDENT.
