IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE WEDNESDAY, THE 19TH MARCH 2008 / 29TH PHALGUNA 1929 WP(C).No. 10893 of 2007(V) --------------------------------------- PETITIONERS: --------------------- 1. REKHA BABU JACOB, CHANDRATHIL HOUSE, PALARIVATTOM P.O., ERNAKULAM, KOCHI-682 025. 2. RENU BABU BEJOY, CHANDRATHIL HOUSE, PALARIVATTOM P.O, ERNAKULAM, KOCHI-682 025. BY ADV. SRI.N.J.MATHEWS, ADV. SRI.GEORGE VARGHESE KIZHAKKAMBALAM. RESPONDENTS: ----------------------- 1. STATE OF KERALA, REPRESENTED BY SECRETARY, DEPARTMENT OF LOCAL SELF GOVERNMENT, GOVERNMENT OF KERALA, THIRUVANANTHAPURAM. 2. SENIOR TOWN PLANNER (VIGILANCE), TOWN AND COUNTRY PLANNING, DEPARTMENT OF LOCAL SELF GOVERNMENT, GOVERNMENT OF KERALA, THIRUVANANTHAPURAM. 3. CORPORATION OF COCHIN, REPRESENTED BY SECRETARY, CORPORATION OFFICE, ERNAKULAM, KOCHI-682 011. R1 & R2 BY GOVT. PLEADER SRI. K.J. MOHAMMED ANZAR, R3 BY ADV. SRI.C.M.SURESH BABU,SC,COCHIN CORPORATION, ADV. SRI.ASWIN GOPAKUMAR (ADV.COMMISSIONER). THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 19/03/2008,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C). NO.10893/2007-V: APPENDIX PETITIONER'S EXHIBITS : EXT.P.1: COPY OF THE BUILDING PERMIT NO. KRPI-613103 DTD. 02/07/2004 ISSUED BY THE R.3. TO THE PETITIONERS. EXT.P.2: COPY OF THE LETTER DTD. 18/12/06 ISSUED BY THE R.3. TO THE PETITIONERS. EXT.P.3: COPY OF THE LETTER DTD. 24/11/06 ISSUED BY THE UNDER SECRETARY TO THE R.1. TO THE R.3. EXT.P.4: COPY OF THE REPLY DTD. 29/12/06 SENT TO THE R.3. BY THE PETITIONERS. EXT.P.5: COPY OF THE PROCLAMATION GIVEN IN THE OFFICIAL WEBSITE OF THE R.1. ABOUT THE PETITIONERS' BUILDING `BCG CITY GATE'. EXT.P.6: COPY OF THE G.O. (RT).2631/97/L.A.D. DTD. 31/07/1997 WITH SEBSEQUENT CLARIFICATIONS AND MODIFICATIONS ISSUED BY THE R.1. EXT.P.7: COPY OF THE NO OBJECTION CERTIFICATE DTD. 23/07/2004 ISSUED BY THE COMMANDANT GENERAL, FIRE AND RESCUE SERVICES. EXT.P.8: COPY OF THE NO OBJECTION CERTIFICATE DTD. 15/01/2007 ISSUED BY THE COMMANDANT GENERAL, HOME GUARDS, CIVIL DEFENCE AND FIRE SERVICES, THIRUVANANTHAPURAM-1. EXT.P.9: COPY OF THE SITE PLAN, LOCATION PLAN ETC. APPROVED BY THE R.3. BEFORE ISSUE OF EXT.P.1. RESPONDENT'S EXHIBITS: EXT.R1.A: COPY OF THE SKETCH SHOWING THE LOCATION OF THE LAND. EXT.R1.B: COPY OF THE BUILDING. ADVOCATE COMMISSIONER'S EXHIBITS: EXT.C1: ORIGINAL OF THE NOTICE INTIMATING LOCAL INSPECTION. EXT.C2: ACKNOWLEDGMENT OF PARTICIPANTS IN THE LOCAL INSPECTION. W.P.(C). NO.10893/2007-V: EXT.C3: PICTORIAL REPRESENTATION OF THE BUILDING`BCG CITY GATE'. EXT.C4: SKETCH SHOWING LOCATION OF THE BUILDING. EXT.C5: PHOTOGRAPH DEPICTING THE FRONT YARD. EXT.C6: PHOTOGRAPH DEPICTING THE LEFT SIDE YARD. EXT.C7: PHOTOGRAPH DEPICTING THE RIGHT SIDE YARD. EXT.C8: PHOTOGRAPH DEPICTING THE REAR YARD. EXT.C9: PHOTOGRAPH SHOWING THE LEFT SIDE FRONT PARKING. EXT.C10: PHOTOGRAPH SHOWING THE RIGHT SIDE FRONT PARKING. //TRUE COPY// prv. PIUS C. KURIAKOSE, J. ----------------------------------------------- W.P.(C)No. 10893 OF 2007 ----------------------------------------------- Dated this the day of March, 2008 J U D G M E N T The grievance of the petitioners who are engaged in the business in real estate, building construction etc. in various parts of the State including the Corporation Kochi is that the Corporation of Kochi, the third respondent is not issuing the development and occupancy certificate as prescribed under the Kerala Municipality Building Rules 1999 in respect of a building constructed by them at the Vyttila Junction on the strength of Ext.P1 building permit. According to the petitioners they applied for a permit for construction of a building in a plot admeasuring roughly 8.38 cents belonging to them by virtue of two separate sale deeds dated 14-8-03. This plot is situated along the side of Sahodaran Ayyappan Road and the plot is the balance extent after surrendering a portion of the original plot free of cost for the purpose of widening the Sahodaran Ayyappan Road. The third respondent Corporation of Kochi considered the above application which was made in the form in Appendix-A (2) of the Kerala Municipality Building Rules and after making due enquiries issued building permit dated 2-7-04 in terms of rule 11(3) of the Municipality building rules to the petitioners. Ext.P1 is copy of the above building WP(C)N0.10893/07 -2- permit. Petitioners completed the construction of the building strictly in terms of Ext.P1 permit and the plan and sketch which were approved by the third respondent. Upon completion of the construction of the building which is of commercial nature the building was named PCG City Gate. After construction of the building completed the petitioners applied to the third respondent for the development and occupancy certificate as prescribed under the Kerala Municipality Building Rules on 24-1-07 by submitting the requisite forms along with the necessary documents. In the meanwhile the third respondent issued Ext.P2 notice dated 18-12-2006 to the petitioner alleging that the petitioners are constructed the building in violation of the building rules stating the the free surrender benefits will not be available to the petitioners since it was not the petitioners who had surrendered land for widening the road. Petitioners submit that the third respondent was prompted by Ext.P3 Government letter dated 24-11-06 wherein it is mentioned that free surrender benefits are to be confined to only owners who actually surrendered the lands and not the persons who purchased land from them. On receipt of Ext.P2 the petitioners submitted Ext.P4 reply pointing out through Exts.P2 and P3 respondents are misinterpreting a Government Order WP(C)N0.10893/07 -3- G.O.(Rt.) 2631/97 LAD dated 31-10-07 for the purpose of withdrawing the benefits which had already been granted in respect of the property of the petitioners. Copy of the above Government Order is produced baythe petitioners as Ext.P6. In the meanwhile the first respondent Government in the Local Self Department gave in its official website in the internet a photo of the building constructed by the petitioners named as PCG Gate alleging that the above building is constructed in violation of the Kerala Municipality Building Rules 24(3), 24(4). 24(5), 24(8), 24(11) and 39(2). Ext.P5 is copy of the announcement was made by the first respondent obtained by downloading the same from the website in the internet. The petitioner submits that the allegations in Ext.P5 are untrue and that the details given in the website of the first respondent through Ext.P5 in relation to the building are also absolutely incorrect on account of the publication of such incorrect facts through official website of the first respondent regarding their building the petitioners even subjected to deep embarrassment and heavy damage against the public at large. There is no justification at all for the third respondent in refusing to issue development and occupancy certificate to the petitioners. On the above submissions the petitioners have raised various grounds and filed the writ petition WP(C)N0.10893/07 -4- seeking the following reliefs: 1. To issue a writ, order or direction in the nature of certiorari quashing Exts. P3 and P2 issued by respondents 1 and 3 respectively, after declaring that Ext. P6 G.O. is not applicable to the building constructed by the petitioners pursuant to Ext.P1 permit. 2. To issue a writ, order or direction in the nature of mandamus commanding the 1st respondent to withdraw from its official website any reference, pronouncement or publication in relation to the building constructed by the petitioners pursuant to Ext.P1 permit. 3. To issue a writ, order or direction in the nature of certiorari quashing Ext.P6 G.O. issued bay the 1st respondent. 4. To issue a writ,order or direction in the nature of mandamus commanding the 3rd respondent to issue forthwith to the petitioners the development and occupancy certificates as prescribed under the KMB Rules, 1999 in respect of the building constructed by them pursuant to Ext.P1 permit. Respondents 1 and 2 have filed a common counter affidavit on 9-8-07. The contention prominently raised in this counter affidavit is that the provisions of Chapter XI of the Kerala Municipality Building Rules will confer free surrender benefits only to the owner of the plot who had actually surrendered the plot and not to anybody else. Counter affidavit reiterates the allegation that there are rule violations ian the matter of the construction. It is submitted in the counter affidavit that the usual practice is that buildings which violates rules WP(C)N0.10893/07 -5- and regulation will be included in the official website for information of the public. In paragraph 8 of the counter affidavit the violations are detailed as follows: Rule Description Required Shown per approved plan Provided Remarks 24(3) and 24(8) Front yard (additional space needed since height exceeds 10 m) 3.0 m + 1.0 m = 4.0m 1.5 m 1.4 m to 1.6 m Violation 56(1) and 24(8) Side yard 1.5m + 1.0 m= 2.5m 0.5m to 1.38m 3.00m 0.6m (W) 2.85 to 2.95 m (E) windows provided on either side Violation 56(2) and 24(8) Rear yard 1.5m + 1.0m = 2.5m 1.00 m to 1.10 m 1.10m Violation 34 Parking (carpet area calculated approxima tely 1000 m2 10 nos. 3 Nos. 1 No. (with specified size in KMBR) Violation WP(C)N0.10893/07 -6- Rule Description Required Shown per approved plan Provided Remarks 117 Open space for fire fighting side space for high rise building 5.0m 3.00m 2.85 to 2.95m Violation 25 Distance from road boundary to building 3.0m 1.5 m 1.4m to 1.6m Violation It is also stated that the building after construction deviates from the approved plan also with reference to side and front open space. Counter affidavit goes on to deny the grounds raised by the petitioner one by one and points out that the Vyttila Junction of the Kochi Corporation area is a very congested one and traffic management is very difficult in this junction. It is an intersection of two major roads, one of which is NH 47 and the other Sahodaran Ayyappan Road. The building under reference is situated on a corner plot of N.H. and S.A. Road. Unauthorised parking of vehicles, which come to the commercial buildings in this junction, creates a lot of chaos and traffic hazards. About 10 car parking space is required for the building undzer WP(C)N0.10893/07 -7- reference. Whereas hardly one car can be parked there, that also in the space required to be left open for fire fighting. The open space left around the building are much less than the required, which may create congestion and unhealthy surroundings. A photograph of the building is produced as Ext.R1(b). Ext.R1(a) produced along with the counter affidavit is a true photo copy of the sketch showing the location of the plot including the portion freely surrendered by the predecessor in interest of the petitioners. To the above counter affidavit the petitioners filed a reply affidavit on 21-8-07 refuting the contentions raised in the counter affidavit and reiterating their own contentions in the writ petition. After hearing Mr.N.J.Mathews, counsel for the petitioner and Sri.C.M.Suresh Babu, Special Government Pleader for Local Self Government Department (who at that time was appearing for the Corporation also). I directed the petitioner to file an application for issuance of a commission for local inspection so that a report can be filed as to what extent the allegation of rule violation raised by the Government through R1 and R2 is correct. It was also clarified that the filing of the application and issuance of commission are without prejudice to the contentions of the petitioners. Commission application was filed and Sri.Aswin Gopakumar, Advocate was appointedas WP(C)N0.10893/07 -8- commissioner and parties were permitted to submit work memos before the commissioner. The Commissioner conducted the inspection and filed report. (PIUS C.KURIAKOSE, JUDGE) ksv/