IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.GIRI MONDAY, THE 28TH JANUARY 2008 / 8TH MAGHA 1929 WP(C).No. 36044 of 2007(N) -------------------------- PETITIONER: ------------ SABEENA.A, AGED 30 YEARS, D/O.SHAHULHAMEED, MUNDUTHARA MEENATHETHIL, PAZHAKULAM P.O., ADOOR, PATHANAMTHITTA DISTRICT. FROM SHEREEFA MANZIL, KOMALLOOR P.O., KARIMULACKAL, ALAPPUZHA DISTRICT. BY ADV. SRI.K.RAMANATHAN RESPONDENTS: ------------- 1. THE DIRECTOR, DIRECTORATE OF HEALTH SERVICES, THIRUVANANTHAPURAM, KERALA STATE PIN 650 037. 2. THE KERALA PUBLIC SERVICE COMMISSION, PATTOM P.O., THIRUVANANTHAPURAM DISTRICT, PIN 695 004, REPRESENTED BY ITS SECRETARY. 3. THE CHAIRMAN, THE KERALA PUBLIC SERVICE COMMISSION, PATTOM P.O., THIRUVANANTHAPURAM DIST. PIN 695 004. 4. STATE OF KERALA REPRESENTED BY THE CHIEF SECRETARY, THROUGH THE GOVT.PLEADER, HIGH COURT OF KERALA, ERNAKULAM. BY GOVERNMENT PLEADER SRI BEJOY CHANDRAN FOR R1 & R4 SRI.ALEXANDER THOMAS,SC,KPSC FOR R2 & R3 THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 28/01/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: PIUS C. KURIAKOSE, J. ----------------------------------------------- W.P.(C)No. 30644 OF 2007 ----------------------------------------------- Dated this the day of February, 2008 J U D G M E N T A builder is the petitioner in this writ petition under Article 226 of the Constitution of India and he challenges Ext.P6 show cause notice issued by the Secretary of the 2nd respondent Corporation regarding cancellation of Ext.P1 building permit, Ext.P7 stop memo and Ext.P11 rejecting a statement which petitioner had filed after he was issued with Ext.P9. According to the petitioner he is a young entrepreneur in the filed of flat construction and he has started a new construction company under the name and style Sunshine Abodes Pvt. Ltd. with the registered office at Kochi with the main objective of constructing and marketing flats to the Cochin City. As a new endeavour he started the construction of a ground plus eight storied residential apartment in survey No. 169/2 in Edappally South Village on the North Janatha Road in Cochin City and Ext.P1 building permit was issued by the second respondent Secretary of Corporation of Kochi under the signature of the first respondent Assistant Executive Engineer to him. Ext.P1(a) is the copy of the site plan, location map and service plan, after considering which only Ext.P1 was issued. Petitioner alleges that some persons probably with oblique motives had approached the WP(C)N0.30644/07 -2- Munsiff Court, Ernakulam seeking prohibitory injunction against the construction of the apartment. But the learned Munsiff found that those persons are not entitled to get any temporary prohibitory injunction restraining construction of the flats by the petitioner and accordingly issued Ext.P2 order dated 3-2-207 in IA.363/07 in O.S. No. 53 of 2007. It is pointed out that though there were as many as nine petitioners in the I.A., only the 4th plaintiff (the addl. 4th respondent in this case) preferred an appeal. The court of appeal also while passing Ext.P3 judgment did not interfere with Ext.P2 order. This court also was not inclined to interfere with Exts. P3 and P3(a) is copy of the judgment of this court disposing of the writ petition filed by the 4th respondent challenging Ext.P3. The petitioner alleges that parallel to Exts.P2 and P3 proceedings certain other persons who were in need of money approached respondents 1 and 2 with Ext.P4 petition complaining of irregularities in the matter of construction. Since the petitioner had already invested huge amounts in the project he was left with no other alternate remedy than to see petitioners in Ext.P4 (properly) and thereafter entered into an agreement with them on 17- 2-2007. Ext.P5 is a copy of that agreement. Petitioner complains that he is now being haunted again by R1 and R2 with mala fide inteniton WP(C)N0.30644/07 -3- and Ext.P6 is copy of the show cause notice issued. Ext.P6 has been issued on the basis of Ext.P4 petition and its contended that the allegations inExt.P4 are without basis. Builder is not expected to show the width of the road lying in front of the building site at all points from its starting point to the ending point. There cannot be any justifiable allegation that the petitioner had misrepresented to the Corporation about the width of the north Janatha Road since it is R1 qnd R2 who are the custodians of the registers regarding the length and width of the Corporation roads within the city. Along with Exts.P6, P7 stop memo was issued. To Ext.P7, P8 reply was submitted by the petitioner giving valid explanation. After Ext.P8 without giving hearing opportunity to the petitioner, second respondent issued Ext.P9 order cancelling Ext.p1 permit. Against Ext.P9 petitioner submitted Exts.P10 representation on 7-8-07 seeking review of Ext.P9. The response of the second respondent to Ext.P10 was that the order Ext.P9 cannot be reviewed unless the court intervenes and Ext.P11 is the intimation received from the first respondent. On the above averments the petitioner has raised various grounds and filed the writ petition for the reliefs already indicated. 2. The Corporation has filed a statement through its Standing WP(C)N0.30644/07 -4- Counsel and through that statement the Corporation justifies Ext.P9 order. According to the statement, Corporation became constrained to issue Ext.P9 in exercise of its powers under Rule 16 of the Building Rules. Since it was noticed on receiving complaints that there was noncompliance with Rule 33 of the Kerala Municipality Building Rules which require minimum clear width of 5 metres access to the plot from the main street. Petitioner had sought for the building permit indicating that there was compliance with Rule 33. But the matter was entuired in the context of the complaints it was revealed that the North Janatha Road which provides access from the plot to the main road does not have the requisite width of 5 metres through out. This was why Ext.P6 show cause notice was issued along with Ext.P7 stop memo. Ext.P8 reply was unsatisfactory and hence had to issue Ext.P9 cancellation order. It is pointed out that Ext.P9 is an appealable order in terms of Section 509 of the Kerala Municipalities Act. As regards the petitioner's statement that the Corporation had sanctioned high- rise building along the North Janatha Road after 2001 it is contended that after 1-4-2001 no high-rise building other than that of the petitioner has been sanctioned. It is also stated that as per the road register width of North Janatha Road is 4 metres. Smt. M.C.Sindhu WP(C)N0.30644/07 -5- and Snior Town Planner were impleaded as Additional Respondents 4 and 5. Smt.Sindhu was one of the complainants before the Corporation and the 4th plaintiff in Ext.P2 suit and the only appellant and petitioner in Ext.P3 CMA and Ext.P3(a) writ petition. The additional 4th respondent has filed a very detailed counter affidavit. It is alleged therein that material facts have been suppressed bay the writ petitioner with the purpose of misleading this court to pass favouorable orders. Initially it is contended that the writ petition is bad for non-joinder of necessary parties in as much as the persons who had filed complaints before the Corporation have not been arrayed as parties. Regarding Ext.P1(a) site plan produced by the petitioner it is contended that it can be seen from Ext.P1(a)itself that the petitioner has misrepresented before the Corporation regardind width of the public road abutting the petitioner's property. As against the real width of 3.90 metres to 4.60 metres, the width shown is 5 metres. Petitioner relies on R4(a) commission report in O.S.53/87 and Ext.r4(b) plan submitted by the commisisoner in that suit to prove the above point. Rule 16 of the Kerala Municipality Building Rules enables the Secretary of the Corporation to revoke permit if the same has issued by mistake or if the same happened to be issued on WP(C)N0.30644/07 -6- misrepresentation of facts. Ext.P1 permit was issued on misrepresentation of facts by the petitioner. It is then pointed out that the promulgation of the Kerala Municipality Building Rules in 1999 was in accordance with the directions of this court. This court directed the Government to incorporate safety provision for high-rise buildings so as to ensure that there is no unnecessary difficulty to the construction of high-rise bjilding in the local area. The Government kept this in mind the traffic congestion and increase in the number of vehicles when high rise residential apartments are constructed in a given area and provided under rule 33 that buildings having more than 4 storeys can be constructed only on road abutting such street should have a minimum width of 5 metres. Table 4 under rule 33 of the Kerala Municipality Building Rules is quoted . Fourth respondent contends that the petitioner's property is situated on the northern side of her property and she will be more affected if high-rise buildingis constructed by the petitioner in the petitioner's plot. The counter affidavit denies the allegation that Ext.P9 was not preceded by a hearing of the petitioner. It is pointed out that petitioner has got alternate and efficacious remedy or preferring appeal before the Tribunal as provided under section 509 of the Kerala Municipality Act. WP(C)N0.30644/07 -7- It is also pointed out that the petitioner himself approach the Tribunal but did not pursue the appeal before the Tribunal for reasons best known to him. It is alleged that the corporation is colluding with the petitioner so that petitioner can violate Building Rules. The counter affidavit goes on to deny the insinuations and the allegations against the 4th respondent. She claims that she is a law abiding lady and she is not at all interested in any enrichment at the cost of the petitioner. So-called settlement entered into between the petitioner and the other alleged complainants demonstrates the capacityof the petitioner to unduly influence persons. But the 4th respondent is not interested in “settling” the dispute. As regards Ext.P3 order passed by the learned Munsiff, counter affidavit states that the very same leanred Munsiff has on similar facts passed abn injunction order restraining construction of high-rise building in property abutting public road on the reason that the road has only less than 5 metres width. Ext.R4(c) order passed by the Munsiff in O.S.264/06 is relied on. A reply affidavit has been submitted by the petitioner in answer to the counter affidavit of the 4th respondent and the statement of the Corporation. Through this reply affidavit petitioner reiterates his grounds and repudiates the contentions raised in the counter affidavit. It is stated WP(C)N0.30644/07 -8- that relying on Ext.R4(c) order the 4th respondent had unsuccessfully approached the District Court and this Court. This Court passed Ext.P3 (a) order rejecting all the contentions of the 4th respondent including the contentions based on Ext.R4(a) commission report. Ext.P3(a) order has attained finality and hence it is idle for the petitioner to agitate the correctness of that order indirectly through the present writ petition. It is claimed that the entire frontage of the petitioner's plot is larger than 5 metres width and once the proposed scheme of respondents 1 and 2 to widen the North Janatha Road is implemented the width of the road will be more than 8 metres. In view of the proposed wideening scheme petitioner had left ample space in front of the proposed building. The 4th respodnent has aware of this fact and that 4th respondent is taking up a contention that what is relevant is not the width of the road in front of the petitioner's building but the width from the starting point of the road to its ending point. Reiterating that the North Janatha Road is having an average width of five metres petitioner has produced Ext.P12 sketch showing the various roads at Mamangalam area. In Ext.P12the North Janatha Road is shown as 5 metre road. Petitioner has also produced Ext.P13 certificate issued by the senior Town Planner pursuant to an WP(C)N0.30644/07 -9- application filed by the petitioner and P13 relied on to show that the average width of the North Janatha Road is 5 metres. (PIUS C.KURIAKOSE, JUDGE) ksv/