Manager DVMNNM H.S.S., Maranalloor Koovallassery v. State of Kerala and Others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE K.SURENDRA MOHAN THURSDAY, THE 5TH DAY OF DECEMBER 2013/14TH AGRAHAYANA, 1935 ## WP(C).No. 23971 of 2013 (V) ---------------------------- ## PETITIONER(S): -------------------------- MANAGER DVMNNM H.S.S DVMNNM HIGHER SECONDARY SCHOOL, MARANALLOOR KOOVALASSERY P.O., NEYYATTINKARA, TRIVANDRUM-695 512. BY ADVS.SRI.G.S.REGHUNATH SRI.K.RAJESH KANNAN SRI.A.S.SHAMMY RAJ SRI.P.SHANES ## RESPONDENT(S): ---------------------------- ## 1. STATE OF KERALA - REPRESENTED BY THE SECRETARY TO GOVERNMENT PUBLIC WORKS DEPARTMENT, SECRETARIAT THIRUVANANTHAPURAM-695 001. 2. ASSISTANT EXECUTIVE ENGINEER LOCAL SELF GOVERNMENT DEPARTMENT, BLOCK PANCHAYATH MALAYINKEEZHU, THIRUVANANTHAPURAM-695 571. 3. ASSISTANT ENGINEER - LOCAL SELF GOVERNMENT DEPARTMENT MARANALLOOR GRAMA PANCHAYATH THIRUVANANTHAPURAM-695 512. 4. MARANALLOOR GRAMA PANCHAYATH REPRESENTED BY THE SECRETARY , MARANALLOOR KOOVALASSERY P.O., THIRUVANANTHAPURAM-695 512. ## ADDL.5 IMPLEADED R5. G.GLORY W/O.A.HARRISON, AGED 58 YEARS, GLORIA GARDENS PONGUMOODU, MARANALLOOR VILLAGE, KOOVALASSERY.P.O. PIN -695 512, NEYYATTINKARA TALUK. - (ADDL. R5 IS IMPLEADED AS PER ORDER DATED 22.10.2013 IN IA 13826/2013. R5 BY ADV. SRI.S.JAMES VINCENT R1-R3 BY SR. GOVERNMENT PLEADER SRI SOJAN JAMES THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 05-12-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 23971 of 2013 (V) ---------------------------- ## **APPENDIX** PETITIONER(S)' EXHIBITS ------------------------------------EXHIIT P1. TRUE COPY OF THE FITNESS CERTIFICATE DATED 18/6/2011 ISSUED FOR THE 1ST AND 2ND FLOORS OF THE BUILDING. EXHIIT P2. TRUE COPY OF THE FITNESS CERTIFICATE ISSUED FOR 2002-2003 ON 29/8/2002. EXHIIT P3. TRUE COPY OF THE FITNESS CERTIFICATE ISSUED FOR 2003-2004 ON 10/7/2003. EXHIIT P4. TRUE COPY OF THE FITNESS CERTIFICATE ISSUED FOR 2005-2006 ON 12/7/2005. EXHIIT P5. TRUE COPY OF THE FITNESS CERTIFICATE ISSUED FOR 2006-2007 ON 7/6/2006. EXHIIT P6. TRUE COPY OF THE FITNESS CERTIFICATE ISSUED FOR 2007-2008 ON 16/7/2007. EXHIIT P7. TRUE COPY OF THE FITNESS CERTIFICATE ISSUED FOR 2008-2009 ON 10/7/2008. EXHIIT P8. TRUE COPY OF THE FITNESS CERTIFICATE ISSUED FOR 2009-2010 ON 1/7/2009. EXHIIT P9. TRUE COPY OF THE FITNESS CERTIFICATE ISSUED FOR 2010-2011 ON 13/7/2010. EXHIIT P10. TRUE COPY OF THE FITNESS CERTIFICATE ISSUED FOR 2011-2012 ON 27/6/2011. EXHIIT P11. TRUE COPY OF THE FITNESS CERTIFICATE ISSUED ON 31/1/2012. EXHIIT P12. TRUE COPY OF THE LETTER DATED 9/9/2013 ISSUED BY 2ND RESPONDENT TO THE PETITIONER. EXHIIT P13. TRUE COPY OF THE PLAINT IN OS NO.152/2012 ON THE FILES OF THE MC, NEYYATTINKARA. RESPONDENTS' EXHIBITS: ------------------------------------EXT.R5(A): COPY OF COMPLAINT (CC.NO.99/2001) FILED BY THE 5TH RESPONDENT TO THE REVENUE DIVIAIONAL OFFICER, TRIVANDRUM ON 12.5.2001. EXT.R5(B): COPY OF NOTICE-CUM-PRELIMINARY ORDER DT.13.7.01 ISSUED BY THE RDO TO THE PETITIONER. EXT.R5(C): COPY OF PETITION FILED BY THE 5TH RESPONDENT BEFORE THE GOVERNMENT ON 1.11.04. EXT.R5(D): COPY OF REMINDER DT.14.6.05 SUBMITTED BY THE 5TH RESPONDENT TO THE GOVERNMENT. WP(C).No. 23971 of 2013 (V) EXT.R5(E): COPY OF ORDER DT.30.6.05 PASSED BY THE RDO, DISPOSING OF THE COMPLAINT FILED BY THE 5TH RESPONDENT. EXT.R5(F)(COLLECTIVELY): COPIES OF LETTER NO.48167/R1-8/08/LSGD DT.14.8.08 ISSUED BY THE STATE PUBLIC INFORMATION OFFICER, LSG DEPARTMENT TO THE 5TH RESPONDENT WITH COPY OF THE SENIOR TWON PLANNER'S REPORT DT.11.8.05. EXT.R5(G): COPY OF ORDER NO.35525/E1/05/LSGD DT.20.10.05 ISSUED BY THE GOVERNMENT. EXT.R5(H): COPY OF LETTER NO.53326/E1/05/LSGD DT.31.7.06 ISSUED BY THE GOVERNMENT TO THE MARANALLOOR GRAMA PANCHAYAT EXT.R5(I)(COLLECTIVELY): COPIES OF LETTER NO.A1/3011/07 DT.10.5.07 ISSUED BY THE DEO TO THE 5TH RESPONDENT, ENCLOSING THE DETAILS OF THE SCHOOL BUILDING WITH PLAN. EXT.R5(J): COPY OF LETTER NO.A3-1101/08 DT.12.6.08 ISSUED BY THE MARANALLOOR GRAMA PANCHAYAT TO THE 5TH RESPONDENT. EXT.R5(K): COPY OF INTERIM ORDER DT.10.8.09 ON I.A.9452/09 IN WPC.15389/09 OF THIS COURT. EXT.R5(L): COPY OF INTERIM ORDER DT.26.8.2009 PASSED BY THIS COURT ON I.A.10835/09 IN WPC.15389/09. EXT.R5(M)(COLLECTIVELY): COPIES OF APPLICATION DT.18.10.13 TO THE 3RD RESPONDENT UNDER THE RIGHT TO INFORMATION ACT, WITH THE REPLY DT.23.10.13 ISSUED TO THE 5TH RESPONDENT. EXT.R5(N)(COLLECTIVELY): COPIES OF PETITION DT.16.7.08 SUBMITTED BY THE 5TH RESPONDENT WITH REPLY NO.A-8926/10 DT.25.10.10 ISSUED BY THE 4TH RESPONDENT. EXT.R5(O)COLLECTIVELY: COPIES OF APPLICATION DT.4.10.12 SUBMITTED BY THE 5TH RESPONDENT TO THE STATE PUBLIC INFORMATION OFFICER OF THE LOCAL SELF GOVERNMENT DEPAREMTNE, UNDER THE RIGHT TO INFORMATION ACT, WITH REPLY NO.E-179615/RTI/CE/LSGD DT.21.10.12. EXT.R5(P)(COLLECTIVELY): COPIES OF APPLICATION DT.11.10.13 FILED BY THE 5TH RESPONDENT TO THE 4TH RESPONDENT WITH REPLY NO.8372/13 DT.31.10.13 ISSUED BY THE PANCHAYAT TO THE 5TH RESPONDENT AND LETTER NO.3773/11DT.21.5.11 ISSUED BY THE 4TH RESPONDENT TO SRI JOPHN C.DAS AND REPLY DT.24.5.11 ISSUED BY THE ASSISTANT ENGINEER OF MARANALLOOR GRAMA PANCHAYAT TO SRI JOHN C.DAS. EXT.R5(Q): COPY OF GO(MS)NO.41/11/LSGD DT.14.2.11 WITH THE KERALA PANCHAYAT BUILDING RULES, 2011. EXT.R5(R): COPY OF GOVERNMENT CIRCULAR NO.42448/EW3/11/LSGD DT.12.9.11. WP(C).No. 23971 of 2013 (V) EXT.R5(S)(COLLE TIVELY): COPIES OF APPLICATION DT.28.10.13 UNDER THE RIGHT TO INFORMATION ACT SUBMITTED BY THE 5TH RESPONDENT TO THE DEPUTY DIRECTOR OF PANCHAYAT AND REPLY NO.C117840/13 DT.4.11.13. EXT.R5(T): TWO PHOTOGRAPHS TAKEN ON 13.11.13 WHICH SHOW THAT THE WALLS OF THE GROUND FLOOR TOUCH THE COMMON COMPOUND WALL AND THE UPPER FLOORS WITH THE SUN SHADES PROJECT INTO THE 5TH RESPONDENT'S PROPERTY. TRUE COPY P.A.TO JUDGE dsn ## **K.SURENDRA MOHAN** , **J.** **-------------------------------------------------W.P.(C)No.23971 Of 2013** **-------------------------------------------------DATED THIS THE 5[th] DAY OF DECEMBER, 2013** ## **JUDGMENT** The petitioner, the Manager of a Higher Secondary School, has filed this Writ Petition challenging Exhibit P12 proceedings of the 2[nd] respondent by which, a fitness certificate has been declined in respect of a 4 storied building constructed for the school. The case of the petitioner is that the building was constructed before the Building Rules were made applicable to the 4[th] respondentPanchayat. Exhibits P1 to P11 are copies of the fitness certificates issued to the building in question for the previous years. It is contended that for the current year, the fitness certificate has not been granted, actuated by malafides. The petitioner, therefore, seeks the issue of appropriate directions for the grant of a fitness certificate. 2. Though, service is complete, there is no appearance for the 4[th] respondent-Panchayat. The Government Pleader appears for respondents 1 to 3. A third party has got impleaded as the additional 5[th] respondent. Advocate Sri James Vincent appears for the additional 5[th] respondent. Separate counter affidavits have WPC.No.23971/13 -2- been filed by the 2[nd] respondent as well as the 5[th] respondent. Various documents have also been produced in support of the contentions raised in the counter affidavits. 3. According to Sri G.S.Reghunath, who appears for the petitioner, the building with respect to which objections are raised by the additional 5[th] respondent, who is the immediate neighbour, was constructed before the Building Rules were made applicable to the Panchayat. Therefore, the objections in Exhibit P12 that the building has been constructed in violation of the provisions of the Building Rules, cannot be sustained. It is also pointed out that the conduct of the 2[nd] respondent in issuing fitness certificates continuously from the year 2001 onwards would indicate that the building does not suffer from any of the defects that are said to be existing as per Exhibit P12. According to the counsel, Exhibit P12 has been issued only at the instance of the additional 5[th] respondent, who has made the complaints. 4. In the counter affidavit filed by the 2[nd] respondent, it is contended that the new building has been constructed in violation of the Building Rules. The required side open spaces have not been left. Many other provisions of the Building Rules are also violated. For the above reasons, no building number has been assigned to the WPC.No.23971/13 -3- building and proceedings are initiated by the Panchayat authorities to demolish the portions that are unauthorised. According to the counter affidavit, the Kerala Panchayat Building Rules came into force in the Panchayat during 2007. The 2[nd] respondent disputes that the building was constructed in the year 2001-02 as alleged by the petitioner. 5. A detailed counter affidavit has been filed by the additional 5[th] respondent producing various documents. It is the case of the additional 5[th] respondent that the construction of the four storied building though started in the year 2000 was stated to be only a single storied structure initially. However, later on, the construction of the upper portions were started in the year 2001 and in spite of the objections raised by the additional 5[th] respondent, the construction of the four storied building was completed in the year 2008. Since the same was constructed in violation of the Building Rules, it is contended that the Panchayat authorities have not numbered the same. According to the additional 5[th] respondent, the Building Rules were made applicable to the Panchayat on 1.10.1999. 6. It is the contention of Sri James Vincent, who appears for the additional 5[th] respondent that, though malafides have been alleged against the 2[nd] respondent, the incumbent holding the office WPC.No.23971/13 -4- of the said authority has not been personally made a party to these proceedings. Therefore, the said contentions are liable to be rejected. It is further pointed out that the 2[nd] respondent having been conferred with the discretion to decide whether to grant an occupancy certificate or not , a writ of mandamus would not be issued to compel the authority to grant an occupancy certificate. The counsel also places reliance on the decision reported in **Action Council, Poovathode and others** v. **Benny Abraham and others [(2002) 9 SCC 493]** in support of his contention. The additional 5[th] respondent had been complaining against the objectionable construction to the authorities persistently. However, no action was taken in the matter. For the above reasons, it is contended that the petitioner is not entitled to any of the reliefs sought for. It is also pointed out that in view of the objectionable nature of the construction, no building number has been alloted to the same, nor has the same been subjected to assessment of property tax. 7. Heard. 8. Exhibits P1 to P11 are the fitness certificates issued to the petitioner by the 2[nd] respondent during the previous years. A perusal of Exhibits P1 to P3 certificates, that relate to the years from 2001 to 2004, do not show that a four storied structure was in existence as WPC.No.23971/13 -5- contended by the petitioner. Exhibits P1 to P3 only refer to what is described as a 'new building'. The same is described as an RCC structure consisting of two floors. Exhibits P4 and P5 relate to the period from 2005 to 2006 and Exhibit P7 itemises the permanent structure in existence on the basis of the area occupied as Sl.Nos.1 to 4. However, in Exhibit P6 fitness certificate, the reference to a four storied RCC structure is conspicuously available. Exhibit P6 refers to the year 2007-08. Exhibits P7 to P11 certificates that cover the period from 2007-08 to 2013-14 show the existence of the said building. Therefore, it appears that the four storied building must have come into existence either during April, 2007 or late 2006. However, the fact remains that the 2[nd] respondent had been continuously issuing fitness certificate to the said building, without raising any objections whatsoever. The objection appears to have surfaced only when the fitness certificate was sought for, for the current year. 9. Of course, Exhibit P12 makes reference to a number of violations of the provisions of the Building Rules. It is certainly within the powers of the authority to initiate action if the building has been constructed in violation of the law. The only question is, why no such action was taken during the long period from 2007 to 2013. There is WPC.No.23971/13 -6- absolutely no explanation for the above. I also notice the fact that the 4[th] respondent-Panchayat, despite having been served with notice in this Writ Petition has chosen to remain absent. If the stand of the 4[th] respondent were available, that would have spread more light on the dispute in question. As rightly contended by Sri James Vincent, who appears for the additional 5[th] respondent, where discretion is conferred on an authority, he cannot be compelled to exercise the same in one way or the other. In that view of the matter, the decision that is sought to be relied upon in **Action Council, Poovathode and others** v. **Benny Abraham and others** (supra) is on the point. However, the question here is slightly different, being why a fitness certificate has not been issued to the petitioner, though the very same building was being issued with fitness certificates continuously from 2007-08 onwards. No one has a case that the building has suffered any damage or loss of stability due to any reason. The only reason put forward is that the building is constructed in violation of the Building Rules. If the building constructed is in violation of the Building Rules, one fails to understand why no action was initiated against the said construction, during the long period from 2007 onwards. 10. The present situation created by the refusal to grant WPC.No.23971/13 -7- fitness certificate to the petitioner is that, the school stands to face action by the departmental authorities for the current academic year, putting in peril, the interests of the students, who are depending on the institution for their educational needs. Even assuming that there are violations of the Building Rules, the authorities having slept over the violations over all these years, the impugned action refusing to grant a fitness certificate for the current year after having issued such certificates continuously for the previous years from 2007 onwards cannot be justified. This is especially so, in view of the fact that no action for violation of any of the provisions of the Building Rules has been initiated against the petitioner so far. 11. In view of the above, it is held that the refusal to grant fitness certificate to the petitioner by the 2[nd] respondent for the current year is unsustainable. The 2[nd] respondent is bound to consider the structural stability of the building and to decide whether to grant a fitness certificate or not. It is for the 4[th] respondentPanchayat to initiate appropriate action in accordance with law, if the construction has been made in violation of the Building Rules. These are two different proceedings that would have to be initiated under law by different statutory authorities. In view of the above, this Writ Petition is disposed of directing WPC.No.23971/13 -8- the 2[nd] respondent to consider the application for fitness certificate submitted by the petitioner in accordance with law, if necessary after conducting an inspection of the building and assessing its structural stability and to pass final orders thereon, as expeditiously as possible and at any rate within a period of three weeks of the date of receipt of a copy of this judgment. It is made clear that the grant of fitness certificate to the petitioner shall not preclude the 4[th] respondent from initiating action for violation of the provisions of the Building Rules, if there are any violations. SD/-( **K.SURENDRA MOHAN) JUDGE** . dsn