K. C. Muhammed v. The Commandant General, Fire and Rescue General, Thiruvananthapuram; The Divisional Officer, Fire and Rescue Service, Gandhinagar, Ernakulam; The Secretary, Corporation of Cochin, Ernakulam

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR. JUSTICE SHAJI P.CHALY** **MONDAY, THE 9TH DAY OF JULY 2018 / 18TH ASHADHA, 1940** **WP(C).No. 20547 of 2017** ## **PETITIONER(S)** **K.C.MUHAMMED,, S/O.SYED MUHAMMED, AGED 71 YEARS, THAZHEPEEDIKAYIL HOUSE, VK COLONY P.O, KOCHI-682 021.** **BY ADVS.SRI.V.V.NANDAGOPAL NAMBIAR SMT.SMITHA (EZHUPUNNA)** ## **RESPONDENT(S):** **1. THE COMMANDANT GENERAL, FIRE AND RESCUE GENERAL, THIRUVANANTHAPURAM-695 001.** **2. THE DIVISIONAL OFFICER, FIRE AND RESCUE SERVICE, GANDHINAGAR, ERNAKULAM-682 016.** ## **3. THE SECRETARY,** **CORPORATION OF COCHIN, ERNAKULAM-682 011.** **R1 & R2 BY GOVERNMENT PLEADER SRI.PAUL ABRAHAM VAKKANAL R3 BY ADVS. SRI.P.FAZIL, S.C SRI.P.K.SOYUZ, S.C** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 09-07-2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **Msd.** ## **11.07.2018** **WP(C).No. 20547 of 2017 (P)** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS** **EXHIBIT P1 : TRUE COPY OF REVISED BUILDING PERMIT DATED 06-02-2010. EXHIBIT P2 : TRUE COPY OF THE CHALLAN DATED 31-10-2009. EXHIBIT P3 : TRUE COPY OF THE NOC CERTIFICATE DATED 04-12-2009. EXHIBIT P4 : TRUE COPY OF THE CHALLAN DATED 12-06-2015 EVIDENCING THE REMITTANCE OF RS.62,600/- AS FEE FOR FINAL FIRE NOC. EXHIBIT P5 : TRUE COPY OF THE COMMUNICATION OF DISTRICT FOREST OFFICER DATED 21-10-2016.** ## **RESPONDENT(S)' EXHIBITS :** ## **NIL** **//TRUE COPY//** **P.S.TO JUDGE** **Msd. 11.07.2018** ## **SHAJI P. CHALY, J.** -------------------------------------------------- ## **W.P.(C) No.20547 of 2017 ----------------------------------------------Dated this the 9[th] day of July, 2018** ## **JUDGMENT** This writ petition is filed by the petitioner seeking to stay the operation of Ext.P5 order dated 20.10.2016 issued by the 2[nd] respondent, declining to recommend to issue certificate of approval to the building constructed by the petitioner, and thereby rejecting the application, and for other related reliefs. Material facts for the disposal of the writ petition are as follows: 2. Petitioner is the owner in possession of an extent of 3.70 Ares of land comprised in Sy.No.16/71 of Edappally North Village. Petitioner obtained a building permit from the Corporation of Cochin for construction of a multi-storied building i.e., basement, ground + 5 floors. On the basis of the revised plan, petitioner approached the 1[st] respondent for issuance of site NOC from the Fire Force Department. According to the petitioner, the officials under respondents 1 and 2 conducted site inspection, and the application was placed before a scrutiny committee constituted by the 1[st] 2 **W.P.(C) No.20547 of 2017** respondent. On 04.12.2009, the Committee, as per Ext.P3, recommended to issue no objection certificate in respect of the plan submitted by the petitioner, subject to certain terms and conditions. Petitioner has completed the construction of the building as per the approved plan, complying with all conditions set forth in Ext.P3 certificate. In addition, petitioner has also provided Fire fighting measures including Fire escape lighting, a separate Assembly Area, Fire Escape Plan in all floors, and also a full-fledged control room with a public address system. That apart, connectivity with elevator and floor to floor communication was also provided. Thereafter, consequent on the completion of the construction, petitioner remitted Rs.62,600/- as fee for final Fire NOC, evident from Ext.P4 challan dated 12.06.2015. 3. According to the petitioner, the land is located on the side of National Highway service road having wide roads on the eastern and western boundaries. The building is having a length of 17.55 metres on the front side and rectangular in shape, and the width of the building is 7.7 metres only. However, petitioner received Ext.P5 communication dated 21.10.2016 rejecting the application, which, according to the 3 **W.P.(C) No.20547 of 2017** petitioner, was done after 1 year and 4 months from the date of remitting the amount as per Ext.P4 challan. It is the further contention of the petitioner that, the site NOC was granted on the basis of approved plan and the building permit granted by the 3[rd] respondent. Since there is no deviation from the approved plan and Ext.P1 building permit and set back as per the approved plan provided, after completing the construction of the building, respondents 1 and 2 are estopped from imposing new conditions. The reason stated for rejecting the application is, clear motorable open space contiguous to the building is only 1.9 metres instead of 5 metres. However, it is the case of the petitioner that, the open space provided in the front side is 6.5 metres. It is also stated, the contiguous space is measured as 2.4 metres instead of 1.9 metres as pointed out in Ext.P5. Therefore, according to the petitioner, 2.4 metres width is sufficient for fire fighting operations. Other contentions are also raised to contend that Ext.P5 order passed by the 2[nd] respondent is not sustainable under law. 4. A detailed counter affidavit is filed by the 2[nd] respondent, refuting the allegations and claims and demands raised by the petitioner. Among other contentions, it is stated 4 **W.P.(C) No.20547 of 2017** that, the risk factor associated with a high rise building is much more than ordinary single or double storied building. Fire risk is identified as one of the major risk associated with these type of high rise buildings. Life and safety of the people cannot be put on stake for the sake of mere convenience. In Kerala, the only Department that is entrusted with the responsibility of ensuring the safety of a building is Kerala Fire and Rescue Services. Thereupon, a certificate from respondents 1 and 2 are required in respect of the safety aspects provided to the building. The frequent incidents of fire in various high rise buildings compelled the Department to enhance the implementation of the safety norms on a strict basis, and accordingly, a checklist was prepared by the department by enlisting the various norms, in Kerala Municipal/ Panchayat Building Rules and National Building Code of India, related to the life and safety aspects. Therefore, even any slightest detour from the checklist is not only the violation of the rules but a threat to life of the occupants. The checklist was introduced in the department _vide_ Standing Order No.01/2016 dated 26.02.2016 of the Director General, Kerala Fire and Rescue Services, henceforth, both for granting Fire **W.P.(C) No.20547 of 2017** 5 Safety Clearance for Site (before the construction of the building) and Certificate of approval (after the construction of the building), the verification of plan and inspection of the building are carried out in accordance with the checklist. 5. It is also stated that, in the Kerala Municipal/ Panchayat Building Rules nothing is mentioned about Fire Fighting arrangements, as such, except stating that the fire fighting arrangements shall be according to that described in the National Building Code of India in vogue. All the rest of the structural and non-structural aspects incorporated in the checklist are as per the existing Kerala Municipal/Panchayat Building Rules. Hence, the checklist was made applicable to those buildings also which were granted initial clearance from the department before the implementation of the checklist with the aim of ensuring the life and safety in maximum number of buildings as possible. There is nothing wrong in implementing the checklist to these types of building, as any building ought to be constructed according to the Kerala Municipal/ Panchayat Building Rules. 6 **W.P.(C) No.20547 of 2017** 6. It is also the case of the 2[nd] respondent that, even though Ext.P3 initial site clearance certificate was issued to the petitioner from the department, it is subject to the condition that all fire fighting arrangements should be made as per the existing relevant rules, and a fresh NOC should be obtained from the department after the completion of construction and before occupation of the building. Therefore, an application was submitted by the petitioner for Certificate of Approval. But the Committee noticed certain defects and those were brought to the notice of the owner for rectification _vide_ a letter dated 05.08.2016, noting the following defects: - _“(1) Clear motorable space contiguous to the front side of the building is only 1.9 metre._ - _(2) The width of the main staircase varies from 112 cm to 123 cm._ - _(3) The width of tread of the main staircase varies from 27 cm to 30 cm._ - _(4) The height of the riser of the main staircase varies from 16 cm to 15 cm._ - _(5) The loading capacity of minimum floor area of the Fire Lift is less than the required.”_ 7. In reply to the letter, petitioner informed that he has rectified the defects and the defect noted as Sl.No.1 has been provided as per the initial NOC. The committee again **W.P.(C) No.20547 of 2017** 7 inspected the site on 14.10.2016 and noticed the defect that clear motorable open space contiguous to the front side of the building is only 1.9 metres instead of 5 metres. As per Rule 117 of the Kerala Municipality Building Rules, the minimum width of the open space at the front side as well as at any one of its side contiguous to the road abutting it should be 5 metres. Earlier, at the time of issuance of Ext.P3, the department was concentrating only on the fire fighting arrangement installed or to be installed as per the norms followed by the department existed thereto. Thereafter, a checklist was introduced in the department as per Standing Order dated 26.02.2016. That apart, it is submitted that, petitioner is bound to obey the existing rules as per Rule 20(1) of the Kerala Municipality Building Rules, which deals with duties and responsibilities of the owner, which states that, the granting of permit or the approval of the drawings and specifications or inspections made by the Secretary during the erection of the building or structure or digging of well shall not in any way relieve the owner of such building of responsibility for carrying out the work in accordance with the requirement of these rules. 8 **W.P.(C) No.20547 of 2017** 8. Therefore, since the petitioner has not complied with the directions in the checklist with regard to the minimum width of the open space, the department authorities had no other alternative, but to reject the application. Other contentions are also raised to justify the action of the 2[nd] respondent in declining Fire NOC to the petitioner. 9. A reply affidavit is filed by the petitioner, reiterating the stand adopted in the writ petition, and also canvassing the proposition of law laid down in the judgment in ' _**T. Vijayalakshmi v. Town Planning Member**_ ' [2006 KHC 1534]. 10. I have heard learned counsel for the petitioner, learned Government Pleader and learned Standing Counsel appearing for the 3[rd] respondent Corporation. 11. The fact discussion made above would make it clear that, petitioner has secured Ext.P1 building permit on 06.02.2010 from the 3[rd] respondent, which has validity period of three years from 06.02.2009. Petitioner has also secured Ext.P3 certificate from the 1[st] respondent dated 04.12.2009, recommending to issue NOC in respect of the plan submitted by the petitioner, on condition that all fire fighting 9 **W.P.(C) No.20547 of 2017** arrangements should be made as per the existing relevant rules, and fire escape and main staircases should reach up to the roof top. It was based on Exts.P1 and P3, petitioner carried out the construction of the multi-storied building. Thereafter, petitioner has remitted the fee in favour of the 2[nd] respondent, evident from Ext.P4 chalan. According to the petitioner, Ext.P4 is dated 12.06.2015, however, the application for NOC was declined on 20.10.2016 i.e. 1 ½ years after submitting the application and remitting the fee. The NOC was declined basically for the reason that, the building is having a height of 18.10 mtrs. and therefore, the clear motorable open space contiguous to the front side of the building should be 5 mtrs. and instead, the building is only having 1.95 mtrs. It is thereupon, that the Board of Officers decided not to recommend to issue Certificate of Approval to the said building in question. 12. Learned counsel for the petitioner heavily relied upon the judgment of this Court in ' _**T. Vijayalakshmi'**_ ( _supra_ ), wherein, it is held that, an application for grant of permission for construction of a building is required to be decided in accordance with the law applicable on the date on which the **W.P.(C) No.20547 of 2017** 10 said permission is granted. However, a statutory authority must exercise its jurisdiction within a reasonable time. Learned counsel has also invited my attention to the judgment of this Court in ' _**Desai Homes (M/s.) v. Divisional Officer, Fire & Rescue Services and Another**_ ' [2017 (3) KHC 795], wherein, it is held that, when a high rise building is constructed on a valid permit issued by the Local Authority and cleared for construction by Fire and Rescue Services, then if a drastic change to Rules are brought about; increasing the width of access, then it cannot be said that the entire project has to be scuttled. 13. On the other hand, learned Government Pleader pointed out that, so far as the width of the building as per the Kerala Municipality Building Rules is concerned as it stood on the date of the building permit, the petitioner was bound to provide 5 mtrs. width contiguous to the building for fire fighting in case of any emergent situations. Therefore, according to the learned Government Pleader, there is no illegality on the part of the 2[nd] respondent in declining the application by respondents 1 and 2, as per the checklist then in existence. It is also submitted that, the National Building Code **W.P.(C) No.20547 of 2017** 11 is made applicable to the Kerala Municipality Building Rules, and therefore, all parameters and stipulations contained under the Building Code apply to the fire fighting arrangements irrespective of the initial NOC granted by respondents 1 and 2. 14. The learned Standing Counsel for the Corporation submitted that the occupancy certificate is not issued to the petitioner, since the NOC was rejected by respondents 1 and 2. 15. I have considered the rival submissions made across the Bar, and perused the pleadings and documents on record. In my considered opinion, the proposition of law laid down by this Court in the judgments in ' _**T. Vijayalakshmi'**_ and ' _**Desai Homes (M/s.)'**_ (supra) are relevant in the context. Petitioner has secured Ext.P1 building permit and Ext.P3 NOC from respondents 1 and 2 in respect of the construction to be carried out on the basis of Ext.P1. Petitioner completed the construction on the strength of Exts.P1 and P3. If the defect was discernible from the building plan in respect of the contiguous open space attached to the building, it should have been pointed out by respondents 1 and 2 at that point of time itself, since the open space available as per the building plan is clearly discernible from the approved 12 **W.P.(C) No.20547 of 2017** plan secured by the petitioner from the 3[rd] respondent. Having not done so, at a later point of time, and after construction of the building, and that too, a multi-storied building of 7 floors, the respondents cannot state that the Fire NOC cannot be given to the petitioner. It is also the case of the petitioner that, instead of 1.9 mtrs. pointed out in Ext.P5, there is a clear open space of 2.4 mtrs. on the front side of the building. Therefore, sufficient space is available for fire fighting in case of any emergent situation. 16. Taking into account all these aspects and the proposition of law laid down by this Court in the afore-quoted judgments, I am of the considered opinion, the 1[st] and 2[nd] respondents are directed to re-consider the issue taking into account all the afore-stated aspects. Therefore, I quash Ext.P5 and direct the 2[nd] respondent to re-consider the application submitted by the petitioner, taking into account the aforestated aspects and the proposition of law laid down by this Court in the afore-quoted judgments. A decision shall be taken in accordance with law, at the earliest possible, and at any rate, within a month from the date of receipt of a copy of this judgment. 13 **W.P.(C) No.20547 of 2017** The writ petition is disposed of accordingly. Sd/- **SHAJI P. CHALY JUDGE** St/10.07.2018