IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C) No. 6578 of 2008(G)
1. DR.K.C.CHACKO,KADAVIL HOUSE
... Petitioner
2. DR.CHINNAMMA CHACKO,RESIDING AT
Vs
1. CORPORATION OF COCHIN,
... Respondent
2. STATE OF KERALA REPRESENTED BY THE
For Petitioner :SRI.SIBY MATHEW
For Respondent : No Appearance
The Hon'ble MR. Justice PIUS C.KURIAKOSE
Dated :26/02/2008
O R D E R
PIUS.C.KURIAKOSE, J.
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W.P.(c).No.6578 OF 2008
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Dated this the 26th day of February, 2008
JUDGMENT
Ext.P1 building permit issued to the petitioners for the
construction of a high rise building in the city of Cochin was cancelled
by the Secretary of Corporation under Ext.P2. Under Ext.P2 it is stated
that Rule 16 is being invoked for cancelling the permit on the basis of
instructions received from the Government. Two reasons are stated for
cancelling the permit. First reason being that the FAR exceeds the
FAR shown in the approved plan and the second reason is that the
proposed construction violates Rule 117 which provides for mandatory
open space for facilitating fire fighting arrangements in the building
after its construction. On receiving Ext.P2, petitioners submitted
Ext.P3 before the Secretary of the Corporation requesting for a
reconsideration of Ext.P2 order and for supply of a copy of the
Government order pursuant to which Ext.P2 has bee issued. Since
there was no response to Ext.P3, petitioners submitted Ext.P4 and
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along with Ext.P4 a revised plan was submitted by the petitioners and it
was requested in Ext.P4 that the revised plan may be considered and
Ext.P1 be revived on the basis of the revised plan. It was claimed in
Ext.P4 that the revised plan complies with all the requirements of the
Kerala Municipalities Building Rules. Finding that there was no
response even to Ext.P4 and the revised plan, petitioners submitted
Ext.P5 further representation to the Secretary of the Corporation dated
11/10/2007 and along with that a further revised plan was submitted
and it was requested that the above revised plan may be considered and
permit may be granted. Noticing that the Corporation was inert on
Ext.P5 also, petitioners preferred Ext.P6 representation before the
Minister. It is submitted by that petitioners that Minister has forwarded
Ext.P6 to the Corporation for appropriate action.
2. When the writ petition came up for consideration,
Sri.C.M.Suresh Babu, Advocate, took notice on behalf of the
Corporation. Sri.K.J.Mohammed Ansar, Government Pleader took
notice on behalf of the second respondent. I have heard
Sri.Philip.J.Vettickattu, learned counsel for the petitioner and
Sri.Mohammed Ansar and Sri.C.M.Suresh Babu.
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Sri.Philip.J.Vettickattu would submit that powers under Rule 16 are to
be exercised by the Secretary on his own and not on the directions or
instructions of any other authority, even if the authority be the
Government.
3. I find merit in the above submission. But the relevant
question is whether the constructions violate Rule 117 or whether there
is any deviation from the plan in respect of which Ext.P1 had been
issued or whether there is violation in the matter of permitted FAR or
any other illegality.
4. The claim of the petitioners is that the revised plan which
was lastly submitted by them along with Ext.P5 rectifies all possible
defects and would satisfy the requirements of the Kerala Municipalities
Building Rules. Sri.Philip.J.Vettickattu further submitted that only the
piling works of the proposed building have been completed and it
would be possible for the petitioners to comply with any direction
which may be given by the Corporation so that the construction upon
its completion will satisfy the requirements of the Rules.
5. Sri.C.M.Suresh Babu submitted that though a direction of
the Government is referred to in Ext.P2, it was on the basis of
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independent enquiries conducted by the Secretary and on satisfaction
entered to by the Secretary on the basis of such enquiry that Ext.P2
order was issued.
6. Having heard the rival submissions addressed at the Bar
and the claims of the petitioner made in the writ petition, I am of the
view that the Corporation should consider the revised plan which was
submitted by the petitioners along with Ext.P5, notwithstanding Ext.P2
order of cancellation and decide whether a permit can be issued to the
petitioners after approving the said revised plan. I record the
undertaking given by the petitioners to this court that petitioners will be
prepared to abide by any instruction which may be issued to them by
the Secretary of the Corporation during the course of the construction
and that the mandatory fire fighting arrangements including open space
necessary under Rule 117 will be available in the building once the
construction is over.
7. The writ is accordingly disposed of with the following
directions:
The Corporation will consider the revised plan submitted by the
petitioners along with Ext.P5, conduct necessary local inspection and
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ascertain as to whether it is possible for the petitioners to provide the
mandatory open space necessary under Rule 117 and issue permit.
Periodical inspections will be conducted in the construction site by the
Corporation and all necessary directions will be issued to the
petitioners so as to ensure that the construction do not violate the
permit which may be issued on considering the revised plan and that
the building upon completion satisfies the Kerala Municipalities
Building Rules in all respects. The Corporation will ensure compliance
of all these directions and the direction regarding consideration of the
revised plan and issuance of building permit will be complied with by
the Corporation at the earliest and at any rate within a period of one
month of receiving a copy of this judgment. Final orders regarding
grant of approval to the revised plan will be passed by the Corporation
only after hearing the petitioners also.
PIUS.C.KURIAKOSE
JUDGE
sv.
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