Mather Projects Pvt Ltd v State of Kerala & Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **THURSDAY, THE 18TH DAY OF JUNE 2020 / 28TH JYAISHTA, 1942** **WP(C).No.27599 OF 2017(Y)** ## **PETITIONER/S:** **MATHER PROJECTS PVT LTD HAVING REGISTERED OFFICE ATKODIYATTU CHAMBERS, RAJAJI ROAD, KOCHI- 682 035 REP. BY ITS CHIEF EXECUTIVE OFFICER M.R.N. SHARMA, AGED 80 YEARS, S/O M. RAMACHANDRAN** **BY ADV. SRI.PRAVEEN K. JOY** ## **RESPONDENT/S:** |**1**|**STATE OF KERALA**| |---|---| ||**REP. BY ITS SECRETARY, FIRE AND RESCUE**| ||**DEPARTMENT, SECRETARIAT, TRIVANDRUM- 695 001**| |**2**|***(COMMANDANT GENERAL FIRE RESCUE SERVICES)**| ||**FIRE AND RESCUE SERVICES HEADQUARTERS, HOUSING**| ||**BOARD JUNCTION, THIRUVANANTHAPURAM- 695 001**| ||***THE DESCRIPTION OF 2ND RESPONDENT IS SUO MOTU**| ||**CORRECTED AS “DIRECTOR GENERAL, FIRE AND**| ||**RESCUE SERVICES” INSTEAD OF “COMMANDANT**| ||**GENERAL, FIRE & RESCUE SERVICES” AS PER ORDER**| ||**DATED 18.06.2020 IN WP(C).**| |**3**|**ASSISTANT DIVISIONAL OFFICER**| ||**FIRE AND RESCUE SERVICES, ERNAKULAM- 682 031**| ||**R1, R3 BY GOVERNMENT PLEADER**| ## **OTHER PRESENT:** ## **SMT.K.AMMINIKUTTY, SR.GP** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 18.06.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** -2- W.P.(C). No. 27599 of 2017 ## **JUDGMENT** The petitioner, who had constructed an apartment complex consisting of Ground + 23 floors having a height of 72.45 metres in Sy.No.14-5 in erstwhile Thrikakkara Grama Panchayat, has filed this writ petition under Article 226 of the Constitution of India, seeking a writ of mandamus commanding the 2[nd] respondent Director General, Fire and Rescue Services, to issue final no objection certificate in respect of that building, within a time limit to be fixed by this Court. The petitioner has also sought for an order directing respondents 2 and 3 to conclude the entire proceedings taking note of Ext.P5 judgment of this Court dated 19.01.2016 in W.P.(C).No.37330 of 2015 and Ext.P6 judgment dated 19.11.2015 in W.P.(C).No.17615 of 2015, and issue final No Objection Certificate within a time limit. The further relief sought for is an order directing respondents 2 and 3 or the concerned among them to take up Ext.P7 application pass appropriate orders. 2. On 21.08.2017, when this writ petition came up for -3- ## W.P.(C). No. 27599 of 2017 admission, this Court admitted the matter on file. The learned Government Pleader took notice for respondents 1 to 3. 3. Going by the averments in the writ petition, the petitioner was issued with Ext.P3 initial no objection certificate for the purpose of constructing a 24 storied (ground plus 23 floors) apartment complex in Sy.No.14-5 of Kakkanadu Village in the erstwhile Thrikakkara Grama Panchayat. In Ext.P3, it is specified that the petitioner has to obtain a final no objection certificate from the Department after completion of construction and before occupation of the building. 4. The grievance of the petitioner in this writ petition is that despite submission of Ext.P7 application for final no objection certificate, no steps have taken by respondents 2 and 3 to issue such a certificate. 5. A statement has been filed on behalf of the 3[rd] respondent. Paragraphs 1 and 2 of the statement read thus; “1. The contention of the petitioner that he has submitted the application for the Final Fire NOC and remitted the required fee for the same vide Exhibit P4 and also the Board of Officers inspected the building and recommended for Final Fire NOC to the 2[nd] -4- W.P.(C). No. 27599 of 2017 respondent before filing of this writ petition are baseless and has no merit. The Ext.P4 Challan that the petitioner has produced is the fee receipt for the issue of Site (Initial) NOC which has already been issued vide Ext.P3 Certificate. This initial Fire NOC (Ext.P3) was issued with direction that afresh NOC should be obtained from this department after the completion of the construction and before the occupation of the building. But the petitioner has not responded to it. 2. It may be noted that the Writ petition is filed on 12.08.2017. But the application for the Final Fire NOC for the residential building in Sy.No.14/5 in Vazhakkal village was received in this department in Fire & Rescue Station Thrikkakara only on 10.09.2017 and the fee for the same was remitted only on 07.09.2017. The Board of Officers headed by Divisional Officer, Fire & Rescue Services, Ernakulam inspected the building on 26.10.2017 and the defects noted have been brought to the attention of the petitioner vide letter No.D1-6928/2017 dated 27.10.2017. But no steps were taken by petitioner.” 6. Along with IA No.2 of 2020, the petitioner has produced Ext.P8 certificate of approval (final no objection certificate) issued on behalf of the 2[nd] respondent Director General, Fire and Rescue Services, which is one dated -5- W.P.(C). No. 27599 of 2017 ## 22.03.2018. 7. Heard the learned counsel for the petitioner and also the learned Senior Government Pleader for the respondents. 8. Having considered the submissions made by the learned counsel for the petitioner and also the learned Senior Government Pleader, this Court finds that the petitioner moved this writ petition on 18.08.2017, seeking a writ of mandamus for consideration of Ext.P7 application, alleging that there is inaction on the part of respondents 2 and 3 in considering that application. However, the averments in the statement filed on behalf of the 3[rd] respondent would show that, the said respondent received Ext.P7 application only on 10.09.2017 and the petitioner remitted the requisite fee only on 07.09.2017. 9. In **Vinod Kumar v. District Geologist and others [2019 (3) KHC 79]** in the context of Rule 14 of the Kerala Minor Mineral Concession Rules, 2015, this Court held that if the application made seeking permission under sub-rule -6- W.P.(C). No. 27599 of 2017 (2) of Rule 14 for mineral transit pass 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, it cannot be said that there is 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 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 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 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 -7- W.P.(C). No. 27599 of 2017 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 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 -8- W.P.(C). No. 27599 of 2017 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 1st 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 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 -9- W.P.(C). No. 27599 of 2017 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 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 -10- W.P.(C). No. 27599 of 2017 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." (underline supplied) 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 thus; " **11.** The principles on which a writ of mandamus can be issued have been stated as under in 'The Law of Extraordinary Legal -11- W.P.(C). No. 27599 of 2017 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 justice. The chief function of the writ is to compel the performance of public duties prescribed by statute, and to keep subordinate -12- W.P.(C). No. 27599 of 2017 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 dependent upon all the surrounding facts and circumstances. **Note 206** .- .......... The correct rule is that -13- W.P.(C). No. 27599 of 2017 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. It follows, therefore, that in order that mandamus may issue to compel the -14- W.P.(C). No. 27599 of 2017 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." 14. **In State of U.P. v. Harish Chandra [(1996) 9** -15- W.P.(C). No. 27599 of 2017 **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 and said right was subsisting on the date of -16- W.P.(C). No. 27599 of 2017 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], University of Allahabad v. Dr. Anand -17- W.P.(C). No. 27599 of 2017 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 1[st] 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 sub-rule (3) of Rule 14. In such circumstances, it cannot be said that there is any failure on the part of the 1[st] 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.” 10. In the instant case, Ext.P7 application made by the petitioner for final No Objection Certificate was received in the Office of the 3[rd] respondent only on 10.09.2017, much after -18- W.P.(C). No. 27599 of 2017 the filing of the writ petition and the petitioner remitted the requisite free only on 07.09.2017. In such circumstances, the petitioner ought not to have filed this writ petition on 18.08.2017 seeking a writ of mandamus, alleging inaction on the part of respondents 2 and 3. Since the 3[rd] respondent has already issued Ext.P7 certificate of approval on 23.03.2018, this writ petition is disposed of recording the said fact. **Sd/-** **ANIL K.NARENDRAN JUDGE** das -19- W.P.(C). No. 27599 of 2017 ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **EXHIBITP1 THE TRUE COPY OF THE CERTIFICATE DATED 03-02-2006** **EXHIBITP2 THE TRUE COPY OF THE APPROVED PLAN FOR THE BUILDING** **EXHIBIT P3 THE TRUE COPY OF THE NO OBJECTION CERTIFICATE ISSUED BY THE 2ND RESPONDENT'S OFFICE DATED 10-05-2007 EXHIBIT P4 THE TRUE COPY OF THE FEE RECEIPT CHALLAN O GOVERNMENT OF KERALA** **EXHIBIT P5 THE TRUE COPY OF THE JUDGMENT IN WPC 37330/2015 DATED 19-01-2016 EXHIBIT P6 THE RUE COPY OF THE JUDGMENT IN WPC 17615/2015 DATED 09-11-2015** **EXHIBIT P7 THE TRUE COPY OF THE REPRESENTATION DATED 31-07-2017 BEFORE THE 2ND AND 3RD RESPONDENT** **EXHIBIT P8 TRUE COPY OF THE CERTIFICATE OF APPROVAL DATED 22.03.2018 OF DEPARTMENT OF FIRE AND RESCUE SERVICES.**