IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOTTATHIL B.RADHAKRISHNAN WEDNESDAY, THE 4TH NOVEMBER 2009 / 13TH KARTHIKA 1931 WP(C).No. 30475 of 2009(D) -------------------------------------- PETITIONER(S): ---------------------- 1. THANKAMMA MATHEW, W/O. LATE KUTTAPPAN ALIAS MATHEW, POOTHULLIL HOUSE, THRIKKANARVATTOM DESOM, ERNAKULAM VILLAGE, PIN-682018, REP. BY POWER HOLDER P.A. JIHAS, S/O. P.K. ABDUL RAHIMAN, GALAXY HOUSE, KALOOR DESOM, ELAMKULAM VILLAGE, PIN-682 017. 2. MINNA MATHEW, D/O. LATE KUTTAPPAN ALIAS MATHEW, POOTHULLIL HOUSE, THRIKKANARVATTOM DESOM, ERNAKULAM VILLAGE, PIN-682 018, REPRESENTED BY POWER HOLDER-P.A. JIHAS, S/O. P.K.ABDUL RAHIMAN, GALAXY HOUE, KALOOR DESOM, ELAMKULAM VILLAGE, PIN-682 017. 3. VARKEY, EDAKKALATHUR CHANGALAYIL HOUSE MULLASSERY, ERNAKULAM. REPRESENTD BY POWER HLDER- P.A. JIHAS, S/O. P.K.ABDUL RAHIMAN, GALAXY HOUSE KALOOR DESOM, ELAMKULAM VILLAGE, PIN-682 017. 4. BARBERA, W/O. VARKEY EDKKALATHUR CHANGALAYIL HOUSE, MULLASSERY, ERNAKULAM. REPREENTED BY POWER HOLDER P.A. JIHAS, S/O. P.K. ABDUL RAHIMAN, GALAXY HOUSE, KALOOR DESOM ELAMKULAM VILLAG, PIN-682 017. 5. JEWEL HOMES (P) LTD., CASAGRANTE BUILDING, KALOOR, KOCHI-682 017. REPRESENTE BY ITS MANAGING DIRECTOR P.A.JIHAS. BY ADV. MR.V.V.ASOKAN MR.P.P. RAMACHANDRAN RESPONDENT(S): ------------------------ 1. CORPORATION OF KOCHI, KOCHI, REPRESENTED BY ITS SECRETARY. 2. SECRETARY, CORPORATION OF KOCHI, KOCHI. R1 & R2 BY ADV. MR.PRAVEEN K.JOY,SC,COCHIN CORPORATION . THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 04/11/2009, ALONG WITH WP(C) NO. 31254/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C) NO. 30475/2009-D APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF THE PERMIT SANCTIONED BY THE 2ND RESPONDENT-JEWEL WHITEFIELD POOTHULLIL. EXT.P1(a): COPY OF THE BUILDING PERMIT-JEWEL SPRING FIELD. EXT.P2: COPY OF THE CONSENT OBTAINED FROM THE POLLUTION CONTROL BOARD (JEWEL WHITEFILED POOTHULLIL). EXT.P2(a): COPY OF THE NO OBJECTION FROM THE FIRE SERVICES DEPARTMENT. EXT.P3: COPY OF THE CONSENT OBTAINED FROM THE POLLUTION CONTROL BOARD (JEWEL SPRING FIELD). EXT.P3(a): COPY OF THE NO OBJECTION FROM THE FIRE SERVICES DEPARTMENT. EXT.P4: COPY OF THE PHOTOGRAPH SHOWING THE PRESENT CONDITION OF THE BUILDING COMPLEXES. EXT.P4(a): COPY OF THE PHOTOGRAPH SHOWING THE PRESENT CONDITION OF THE BUILDING COMPLEX. EXT.P5: COPY OF THE COMPLETION REPORT IN RESPECT OF JEWEL WHITEFIELD POOTHULLIL. EXT.P5(a): COPY OF THE ACKNOWLEDGEMENT RECEIPT IN RESPECT OF JEWEL WHITEFILED POOTHULLIL. EXT.P6: COPY OF THE ACKNOWLEDGEMENT RECEIPT IN RESPECT OF JEWEL SPRING FIELD. EXT.P7: COPY OF THE NOTICE ISSUED BY THE 2ND RESPONDENT. EXT.P8: COPY OF THE EYE SKETCH OF THE PROJECT SITE AND THE ACCESS ROAD. EXT.P9: COPY OF THE REPLY SUBMITTED BY THE 5TH PETITIONER BEFORE THE 2ND RESPONDENT. EXT.P10: COPY OF THE PROCEEDINGS OF THE 2ND RESPONDENT. EXT.P11: COPY OF THE ORDER OF THE TRIBUNAL FOR LOCAL SELF GOVERNMENT INSTITUTIONS, THIRUVANANTHAPURAM. RESPONDENT'S EXHIBITS: NIL //TRUE COPY// P.A. TO JUDGE rs. THOTTATHIL B.RADHAKRISHNAN, J. ------------------------------------------- W.P(C).Nos.30475 & 31254 OF 2009 ------------------------------------------- Dated this the 4th day of November, 2009 JUDGMENT 1.The latter among the captioned matters has come up for admission. 2.These cases relate to two buildings, Jewel whitefield Poothullil and Jewel Spring Field, two multi apartment complexes, the huge structures being available to be seen in photographs Ext.P4 in W.P(C).30475/09. 3.Nearing or after, the completion of those buildings, the corporation authorities took the stand that they will not issue occupancy certificate because there was misrepresentation of facts relating to the width of a road or the distance of the access road. That matter reached the Tribunal for Local Self Government Institutions. The Tribunal held, by order dated 23.6.2009, that at the hearing of the case, the respondent WPC.30475/09 & 31254/09 Page numbers corporation was not in a position to point out any plans as submitted by the builders showing the width of the road wrongly as 5 metres. It was also held that the corporation was not in a position to establish the alleged misrepresentation which is stated to be the reason for revocation of the building permit under Rule 16 of the Kerala Municipality Building Rules. It was also noticed that in terms of the Rules, the notice should have contained the so called mistake or error. But the notice issued by the corporation alleging misrepresentation was not clear also. With that judgment, the builder approached this Court filing W.P(C).30475/09 requesting that the corporation be directed to issue occupancy certificate in view of the decision of the Tribunal. That writ petition was admitted on 28.10.2009 and an interlocutory order to the following effect was passed. " . . . . . . . . .The petitioners built two multi-storeyed apartment complexes on the basis of building permits issued by the Corporation. When they applied for occupancy certificates, the stand taken WPC.30475/09 & 31254/09 Page numbers by the Corporation was that the distance of the buildings from the road margin is not properly maintained and that the plan and permit were obtained by misrepresentation of facts. Normally, misrepresentation is taken cognizance of in law in relation to matters which are within the exclusive knowledge domain of the person who, allegedly, makes the representation which, ultimately, turns out to be a misrepresentation. In terms of the Kerala Municipality Act and the KMBR, the statutory authorities are expected to make site inspections while approving applications for build permit. It is all the more so when requests are made in connection with erection of huge structures, like apartment complexes. It should be a matter of share for a statutory authority to permit two apartment complexes to come out and then turn round to say that the permits were obtained by misrepresentation as to the distance from the road or the width of the access road. This Court has every reason to assume that Engineers and other officers who are involved in such matters use a measuring device called a tape. This is the first fundamental equipment that should be available with any person who will be making a site WPC.30475/09 & 31254/09 Page numbers inspection. Rough estimate calculations or footage measurements are always kept out when specific statutory matters are considered. Be that as it may, the Tribunal for LSGIs set aside the earlier order (Ext.P10) and issued Ext.P11 order holding that the alleged misrepresentation has not even been approved or shown. Yet, now more than four months have passed. The occupancy certificates have not been issued. The owners of different apartments are entitled to occupy. They are entitled to enjoy occupation by obtaining facilities, like electricity supply, water supply etc. Under such circumstances, I find this an abundantly fit case for issuance of an interim order directing that the second respondent shall number all the apartments in the buildings, Jewel Whitefield Poothullil and Jewel Spring Field by issuing occupancy certificates provisionally to the petitioners forthwith. This order shall be complied and reported to this Court within a period of one week". 4.Being obliged to abide by the aforesaid direction, the corporation has now thought it fit to file W.P(C).31254/09 on WPC.30475/09 & 31254/09 Page numbers 2.11.2009, challenging the order passed by the Tribunal on 23.6.2009. 5.Having heard learned counsel for the corporation even on the matter of the correctness of the order of the Tribunal, the fact of the matter remains that the constructions of the buildings were completed in the open and as noticed in the order dated 28.10.2009 issued in W.P(C).30475/09 (quoted above), the alleged misrepresentation never ignited any action by any of the authorities in the corporation until the buildings were completed. Is it a case of corruption? Is it a case of mal- administration? At any rate, the exercise of this Court in visitorial jurisdiction cannot be extended to set aside the order of the Tribunal. It has to be taken that the ground reality remains that tons and tons of materials have been employed in putting up the construction which the corporation did not object to. If those materials could not have been put and utilised for the construction in hand, they would have been available at least for other people to utilise in these days of WPC.30475/09 & 31254/09 Page numbers crunch of building materials, including sand. Is this Court to believe that the officers of the corporation did not even have a measuring tape with them to ultimately turn round to contend that there was misrepresentation regarding the width or length of a road? Or, is it that they never visited the site? Or was it that their eyelids were made to remain closed? In any view of the matter, the order of the Tribunal, in my considered view, does not merit interference in writ jurisdiction. W.P(C). 31254/09 therefore fails. That writ petition is, accordingly, dismissed and W.P(C).30475/09 is ordered making absolute the aforequoted interim order since nothing further survives in that writ petition. Sd/- THOTTATHIL B.RADHAKRISHNAN, Judge. kkb.5/11.