Courts cannot restrain statutory authorities from executing their legal duties under municipal building rules, and must enforce rule of law without directing contrary actions.

JUDGMENT

Dated this the 16th day of March, 2021

S. Manikumar, C. J.

Instant writ appeal has been filed challenging the order dated 08.03.2021 in W. P. (C) No. 1744 of 2021.

2. Short facts leading to the filing of the writ appeal are as hereunder:-

The appellants are the residents of Edappally South Village, Kanayannur Taluk, Ernakulam District. According to the appellants, Dream Flower Housing Project Ltd., represented by its Managing Director, Ernakulam, the 4th respondent, started construction of a residential apartment complex, in utter violation of the various rules prescribed under the Kerala Municipality Building Rules , 1999.

Appellants have submitted that the Secretary, Kochi Municipal Corporation, the 2nd respondent, has issued building permit to the 4th respondent, without adhering to the mandatory provisions contained in the Kerala Municipality Building Rules , 1999. The 4th respondent pursued the construction works and the construction is now almost complete. Appellants have further submitted that, the Secretary, Kochi Municipal Corporation, the 2nd respondent, without considering the objections highlighted by the appellants, started taking hasty steps to issue occupancy certificate to the respondent, cooking up materials in support of the 4th respondent.

3. In the said circumstances, appellant filed W. P. (C) No. 1744 of 2021, seeking the following reliefs:-

“(a) Call for the records of the case leading to the issuance of Ext. P1 and quash the same by the issue of writ of certiorari and other appropriate writ or order;

(b) Issue a writ of mandamus or other appropriate writ or order forbearing the respondents 1 to 3 from issuing occupancy certificate to the 4th respondent in respect of the multi-storied residential complex constructed by them on the basis of Ext. P1;

(c) Issue a writ of mandamus or other appropriate writ or order directing the respondents 1 and 2 to take appropriate action against the 4th respondent in pursuance of Ext. P2 complaint forthwith.”

4. A counter affidavit has been filed by the Managing Director, Dream Flower Housing Project Ltd., Ernakulam, the 4th respondent, refuting the allegations raised by the writ petitioner.

5. Petitioner has filed an application before the writ court, seeking to take out an Advocate Commission, assisted by a qualified Civil Engineer, to inspect the site covered by Ext. P1 plan.

6. Writ court, after preliminary hearing, passed the following order:-

“It is made clear that the pendency of the writ petition will not preclude the competent authority of the first respondent from considering the application of the fourth respondent for occupancy certificate in accordance with law.”

7. Being aggrieved, instant writ appeal is filed on the following grounds:-

A. The learned Single Judge ought not to have passed an order like the one impugned in this case to the advantage of the respondent No. 4 in the writ petition filed by these appellants.

B. The learned Single Judge without affording the appellants an opportunity to file a reply affidavit in the case as well as to demonstrate the falsity and hollowness of the contentions urged in the counter affidavit ought not to have passed an order like the one impugned in this case.

C. The learned Single Judge ought to have seen and appreciated the gravity of violations committed by the 4th respondent in the matter of constructing a multistoried building in their property. The appellants sought time to file a reply affidavit as well as to file an application for appointment of Advocate Commissioner by this Hon'ble Court to elicit the truth.

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