IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOTTATHIL B.RADHAKRISHNAN WEDNESDAY, THE 30TH JANUARY 2008 / 10TH MAGHA 1929 WP(C).No. 12567 of 2007(U) ---------------------------------------- PETITIONERS: --------------------- 1. SATISH MURTHI, AGED 44 YEARS, S/O.K.V.NARAYANMURTI, FLAT NO.102. 2. N.GOVINDAN, AGED 62, S/O.KRISHNAN KUTTY NAIR, FLAT.NO.103. 3. BABU NARAYAN, AGED 44, S/O.KRISHNANKUTTY NAIR, FLAT NO.201. BY ADV. SRI.S.SREEKUMAR SMT.UMA DEVI M. SMT.JEENA JOSEPH RESPONDENTS: ------------------------ 1. EMPIRE BUILDERS, 4TH FLOOR, LALAN TOWERS, BANERJI ROAD, COCHIN-31. REP. BY ITS GENERAL MANAGER MR.ANAND KUMAR. 2. THE SECRETARY, CORPORATION OF COCHIN, CORPORATION OFFICE, PARK AVENUE, P.B.NO.1016, COCHIN-682 011. 3. THE SECRETARY, MINISTRY OF LOCAL ADMINISTATRION, SECRETRIAT, THIRUVANANTHAPURAM. 4. THE KERALA STATE POLLUTION CONTROL BOARD, ERNAKULAM. 5. THE COMMISSIONER OF POLICE, ERNAKULAM. R1 BY ADV. SRI.P.R.RAMACHANDRA MENON SRI.GEORGE THOMAS (MEVADA) R2 BY SRI.PRAVEEN K. JOY, SC, CORPN.OF COCHIN R4 BY SRI.CHANDRAMOHAN DAS, SC, KSPCB R3 & R5 BY GOVERNMENT PLEADER SMT. M.K.PUSHPALATHA THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 30/01/2008 ALONG WITH WPC NO. 20983 OF 2007 AND WPC. NO.30204 OF 2007, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss WPC.NO.12567/2007 U APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF THE DOWNLOADS CONTAINING DETAILS OF THE CONSTRUCTION. EXT.P2: COPY OF THE GUIDELINES REGARDING FLOOR AREA RATIO NOTIFIED IN THE WEBSITE OF THE CHIEF TOWN PLANNER. EXT.P3: COPY OF THE REPRESENTATION DTD. 4/04/2007. EXT.P3(A): ......DO....DO..... EXT.P4: COPY OF THE REPRESENTATION DTD. 5/04/2007 BY THE PETITIONER. EXT.P5: COPY OF THE PETITION DTD. 1/04/2007 BY THE PETITIONERS. EXT.P6: COPY OF THE REPRESENTATION DTD. 4/04/2007 BY THE PETITIONERS. EXT.P6: (I.A.NO.8815/2007) – COPY OF JUDGMENT DTD. 25/05/07 IN W.A.NO.1123/07. EXT.P7: COPY OF THE INSPECTION REPORT OF THE 5TH RESPONDENT DTD. 10/05/07. EXT.P8: COPY OF ADV.COMMISSIONER'S REPORT IN O.S.600/07, MUNSIFF COURT, ERNAKULAM. EXT.P9: COPY OF APPLICATION DTD. 4/06/07 FILED BEFORE THE 2ND RESPONDENT. EXT.P10: COPY OF COMMUNICATION DTD. 27/06/07 ISSUED BY THE 2ND RESPONDENT. EXT.P11: COPY OF AGREEMENT DTD. 5/05/06 EXECUTED BY THE 1ST RESPONDENT. EXT.P12: COPY OF THE SALE DEED DTD. 18/07/06 NO.4129/06 IN FAVOUR OF THE 1ST RESPONDENT. EXT.P13: COPY OF THE BUILDING PERMIT DTD. 17/01/06 ISSUED IN FAVOUR OF B.V. PAUL AND LOVELY PAUL. EXT.P14: COPY OF THE COUNTER AFFIDAVIT DTD. 1ST JUNE, 2006 OF B.V.PAUL AND LOVELY PAUL IN O.S.600/2007. Kss ..2/- ...2..... WPC.NO.12567/2007 U EXT.P15: COPY OF ORDER DTD. 7/07/07 PASSED BY THE 2ND RESPONDENT. EXT.P16: COPY OF THE LETTER DTD. 30/06/04 ADDRESSED TO THE 1ST PETITIONER BY DR. K.S.PRASANTH PILLAI. EXT.P17: COPY(A)SERIES:COPY OF LETTER DTD. 17/05/07 ADDRESSED BY THE PETITIONER TO THE CHAIRMAN, BHARATHIYA VIDYA BHAVAN. EXT.P17(B): COPY OF REPLY DTD. 21/05/07 TO THE 1ST PETITIONER BY THE CHAIRMAN, BHARATHIYA VIDYA BHAVAN. EXT.P17(C): COPY OF RESPONSE DTD. 25/05/07 BY THE 1ST PETITIONER TO THE CHAIRMAN, BVB. EXT.P18: COPY OF ORDER DTD. 24/08/07 BY THE 2ND RESPONDENT. (I.A.NO.12765/2007) EXT.P18: COPY OF ORDR DTD. 24/08/07 PASSED BY THE SECRETARY, CORPORATION OF COCHIN (I.A.NO.12149/2007) 1ST RESPONDENT'S EXHIBITS: EXT.R1(A): COPY OF THE PHOTOGRAPH OF THE BUILDING SITUATED WEST OF THE KALATMAK RESIDENCY. EXT.R1(B): COPY OF THE PHOTOGRAPH OF THE BUILDINGS ON EITHER SIDE OF KALATMAK RESIDENCY. EXT.R19C): COPY OF THE O.S.600/2007. EXT.R1(D): COPY OF THE ORDER DTD. 13/04/2007. EXT.R1(E): COPY OF THE W.P.17550/2007. EXT.R1(F): COPY OF THE OBJECTION IN O.S.600/2007 DTD. 02/07/07. /TRUE COPY/ P.S.TO JUDGE Kss THOTTATHIL B. RADHAKRISHNAN, J. = = = = = = = = = = = = = = = = = = = = = = = = WP(C).Nos.12567/2007-U, 20983/2007-W & 30204/2007-U = = = = = = = = = = = = = = = = = = = = = = = = Dated this the 30th day of January, 2008. JUDGMENT 1.I have heard the learned counsel for parties in these writ petitions. Having regard to the nature of the directions being issued hereunder, I deem it appropriate that elaborate statements touching the facts of these cases are not made in this judgment. 2.The Corporation of Cochin granted a building permit jointly to Sri.E.V.Paul and Smt.Lovely Paul for the construction of a 12 storeyed building. WP(C).12567/2007 was filed by certain third parties taking the stand that their complaint regarding unauthorized construction is not attended to by the statutory authorities. WPC.12567/07 & con.cases -: 2 :- Thereafter, M/s.Mather and Mather (P) Ltd. and its Managing Partner filed WP(C).20983/2007 challenging an order refusing to transfer to them the building permit in question. By certain interlocutory orders, this Court relegated the parties to the Secretary of the Corporation. 3.The Secretary of the Corporation heard all the parties and issued Order No.KRP1-62/06 dated 24th August, 2007 holding that there are three irregularities revealed through the examination of the files and at hearing. Accordingly, the building permit issued to Sri.E.V.Paul and Smt.Lovely Paul was revoked with immediate effect. The request of M/s.Mather and Mather (P) Ltd. for transfer of that permit was rejected. Accordingly, the Secretary of the corporation complied with the interlocutory direction in WP (C).12567/2007 to consider and dispose of Ext.P9 representation therein. However, the Secretary rightly stated that the order that was being WPC.12567/07 & con.cases -: 3 :- issued by that Office is subject to the final decision in WP(C)Nos.12567/2007 and 20983/2007 since those writ petitions are still pending. 4.One of the reasons on the basis of which the order of cancellation of licence has been issued is that the permit holders had not produced the NOC from the Aviation Department, though time limit of three months was fixed to produce the NOC. 5.WP(C).30204/2007 is filed by M/s.Mather and Mather (P) Ltd. and its Managing Partner challenging the decision of the Secretary of the Corporation. 6.The facts stated above would show that three issues arise for consideration. i. Is M/s.Mather and Mather (P) Ltd. entitled to assignment of the building WPC.12567/07 & con.cases -: 4 :- permit issued to Sri.E.V.Paul and Smt.Lovely Paul? ii. If so, is the revocation of licence granted to Sri.E.V.Paul and Smt.Lovely Paul liable to be interfered with? iii. What action needs to be taken regarding the NOC from the Aviation Department? 7.In considering the question whether M/s.Mather and Mather (P) Ltd. is entitled to transfer the building permit, there can be no doubt that as against the decision of the Secretary of the Corporation in that regard, the parties can agitate the issue before the Tribunal for Local Self Government Institutions constituted under Section 271(5) of the Kerala Panchayat Raj Act, 1994. That issue is intricately connected with the question whether the terms of the approved plan and permit have been violated and whether WPC.12567/07 & con.cases -: 5 :- the licence issued to Sri.E.V.Paul and Smt.Lovely Paul is liable to be cancelled. That is an issue which would pithily fall within the scope of an appeal provided by Rule 160 of the Kerala Municipal Building Rules, 1999 before the Tribunal. The resolution of these two disputes calls for adjudication on questions of facts and proper appreciation of the entire files, including measurements that may have been carried out by the Building Inspectors even as regards the width of the road. Without expressing anything on merits, it is quite clear that the petitioners have an alternate efficacious remedy for redressal of their grievance in that regard and that there is no reason why such statutory remedy should be excluded, entertaining the writ petition under the extraordinary jurisdiction. 8.Coming to the question of issuance of NOC by the Southern Naval Command, the Assistant Solicitor General submits that the Command had issued an WPC.12567/07 & con.cases -: 6 :- NOC, however that it later turned out that there are errors in the certificate, which are attributable to the errors in the application originally made. The Southern Naval Command therefore insists that a fresh application has to be filed rather than apply for rejection of the certificate already issued. A communication has also been issued to M/s.Mather and Mather (P) Ltd. in that regard. Therefore, that issue can be taken care of by the Southern Naval Command while considering any request of M/s.Mather and Mather (P) Ltd. or of Sri.E.V.Paul and Smt.Lovely Paul for any clearance by that Department. If any such application is received, that shall be decided upon and a decision rendered within a period of two months from the date of receipt of a copy of this judgment and a representation as aforesaid, whichever is later. 9.Having decided that the writ jurisdiction need not be extended, the parties to these writ WPC.12567/07 & con.cases -: 7 :- petitions will stand regulated to the Tribunal for Local Self Government Institutions, if any person aggrieved by the aforesaid decision dated 24-8-2007, of the Secretary of the Corporation, challenges the same before the Tribunal within an outer limit of four weeks from now. If such matter is filed, the Tribunal shall entertain the same and decide it on merits after giving the parties sufficient opportunity of being heard. The applicants, if they get clearance from the Southern Naval Command, will be at liberty to produce such material before the Tribunal before a final decision is rendered. Having regard to the stage of the construction at which it has reached and the commercial issues involved, it is directed that the Tribunal will make an endeavour to dispose of the matter at the earliest, at any rate, within nine months from the date of receipt of a copy of this judgment or the filing of proceedings before the Tribunal, whichever is later. The Tribunal will ensure that all private WPC.12567/07 & con.cases -: 8 :- parties to these writ petitions are heard in relation to the matter. It is also clarified that it will be open to the Tribunal to pass such interlocutory order as may be sought for by either party and the Tribunal deems fit to grant, on the facts and circumstances of the case. The interim order governing the parties, as of now, will continue to hold good until final disposal of the matter as directed above or until the Tribunal issues any order on any application for interim relief as directed above. THOTTATHIL B. RADHAKRISHNAN, JUDGE. Sha/