IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID SATURDAY, THE 30TH JANUARY 2010 / 10TH MAGHA 1931 WP(C).No. 38072 of 2008(G) -------------------------- PETITIONER: --------------- THE KERALA HIGH COURT ADVOCATES' ASSOCIATION, REG. NO. ER 931/2004, HIGH COURT BUILDING, KOCHI-682031, REPRESENTED BY ITS SECRETARY, SHIRAZ ABULLA.M.S BY ADV. MR.G.SHRIKUMAR RESPONDENTS: --------------- 1. STATE OF KERALA, REPRESENTED BY SECRETARY TO GOVERNMENT, LOCAL ADMINISTRATION DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM. 2. THE SECRETARY, CORPORATION OF KOCHI, PARK AVENUE, ERNAKULAM *3. M.RAJASEKHARAN NAYAR, S/O.LATE SRI.P.N.MADHAVAN PILLAI, ADVOCATE, PANTHIYIL, WARRIAM ROAD, KOCHI - 682 016. **4. B.S.SURESH, S/O.BALAKRISHNA PILLAI, AGED 49 YEARS, ADVOCATE, PULLETHUNDIL HOUSE, P.J.ANTONY ROAD, PACHALAM, KOCHI - 682 027, ERNAKULAM DISTRICT. *5. C.E.UNNIKRISHNAN, 'POORNIMA' HALIFAX ENCLAVE, PUTHUKKALAVATTOM, ELAMAKKARA, COCHIN - 682 026 *6. MOHAN JACOB GEORGE, ADVOCATE, HIGH COURT OF KERALA, C67/432, AYYAPPANKAVU EAST, COCHIN 18. * ADDITIONAL RESPONDENTS 3, 5 & 6 ARE IMPLEADED AS PER ORDER DATED 30.1.2010 IN I.A.NOS.288/2009, 7683/2009 & 7729/2009. ** ADDITIONAL R4 IS IMPEADED AS PER ORDER DATED 4.6.2008 IN I.A.NO.3001/2009. ADV. MR.PRAVEEN K. JOY FOR R2 MR.M.P.MOHAMMED ASLAM FOR ADDL.R4 MR.M.RAJASEKHARAN NAIR (PARTY IN PERSON) MR.PEEYUS A.KOTTAM FOR ADDL.R6 MR.C.E.UNNIKRISHNAN R5 (PARTY IN PERSON) GOVERNMENT PLEADER MR.T.K.SAJEEV THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 30/01/2010,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 38072 of 2008(G) APPENDIX PETITIONER'S EXHIBITS: EXT.P1: G.O.(RT)NO.2519/2009 DTD.02.11.2006 ISSUED BY THE GOVERNMENT. EXT.P2: NO OBJECTION CERTIFICATE GRANTED BY THE HON'BLE HIGH COURT OF KERALA ON 18.10.2006 TO THE PETITIONER ASSOCIATION. EXT.P3: BUILDING PERMIT DATED 3.10.2008 ISSUED BY THE 2ND RESPONDENT TO THE PETITIONER. EXT.P4: ORDER OF THE HON'BLE CHIEF JUSTICE DATED 30.10.2008. EXT.P5: STOP MEMO DATED 5.11.2008 ISSUED BY THE 2ND RESPONDENT TO THE PETITIONER. EXT.P6: LETTER DATED 6.11.2008 ISSUED BY THE 2ND RESPONDENT TO THE PETITIONER. EXT.P7: COMMUNICATION DATED 22.11.2008 ISSUED BY THE 2ND RESPONDENT TO THE PETITIONER. EXT.P8: COMMUNICATION DATED 26.11.2008 FROM THE PETITIONER TO THE 2ND RESPONDENT. EXT.P9: WRITTEN EXPLANATION DATED 10.12.2008 SUBMITTED BY THE PETITIONER BEFORE THE 2ND RESPONDENT. EXT.P10: ORDER MOP1-203/2008 DATED 18.12.2008ISSUED BY THE 2ND RESPONDENT. EXT.P11: NOTICE OF RESOLUTION DATED 01.02.2008. RESPONDENT'S EXHIBITS & ANNEXURES: ANNEXURE A1: RECEIPT DATED 29.7.2008 ANNEXURE-A2: LETTER GIVEN TO THE SECRETARY, ADVOCATES' ASSOCIATION DATED 17.11.2008. ANNEXURE-A3: LETTER DATED 26.11.2008. ANNEXURE-A4: LETTER DATED 28.11.2008 ANNEXURE-A5: LETTER DATED 24.11.2008. ANNEXURE-A6: REPRESENTATION DATED 4.12.2008. (CNTD...2) WP(C).No. 38072 of 2008(G) ::2:: ANNEXURE-A1(a): APPLICATION SUBMITTED BY THE SECRETARY OF THE KERALA HIGH COURT ADVOCATES' ASSOCIATION BEFORE THE SECRETARY, CORPORATION OF KOCHI DATED 02.11.2006. ANNEXURE-A1(b): BYE-LAWS OF THE KERALA HIGH COURT ADVOCATES' ASSOCIATION. ANNEXURE-A1(c): BYE-LAWS OF THE KERALA HIGH COURT ADVOCATES' ASSOCIATION CHAMBER SOCIETY. EXT.R2(a): COPY OF THE LETTER DATED 17/11/2008 OF DISTRICT OLLECTOR, ERNAKULAM AND ISSUED TO 2ND RESPONDENT. EXT.R2(b): LETTER DATED 3.11.2008 ISSUED BY THE SUPERINTENDING ENGINEER TO THE TOWN PLANNING OFFICER. EXT.R2(c): LETTER 11.12.2008 ISSUED BY THE SENIOR TOWN PLANNER TO THE SECRETARY, CORPORATION OF COCHIN. EXT.R3(a): LETTER ISSUED BY THE 3RD RESPONDENT TO THE PETITIONER DATED 27.11.2008. EXT.R3(b): LETTER ISSUED BY R3 TO THE PETITIONER DATED 5.1.2009. EXT.R3(c): LETTER ISSUED BY THE SECRETARY OF THE ASSOCIATION TO THE ALLOTTEES DATED 24.4.2009. EXT.R3(d): LETTER NO.PIO 263/2009 DATED 23.10.2009. ..... // TRUE COPY // P.A TO JUDGE. “C.R” HARUN-UL-RASHID, J. ----------------------------------- W.P.C.No.38072 of 2008 --------------------------------- Dated this the 30th day of January, 2010 J U D G M E N T The Kerala High Court Advocates Association, hereinafter referred to as the Association, has filed the above writ petition for a direction to quash Ext.P10 order issued by the second respondent. The issue relates to the construction of a multi storied chamber complex in the old High Court campus. The respondents are State of Kerala and Secretary, Corporation of Cochin. During the pendency of the writ petition, four lawyers who are the members of the petitioner Association, filed individual applications for getting themselves impleaded in the writ petition. The said persons were impleaded as additional respondents 3 to 6. 2. The facts leading to the filing of the writ petition are as follows: The Government of Kerala by a Cabinet decision has W.P.(C).No.38072 of 2008 2 accorded permission to the petitioner Association to construct a multi storied chamber complex in the land in the premises of the High Court in occupation of the Association. Based on the cabinet decision, Government issued G.O.(Rt).No.2519/2006 dated 2.11.2006 marked as Ext.P1, whereby the Government accorded permission to construct the multi storied chamber complex in the premises of the compound wherein the old High Court building is located. The operative portion of Ext.P1 order reads thus: “Government are pleased to accord permission to the Kerala High Court Advocates' Association, Kochi to construct a multi storied Chamber Complex in the land in the premises of the High Court now in their possession.” In paragraph 1 of Ext.P1 it is stated that the ownership of the land vests with the Government and the Registrar of High Court has issued a letter of consent and stated that the High Court has no objection in putting up the said construction on obtaining consent from the Government. The petitioner Association has also produced the letter of consent referred to in Ext.P1 and it is W.P.(C).No.38072 of 2008 3 marked as Ext.P2. Paragraph 2 of Ext.P2 is extracted as follows: “Considering the need and desirability of putting up a Chamber Complex for the Advocates in the premises of the High Court, I am directed to issue this letter of consent and state that the High Court has no objection in putting up the above construction on obtaining sanction from the Government.” Ext.P1 does not specify the footprint area of the multi storied Chamber Complex. Government accorded permission to the Association to construct a multi storied Chamber Complex in the land in the premises of the High Court now in their possession. It is already stated that the compound of the old High Court building is owned by the Government and it is in the possession and enjoyment of the High Court. Petitioner Association was occupying a building in the said compound for the purpose of use of its members. The words used in Ext.P1 order that “in the land in the premises of the High Court now in their possession” could only mean in their occupation or use and not possession, since no no other body other than the High Court can legally possess the W.P.(C).No.38072 of 2008 4 above referred property. The occupation, enjoyment, or use of the above referred property by any other body can only be with the permission of the High Court and hence the letter of consent and no objection evidenced by Ext.P2. 3. The old High Court building (Ram Mohan Palace) was once the temporary abode of a Viceroi prior to the 2nd world war. During the 2nd world war, the said building was used as a hospital. When the Travancore-Cochin High Court was established at Cochin on 7.7.1949, the Association started permissive occupation of one building in the compound. There is a courtyard in front of the Association building. This Court can take judicial notice of the fact that the members of the Association are using the courtyard for different purposes including car parking. So it can be lawfully presumed that the Association was in occupation or in use, as the case may be, of the Association building and appurtenant land referred to above. Some other structures like bunks were also put up in the said compound in front of the Association building for catering the needs of the Association members. W.P.(C).No.38072 of 2008 5 4. On the basis of Ext.P1 order and Ext.P2 Letter of consent and no objection, the Association submitted requisite application and plan for issuance of a building permit before the 2nd respondent Corporation. Before issuance of the building permit and approved plan, the Senior Town Planner inspected the site mentioned in the application for permit and submitted report to the Corporation. The Association submitted the building plan with a footprint area of 31 cents with cellar parking facility and the open space surrounding the proposed building was also earmarked as open area for parking of cars. After perusing the application for building permit and other relevant details including the report from the Senior Town Planner and after considering the order of the Chief Town Planner which was based on the report of the Senior Town Planner, the 2nd respondent Corporation issued Ext.P3 building permit subject to conditions and also issued the approved plan. The building permit is dated 3.10.2008. The 4 conditions stated in Ext.P3 building permit are as follows: “1) All safety measures for the high rise building W.P.(C).No.38072 of 2008 6 shall be provided at site. 2) Ownership shall be based on G.O.(Rt). 2519/2006/Home dated 2.11.2006. 3) All solid and liquid waste generated shall be treated and disposed off with own costs arrangements. 4) Aviation clearance shall be produced before starting the 5th floor construction work.” Condition No.2 is relevant for the purpose of deciding the dispute between the parties. Condition No.2 reads as follows: “2) Ownership shall be based on G.O.(Rt). 2519/2006/Home dated 2.11.2006.” The reference is to Ext.P1 Government Order. For the purpose of issuing building permit and approved plan the Corporation accepted and acted upon Ext.P1 order and Ext.P2 NOC. No doubt, the said two orders are acted upon in order to satisfy itself that the permit applied is for the construction of the building in the land which admittedly, belongs to the Government. The Building Rules stipulate that the applicant shall submit the title deed. In this case, since the property belongs to the Government W.P.(C).No.38072 of 2008 7 and the property is in the possession and enjoyment of the High Court of Kerala, the Corporation acted upon Ext.P1 order and Ext.P2 letter of consent and no objection. 5. Before going in to the detailed facts which I would like to mention later, the context and background under which the petitioner Association ventured to construct a multi storied Chamber Complex shall be examined. This Court can take judicial notice of the fact that almost all the High Courts in the country are having lawyers chamber complex in their respective campuses. In all such campuses, the respective State Governments have constructed Chamber Complex in order to accommodate the members of such High Court Bar Associations on the basis of nominal licence fees or otherwise. There are two Chamber Complexes attached to the Apex Court. Those multi storied buildings are also constructed by the Government and the lawyers are permitted to occupy the rooms in the building at nominal rent. Perhaps this High Court is the only High Court where the High Court compound is left without a Chamber Complex for lawyers. In our country, various Districts Court W.P.(C).No.38072 of 2008 8 centres have Chamber Complexes for lawyers. The District Court compound of Theez Hazaari, Delhi, consists of a Chamber Complex having 400 chambers. This Court can also take judicial notice that in every compound of High Courts there are many institutions which are indispensable for the functioning of the High Courts. I find Judicial Academy, Advocate General's Office, Bar Council Office, Mediation Centre, Office of the Ombudsman Deveswom Board, Office of the Legal Services Authority etc. in almost every High Court compound. Similar is the case of housing of Chambers for lawyers. The functioning of a Chamber Complex in the High Court compound will no doubt, improve the efficiency of the Bar. It is necessary because most of the lawyers are spending their day time in the High Court waiting for their cases to be taken up. The Chamber Complexes are also intended for the convenience of the lawyers who can during off hours carry on with their consultations, discussions, preparation of cases and reference in library etc. Thus, the construction of Chamber Complex in every High Court compound is intended to achieve the above purposes and such purposes are indeed part of W.P.(C).No.38072 of 2008 9 administration of justice. 6. I have observed that the formation and functioning of Chamber Complexes in every High Court is of immense assistance for the effective functioning of the High Court. Such Complexes are not only of assistance for the members of the Association, but also the public at large who are directly benefited. Seat of the High Court which is centrally located in the State is in Ernakulam city. The strength of the petitioner Association exceeds 5000. Majority of the offices of the lawyers are scattered all over the city and many are located far away from the High Court compound. Only very few offices are housed in a few buildings in and around High Court. The services of this Court is extended to all people through out the country and especially, to the people of Kerala. The litigant public have to travel long distances in order to meet their lawyers for ventilating their causes. At present they meet their lawyers in their offices which are scattered all over the city. There are considerable difficulties faced by the litigant public due to the scattered locations of the lawyers offices. The Travancore Cochin High W.P.(C).No.38072 of 2008 10 Court was formed in the year 1949, and the High Court of Kerala in the year 1956 which are events that happened about six decades back, still the compound is not having a Chamber Complex which will aid and assist the High Court in the administration of justice. 7. The legal profession is the bedrock of the judicial system. The advocacy is an institution created by the State for its own benefit as an integral part of the legal machinery to secure efficient administration of justice. It is also one of the social order aiding rule of law in the State. 8. The Bar is not a private guild, but is an institution committed to public justice and pro bono publico service. The present system of judiciary consists of Courts, Judges and Advocates. It is well established that the democracy cannot function properly unless there is a strong and independent judiciary and there cannot be a proper and efficient judiciary unless there is a strong and competent Bar. I have stated facts in the preceding paragraphs only to remind the Government that it is the duty of the Government to provide a Chamber Complex W.P.(C).No.38072 of 2008 11 in the compound of the High Court. It will help the High Court in extending effective justice to the litigant public of the State. It is a sorry state of affairs that the Government is not providing a Chamber Complex even after six decades. In the above circumstances, the Association had taken the initiative to construct a multi storied Chamber Complex in order to house and accommodate majority of lawyers. Ext.P3 building permit shows that they intend to construct a multi storied Chamber Complex having more than 520 Chambers, computerised library hall, conference hall, banking facility with ATM counters etc. Estimated cost of construction is between Rs.15 Crores to 18 Crores. They have voluntarily ventured to do so finding that the Government is not taking any steps to accommodate lawyers in a Chamber Complex. The Association thus took the initiative and decided to construct the multi storied Chamber Complex referred to above. It is said that the Government is unable to provide such a complex stating that they have dearth of funds. It is also submitted by the petitioner Association that their efforts made earlier requesting the Government to provide a Chamber complex W.P.(C).No.38072 of 2008 12 could not be materialised the main reason being 'paucity of funds'. In such circumstances, the endeavour of the Association to have a Chamber Complex to accommodate its members on its own must be appreciated. 9. Acting on Ext.P1 Government Order and Ext.P2 letter of consent and no objection issued by the High Court, the request of the Association for permission to commence the construction at the proposed site was approved by the Full Court. The Association obtained Ext.P3 building permit and approved plan. The Association moved the High Court for permission for the construction. The request of the Association was referred to the High Court Building Committee for consideration. The Building Committee of the High Court consisting of judges held meeting with the President and other office bearers of the Association. PWD officials also attended the meeting. High Court Building Committee considered the request of the Association. The Committee took note of the parking area to be provided in the High Court compound as per the Building Rules, footprint and built up area for the Chamber Complex, perused the building W.P.(C).No.38072 of 2008 13 permit, approved plan and decided to approve the building permit, approved plan, parking area earmarked for the built up area and further ordered demolition of some of the old buildings in the High Court compound which previously housed Advocate General's Office, Dispensary Building, typing pool, Advocate Association Building, Staff canteen, CMP Section, 2 court halls and judges chambers to provide a more spacious compound. The Committee also submitted their decision for approval by the Honourable Chief Justice. Ext.P4 is the order passed by the Honourable Chief Justice. The last paragraph of Ext.P4 reads thus: “Considering the fact that the Full Court has accorded permission to construct a Chamber Complex at the South-western corner of the High court compound, the Building Committee has resolved that construction of the Chamber Complex with a built up area as per the plan is possible satisfying the requirement pointed out by the Committee, which are enumerated above, the Hon'ble Chief Justice of India accepting the invitation of the Chamber Committee and the Advocates' Association has graciously consented to inaugurate the construction of the W.P.(C).No.38072 of 2008 14 Chamber Complex on 8th November 2008, the day on which the High Court intends to celebrate High Court Day, I find that sanction has to be accorded to the Chamber Committee to commence the construction of the Chamber Complex at the proposed site subject to the condition that the built up area of the building shall be limited to 31 cents and the rest of the vacant area in the High Court compound shall be preserved exclusively as the parking area of the High Court to satisfy the norms given by the Building Rules. The Chamber Committee shall see that the built up area in the Chamber building should provide for the parking area for that building satisfying the Building Rules.” The extracted portion referred to above reiterates the necessity of the construction of a Chamber Complex in the high Court premises. The Honourable Chief Justice approved the decision of the High Court Building Committee and accorded sanction for construction of the Chamber Complex, limiting the footprint area to 31 cents at the proposed site approved by the Building Committee and Full Court, and for demolition of the old buildings in the High Court. Directions are issued to the PWD authorities to demolish the old buildings and to remove the debris from the W.P.(C).No.38072 of 2008 15 site on or before 5.11.2008. Advocate General was addressed to hand over vacant possession of the site by shifting its office to the three storied building, the possession of which had already been handed over and further requested to demolish the old building at the earliest for providing more area as parking space. Honourable Chief Justice also approved the resolution passed by the High Court Building Committee to the effect that construction of Chamber Complex with the built up area as per the plan is possible. Ext.P4 order dated 30.10.2008 was passed according sanction to the Association to commence the construction of the Chamber Complex at the proposed site subject to the conditions stated therein. 10. All on a sudden i.e, within 5 days from the date of Ext.P4 order of the Honourable Chief Justice, the 2nd respondent Corporation issued a show cause notice addressed to the Secretary of the Association calling upon him to show cause within 14 days as to why permit shall not be cancelled. Ext.P5 is the notice issued by the Corporation and it is dated 5.11.2008. In Ext.P5 notice it is stated that there is violation of Rule 6(4) of W.P.(C).No.38072 of 2008 16 the Kerala Municipal building Rules. It is seen that Ext.P5 notice was served on the same day, the Association submitted explanation to Ext.P5 show cause notice along with Ext.P4 order of the Hon'ble Chief Justice. The 2nd respondent after considering the explanation dated 6.11.2008 and the order passed by the Honourable Chief Justice communicated through Registrar, accepted the explanation and issued communication dated 6.11.2008. Ext.P6 is the communication issued on the basis of the decision taken by the Corporation, addressed to the President of Association stating that as per the explanation and the order orf the Hon'ble Chief Justice, construction of the Chamber complex in the 31 cents of land as per the Government Order is permissible. A few days later, again the Corporation issued another communication to the Association directing the Secretary of the Association to appear before the 2nd respondent on 26.11.2008 for a personal hearing. In the meanwhile, on 8.11.2008 in the function arranged by the Association, the Honourable Chief Justice of India inaugurated the construction of the Chamber Complex and accordingly they commenced the W.P.(C).No.38072 of 2008 17 construction from 8.11.2008. The 2nd notice referred above is marked as Ext.P7. The petitioner Association requested the 2nd respondent to inform them in writing, the specific querries they are to answer in respect of construction of Chamber Complex. Ext.P8 is the said letter. There was no reply to Ext.P8 from the 2nd respondent. The Association thereafter submitted a detailed statement narrating in detail the orders passed by the Government, High Court Building Committee and the subsequent events leading to the passing of Ext.P5 show cause notice. In the statement, the Association requested the 2nd respondent to drop the proceedings, if any, initiated by the Corporation either to suspend or revoke the building permit as there was no grounds for suspension or revocation of the permit as envisaged in the Building Rules. Ext.P9 is the said statement. The proceedings passed by the various authorities were brought to the notice of the 2nd respondent including the resolution passed by the High Court Building Committee, the order passed by the Chief Justice and all other details necessary for requesting the Corporation to desist from continuing any action. The Association also made it W.P.(C).No.38072 of 2008 18 clear that the owner of the land is the Government and the legal possession is with the High Court. It is stated in Ext.P9 that only in a case where permit was issued by mistake, that a patent error has crept in while issuing building permit or that the permit happened to be issued on misrepresentation and that if the construction if carried on would be a threat to life or property, can Rule 16 be invoked. It is stated that conditions stipulated in Rule 16 are absent in this case. From the facts and circumstances discussed above, I find that none of the contingencies enumerated in Rule 16 is attracted in this case. It cannot be said that the building permit was issued by mistake. The Association, along with the application for building permit, produced the Government Order and NOC issued by this Court. The Government is the paramount title holder and the campus is in possession and enjoyment of the High Court. Both authorities passed orders permitting the Association to construct the building, based on the orders the application for building permit was submitted. I do not find any reason for the 2nd respondent to initiate action stating that grant of permit is a mistake. The W.P.(C).No.38072 of 2008 19 second limb of Rule 16 is that if a patent error has crept in the building permit the 2nd respondent Corporation has authority to cancel the permit. I do not find any patent error crept has in the building permit nor the Corporation has pointed out that there is any patent error in the building permit. Third limb is that the permit