Trinity Arcade Pvt. Ltd. v. Director General, Kerala Fire & Rescue Services Headquarters and Thrikakkara Municipality

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** **MONDAY, THE 7TH DAY OF AUGUST 2017/16TH SRAVANA, 1939** **WP(C).No. 39391 of 2016 (Y)** **----------------------------** ## **PETITIONER: ----------** **TRINITY ARCADE PVT.LTD,** **TRINITY HOUSE, OPP. CHANGAMPUZHA PARK, EDAPALLY P.O. COCHIN- 682 024** **REP. BY ITS MANAGING DIRECTOR MR.M.J. LOUIS** **BY ADVS.SRI.M.GOPIKRISHNAN NAMBIAR SRI.P.GOPINATH** **SRI.P.BENNY THOMAS SRI.K.JOHN MATHAI SRI.JOSON MANAVALAN SRI.KURYAN THOMAS** ## **RESPONDENT(S):** ## **--------------** **1. THE DIRECTOR GENERAL, KERALA FIRE & RESCUE SERVICES HEADQUARTERS FIRE FORCE JUNCTION, PULIMOODU P.O THIRUVANANTHAPURAM- 695 001** *** ADDL R2 IMPLEADED** **2. THE SECRETARY, THRIKKAKKARA MUNICIPALITY, KAKKANAD, KOCHI - 682 030.** *** ADDL R2 IMPLEADED AS PER ORDER DATED 8/3/2017 IN IA NO.3680/2017** **R1 BY GOVERNMENT PLEADER SRI RAVIKRISHNAN R2 BY ADV. SRI.G.G.MANOJ, SC,** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 07-08-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **K.V.** ## **WP(C).No. 39391 of 2016 (Y)** ## **----------------------------** ## **APPENDIX** **PETITIONER(S)' EXHIBITS ----------------------EXHIBIT P1 TRUE COPY OF NO - OBJECTION CERTIFICATE DATED 20-10-2006 ISSUED BY THE THRIKKAKARA GRAMA PANCHAYAT (TRUE COPY OF THE TYPED COPY) EXHIBIT P2 TRUE COPY OF NO OBJECTION CERTIFICATE DATED 24-10-2006 ISSUED BY THE THRIKKAKARA GRAMA PQNCHAYAT(TRUE COPY OF THE TYPED COPY) EXHIBIT P3 TRUE COPY OF THE FORWARDING LETTER FROM THE SECRETARY OF THE THRIKKARKAR GRAMA PANCHAYATH TO THE RESPONDENT DATED 18-07-2008 EXHIBIT P4 TRUE COPY OF THE CHALLAN DATED 20-09-2007 EVIDENCINB PAYMENT OF THE REQUISITE FEE FOR OBTAINING INITIAL SITE NO OBJECTION CERTIFICATE EXHIBIT P5 TRUE COPY OF THE INITIAL NO-OBJECTION CERTIFICATE DATED 23-02-2009 ISSUED BY THE RESPONDENT EXHIBIT P6 TRUE COPY OF THE FINAL NO OBJECTION CERTIFICATE FOR TOWER 4 DATED 04-04-2013 EXHIBIT P7 TRUE COPYOF THE FINA NO-OBJECTION CERTIFICATE FO TOWER 3 DATED 02-05-2014(TRUE COPY OF THE TYPED COPY)` EXHIBIT P8 TRUE COPY OF THE CHALLAN DATED 18-11-2015 EVIDECING PAYMENT OF FEE FR THE FINAL NO-OBJECTION CERTIFICATE FROM THE RESPONDENT FOR TOWER-1 EXHIBIT P9 TRUE COPY OF THE COVER LETTER DATED 04-02-2016 (WITHOUT THE ENCLOSURES) FROM THE PETITIONER TO THE RESPONDENT THROUGH THE STATION OFFICER. THRIKKKARA FIR STATION/THE REGIONAL OFFICER, ERNAKULAM EXHIBIT P10 TRUE COPY OF THE LETTER DATED 14-03-2016 TO THE DIVISIONAL OFFICER, FIRE & RESCUE SERVICES, ERNAKULAM FROM THE PETITIONER EXHIBIT P11 TRUE COPY OF THIS LETTER DATED 25-04-2016 FROM THE DIVISIONAL OFFICER, FIRE & RESCUE SERVICES, ERNAKLAM TO THE PETITIONER EXHIBIT P12 TRUE COPY OF THE LETTER DATED 23-05-2016 TO THE DIVISIONAL OFFICER, FIRE & RESCUE SERVICES, ERNAKULAM FROM THE PETITIONER EXHIBIT P13 TRUE COPY OF THE LETTER DATED 20-06-2016 TO THE DIVISIONAL OFFICER, FIRE & RESCUE SERVICES, ERNAKULAM FROM THE PETITIONER EXHIBIT P14 TRUE COPY OF THE LETTER DATED 27-06-2016 TO THE DIVISIONAL OFFICER, FIRE & RESCUE SERVICES, ERNAKULAM FROM THE PETITIONER** ## **WP(C).No. 39391 of 2016 (Y)** **----------------------------** **EXHIBIT P15 TRUE COPY OF THE LETTER DATED 18-07-2016 FROM THE PETITIONER TO THE SECRETARY, THRIKKAKARA MUNICIPALITY EXHIBIT P16 TRUE COPY OF THE CERTIFICATE DATED 22-07-2016 ISSUED BY THE THRIKKAKARA MUNICIPALITY EXHIBIT P17 TRUE COPY OF THE LETTER DATED 03-08-2016 TO THE DIVISIONAL OFFICER, FIRE & RESCUE SERVICES, ERNAKULAM FROM THE PETITIONER EXHIBIT P18 TRUE COPY OF THE LETTER DATED 03-09-2016 TO THE DIVISIONAL OFFICER, FIRE & RESCUE SERVICES, ERNAKULAM FROM THE PETITIONER EXHIBIT P19 TRUE COPY OF THE LETTER DATED 03-09-2016 FROM THE DIVISIONAL OFFICER, FIRE & RESCUE SERVICES, ERNAKULAM FROM THE PETITIONER EXHIBIT P20 TRUE COPY OF THE LETTER DATED 05-09-2016 TO THE DIVISIONAL OFFICER, FIRE & RESCUE SERVICES, ERNAKULAM FROM THE PETITIONER EXHIBIT P21 TRUE COPY OF THE LETTER DATED 28-09-2016 FROM THE PETITIONER TO THE RESPONDENT EXHIBIT P22 TRUE COPY OF THE LETTER DATED 29-09-2016 FROM THE RESPONDENT TO THE PETITIONER EXHIBIT P23 TRUE COPY OF THE LETTER DATED 17-10-2016 TO THE DIVISIONAL OFFICER, FIRE & RESCUE SERVICES, ERNAKULAM FROM THE PETITIONER EXHIBIT P24 RUE COPY OF THIS LETTER DATED 23-11-2016 FROM THE PETITIONER TO THE RESPONDENT EXHIBIT P25 TRUE COPY OF THE LETTER DATED 26-11-2016 FROM THE RESPONDENT TO THE PETITIONER EXHIBIT P26 TRUE COPY OF THE STANDING ORDER NO 01/2016, DATED 26.2.2016 OF DIRECTOR GENERAL, KERALA FIRE AND RESCUE SERVICE. EXHIBIT P27 TRUE COPY OF THE BUILDING PERMIT DATED 9.11.2012 ISSUED BY THE THRIKKAKARA MUNICIPALITY TO THE PETITIONER. EXHIBIT P28 TRUE COPY OF THE BUILDING PERMIT DATED 22.7.2015 ISSUED BY THE MUNICIPAL COUNCIL, THRIKKAKARA TO THE PETITIONER. EXHIBIT P29 A TRUE COPY OF THE PHOTOGRAPHS TAKEN IN 2007 EVIDENCING THE STAGE OF CONSTRUCTION AT THEW SAID TIME. EXHIBIT P30 A TRUE COPY OF THE PROCEEDING DATED 27/11/2007 DATED BY THE THRIKKAKARA GRAMA PANCHAYAT TO THE PETITIONER. EXHIBIT P31 A TRUE COPY OF THE INTERIM ORDER DATED 19.12.2007 PASSED IN WPC NO 38032 OF 2007.** **WP(C).No. 39391 of 2016 (Y) ----------------------------** **EXHIBIT P32 A TRUE COPY OF THE RECEIPT DATED 9.11.2012 AND 21.7.2015 EVIDENCING PAYMENT OF PERMIT FEE FOR REGULARIZATION OF NOCS. EXHIBIT P33 A TRUE COPY OF THE GOVERNMENT OF KERALA CIRCULAR DATED 22.6.2011. EXHIBIT P34 A TRUE COPY OF FEW PHOTOGRAPHS EVIDENCING THE COMPLETE CONSTRUCTION OF THE PROJECT TAKEN RECENTLY DATED NIL.** **RESPONDENT(S)' EXHIBITS NIL** **-----------------------** **/TRUE COPY/** **P.S.TO JUDGE** ## **K.V.** ## **K.VINOD CHANDRAN, J.** ---------------------------------------------- ## **W.P.(C).No.39391 of 2016** -------------------------------------------------------------Dated this the 7[th] day of August, 2017 ## **J U D G M E N T** The petitioner is aggrieved with Ext.P19 issued by the Fire and Rescue Services Department in an application filed for NOC of a tower constructed by the petitioner on a valid building permit. Petitioner before this Court only challenge condition No.5 and submits that all other defects have been rectified. The petitioner contends that the prescription for a 10 metre minimum width for access road to the building was an amendment prescribed subsequent to the commencement of the construction of the building. Petitioner also submits that the issue stands covered by a judgment of this Court in **Desai Homes v. Fire and Rescue Services [2017 (3) KLT 143].** 2. The petitioner had been issued with a certificate at Exts.P1, P2 and P2(a) permitting construction of residential apartment complex by the respondent Municipality which at that time was a Panchayath. There was no building rules prescribed for the Panchayath at that point of time and the Municipality Building Rules had also not been made applicable. The petitioner commenced construction and in the W.P.C.No.39391/16 2 course of which the Municipality Building Rules were made applicable to Panchayaths all over the State. 3. The persons who had obtained NOC and had commenced construction faced difficulty in so far as they did not have permits under the building rules. The Government issued a circular dated 03.07.2007 levying a permit fee on such persons who had commenced construction. The petitioner along with other persons challenged the same. A Division Bench of this Court considered the batch of writ petitions and in W.P.C.No.13085 of 2009, passed a judgment upholding the permit fee. It was found that the petitioners therein had started construction of buildings without compliance of the provisions of the Building Rules and when the Building Rules were introduced there was an obligation upon the local authorities to verify the same. The permit fee was upheld and the petitioners were allowed to continue the construction. 4. The petitioners even prior to that, on the filing of the writ petition were issued with Ext.P31 interim order, based on which the constructions were carried out. The decision of the Division Bench is appealed before the W.P.C.No.39391/16 3 Honourable Supreme Court as is said to be pending, as a Civil Appeal. No stay having been granted, the petitioners paid the amounts, as evidenced from Ext.P32 series. On such payment, petitioners were issued with building permits as Exts.P27 and P28 permitting construction of four towers. Two towers were also granted occupancy on the basis of the completion certificate filed by the petitioners. Impugned order in the above writ petition is concerned with one of the towers which has been subsequently completed. One another tower is in the process of being completed. 5. The impugned order as was noticed, inter alia directed the petitioner to convince the Department of the access to the building having a minimum width of 10 metres. At the point of issuance of NOC in the year 2007, admittedly the requirement is only an access of 5 metres, to multiple residential units. Enhancement was made to seven metres in 2009 and then to ten metres in 2013. The petitioner would not be obliged to make such provision as has been held by this Court in **Desai Homes (supra)** . 6. In such circumstances, Ext.P19 to the extent it directs access of ten metre width to the building is set aside. W.P.C.No.39391/16 4 The application for NOC from the Fire and Rescue Department shall be considered afresh by the 1[st] respondent within a period of one month after verifying that the other defects noticed in Ext.P19 are rectified. On submission of Fire NOC, the occupancy also shall be considered expeditiously by the respondent Municipality. Writ petition allowed. No costs. Sd/- **(K.VINOD CHANDRAN, JUDGE)** TRUE COPY P.A.TO JUDGE DG/07.8.17