IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN TUESDAY, THE 9TH NOVEMBER 2010 / 18TH KARTHIKA 1932 WP(C).No. 13927 of 2009(I) --------------------------------------- PETITIONER(S): ------------------------ P.A.JINAS, S/O.ABDUL RAHIMAN, 38 YEARS, GALAXY HOME, SIUP SCHOOL ROAD, KALOOR, KOCHI-17. BY SRI.T.KRISHNANUNNI, SENIOR ADVOCATE, BY ADV. SMT.RAMEENA.P.K., SRI.T.U.ZIYAD. RESPONDENT(S): --------------------------- 1. CORPORATION OF COCHIN, REPRESENTED BY ITS SECRETARY, ERNAKULAM. 2. ANTONY.A.V., S/O.VARGHESE, ANAMTHURUTHIL HOUSE, CHILAVANNOOR ROAD, ELEMKULAM VILLAGE, KANAYANNUR TALUK. R1 BY ADV. SRI. RAMESH BABU, SC, COCHIN CORPORATION R2 BY ADV. SRI.M.M.ALIAS THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 09/11/2010,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss WPC.NO.13927/2009 I APPENDIX PETITIONER'S EXHIBITS: P1: COPY OF THE PLAN LOCATION SKETCH APPROVED BY THE 1ST RESPONDENT IN FAVOUR OF THE PETITIONER. P2: COPY OF THE PERMIT NO.KRP1-140/05 DTD. 15/04/2005 ISSUED BY 1ST RESPONDENT. P3: COPY OF THE REVISED PERMIT N.KRP1 - 140/05 DTD. 07/03/2006 ISSUED BY 1ST RESPONDENT. P4: COPY OF THE MEMO DTD. 15/05/2008 ISSUED BY THE 1ST RESPONDENT. P5: COPY OF THE PLAINT OF UNNUMBERED SUIT FILED BY THE 2ND RESPONDENT BEFORE THE HON'BLE DISTRICT COURT (VACATION), ERNAKULAM. P6: COPY OF THE I.A.NO.3271 OF 2009 FILED BY THE 2ND RESPONDENT BEFORE THE HON'BLE DISTRICT COURT (VACATION), ERNAKULAM. P7: COPY OF THE COUNTER AFFIDAVIT IN I.A.NO.3271 OF 2009 FILED BY THE PETITIONER BEFORE THE HON'BLE DISTRICT COURT (VACATION) ERNAKULAM. P8: COPY OF THE STATUS-QUO ORDER DTD. 02/05/2009 BY THE HON'BLE DISTRICT COURT (VACATION), ERNAKULAM IN I.A.NO.3271/2009. P9: COPY OF THE PETITION DTD. 18/05/2009 IN I.A.NO.... OF 2009 FOR THE EXTENSION OF STATUS-1UO ORDER FILED BY THE 2ND RESPONDENT BEFORE THE HON'BLE DISTRICT COURT (VACATION), ERNAKULAM. P10: COPY OF THE ORDER DTD. 18/05/2009 ISSUED BY THE CORPORATION OF COCHIN. P11: COPY OF THE REPRESENTATION DTD. 20/05/2009 SUBMITTED BY THE PETITIONER BEFORE THE SECRETARY, CORPORATION OF COCHIN. Kss ..2/- ..2.... WPC.NO.13927/2009 I RESPONDENT'S EXHIBITS: R2(A): COPY OF THE REPORT OF THE VILLAGE OFFICER DTD. 22/04/2009. R2(B): COPY OF THE SALE DEED IN RESPECT OF THE LAND IN THE WESTERN PORTION OF THE PUBLIC ROAD IN FAVOUR OF THE PREDECESSORS OF THE PETITIONER. R2(C): COPY OF THE APPLICATION DTD. 21/01/2009. R2(D): COPY OF THE REPLY ISSUED BY THE ASSISTANT EXECUTIVE ENGINEER, ZONAL OFFICE, CORPORATION OF COCHIN, VYTTILA. R2(E): COPY OF THE APPLICATION DTD. 25/03/2009. R2(F): COPY OF THE REPLY OF OFFICERS OF THE 1ST RESPONDENT. R2(G): COPY OF THE APPLICATION DTD. 2/04/2009. R2(H): COPY OF THE APPLICATION DTD. 07/04/2009. R2(I): COPY OF THE APPLICATION DTD. 8/05/2009. R2(J): COPY OF THE APPLICATION DTD. 6/05/2009. R2(K): COPY OF THE PLAN. R2(L): COPY OF THE APPLICATION DTD. 20/05/2009 TO THE CORPORATION OF COCHIN. R2(M): COPY OF THE APPLICATION 20/05/2009. R2(N): COPY OF THE APPLICATION DTD. 26/05/2009 SUBMITTED BY THE 2ND RESPONDENT TO THE 1ST RESPONDENT. R2(O): COPY OF THE REPORT OF THE SUPERINTENDENT ENGINEER OF THE 1ST RESPONDENT DTD. 15/05/2009. Kss ..3/- ..3.... WPC.NO.13927/2009 I R2(P): COPY OF THE SALE DEED BEARING NO.27 52/2005 IN FAVOUROF THE PETITIONER DTD. 29/03/2005. R2(Q): COPY OF THE SALE DEED BEARING NO.4247/2005 DTD. 8/06/2005. R2(R): COPY OF THE SALE DEED BEARING NO.4248/2005 DTD. 8/06/2005. R2(S): COPY OF NOTICE DTD. 7/09/2009 ISSUED BY THE ADDITIONAL TAHSILDAR TO THE 2ND RESPONDENT. R2(T): COPY OF THE NOTICE ISSUED BY THE ADDITIONAL TAHASILDAR. R2(U): COPY OF THE NOTICE ISSUED BY THE TALUK SURVEYOR DTD. 19/10/2009. R2(V): COPY OF THE APPLICATION UNDER RIGHT TO INFORMATION ACT DTD. 29/07/2009. R2(W):COPY OF THE REPLY OF THE STATE INFORMATION OFFICER. R2(X): ARGUMENT NOTE FILED BY THE 2ND RESPONDENT BEFORE THE SECRETARY. R2(Y): THE ADDITIONAL ARGUMENT NOTE SUBMITTED BY THE 2ND RESPONDENT. R2(Z): COPY OF THE ORDER, WHICH IS SIGNED BY THE ADDITIONAL SECRETARY DTD. 14/11/2009. R2(A1):COPY OF THE ORDER OF THE TRIBUNAL DTD. 30/04/2010. R2(A2):THE ORDER OF THE GOVERNMENT OF KERALA DTD. 07/05/2010. /TRUE COPY/ P.S.TO JUDGE Kss P.N.RAVINDRAN, J. ----------------------------------------- W.P(C).No.13927 of 2009 ----------------------------------------- Dated this the 9th day of November, 2010 JUDGMENT The petitioner, a builder by profession, applied for and obtained Ext.P2 building permit dated 15.4.2005 from the Cochin Corporation to put up an apartment complex consisting of four different blocks. The construction of the second and fourth blocks has been completed and occupancy certificates issued. This writ petition is concerning with the construction of the third block. While the construction was in progress, the second respondent sent a complaint to the Secretary of Cochin Corporation wherein he raised various contentions. Upon receipt of the said complaint, the Secretary, Cochin Corporation, issued Ext.P10 notice dated 18.5.2009 calling upon the petitioner to show cause why the building permit should not be cancelled. The petitioner submitted Ext.P11 reply dated 20.5.2009 wherein he brought to the notice of the Secretary that the second respondent has already instituted a suit, O.S.No.507 of 2009 in the Court of the Munsiff of Ernakulam for a declaration that he has a right of way by prescription W.P(C).No.13927 of 2009 -:2:- through the plaint B schedule property which forms part of the land where the petitioner is building the apartment complex. It was pointed out that as the second respondent has already instituted a suit and filed an application for interim relief in that suit, the Secretary may await the outcome of the interlocutory application before proceeding further in the matter. This writ petition was thereafter filed on 24.5.2009 challenging Ext.P10 and seeking the following reliefs:- i. call for the records leading to issuance of Ext.P10 and to issue a writ of certiorari. ii. issue a writ of mandamus directing the 1st respondent to revoke Ext.P10 and hear the petitioner before taking any decision in the matter. 2. When the writ petition came up for admission on 21.5.2009 this Court, while ordering notice to the respondents, passed the following order:- “Notice to R2. Standing Counsel takes notice for R1. There will be an interim order that enforcement of Ext.P10 as a stop memo will stand suspended for a period of six weeks. The petitioner will be at liberty to provisionally continue with the construction at his own risk. No equity will work in his favour on the basis W.P(C).No.13927 of 2009 -:3:- of any such construction. The first respondent will call for a detailed explanation, from the officers who issued Exts.P3 and P4, on the issue as to whether the permits were issued after calling for and considering all the relevant materials. The counter affidavit of Corporation to be on board within a period of four weeks. It is also clarified that this interim order does not inhibit further proceedings of hearing and decision making following Ext.P10 on the basis of any objection that the petitioner has filed in the form of ext.P11 and any further materials that he or the objector may place and on the basis of files. However, no decision against the petitioner will be enforced for a period of six weeks.” 3. The respondents, including the second respondent, have entered appearance and filed counter affidavits. The second respondent has raised various contentions, which according to me are not relevant to be set out in detail in view of the subsequent events and developments. Shorn of details, the main contention put forward by the second respondent is that he has a right of way through the land where the petitioner is building the apartment complex. That is an issue which the civil court will have to decide after a full fledged trial and therefore I do not W.P(C).No.13927 of 2009 -:4:- propose to deal with the merits of the claim of the second respondent as regards the right of way, in this writ petition. 4. Pursuant to the interim order passed by this Court on 21.5.2009 the Secretary, Cochin Corporation heard the parties including the petitioner and the second respondent and passed Ext.R2(z) order dated 14.11.2009 whereby the Secretary directed the petitioner to demolish the 12th and 13th floors of the fourth block (in this writ petition we are concerned only with the third block). The Secretary also called upon the petitioner to vacate the river poramboke if after survey by the Taluk Surveyor it is found that any portion of the river poramboke has been encroached upon. The second respondent challenged the said order by filing Appeal No.103 of 2010 before the Tribunal for Local Self Government Institutions. He contended that Ext.R2(z) order, which was actually an order adverse to the petitioner, is liable to be set aside for the reason that it is illegal. By Ext.R2(a1) order dated 30.4.2010 passed after notice to and hearing the petitioner, the second respondent and the Corporation of Cochin, the Tribunal for Local Self Government Institutions allowed Appeal No.103 of 2010 filed by the second respondent, set aside W.P(C).No.13927 of 2009 -:5:- Ext.R2(z) order and directed the Secretary, Cochin Corporation to conduct a local inspection in the light of the complaint filed by the second respondent herein (appellant before the Tribunal) and to verify whether there are any reasons for initiating proceedings against the petitioner under rule 16 of the Kerala Municipality Building Rules or/and under section 406 of the Kerala Municipality Act or/and under section 376 of the Kerala Municipality Act and to prepare a detailed report and to initiate proper proceedings, if any, as per law, within three months from 30.4.2010, if there are any reasons for taking such action. The operative portion of Ext.R2(a1) order reads as follows:- “In the result, the Appeal is allowed. The impugned order bearing No.KRP1-140/05 dated 14.11.2009 of the Additional Secretary, Cochin Corporation is set aside. The Secretary of the corporation is directed to conduct proper local inspection in the light of the complaint filed by Appellant and to verify whether there are any reasons for initiating proceedings under Rule 16 of the Kerala Municipality Building Rules or/and under Section 406 of the Kerala Municipality Act or/and under Section 376 of the Kerala Municipality Act and to prepare detailed report and to initiate proper proceedings, if any, as W.P(C).No.13927 of 2009 -:6:- per law, within 3 months from today, if there are any reasons for doing so.” 5. When the writ petition came up for hearing today Sri.S.Ramesh Babu, learned standing counsel appearing for the Cochin Corporation, submitted that pursuant to the directions issued by the Tribunal for Local Self Government Institutions in Ext.R2(a1) order dated 30.4.2010, the Secretary, Cochin Corporation conducted an enquiry into the complaint submitted by the second respondent with notice to the petitioner and the second respondent and came to the conclusion that in view of the claim made by the second respondent that he has a right of way through the property where the apartment complex has been put up to reach the Chilavannur river on the east, the area over which the right of way is claimed (622 Sq.M. of land) should be excluded while computing the floor area ratio until the Government orders otherwise. 6. Rule 31 of the Kerala Municipality Building Rules, 1999 deals with coverage and floor area ratio. The said rule provides the maximum percentage of coverage permissible for each type of building. It also stipulates what the floor area ratio value shall be for each type of building. The main contention of the second W.P(C).No.13927 of 2009 -:7:- respondent is that as he has a right of way through the land where the apartment complex has been put up, the area over which he claims the right of way (622 Sq.M. of land) has to be excluded while computing the floor area ratio value or while determining the maximum permissible coverage. In my opinion the said contention is without any merit. The Kerala Municipality Building Rules do not stipulate that for determining the maximum permissible coverage or the floor area ratio value, the portion of the land, if any, over which any one has or claims a right of way has to be excluded. In the absence of a statutory prescription, the second respondent cannot be heard to contend that the area covered by the pathway, over which he claims a right of easement, should be excluded for determining the maximum permissible coverage or the floor area ratio value. The second respondent can at best, even assuming for the sake of arguments that he has a right of way to pass through the site of the disputed building to reach the Chilavannur river lying on its east, claim only a right to pass and re-pass through the property. He cannot claim that the area over which he has a right to pass and re-pass should not be reckoned for determining the maximum permissible W.P(C).No.13927 of 2009 -:8:- coverage or the floor area ratio value and that the area covered by the pathway over which he claims a right should be excluded while computing the extent of the land. In other words, even assuming that the second respondent has a right of way as claimed by him, which claim he is yet to establish in the civil court, it cannot be a reason to hold that that area covered by the disputed pathway has to be excluded while computing the maximum permissible coverage or the floor area ratio value. All that the second respondent can ask for is that the portion of the land over which he has a right of way should not be built upon or that his right of way should not be blocked. That alone can be the extent of the right which the second respondent can claim even if he proves his claim in the competent civil court. I am therefore of the considered opinion that the claim made by the second respondent in the suit presently pending in the Court of the Munsiff of Ernakulam as regards the right of way through the site of the disputed building cannot stand in the way of the Corporation of Cochin from issuing an occupancy certificate or from numbering the buildings. 7. The learned counsel appearing for the second W.P(C).No.13927 of 2009 -:9:- respondent brought to my notice that there are a large number of other violations as well. In my opinion with the passing of Ext.R2 (a1) order by the Tribunal for Local Self Government Institutions, the entire issue was relegated to the Secretary of the Cochin Corporation. As stated earlier, the Secretary of the Cochin Corporation has overruled all the contentions of the second respondent and held that there is no merit in the said objections. The Secretary, however, has taken the stand that as regards the area over which the second respondent claims a right of way the petitioner will have to obtain orders from the Government. In the view that I have taken in the preceding paragraphs that even if the second respondent's claim for right of way is upheld, that right cannot defeat the right of the petitioner to have the area over which the right of way is claimed for computing the maximum permissible coverage or the floor area ratio value. In the light of the said finding and in view of the subsequent developments, Ext.P10 show cause notice has lost its significance. Necessarily therefore, the Secretary, Cochin Corporation will have to issue an occupancy certificate and to number the building, which is the subject matter of Ext.P10. W.P(C).No.13927 of 2009 -:10:- I accordingly dispose of this writ petition with a direction to the Secretary, Cochin corporation, to issue an occupancy certificate and to number the apartment building which is the subject matter of this writ petition without insisting that the area over which the second respondent claims a right of way shall be excluded either while computing the floor area ratio value or for deciding the percentage of permissible coverage. It is clarified that I have not dealt with the claim of the second respondent regarding the right of way and that the civil court will be at liberty to decide the issue in the light of the pleadings and the evidence on record. The Secretary, Cochin Corporation, shall take necessary steps to implement the directions issued by this Court in this judgment within one month from the date on which the petitioner produces a certified copy of this judgment. If the petitioner has to pay any fee, he shall pay the same on being informed by the Secretary of Cochin Corporation. P.N.RAVINDRAN, Judge. ahg. P.N.RAVINDRAN, J. --------------------------- W.P(C).No.13927 of 2009 ---------------------------- JUDGMENT 9th November, 2010