Antony C.J., Joseph Cherian & Peringatt Residents Association v. Corporation of Kochi and Others

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**| |**DENT/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,**| ## **RESPONDENT/S:** 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.** ## **J U D G M E N T** Dated this the 16[th] 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 4[th] 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 2[nd] respondent, has issued building permit to the 4[th] respondent, without adhering to the mandatory provisions contained in the Kerala Municipality Building Rules, 1999. The 4[th] respondent WA.No.480 OF 2021 -4- pursued the construction works and the construction is now almost complete. Appellants have further submitted that, the Secretary, Kochi Municipal Corporation, the 2[nd] 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 4[th] 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 4[th] 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 4[th] respondent in pursuance of Ext. P2 complaint forthwith.” WA.No.480 OF 2021 -5- 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 WA.No.480 OF 2021 -6- 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 WA.No.480 OF 2021 -7- 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 4[th] respondent and proceeded to pass an order like the one impugned in this case. WA.No.480 OF 2021 -8- 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 4[th] respondent, and on that score, prayed for an order, forbearing respondents 1 and 2, from issuing occupancy certificate to the 4[th] respondent. 9. Though the learned counsel for the appellant submitted that the building permit issued by the 2[nd] respondent, is in collusion with the 4[th] 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 WA.No.480 OF 2021 -9- 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 WA.No.480 OF 2021 -10- 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 WA.No.480 OF 2021 -11- 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 WA.No.480 OF 2021 -12- 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 (Para37)]; 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 WA.No.480 OF 2021 -13- 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