Josco Bullion Traders Pvt. Ltd. and Joshy T. Mathew v. The Kottayam Municipality and Its Secretary, The Divisional Officer, Fire and Rescue Services, Gandhi Nagar, and The Regional Officer, Fire and Rescue Services

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **WEDNESDAY, THE 22ND DAY OF JULY 2020 / 31ST ASHADHA, 1942** ## **WP(C).No.14130 OF 2020(M)** ## **PETITIONER/S:** - **1 JOSCO BULLION TRADERS PVT. LTD. 894 AND 895/IX, CENTRAL JUNCTION, K.K.ROAD, KOTTAYAM-686 001, REPRESENTED BY ITS MANAGING DIRECTOR P.A.JOSE, S/O.ANTONY, AGED 72 YEARS, PAYAPILLI HOUSE, PUTHANANGADI, THIRUVATHUKKAL P.O., KOTTAYAM-686 003.** - **2 JOSHY T.MATHEW @ JOSHY MATHEW THADATHIL, AGED 53 YEARS, S/O.T.J.MATHEW, KALLUPURACKALAYA THADATHIL HOUSE, S.H.MOUNT P.O., NATASSERY, KOTTAYAM-686 006.** **BY ADVS. SRI.BINOY VASUDEVAN SRI.SREEJITH SREENATH** ## **RESPONDENT/S:** - **1 THE KOTTAYAM MUNICIPALITY REPRESENTED BY ITS SECRETARY, MUNICIPAL OFFICE, KOTTAYAM-686 001.** - **2 THE SECRETARY, KOTTAYAM MUNICIPALITY, MUNICIPAL OFFICE, KOTTAYAM-686 001.** - **3 THE DIVISIONAL OFFICER, FIRE AND RESCUE SERVICES, GANDHI NAGAR, KOTTAYAM-686 004.** - **4 THE REGIONAL OFFICER, OFFICE OF THE REGIONAL FIRE OFFICER, FIRE AND RESCUE SERVICES, KOTTAYAM-686 001.** - **R1-2 BY SRI.SIBY CHENAPPADY, SC, KOTTAYAM MUNICIPALITY** **SRI.SAIGI JACOB PALATTY, SR.GOVT.PLEADER R3 & R4** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 22.07.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ::2:: **WP(C).No.14130 OF 2020(M)** ## **ALEXANDER THOMAS, J** . ----------------------------W.P(C).No.14130 Of 2020 --------------------------------Dated this the 22[nd] day of July, 2020. ## **J U D G M E N T** The case set up in this Writ Petition (Civil) is as follows: _The 1[st] petitioner herein is a Public Limited Company which had purchased a parcel of land and a multi storied commercial building from the 2[nd] petitioner and his siblings. The 2[nd] petitioner and his siblings were granted with a building permit as evident from Exhibit P-2. The validity of the same was extended for a period of 72 months on two occasions as provided in the Kerala Municipality Building Rules, 1999. The 1[st] petitioner company purchased the property and the building and completed the construction of basement, ground and six floors and submitted the occupancy certificate as evident from Exhibit P-6, it is averred. It is worthwhile to note that as per Exhibit P-5 a No Objection Certificate for constructing the building was issued by the Fire and Rescue department. However when the Municipality sought for the final NOC, the same was rejected by a cryptic order. Even though four grounds have been raised, the petitioners are confining their challenge only to one aspect. The insistence of a condition which was not applicable at the time of issuance of Exhibit P-5 is per-se_ ::3:: ## **WP(C).No.14130 OF 2020(M)** _illegal in the light of Exhibit P-8 Judgment as also in the light of the dictum laid down in Desai Home’s Vs. Fire and Rescue Services (2017 (3) KLT 143). It is stated that inspite of the fact that it had been repeatedly held that the law that stood at the time of grant of permit should be relevant, the 3[rd] and 4[th] respondents are now insisting for a condition which came into force only subsequently. Hence Exhibit P-7 to the extent it directed the petitioner to provide five meter width on the front portion of the building is per-se illegal, irregular and arbitrary._ It is in the light of these factual averments that the petitioners have filed the instant Writ Petition (Civil) has been filed seeking the following reliefs: - _“(i) Issue a writ of Certiorari or other appropriate Writs, Orders or directions, to call for the records leading upto Exhibit P-7 and to quash the first reason mentioned therein in the interest of justice;_ - _(ii) Issue a writ of Mandamus or other appropriate Writs, Orders or directions commanding the respondents 3 and 4 to issue the final No Objection Certificate as sought for on the basis of Exhibit P-5 initial No Objection Certificate as expeditiously as possible at any rate within a time frame to be fixed by this Hon’ble Court;_ - _(iii) Issue a Writ to declare that the condition No.1 mentioned in Exhibit P-7 is illegal and arbitrary and opposed to Exhibit P-8 Judgment and other decisions rendered by this Hon’ble Court;_ - _(iv) Issue a Writ of Mandamus or other appropriate Writs orders or direction commanding the respondents 1 and 2 to issue completion certificate to the petitioners and to number the building in accordance with Rule 22 of the Kerala Municipality Building Rules._ - _(v) Render such other orders or directions as this Hon’ble Court may deem just, fit and necessary in the facts and circumstances of the case.”_ ::4:: **WP(C).No.14130 OF 2020(M)** 2. It is the case of the petitioner that the petitioner has no objection whatsoever with defect Nos.2, 3 & 4 of the impugned Ext.P-7 rejection order dated 3.7.2020 issued by the 4[th] respondent-Regional Fire Officer and that the petitioner would immediately take steps to remedy and rectify defect item Nos.2, 3 & 4 mentioned in Ext.P-7. The 4 defects noted in Ext.P-7 are as follows: - “1. ടടി കകെടടിടതടിനന് കകെടടിട നടിർമമ്മാണ ചടപ്രകെമ്മാരരം 5 മമീറ് **റ** ടിൽ കുറയമ്മാത രമീതടിയടിൽ തുറസമ്മായ സ്ഥലരം ഉണമ്മായടിരടിക്കണരം എനമ്മാണന്. എനമ്മാൽ ഈ കകെടടിടതടികന വടക്കന് വശതന് മകറ്റമ്മാരമ്മാളുകട ഉടമസ്ഥതയടിലുള്ള കകെടടിടരം സ്ഥടിതടി കചയ്യുന ഭമ്മാഗതടിനടിടയന് 5 മമീറ്റർ വമീതടിയടിലമ്മാതതമ്മാകുന. 2. Fire escape stair case-കന ചവടിട്ടുപടടിയടിൽ ഗമ്മാനനറ്റന് പതടിക്കുനതമ്മാകണനരം ആയതന് കചയ്യുമമമ്മാൾ നകെപടിടടിയുകട ഉയരരം 130 കസ.മമീറ് **റ** ടിൽ നടിനരം നടിയമമ്മാന ശ്രുതമമ്മായ 120 കസ.മമീറ്റർ ആകുകമനരം തമ്മാങ്കൾ സൂചനപ്രകെമ്മാരരം അറടിയടിചടിരുന. പരടിമശമ്മാധനമ് **മ** ാവളയടിൽ ഗമ്മാനനറ്റന് പതടിപടിചടിലമ്മാകയനരം നകെപടിടടിയുകട ഉയരരം നടിലവടിലുരം 130 കസ.മമീ. ആയടി തകന നടിലനടിൽക്കുനതമ്മായുരം മബമ്മാധധ്യകപട്ടു. 3. കകെടടിടതടികന സ്ട്രകെന്ചറൽ വർക്കന് നടിലവടിലുരം പൂർതടി ആയടിടടില 4. കകെടടിടതടികന അപ്രൂവന്വന് പമ്മാനകെൾ ഹമ്മാജരമ്മാക്കടിയതടിൽ നസറ്റന് പന്ളമ്മാൻ ഉൾകക്കമ്മാള്ളടിചടിലമ്മാതതമ്മാകുന..” The main objection of the petitioner is the objection in item No.(1) in Ext.P-7 wherein the 4[th] respondent has taken the view that as per the Kerala Municipal Building Rules, the building should have an open space of 5 meters and there is no 5 meter width since another building is in existence and hence on that ground the request of the petitioner for grant of final Fire NOC has been ::5:: ## **WP(C).No.14130 OF 2020(M)** rejected as per Ext.P-7. The main case of the petitioner is that it is evident from Ext.P-2 building permit dated 1.12.2008/24.1.2009 that the said property has been granted building permit as per the provisions contained in the Kerala Municipal Building Rules, 1999 and at the time of grant of Ext.P-2 building permit, the abovesaid impugned restriction/condition envisaged in defect No.(1) of Ext.P-7 was not prescribed as per the Rules and hence the initial NOC as per Ext.P-5 dated 26.9.2008 was issued on behalf of the Fire and Rescue Department. That after the issuance of Ext.P5 initial NOC, construction has been completed by the petitioner in the year 2017 and it is only much thereafter that the Municipal Building Rules, 1999 has been repealed and replaced by the Kerala Municipality Building Rules, with effect from 8.11.2019. It is the case of the petitioner that it is only subsequent to the issuance of Ext.P2 building permit dated 1.12.2008/24.1.2009 that the impugned restriction based on 5 meter width has been introduced in the Rules. The petitioner would point out that it is by now well established by a series of rulings of this Court and that of the Apex Court that in cases like this, it is only those restrictions which are available as per the statutory norms at the time of grant of building ::6:: ## **WP(C).No.14130 OF 2020(M)** permit could alone be taken into account and not restrictions, which has been incorporated after the grant of building permit. The petitioner would place reliance on the judgment of this Court in _**Sathyadas v. Divisional Officer, Fire and Rescue Services**_ [2017 (3) KLT 54] (copy of which has been produced as Ext.P-8 herein). In that case, this Court considered the question of height of interior stair case and after examining the relevant provisions of the Kerala Municipality Building Rules, this Court found that the building was given a preliminary NOC by the Fire & Rescue Department after verifying site plans, the building and structural plans as well as section drawings which would have clearly indicated how the stair case are to be constructed or proposed to be constructed. It was held that unless and until there is an allegation that the construction is in violation of the building permit the final certificate of the Fire and Rescue Department cannot be denied. The petitioner would also place reliance on the judgment of this Court in cases as in _**Desai Homes v. Fire & Rescue Services**_ [2017 (3) 143] wherein this Court has held that there cannot be any insistence for the provision of 10 meter width to the road access and the same would have to be considered on the basis of the ::7:: **WP(C).No.14130 OF 2020(M)** requirement as laid down in the Building Rules at the time of issuance of the building permit. In the said case, the Fire and Rescue Department was directed to decide access to the building as on the date of the grant of building permit. In other words, this Court has held that subsequent amendments cannot be brought in and applicants cannot be insisted to perform something which was brought into statute only subsequently after the grant of the building permit. This Court in _**Desai Homes**_ ' case (supra) has placed reliance on various judgment of the Apex Court in cases as in _**T.Vijayalakshmi & ors. v. Town Planning Member & anr**_ . [2006 (8) SCC 502], _**Municipal Corporation v. Ganges Rope Co. Ltd**_ [2004 (1) SCC 663], _**Kuldeep Singh v. Govt. of NCT of Delhi**_ [2006 (5) SCC 702] etc. 3. From a reading of the impugned Ext.P-7, it is seen that none of the abovesaid contentions urged by the petitioner have been remotely adverted to or considered by the 4[th] respondent. Moreover the petitioner was not afforded reasonable opportunity of being heard by the 4[th] respondent before passing an adverse order in the nature of Ext.P-7, more particularly, in the matter relating to defect No.1 thereof. Accordingly, this Court is of the ::8:: ## **WP(C).No.14130 OF 2020(M)** view that the matter requires serious reconsideration at the hands of the 4[th] respondent and therefore the matter warrants a remit. For effectuating proper remit, the impugned Ext.P-7 proceedings dated 3.7.2020 issued by the 4[th] respondent to the limited extent it concerns with defect No.1 thereof will stand quashed and set aside and the application of the petitioner for grant of final NOC forwarded by the 2[nd] respondent-Kottayam Municipality will stand remitted to the 4[th] respondent to the extent it concerns with defect No.1 of Ext.P-7. It is made clear that Ext.P-7 to the extent it concerns about defects Nos.2, 3 & 4 are not in any manner disturbed by this Court and it is for the petitioner to take remedial or rectification measures so as to rectify the defects noted as item Nos. 2, 3 & 4 as already taken by him. The 4[th] respondent-Regional Fire Officer of the Fire and Rescue Department, Kottayam, will take up the matters in relation to the abovesaid aspects remitted to him for consideration without any further delay and should afford reasonable opportunity of being heard to the petitioner through his authorised representative/counsel, if any, and then should consider as to whether the impugned condition regarding 5 meter width was prescribed as per the applicable statutory Building Rules ::9:: ## **WP(C).No.14130 OF 2020(M)** at the time of grant of building permit dated 1.12.2008/24.1.2009 and should also consider the abovesaid dictum laid down by this Court in decisions as in _**Sathyadas v. Divisional Officer, Fire and Rescue Services**_ [2017 (3) KLT 54], _**Desai Homes v. Fire & Rescue Services**_ [2017 (3) 143] and the aforecited judgments of the Apex Court, etc., and then should pass orders afresh on the request of the petitioner for grant of final NOC, without much delay, preferably within a period of one month from the date of production of a certified copy of this judgment. The petitioner will produce a certified copy of this judgment along with a copy of the memorandum of Writ Petition with all exhibits before the 2[nd] respondent-Secretary of the Kottayam Municipality and the 4[th] respondent-Regional Fire Officer of the Fire and Rescue Department, Kottayam, for necessary information and further action. With these observations and directions, the above Writ Petition (Civil) will stand finally disposed of. ## **Sd/ALEXANDER THOMAS, Judge.** bkn/- ::10:: **WP(C).No.14130 OF 2020(M)** ## **APPENDIX** **PETITIONER'S/S EXHIBITS:** - **EXHIBIT P1 TRUE COPY OF DOCUMENT NO.111/2019 OF SRO, KOTTAYAM.** - **EXHIBIT P2 TRUE COPY OF THE BUILDING PERMIT NO.PW3/BA/157/07-08 ISSUED BY THE 2ND RESPONDENT.** **EXHIBIT P3 TRUE COPY OF THE PROCEEDINGS OF THE 2ND RESPONDENT DATED 14.07.2014.** - **EXHIBIT P4 TRUE COPY OF THE PROCEEDINGS OF THE 2ND RESPONDENT RENEWING THE BUILDING PERMIT DATED 15.07.2015.** - **EXHIBIT P5 TRUE COPY OF THE CERTIFICATE NO.G19525/08 DATED 26.09.2008.** - **EXHIBIT P6 TRUE COPY OF THE APPLICATION FOR GETTING THE OCCUPANCY CERTIFICATE CERTIFICATE SUBMITTED BY THE 2ND PETITIONER FOR AND ON BEHALF OF THE OTHER PERMIT HOLDERS.** **EXHIBIT P6 A TRUE COPY OF THE RECEIPT ACKNOWLEDGING THE RECEIPT OF EXHIBIT P6 APPLICATION.** - **EXHIBIT P7 TRUE COPY OF COMMUNICATION NO.D1693/2019 DATED 03.07.2020 BY THE 4TH RESPONDENT.** **EXHIBIT P8 TRUE COPY OF THE JUDGMENT DATED 12.04.2017 IN WPC NO.19981/2016.**