Mather Projects Private Limited and Jacob K. Babu v State of Kerala and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** ## **THURSDAY, THE 25TH DAY OF JUNE 2020 / 4TH ASHADHA, 1942** ## **WP(C).No.26728 OF 2017(M)** ## **PETITIONERS:** - **1 MATHER PROJECTS PRIVATE LIMITED HAVING REGISTERED OFFICE AT KODIYATTU CHAMBERS, RAJAJI ROAD, KOCHI-682035 REP. BY ITS CHIEF EXECUTIVE OFFICER M.R.N.SHARMA, AGED 80, S/O. M.RAMACHANDRAN** - **2 JACOB K.BABU** - **S/O. BABU, KALLUVILA GALEELEE,VENGALAM PO., THIRUVANCHOOR,KOZHIKODE, REP. BY POA HOLDER, MATHER PROJECTS PRIVATE LIMITED, HAVING REGISTERED OFFICE AT KODIYATTU CHAMBERS, RAJAJI ROAD, KOCHI-682035 REP. BY ITS CHIEF EXECUTIVE OFFICER M.R.N.SHARMA, AGED 80, S/O. M.RAMACHANDRAN** - **BY ADV. SRI.PRAVEEN K. JOY** ## **RESPONDENTS:** - **1 STATE OF KERALA REP. BY ITS SECRETARY FIRE & RESCUE SECRETARIAT, TRIVANDRUM PIN-695001** - **2 COMMANDANT GENERAL FIRE & RESCUE SERVICES FIRE AND RESCUE SRRVICES HEADQUARTES HOUSING BOARD JUNCTION, THIRUVANANTHAPURAM PIN-695001** - **3 ASSISTANT DIVISIONAL OFFICER FIRE AND RESCUE SERVICES,ERNAKULAM PIN-682031** ## **R1 TO 3 BY SRI JESTIN MATHEW-GOVERNMENT PLEADER** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 25.06.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** W.P.(C)No.26728 OF 2017(M) 2 ## **JUDGMENT** The 2[nd] petitioner has been granted with Ext.P1 noobjection certificate dated 04.08.2006 by the erstwhile Thrikkakkara Grama Panchayath for constructing an apartment complex consisting of Ground + 14 floors - Block A and Block B, in Survey No.570/160, 570/164, 570/20 and 570/21 of Kakkanad Village. The 1[st] petitioner builder, along with the 2[nd] petitioner, has filed this writ petition under Article 226 of the Constitution of India, seeking a writ of mandamus commanding the 2[nd] respondent Commandant General Fire and Rescue Services to issue Final Fire NOC in respect of the petitioners' building within a time limit. They have also sought for a writ of mandamus commanding respondents 2 and 3 or the concerned among them to conclude the entire proceedings taking note of Exts.P4 and P5 judgments of this Court and issue Final Fire NOC, within a time limit. The further relief sought for is a direction to respondents 2 and 3 or the concerned among them to take up Ext.P6 application dated 31.07.2017 and pass orders thereon. W.P.(C)No.26728 OF 2017(M) 3 2. On 11.08.2017, when this writ petition came up for admission, this Court admitted the matter on file. The learned Government Pleader took notice for the respondents. 3. Going by the averments in the writ petition, the 2[nd] petitioner has been granted with Ext.P1 by the erstwhile Thrikkakkara Grama Panchayath for constructing an apartment complex consisting of Ground + 14 floors - Block A and Block B, in Survey No.570/160, 570/164, 570/20 and 570/21 of Kakkanad Village. Though the construction was completed in compliance of the National Building Code, in relation to fire and safety, and as per the approved plan issued by the 2[nd] respondent Commandant General Fire and Rescue Services, the Municipality is not issuing occupancy certificate on the ground that the 2[nd] respondent has not granted Final Fire NOC. Despite the submission of Ext.P6 application, no steps have taken by respondents 2 and 3 to issue Final Fire NOC. 4. A counter affidavit has been filed on behalf of respondents 2 and 3, opposing the reliefs sought for in this W.P.(C)No.26728 OF 2017(M) 4 ## writ petition. Paragraphs 3 to 5 of the said counter affidavit read thus; “3. It is humbly submitted that the petitioner has not submitted any application for Final Fire NOC as averred in the Writ Petition. 4. It is submitted that as per standing order number 01/2016 of the Director General Fire & Rescue Services, Thiruvananthapuram for building above 24 meters height final fire NOC application will be received by the Station Officer of the concerned Fire & Rescue Station in which the building situated and it will be forwarded to the Divisional Officer for inspection. The Divisional Level Inspection team will inspect the building and the file will be forwarded to the Director General, Fire & Rescue Services, Head quarters, Thiruvananthapuram for issuance of NOC if sufficient fire protection arrangements are provided in the building. 5. It is submitted that after filing of this writ petition, this respondent had enquired the matter to the Station Officer, Fire & Rescue station, Thrikkakara and they have reported that the applicant did not submit the application for getting final fire NOC of their building. Therefore, it is humbly submitted that since the petitioner had not preferred any application in accordance with the law before this respondent, this respondent was not in a position to consider and pass orders on Ext.P6 representation.” (underline supplied) W.P.(C)No.26728 OF 2017(M) 5 5. Along with I.A No.2 of 2020, the petitioners have produced Ext.P7 certificate of approval (Final Fire NOC) issued on behalf of the 2[nd] respondent Director General, Fire and Rescue Services, which is one dated 16.03.2020. 6. Heard the learned counsel for the petitioners and also the learned Senior Government Pleader for the respondents. 7. Having considered the submissions made by the learned counsel for the petitioners and also the learned Government Pleader, this Court finds that the petitioners moved this writ petition on 10.08.2017, seeking a writ of mandamus for consideration of Ext.P6 application, alleging that there is inaction on the part of respondents 2 and 3 in considering that application. However, the averments in the counter affidavit filed on behalf of respondents 2 and 3 would show that, the said respondents did not receive any such application till the date of filing of their statement in this writ petition. 8. In **Vinod Kumar v. District Geologist and others [2019 (3) KHC 79]** in the context of Rule 14 of the W.P.(C)No.26728 OF 2017(M) 6 Kerala Minor Mineral Concession Rules, 2015, this Court held that since the petitioner therein filed writ petition on 22.02.2019, even before receipt of the application for mineral transit pass by the District Geologist, and since that application made under sub-rule (2) of Rule 14 was not supported by the mandatory documents as per the proviso to sub-rule (2) of Rule 14, and also an affidavit as per the mandate of sub-rule (3) of Rule 14, it cannot be said that there was any failure on the part of the District Geologist in discharging his statutory obligations, so as to enable the petitioner to invoke the writ jurisdiction of this Court under Article 226 of the Constitution of India, seeking a writ of mandamus for considering that application. When the application made by the petitioner is not supported by the mandatory documents, as per the proviso to sub-rule (2) of Rule 14, and also an affidavit as per the mandate of sub-rule (3) of Rule 14, this Court cannot direct the District Geologist to consider that application in contravention of the statutory provisions, as no mandamus can be issued to do something which is contrary to law. Paragraphs 9 to 16 of the said W.P.(C)No.26728 OF 2017(M) 7 decision read thus; “9. A reading of the provisions under sub-rules (2) and (3) of Rule 14 of the Kerala Minor Mineral Concession Rules make it explicitly clear that an application for mineral transit passes for transportation of ordinary earth shall be accompanied by a valid building permit for construction of building, obtained from the Local Self Government authority concerned; land development permit obtained from the Local Self Government authority concerned, in cases where the levelling of the land and extraction of earth is involved; and possession and enjoyment certificate of the land issued by the Village Officer concerned. As per the second proviso to sub-rule (2), in cases where the levelling of the land and extraction of ordinary earth is involved, the building permit shall be accompanied by an approved building plan obtained from the Local Self Government authority concerned, which shall contain the area of the land to be developed for the construction of the building and quantity of ordinary earth to be extracted for such construction. 10. As per sub-rule (3) of Rule 14, a person who applies for mineral transit passes for transportation of ordinary earth under Rule 14 shall also submit along with the application, a sworn affidavit in stamped paper to the effect that he will carry out the proposed construction as per the building plan and building permit and shall complete at least the construction of basement of the building within one year from the date of issuance W.P.(C)No.26728 OF 2017(M) 8 of mineral transit passes and intimate the same to the competent authority. 11. In the instant case, the fact that Ext.P3 application made by the petitioner before the 1[st] respondent for issuance of mineral transit passes is not supported by any of the documents as per the mandate of the provisos to sub-rule (2) of Rule 14 and also an affidavit as per the mandate of sub-rule (3) of Rule 14 of the Kerala Minor Mineral Concession Rules is not in dispute. Though Ext.P3 application is one dated 04.02.2019, the same was sent by speed post to the office of the 1 st respondent only on 20.02.2019, as evidenced by Ext.R1(a) envelop, which was received in the office of the said respondent only on 23.02.2019. The said fact is also not in dispute. During the course of arguments, the submission made by the learned counsel for the petitioner is that the petitioner is prepared to produce Ext.P1 building permit, Ext.P2 development permit and also an affidavit as per the mandate of sub-rule (3) of Rule 14 before the 1[st] respondent, within a time limit to be fixed by this Court. 12. In **Bihar Eastern Gangetic Fishermen Cooperative Society Ltd. v. Sipahi Singh [(1977) 4 SCC 145]** a Three-Judge Bench of the Apex Court held that a writ of mandamus can be granted only in a case where there is a statutory duty imposed upon the officer concerned and there is a failure on the part of that officer to discharge the statutory obligation. The chief function of a writ is to compel performance of W.P.(C)No.26728 OF 2017(M) 9 public duties prescribed by statute and to keep subordinate tribunals and officers exercising public functions within the limit of their jurisdiction. Paragraph 15 of the said decision reads thus; " **15.** .......... There is abundant authority in favour of the proposition that a writ of mandamus can be granted only in a case where there is a statutory duty imposed upon the officer concerned and there is a failure on the part of that officer to discharge the statutory obligation. The chief function of a writ is to compel performance of public duties prescribed by statute and to keep subordinate tribunals and officers exercising public functions within the limit of their jurisdiction. It follows, therefore, that in order that mandamus may issue to compel the authorities to do something, it must be shown that there is a statute to enforce its performance. (See Lekhraj Satramdas Lalvani v. Deputy Custodiancum-Managing Officer [1966 (1) SCR 120 : AIR 1966 SC 334], Dr. Rai Shivendra Bahadur v. The Governing Body of the Nalanda College [1962 Supp (2) SCR 144 : AIR 1962 SC 1210] and Dr. Umakant Saran v. State of Bihar [(1973) 1 SCC 485 : AIR 1973 SC 964]. In the instant case, it has not been shown by respondent No. 1 that W.P.(C)No.26728 OF 2017(M) 10 there is any statute or rule having the force of law which casts a duty on respondents 2 to 4 which they failed to perform. All that is sought to be enforced is an obligation flowing from a contract which, as already indicated, is also not binding and enforceable. Accordingly, we are clearly of the opinion that respondent No. 1 was not entitled to apply for grant of a writ of mandamus under Art.226 of the Constitution and the High Court was not competent to issue the same." 13. In **Oriental Bank of Commerce v. Sunder Lal Jain [(2008) 2 SCC 280]** the Apex Court held that, in order that a writ of mandamus may be issued, there must be a legal right with the party asking for the writ to compel the performance of some statutory duty cast upon the authorities. In the said decision, the Apex Court noticed that the principles on which a writ of mandamus can be issued have been stated in 'The Law of Extraordinary Legal Remedies' by F. G. Ferris and F. G. Ferris, Jr. that, mandamus is, subject to the exercise of a sound judicial discretion, the appropriate remedy to enforce a plain, positive, specific and ministerial duty presently existing and imposed by law upon officers and others who refuse or neglect to perform such duty, when there is no other adequate and specific legal remedy and without which there would be a failure of justice. Paragraphs 11 and 12 of the said decision read W.P.(C)No.26728 OF 2017(M) 11 thus; " **11.** The principles on which a writ of mandamus can be issued have been stated as under in 'The Law of Extraordinary Legal Remedies' by F. G. Ferris and F. G. Ferris, Jr. : **Note 187** .- Mandamus, at common law, is a highly prerogative writ, usually issuing out of the highest court of general jurisdiction, in the name of the sovereignty, directed to any natural person, corporation or inferior court within the jurisdiction, requiring them to do some particular thing therein specified, and which appertains to their office or duty. Generally speaking, it may be said that mandamus is a summary writ, issuing from the proper court, commanding the official or board to which it is addressed to perform some specific legal duly to which the party applying for the writ is entitled of legal right to have performed. **Note 192** .- Mandamus is, subject to the exercise of a sound judicial discretion, the appropriate remedy to enforce a plain, positive, specific and ministerial duty presently existing and imposed by law upon officers and others who refuse or neglect to perform such duty, when there is no other adequate and specific legal remedy and without which there would be a failure of W.P.(C)No.26728 OF 2017(M) 12 justice. The chief function of the writ is to compel the performance of public duties prescribed by statute, and to keep subordinate and inferior bodies and Tribunals exercising public functions within their jurisdictions. It is not necessary, however, that the duty be imposed by statute; mandamus lies as well for the enforcement of a common law duty. **Note 196** .- Mandamus is not a writ of right. Its issuance unquestionably lies in the sound judicial discretion of the Court, subject always to the well settled principles which have been established by the Courts. An action in mandamus is not governed by the principles of ordinary litigation where the matters alleged on one side and not denied on the other are taken as true, and Judgment pronounced thereon as of course. While mandamus is classed as a legal remedy, its issuance is largely controlled by equitable principles. Before granting the writ the Court may, and should, look to the larger public interest which may be concerned - an interest which private litigants are apt to over look when striving for private ends. The Court should act in view of all the existing facts, and with due regard to the consequences which will result. It is in every case a discretion W.P.(C)No.26728 OF 2017(M) 13 dependent upon all the surrounding facts and circumstances. **Note 206** .- .......... The correct rule is that mandamus will not lie where the duty is clearly discretionary and the party upon whom the duty rests has exercised his discretion reasonably and within his jurisdiction, that is, upon facts sufficient to support his action. **12.** These very principles have been adopted in our country. In **Bihar Eastern Gangetic Fishermen Cooperative Society Ltd. v. Sipahi Singh [(1977) 4 SCC 145 : AIR 1977 SC 2149]** , after referring to the earlier decisions in **Lekhraj Satramdas Lalvani v. N.M. Shah [AIR 1966 SC 334]** , **Dr. Rai Shivendra Bahadur v. Nalanda College [AIR 1962 SC 1210]** and **Dr. Umakant Saran v. State of Bihar [(1973) 1 SCC 485 : AIR 1973 SC 964]** , this Court observed as follows in paragraph 15 of the reports: "15. .......... There is abundant authority in favour of the proposition that a writ of mandamus can be granted only in a case where there is a statutory duty imposed upon the officer concerned and there is a failure on the part of the officer to discharge the statutory obligation. The chief function of a writ is to compel performance of public duties prescribed by statute and to keep subordinate Tribunals and officers exercising public functions within the limit of their jurisdiction. W.P.(C)No.26728 OF 2017(M) 14 It follows, therefore, that in order that mandamus may issue to compel the authorities to do something, it must be shown that there is a statute which imposes a legal duty and the aggrieved party has a legal right under the statute to enforce its performance. ......... In the instant case, it has not been shown by respondent No. 1 that there is any statute or rule having the force of law which casts a duty on respondents 2 to 4 which they failed to perform. All that is sought to be enforced is an obligation flowing from a contract which, as already indicated, is also not binding and enforceable. Accordingly, we are clearly of the opinion that respondent No. 1 was not entitled to apply for grant of a writ of mandamus under Art.226 of the Constitution and the High Court was not competent to issue the same." Therefore, in order that a writ of mandamus may be issued, there must be a legal right with the party asking for the writ to compel the performance of some statutory duty cast upon the authorities. The respondents have not been able to show that there is any statute or rule having the force of law which casts a duty on the appellant bank to declare their account as NPA from 31[st] March, 2000 and apply RBI guidelines to their case." W.P.(C)No.26728 OF 2017(M) 15 ## 14. **In State of U.P. v. Harish Chandra [(1996) 9** **SCC 309]** the Apex Court held that, under the Constitution a mandamus can be issued by the Court when the applicant establishes that he has a legal right to 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. Paragraph 10 of the said decision reads thus; " **10.** Notwithstanding the aforesaid Statutory Rule and without applying the mind to the aforesaid Rule the High Court relying upon some earlier decisions of the court came to hold that the list does not expire after a period of one year which on the face of its erroneous. Further question that arises in this context is whether the High Court was justified in issuing the mandamus to the appellant to make recruitment of the Writ Petitioners. Under the Constitution a mandamus can be issued by the Court when the applicant establishes that he has a legal right to performance of legal duty by the party against whom the mandamus is sought W.P.(C)No.26728 OF 2017(M) 16 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. This being the position and in view of the Statutory Rules contained in Rule 26 of the Recruitment Rules we really fail to understand how the High Court issue the impugned direction to recruit the respondents who were included in the select list prepared on 4.4.87 and the list no longer survived after one year and the rights, if any, of persons included in the list did not subsist. ......." 15. In **Bhaskara Rao A.B. v. CBI [(2011) 10 SCC 259]** the Apex Court reiterated that, 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 orders or directions which are contrary to what has been injected by law. Vide: State of Punjab v. Renuka Singla [(1996) 8 SCC 90], State of U.P. v. Harish Chandra [1996 (9) SCC 309], Union of India v. Kirloskar Pneumatic Co. Ltd. [(1996) 4 SCC 453], W.P.(C)No.26728 OF 2017(M) 17 University of Allahabad v. Dr. Anand Prakash Mishra [(1997) 10 SCC 264] and Karnataka SRTC v. Ashrafulla Khan [(2002) 2 SCC 560]. 16. In the instant case, as borne out from the pleadings and materials on record, the petitioner filed this writ petition before this Court on 22.02.2019, even before the receipt of Ext.P3 application for mineral transit passes by the 1st respondent. Moreover, the said application is not supported by the mandatory documents, as per the provisos to sub-rule (2) of Rule 14, and also an affidavit as per the mandate of subrule (3) of Rule 14. In such circumstances, it cannot be said that there is any failure on the part of the 1st respondent in discharging his statutory obligations, so as to enable the petitioner to invoke the writ jurisdiction of this Court under Article 226 of the Constitution of India seeking a writ of mandamus for consideration of Ext.P3 application. When Ext.P3 application made by the petitioner is not one supported by the mandatory documents as per the provisos to sub-rule (2) of Rule 14 and also an affidavit as per the mandate of sub-rule (3) of Rule 14, this Court cannot direct the 1[st] respondent to consider that application in contravention of the statutory provisions, as no mandamus can be issued to do something which is contrary to law.” (underline supplied) 9. In the instant case, Ext.P6 application made by the petitioners for Final Fire NOC was not received in the W.P.(C)No.26728 OF 2017(M) 18 office of the 2[nd] and 3[rd] respondents till the date of filing of their statement in this writ petition. In such circumstances, the petitioners ought not to have filed this writ petition seeking a writ of mandamus, alleging inaction on the part of respondents 2 and 3. Since the 2[nd] respondent has already issued Ext.P7 certificate of approval (Final Fire NOC) on 16.03.2020, this writ petition is disposed of recording the said fact. Sd/- **ANIL K. NARENDRAN, JUDGE** AV/3/7 W.P.(C)No.26728 OF 2017(M) 19 ## **APPENDIX** **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1: THE TRUE COPY OF THE BUILDING PERMIT** **EXHIBIT P2: THE TRUE COPY OF THE APPROVED PLAN FOR THE BUILDING** **EXHIBIT P3: THE TRUE COPY OF THE CERTIFICATE ISSUE DBY THE 2ND RESPONDENT DATED 30.06.2007** **EXHIBIT P4: THE TRUE COPY OF THE JUDGMENT IN WPC NO.37330/15 DATED 19.1.2016** **EXHIBIT P5: THE TRUE COPY OF THE JUDGMENT IN WPC NO.17615/15 DATED 09.11.2015** **EXHIBIT P6: THE PETITIONER PRODUCING THE TRUE COPY OF THE REPRESENTATION BEFORE 2ND AND 3RD RESPONDENT** **EXHIBIT P7: TRUE COPY OF THE CERTIFICATE OF APPROVAL DATED 16.03.2020 OF DEPARTMENT OF FIRE AND RESCUE SERVICES**