Kerala High Court
Antony C.J vs Corporation Of Kochi on 16 March, 2021
WA.No.480 OF 2021 -1-
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR
&
THE HONOURABLE MR. JUSTICE SHAJI P.CHALY
TUESDAY, THE 16TH DAY OF MARCH 2021 / 25TH PHALGUNA, 1942
WA.No.480 OF 2021
AGAINST THE JUDGMENT IN WP(C) 1744/2021(P) OF HIGH COURT OF
KERALA
APPELLANT/S:
1 ANTONY C.J
AGED 72 YEARS
S/O C.J. JOSEPH,
CHIREPARAMBIL HOUSE,
PERINGATTU ROAD, NEAR YMCA, PALARIVATTOM, ERNAKULAM
P.O.
2 JOSEPH CHERIAN,
S/O CHERIAN,
CHIREPARAMBIL HOUSE,
PERINGATTU ROAD, NEAR YMCA, PALARIVATTOM, ERNAKULAM
P.O.
3 PERINGATT RESIDENTS ASSOCIATION,
PERINGATT ROAD,
PALARIVATTOM,
ERNAKULAM.(REPRESENTED BY ITS SECRETARY -B.B.
AJAYAN).
BY ADVS.
SRI.V.V.ASOKAN (SR.)
SRI.K.I.MAYANKUTTY MATHER
SMT.RUKHIYABI MOHD KUNHI
RESPONDENT/S:
1 CORPORATION OF KOCHI
REPRESENTED BY ITS SECRETARY,
OFFICE OF COCHIN CORPORATION,
M.G.ROAD.P.O, ERNAKULAM-682011.
2 THE SECRETARY,
THE KOCHI MUNICIPAL CORPORATION,
WA.No.480 OF 2021 -2-
ZONAL OFFICE,
EDAPPALLY P.O,
ERNAKULAM-682024.
3 ASSISTANT EXECUTIVE ENGINEER,
THE KOCHI MUNICIPAL CORPORATION,
ZONAL OFFICE, EDAPALLY.PO, ERNAKULAM-682024.
4 DREAM FLOWER HOUSING PROJECT PVT LTD,
(REPRESENTED BY ITS MANGING DIRECTOR FAZIL A.S)
49/1295 E, DREAM FLOWER, PONEKKARA ROAD,
EDAPALLY.P.O,
ERNAKULAM-682024.
OTHER PRESENT:
SRI. JANARDHANA SHENOY, SC FOR R1 TO R3,
SRI.M.R.ANISON FOR R4
THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON
16.03.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WA.No.480 OF 2021 -3-
C.R.
JUDGMENT
Dated this the 16th day of March, 2021
S. Manikumar, C. J.
Instant writ appeal has been filed challenging the order dated
08.03.2021 in W. P. (C) No. 1744 of 2021.
2. Short facts leading to the filing of the writ appeal are as
hereunder:-
The appellants are the residents of Edappally South Village,
Kanayannur Taluk, Ernakulam District. According to the appellants,
Dream Flower Housing Project Ltd., represented by its Managing
Director, Ernakulam, the 4th respondent, started construction of a
residential apartment complex, in utter violation of the various rules
prescribed under the Kerala Municipality Building Rules, 1999.
Appellants have submitted that the Secretary, Kochi Municipal
Corporation, the 2nd respondent, has issued building permit to the 4th
respondent, without adhering to the mandatory provisions contained in
the Kerala Municipality Building Rules, 1999. The 4 th respondent
pursued the construction works and the construction is now almost
complete. Appellants have further submitted that, the Secretary, Kochi
Municipal Corporation, the 2nd respondent, without considering the
objections highlighted by the appellants, started taking hasty steps to
issue occupancy certificate to the respondent, cooking up materials in
support of the 4th respondent.
3. In the said circumstances, appellant filed W. P. (C) No. 1744
of 2021, seeking the following reliefs:-
"(a) Call for the records of the case leading to the issuance
of Ext. P1 and quash the same by the issue of writ of certiorari
and other appropriate writ or order;
(b) Issue a writ of mandamus or other appropriate writ or
order forbearing the respondents 1 to 3 from issuing occupancy
certificate to the 4th respondent in respect of the multi-storied
residential complex constructed by them on the basis of Ext. P1;
(c) Issue a writ of mandamus or other appropriate writ or
order directing the respondents 1 and 2 to take appropriate action
against the 4th respondent in pursuance of Ext. P2 complaint
forthwith."
4. A counter affidavit has been filed by the Managing Director,
Dream Flower Housing Project Ltd., Ernakulam, the 4 th respondent,
refuting the allegations raised by the writ petitioner.
5. Petitioner has filed an application before the writ court,
seeking to take out an Advocate Commission, assisted by a qualified
Civil Engineer, to inspect the site covered by Ext. P1 plan.
6. Writ court, after preliminary hearing, passed the following
order:-
"It is made clear that the pendency of the writ petition will
not preclude the competent authority of the first respondent from
considering the application of the fourth respondent for
occupancy certificate in accordance with law."
7. Being aggrieved, instant writ appeal is filed on the following
grounds:-
A. The learned Single Judge ought not to have passed an order
like the one impugned in this case to the advantage of the
respondent No. 4 in the writ petition filed by these appellants.
B. The learned Single Judge without affording the appellants an
opportunity to file a reply affidavit in the case as well as to
demonstrate the falsity and hollowness of the contentions
urged in the counter affidavit ought not to have passed an
order like the one impugned in this case.
C. The learned Single Judge ought to have seen and appreciated
the gravity of violations committed by the 4 th respondent in
the matter of constructing a multistoried building in their
property. The appellants sought time to file a reply affidavit as
well as to file an application for appointment of Advocate
Commissioner by this Hon'ble Court to elicit the truth.
1. The width of the access road shown as 3.70 meters in Ext.
P1 plan is a misleading and wrong statement, that too so
asserted in collusion with the respondents 1 and 2 on the
basis of cooked up materials.
2. The actual width of the access road is only 3.2 meters and
this can be confirmed on a physical measurement at site by
an independent agency or an Advocate Commissioner
being deputed from this Hon'ble Court.
3. The width of the access road prescribed and required in
the instant case as per Rule 33 of the KMBR is 3.6
meters, since the total floor area of the construction as per
Ext. P1 is 1700.86 sq. meters, whereas the width of the
access road is only 3.2 meters and wrongly disclosed as
3.7 meters in Ext. P1.
4. Further in the subject construction, the floor area is
apparently more than 1700 sq. meters as there are 16
apartments spread in floors 1 to 4 and parking area in the
ground floor. The prescription of minimum width of
access as per Table 4.1(b) appended to Rule 33 KMBR is
with reference to the total floor area in the building.
5. The construction of the building is seen effected in
violation of the building permit and without giving
required set back / clearance on the front, rear as well as
on the sides of the building.
E. The learned Single Judge under the circumstances ought to
have endeavored to dispose of the writ petition on its merits
after affording the writ petitioners' an opportunity to file a
reply affidavit and opportunity to elicit materials to prove the
truth of the matter.
F. The learned Single ought not to have straight away accepted
the incorrect versions suggested in the counter affidavit filed
by the 4th respondent and proceeded to pass an order like the
one impugned in this case.
8. Mr. K. I. Mayankutty Mather, learned counsel for the
appellant submitted that, in the light of the interim order passed by
this Court, the Secretary, Kochi Municipal Corporation, the 2 nd
respondent, would issue occupancy certificate to the Dream Flower
Housing Project Ltd., represented by its Managing Director,
Ernakulam, the 4th respondent, and on that score, prayed for an order,
forbearing respondents 1 and 2, from issuing occupancy certificate to
the 4th respondent.
9. Though the learned counsel for the appellant submitted that
the building permit issued by the 2nd respondent, is in collusion with
the 4th respondent, prima facie, we are of the view that, remedy is
available to the appellant, under the Kerala Municipality Building
Rules, 1999, to take up the matter before the Tribunal for Local Self
Government Institutions, and writ jurisdiction under Article 226 of the
Constitution of India, is an extraordinary remedy.
10. That apart, what is directed by the learned Single Judge is
only consideration of the application for occupancy certificate, in
accordance with law. After the completion of construction, occupancy
certificate, can be claimed as a matter of right. Same is governed by
the statutory rules. Can there be any order by a court, restraining the
statutory authorities to consider such application, in accordance with
law, our answer is a clear no. Needless to state that Court cannot
restrain statutory authorities from exercising their duties under law.
Reference can be made to a few decisions:-
(i) In Union of India (UOI) and Ors. v. Kirloskar Pneumatic
Company Limited [(1996) 4 SCC 453], the Hon'ble Supreme Court
held thus:-
"...........Yet the question is whether it is permissible for
the High Court to direct the authorities under the Act to
act contrary to the aforesaid statutory provision. We do
not think it is, even while acting under Article 226 of the
Constitution. The power conferred by Article 226/227 is
designed to effectuate the law, to enforce the Rule of law
and to ensure that the several authorities and organs of the
State act in accordance with law. It cannot be invoked for
directing the authorities to act contrary to law..........."
(ii) In State of U. P. and Ors. v. Harish Chandra and Ors.
[(1996) 9 SCC 309], the Hon'ble Supreme Court held thus:-
"10..............Under the Constitution a mandamus can be
issued by the Court when the applicant establishes that he
has a legal right to the performance of legal duty by the
party against whom the mandamus is sought and said
right was subsisting on the date of the petition. The duty
that may be enjoined by mandamus may be one imposed
by the Constitution or a Statute or by Rules or orders
having the force of law. But no mandamus can be issued
to direct the Government to refrain from enforcing the
provisions of law or to do something which is contrary to
law......................"
(iii) In Manish Goel v. Rohini Goel [(2010) 4 SCC 393], the
Hon'ble Supreme Court held thus:-
"14. Generally, no court has competence to issue a
direction contrary to law nor can the court direct an
authority to act in contravention of the statutory
provisions. The courts are meant to enforce the Rule of
law and not to pass the orders or directions which are
contrary to what has been injected by law. (Vide State of
Punjab v. Renuka Singla [(1994) 1 SCC 175], State of
U.P. v. Harish Chandra [(1996) 9 SCC 309], Union of
India v. Kirloskar Pneumatic Co. Ltd. [ (1996) 4 SCC
453], University of Allahabad v. Dr. Anand Prakash
Mishra [ (1997) 10 SCC 264] and Karnataka SRTC v.
Ashrafulla Khan [(2002) 2 SC 560]."
(iv) In Anurag Kumar Singh and Ors. v. State of
Uttarakhand and Ors. [(2016) 9 SCC 426], the Hon'ble Supreme
Court held thus:-
"12............We realise that any such direction given by us
for their appointments would be contrary to the Rules.
Judicial discretion can be exercised by a Court only when
there are two or more possible lawful solutions. In any
event, Courts cannot give any direction contrary to the
Statute or Rules made thereunder in exercise of judicial
discretion. It will be useful to reproduce from Judicial
Discretion (1989) by Aharon Barak which is as follows:
"Discretion assumes the freedom to choose
among several lawful alternatives. Therefore,
discretion does not exist when there is but one
lawful option. In this situation, the judge is
required to select that option and has no
freedom of choice. No discretion is involved in
the choice between a lawful act and an unlawful
act. The judge must choose the lawful act, and
he is precluded from choosing the unlawful act.
Discretion, on the other hand, assumes the lack
of an obligation to choose one particular
possibility among several."
(v) In Ashok Sahani v. The State of Bihar [2017 (3) PLJR
632], the Hon'ble Patna High Court held thus:-
"15. So far as the submission of the learned counsel for
the petitioner in support of cases being listed as defect
free cases before the Court is concerned, I am of the
considered opinion that in exercise of judicial discretion,
this Court cannot give any direction contrary to the
statute or rules made thereunder as it is to be exercised
only when there are more than one possible lawful
solutions................."
(vi) In Saurabh Gupta v. Union of India and Ors. [2018 (2)
ALJ 630], the Hon'ble High Court of Allahabad held thus:-
"30. It is well established that neither Court has
competence to issue a direction contrary to law nor the
Court can direct an authority to act in contravention of
the statutory provisions or to disobey a statue, Courts are
meant to enforce the rule of law and not to pass the orders
or directions contrary to what has been injected by law,
vide Manish Goel v. Rohini Goel, [JT 2010 (3) SC 189
(Paras-10-12)]; State of Punjab v. Renuka Singla,
[(1994) 1 SCC 175]; State of UP. v. Harish Chand, (AIR
1996 SC 2173); Union of India v. Kirloskar Pvt. Ltd.,
(AIR 1996 SC 3285); Vice Chancellor v. Dr. Anand
Prakash, [(1997) 10 SCC 264]; Karnataka State Road
Transport v. Ashraf Ullah Khan, [JT 2000 (1) SC 113];
Prem Chand Garg v. Excise Commissioner, (AIR 1963
SC 996); State of West Bengal v. Subhas Kumar
Chatterjee, [(2010) 11 SCC 694]; A.P. Christians
Medical Education Society etc. v. Government of Andhra
Pradesh and another, (AIR 1986 SC 1490); State of Tamil
Nadu v. St. Joseph Teacher Training Institute, [(1995) 3
SCC 87]; Raghunath Rai Bareja and another v. Punjab
National Bank and others, [JT 2007 (1) SC 542 (Para-
37)]; Hope Textiles Ltd. and another v. Union of India,
[1995 UPTC 82 (SC)]."
11. Going through the grounds of the writ appeal, we are of the
view that the appellants only seek for a restraining order against the
competent authority, not to consider the application for issuance of
occupancy certificate. If any such application is filed for issuance of
occupancy certificate, the competent authority is mandated to consider
such application, in accordance with law. That is exactly, writ court
has ordered. What is directed by the writ court to the authority, under
the statutory provisions, cannot at any stretches of imagination, to be
held as unconstitutional or contrary to any statutory provisions.
Authorities under law, cannot be restrained, not to proceed and act, in
accordance with law.
In the light of the above, we are of the view that the appellant
has not made out a case to interfere with the impugned order in W. P.
(C) No. 1744 of 2021 dated 08.03.2021.
Accordingly, writ appeal is dismissed.
Sd/-
S. MANIKUMAR
CHIEF JUSTICE
Sd/-
SHAJI P. CHALY
JUDGE
Eb
///TRUE COPY///
P. A. TO JUDGE
