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2020 Supreme(Ker) 704
IN THE HIGH COURT OF KERALA AT ERNAKULAM
N.NAGARESH, J.
M/s. Jewel Homes Pvt. Ltd., S/o. P.K. Abdul Rahiman – Appellant
Versus
The Regional Fire Officer, Fire And Rescue Services – Respondent
WP(C).No.2959 OF 2020(T)
Decided on : 05-10-2020
Advocate Appeared:
For the Appellant : K.R.VINOD, SMT.M.S.LETHA, KUM. K.S.SREEREKHA, SRI. NABIL KHADER
For the Respondent: SMT. DEEPA NARAYANAN, SMT.ASHA CHERIAN, SRI. A. DINESH RAO, SC, RAILWAYS
Important points:
The Railway also proposed to construct the service road, which is the access road to the multistoried building, with a width of 5 metres. But, after construction, it was noted that the service road is narrower by 5 centimetres to 32 centimetres at some places.
Headnote:
Kerala Municipality Building Rules- Rule 116 - Construction of new service road -5 metre width to the service road -Negligible shortage of width-To decline Certificate of Approval to the petitioner-Irreparable injury- Valid building permit-Directed to issue Fire and Rescue Certificate of Approval to the building of the petitioner forthwith.
Statement of facts:
The petitioner, a Company dealing with construction of multistoried buildings, has filed this writ petition seeking to quash Ext.P10 order of the 1st respondent and to direct the 1st respondent to issue Fire and Rescue Certificate of Approval to the building of the petitioner.
Finding of the court:
Ext.P10 order passed by the 1st respondent is set aside and the 1st respondent is directed to issue Fire and Rescue Certificate of Approval to the building of the petitioner forthwith.
Result: Writ petition is disposed of
JUDGMENT :
The petitioner, a Company dealing with construction of multistoried buildings, has filed this writ petition seeking to quash Ext.P10 order of the 1st respondent and to direct the 1st respondent to issue Fire and Rescue Certificate of Approval to the building of the petitioner.
2. Vendors of 42 cents of land comprised in Re-Survey Nos.5 and 34 of Muttambalam Village, Kottayam Taluk had obtained building permit for construction of a multistoried residential complex in their property from the 4th respondent-Municipality on 20.11.2007. The petitioner-company purchased the said property as per Sale Deed No.3857/2007 of SRO, Kottayam. The building permit was changed into the name of the petitioner, as evidenced by Ext.P1 dated 06.11.2012.
3. The petitioner states that the Fire and Rescue Department issued Ext.P12 on 20.09.2007 recommending to issue No Objection Certificate in respect of the plan submitted by the petitioner, subject to the conditions that all fire fighting arrangements should be made as per the existing relevant Rules and fire escape and main stair cases should reach up to the rooftop. In order to obtain the said initial NOC, the petitioner had shown 5.5 metre wide access road to the building, which was called Illikkadavu road.
4. Later on, the Railway Authorities acquired the said area proposing to construct Nagampadam Road Over Bridge. A part of the Illikadavu Road was also acquired. A service road of 5 metre width was proposed to substitute Illikadavu Road passing through the acquired area. The reduction of the width of the road to 5 metres was apparently due to the reason that the Railways were constructing Nagampadam Railway Over Bridge, which would occupy larger space.
5. After construction of the multistoried building, the petitioner submitted application for Certificate of Approval from the 1st respondent-Regional Fire Officer. On 28.11.2018, an inspection was conducted. The petitioner was issued with Ext.P3 letter dated 04.12.2018 stating that the available road has already been acquired by the Railway Authorities and the proposed 5 metre wide road is not yet constructed and therefore a Certificate of Approval cannot be granted. The 1st respondent pointed out certain other anomalies also in Ext.P3 letter.
6. The petitioner, after rectifying the anomalies, submitted a representation dated 08.12.2018 to the 1st respondent. However, by Ext.P6 communication dated 05.01.2019, the 1st respondent rejected the representation. The petitioner states that for issuance of Fire and Rescue Certificate of Approval, an approach road with 5 metre width is necessary. The Road Register of Kottayam Municipality would show that the width of Illikkadavu road is 5.5 metre.
7. Subsequently, the petitioner filed W.P.(C) No.8535/2019 before this Court. This Court directed the 1st respondent to consider and finalise the issue, taking into account the access road now existing in the area. To the predicament of the petitioner, the 1st respondent passed Ext.P10 order dated 01.10.2019 rejecting the application for Certificate of Approval stating that in two areas of the newly constructed Service Road, the road is having width of 4.68 metre and 4.95 metre and hence, approval cannot be granted. The petitioner states that as per the Road Register, the said road is having 5.5 metre width. If the Railway Authorities acquired the land for the construction of Railway Over Bridge and the road is reconstructed, that cannot affect the entitlement of the petitioner for receiving Certificate of Approval from the 1st respondent. This Court has held in Ext.P11 judgment that if the width of the road is reduced due to encroachment, it is the duty of the authorities to restore the same and application for approval should not be rejected on that ground. The petitioner therefore seeks to direct the 1st respondent to issue Fire and Rescue Certificate of Approval to the building.
8. The 1st respondent contested the writ petition filing counter affidavit. T
