IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC MONDAY, THE 22ND FEBRUARY 2010 / 3RD PHALGUNA 1931 WP(C).No. 22630 of 2009(W) ----------------------------------------- PETITIONER(S): ------------------------- COCHIN FIRE TECH REPRESENTED BY ITS MANAGING PARTNER M.P.SREEKUMAR, S/O.SMT. KAMALA DEVI, AGED 39 YEARS, MANAGING PARTNER,M/S. COCHIN FIRE TECH, S.N.COMPLEX, NEAR NORTH OVER-BRIDE,ERNAKULAM, COCHIN 682 018,RESIDING AT 'METHAYIL' HOUSE, EDAPALLY NORTH P.O., COCHIN - 682 024. BY MR.O.V.RADHAKRISHNAN, SENIOR ADVOCATE, BY ADV.MR.O.F.JUSTIN. RESPONDENT(S): --------------------------- 1. STATE OF KERALA, REPRESENTED BY ITS SECRETARY, LOCAL SELF GOVERNMENT (R&B) DEPARTMENT, GOVERNMENT SECRETARIAT,THIRUVANANTHAPURAM. 2. CORPORATION OF COCHIN,REPRESENTED BY ITS SECRETARY, OFFICE OF THE CORPORATION OF COCHIN, COCHIN 682 011. 3. M.A. ZOHRA, D/O. THE LATE M,AHMED SAHIB, 26/2403-A, PRINCE COTTAGE, VATTEKKAT ROAD, KALOOR, COCHIN 682 017. R1 BY GOVERNMENT PLEADER MR. V. MANU R2 BY ADV. MR. S.RAMESH BABU, SC, CORPN. OF COCHIN. R3 BY MR.N.N.SUGUNAPALAN, SENIOR ADVOCATE, BY ADV.MR.S.SUJIN. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 22/02/2010 ALONG WITH WPC NO. 9228 OF 2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss WPC.NO.22630/2009 W APPENDIX PETITIONER'S EXHIBITS: P1: COPY OF THE ACKNOWLEDGMENT OF REGISTRATION OF FIRM DTD. 18/11/1994 ISSUED BY THE REGISTRAR OF FIRMS, THIRUVANANTHAPURAM. P2: COPY OF THE BUILDING PERMIT NO.MOP 1/55/07 DTD. 22/03/2007 ISSUED BY THE 2ND RESPONDENT. P3: COPY OF THE APPROVED BUILDING PLAN ISSUED BY THE 2ND RESPONDENT. P4: COPY OF THE BUILDING PERMIT (REVISED) NO.MOPI/55/07 DTD. 06/02/2008 OF THE 2ND RESPONDENT. P5: COPY OF THE APPROVED REVISED BUILDING PLAN MOPI/55/07 DTD. 05/02/2008 ISSUED BY THE 2ND RESPONDENT. P6: COPY OF THE OCCUPANCY CERTIFICATE (SHOP-CUM-RESIDENTIAL) (PARTIAL) DTD. 17/01/2009 OF THE SECRETARY OF THE 2ND RESPONDENT. P7: COPY OF THE SPECIAL NOTICE NO.11590 INTIMATING ASSESSMENT OF TAX FOR THE BASEMENT-CUM-GROUND FLOOR WITH EFFECT FROM 01/10/2008. P7(A): COPY OF THE SPECIAL NOTICE NO.11591 INTIMATING ASSESSMENT OF TAX FOR FIRST FLOOR WITH EFFECT FROM 01/10/2008. P7(B): COPY OF THE SPECIAL NOTICE NO.11592 INTIMATING ASSESSMENT OF TAX FOR THE SECOND FLOOR WITH EFFECT FROM 01/10/08. P8(A): COPIES OF THE TAX RECEIPT NO.49477 DTD. 06/03/2009 OF THE 2ND RESPONDENT. P8(B): COPIES OF THE TAX RECEIPT NO.49478 DTD. 06/03/2009 OF THE 2ND RESPONDENT. P9: COPY OF THE NOTICE NO.MOPI - 4816/09 DTD. 27/02/2009 OF THE 2ND RESPONDENT. P10: COPY OF THE REPLY DTD. 27/03/2009 OF THE PETITIONER TO THE TOWN PLANNING OFFICER. P11: COPY OF THE COMPLAINT NO.004817/2009 DTD. 16/02/2009 FILED BY THE 3RD RESPONDENT. P12: COPY OF THE ORDER DTD. 17/03/2009 ON I.A.NO.1819 OF 2009 IN O.S.NO. 294 OF 2009 IN THE COURT OF THE PRINCIPAL MUNSIFF, ERNAKULAM. P13: COPY OF THE ORDER DTD. 08/04/2009 IN I.A.NO.2556 OF 2009 IN CMA NO.37 OF 2009 IN THE COURT OF DISTRICT JUDGE, ERNAKULAM. Kss ..2/- ..2.... WPC.NO.22630/2009 W P14: COPY OF THE INTERIM ORDER DTD. 21/04/2009 IN WPC.NO.9228 OF 2009 OF THIS HON'BLE COURT. P15: COPY OF THE ORDER DTD. 14/05/2009 IN O.P.NO.399 OF 2009 OF THE HON'BLE OMBUDSMAN FOR LOCAL SELF GOVERNMENT INSTITUTIONS, THIRUVANANTHAPURAM. P16: COPY OF THE ORDER DTD. 23/05/2009 IN O.P.NO.425 OF 2009 OF THE HON'BLE OMBUDSMAN FOR LOCAL SELF GOVERNMENT INSTITUTIONS, THIRUVANANTHAPURAM. P17: COPY OF THE COMPLAINT DTD. 09/03/2009 FILED BY THE 3RD RESPONDENT. P18: COPY OF THE NOTICE NO.MOPI/4816/2008 DTD. 30/04/2009 OF THE 2ND RESPONDENT. P19: COPY OF THE WRITTEN STATEMENT IN O.S.NO.294/2009. P20: COPY OF THE REPRESENTATION DTD. 13/05/2009. P21: COPY OF THE PROVISIONAL ORDER SERVED ON THE PETITIONER - FIRM DTD. 22/05/2009. P22: COPY OF THE NOTICE NO.MOPI/4816/09 DTD.22/05/2009 OF THE 2ND RESPONDENT. P23: COPY OF THE REPRESENTATION DTD. 26/05/2009 OF THE PETITIONER TO THE 2ND RESPONDENT. P23: COPY OF THE REPRESENTATION DTD. 26/05/2009 OF THE PETITIONER TO THE 2ND RESPONDENT. P24: COPY OF THE NOTICE DTD. 16/06/2009 OF THE 2ND RESPONDENT. P25: COPY OF THE NOTICE NO.CER 4(B)/15881/09 DTD. 20/06/2009. P26: COPY OF THE GOVERNMENT ORDER NO.23347/RBI/09/LSGD DTD. 14/05/2009 OF THE 1ST RESPONDENT. P27: COPY OF THE PETITION DTD. 15/06/2009 SUBMITTED TO THE ASSISTANT EXECUTIVE ENGINEER, KSEB, KALOOR, ERNAKULAM. P28: COPY OF THE REPORT OF THE SENIOR TOWN PLANNER (VIGILANCE) DTD. 03/04/2009. P29: COPY OF THE GOVERNMENT LETTER NO.26347/RBI/09/LSGD DTD. 19/06/2009 OF THE 1ST RESPONDENT. RESPONDENT'S EXHIBITS: N I L /TRUE COPY/ P.S.TO JUDGE Kss ANTONY DOMINIC, J. ------------------------------------------ W.P.(C) Nos.22630/09 & 9228/09 ------------------------------------------------- Dated this the 22nd day of February, 2010 J U D G M E N T Issues raised in these writ petitions being common, these writ petitions are heard and disposed of by this common judgment. 2. For convenience I shall refer to the facts pleaded and exhibits marked in WP(c).No.22630/09. 3. Petitioner is a partnership firm engaged in the business of fire-fighting and safety equipments. The firm purchased an extent of 4 cents of land in Sy.No.193/6 in Elamkulam Village. They applied and obtained Ext.P2 building permit and Ext.P3 approved plan for construction of a residential building. Subsequently, on an application made, Ext.P4 revised building permit for the construction of a commercial and residential complex consisting of basement, ground floor and three floors was obtained. Ext.P5 is the revised building plan. It is stated that on the strength of Exts.P4 and P5, construction of basement, ground floor, first and second floors was completed. Though the work in relation to the third floor was continuing, petitioner made an application for issuing partial WPC.No.22630 /09 & anor. :2 : occupancy certificate. Accordingly, Ext.P6 partial occupancy certificate was issued. Building was assessed, tax was levied and building Nos.36/2405 E, F and G were also assigned to the building. 4. According to the petitioner, the 3rd respondent, a resident of the neighborhood, who has filed WP(C) No.9228/2009, made certain demands which were not acceptable to them and thereupon at her instance, Ext.P9 notice was issued by the Town Planning Officer, alleging that irregularities were committed in the construction of the 3rd floor of the building and the allegations were disputed by the petitioner by submitting Ext.P9 reply. While the matter was pending thus, the 3rd respondent allegedly made Ext.P11 complaint to the 2nd respondent, who conducted an inspection, and was satisfied that there was no truth in the allegations and hence did not take any further action on the complaint. The 3rd respondent thereafter filed O.S.No.294/09 before the Munsiff's Court, Ernakulam. Along with the suit, an I.A. for temporary injunction was filed, which was dismissed by the Munsiff's court by Ext.P12 order. Aggrieved by Ext.P12 order, she filed CMA.No.37/2009, in which also I.A.No.2556/09 was filed, which again was dismissed by WPC.No.22630 /09 & anor. :3 : Ext.P13 order. It is stated that in the suit, a written statement was filed by the Corporation where it was contended that the petitioner had deviated from the plan in so far as the 3rd floor is concerned. 5. After Ext.P13 order was passed, 3rd respondent filed WP (c).No.9228/2009, which is also being considered today, complaining of inaction on Ext.P11 complaint referred to above. In the writ petition filed, after hearing both sides, this Court passed Ext.P14 order clarifying that the construction if any undertaken by the petitioner herein shall be at their risk. While the matter stood thus, Corporation issued Ext.P18 stop memo, alleging that the petitioner was continuing construction of the 3rd floor in deviation of the approved plan. It is alleged that in the meanwhile, 3rd respondent moved the Ombudsman for Local Self Government Institutions by filing O.P.No.399/2009 and that the Residents Association of the area was also instigated to file O.P.No.425/2009. Both these proceedings were closed by Exts.P15 and P16 orders, with the former withdrawn and the latter closed in view of the pendency of other proceedings mentioned above. 6. In the meanwhile, the 3rd respondent filed Ext.P17 WPC.No.22630 /09 & anor. :4 : complaint before the Minister for Local Self Government Institutions. It is stated that on the complaint so made, an enquiry was held by the Vigilance Section of the Department, which submitted Ext.P28 report, containing allegations that the permit itself was illegally obtained. Apparently on the basis of Ext.P28, Ext.P26 order was passed by the Government without issuing notice to the petitioner or hearing them, directing the Corporation that Ext.P6 partial occupancy certificate issued to the building shall be cancelled. Acting upon Ext.P26, the 2nd respondent issued Ext.P24, cancelling the partial occupancy certificate and requiring the petitioner to demolish the offending construction. In the meantime, the 2nd respondent also issued Ext.P21 stop memo under Section 406(1) of the Municipality Act again alleging that the construction of the 3rd floor was objectionable. Petitioner submits that against Ext.P21, they have filed Ext.P23 reply and the matter stands at that stage. In pursuance to Exts.P26 and P24 referred to above, the 2nd respondent again issued Ext.P25 cancelling the assessment of the building for tax purposes. It is at that stage that WP(C) No.22630/09 was filed with the aforesaid prayers. WPC.No.22630 /09 & anor. :5 : 7. The contention raised by the learned Sr. Counsel for the petitioner is mainly that Exts.P24, 25 and 26 referred to above are without jurisdiction and are in violation of the principles of natural justice. It is also his case that even if there is any allegation of irregularity with respect to the construction of 3rd floor of the building, that is not a reason to cancel the occupancy certificate or tax assessment in so far as the remaining unobjectionable portion of the building, which is already completed. He also submitted that even if any action is to be taken against the remaining portion of the building, that necessarily has to be preceded by a provisional order as contemplated under Section 40(6)(1) of the Kerala Municipality Act or Rule 22 of the Kerala Municipality Building Rules. 8. Corporation has filed a counter affidavit. From the averments in the counter affidavit and the submissions made by the learned standing counsel for the Corporation, it is obvious that the Corporation was issuing the impugned proceedings acting upon Ext.P26 order of the first respondent, which is stated to be binding on the Corporation. 9. In so far as the main complaint of the 3rd respondent, WPC.No.22630 /09 & anor. :6 : who has filed WP(C) No.9228/2009 is concerned, according to her, the permit itself is liable to be cancelled, in terms of Rule 16 of the Kerala Municipality Building Rules. According to her, there is total violation of the Kerala Municipality Building Rules and it was therefore that she made Ext.P11 complaint before the 2nd respondent. It is stated that there was inaction on the part of the 2nd respondent and it was therefore that she had to move the Civil Court, Ombudsman, this Court and the Government. 10. In this writ petition, this Court is concerned with the validity of the cancellation of the Ext.P6, the partial occupancy certificate that was issued to the petitioner. Evidently Ext.P9 notice of the Town Planning Officer, Ext.P18 and P21 stop memos and Exts.P24 and P26 orders show that the objectionable construction which lead to the issuance of the impugned orders is the construction which was undertaken by the petitioner for the 3rd floor of the building. If that be the reason, it is open to the Secretary of the Corporation to initiate appropriate action in pursuance to Section 406 of the Kerala Municipality Act or Rule 22 of the Kerala Municipality Building Rules. However, both these provisions provide WPC.No.22630 /09 & anor. :7 : that any action thereunder has to be preceded by the issuance of a provisional order and followed by a final order. In this case, by Ext.P24 and P25, the partial occupancy certificate and the tax assessment with respect to the building covering up to its 2nd floor has been cancelled. Nobody has a case that any provisional order covering this portion of the building has been issued either under Section 406 of the Act or under Rule 22 of the Kerala Municipality Building Rules. If a statute requires something to be done in a particular manner, it shall be done in that manner alone. In this case, Exts.P24 and P25 have been issued violating Section 406 and Rule 22 of the Kerala Municipality Building Rules. If that be so, Ext.P24 cannot be sustained and has to be quashed and I do so. 11. However, a reading of Ext.P11 the complaint made by the 3rd respondent and the findings in Ext.P28 report, show that there are allegations concerning the portion of the building covered by Ext.P6 partial occupancy certificate also. If there is any truth in what is said in Ext.P11 or P28, it is a matter for the Secretary to take appropriate action in accordance with law. Therefore, it is clarified that the quashing of Exts.P24 and P25 for the aforesaid reasons, WPC.No.22630 /09 & anor. :8 : will not stand in the way of the Secretary to enquire into the allegations in Ext.P11, which the Secretary shall do and appropriate action even in respect of the area covered by Ext.P6 occupancy certificate as well shall be taken, if such action is found to be warranted. It is also clarified that such action shall be with notice to the petitioner and the 3rd respondent. 12. In so far as the 3rd floor of the building is concerned, it is seen that Ext.P21 provisional order has already been issued by the 2nd respondent to which Ext.P23 reply has been submitted by the petitioner. Petitioner and the Corporation submits that the matter is pending. Therefore, having regard to the pendency of Ext.P21 provisional order, it is directed that the Secretary shall hear the petitioner and decide on Ext.P21duly adverting to the contentions of the petitioner. It is directed that this shall be done as expeditiously as possible and at any rate within 6 weeks from the date of production of a copy of the judgment. 13. In WP(c).No.9228/09, the complaint is regarding the inaction on the part of the Secretary on Exts.P1 and P11 referred to above. Now that the Secretary has been directed to initiate further WPC.No.22630 /09 & anor. :9 : action in the matter as directed above, the Secretary shall take expeditious action on the complaint by the petitioner herein. 14. As already stated, the Corporation has initiated action entirely acting upon Ext.P26 Government Order. When violation of the building rules is allegedly committed, it is the Secretary, who has been conferred powers under Section 406 of the Kerala Municipality Act or Rule 22 of the Kerala Municipality Building Rules. Therefore, it is clarified that the Secretary shall independently examine the matter exercising its discretion and untrammeled by Ext.P26. Writ Petitions are disposed of as above. (ANTONY DOMINIC) JUDGE vi/