Partly allowed

Sajeevan K.K v. the Secretary

Kerala HC5 Dec 2017WP(C)/2454/2017

Case brief

AI extract

What is this about?

The High Court rejected the petitioners' challenge to the building permit as an exercise in futility. Instead, it directed the Municipality to examine the specific complaint regarding the road width and ensure compliance with minimum clearance rules.

What did the court decide?

The writ petition is disposed. The 1st respondent is directed to examine the complaint regarding the road width and take appropriate steps to ensure compliance with Kerala Municipality Building Rules

Sajeevan K.K Vs the Secretary — Pension and Retirement Benefits | Kerala HC (2017)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MR. JUSTICE A.K.JAYASANKARAN NAMBIAR

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TUESDAY, THE 5TH DAY OF DECEMBER 2017/14TH AGRAHAYANA, 1939

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WP(C).No. 2454 of 2017 (F)

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PETITIONER(S):

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1. SAJEEVAN K.K, AGED 47, KALATHIPARAMBU HOUSE, THEKKUMBHAGAM, TRIPUNITHURA, VALIYAKAD - 682 301.

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2. BABU P.K, AGED 50, KALATHIPARAMBU HOUSE, THEKKUMBHAGAM, TRIPUNITHURA, VALIYAKAD - 682 301.

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3. BABU K.K, AGED 58, KALATHIPARAMBU HOUSE, THEKKUMBHAGAM, TRIPUNITHURA, VALIYAKAD - 682 301.

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4. SUNI K.K, AGED 47, KALATHIPARAMBU HOUSE, THEKKUMBHAGAM, TRIPUNITHURA, VALIYAKAD - 682 301.

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5. SHANMUGHAM K.C, AGED 63, KALATHIPARAMBU HOUSE, THEKKUMBHAGAM, TRIPUNITHURA, VALIYAKAD - 682 301.

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BY ADVS.SRI.DINESH R.SHENOY SMT.K.K.JYOTHILAKSHMY SRI.A.JOSEPH GEORGE SRI.EBIN MATHEW

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RESPONDENT(S):

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1. THE SECRETARY, TRIPUNITHURA MUNICIPALITY, MUNICIPAL OFFICE, TRIPUNITHURA,PIN - 682 030.

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2. SINDU M.C, SREENANDANAM, OEN MONAPPILLY ROAD, THEKKUMBHAGAM DESOM, TRIPUNITHURA - 682 301.

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3. K.C.SOMAN, S/O. CHEERAN, KALATHIPARAMBIL HOUSE, THEKKUMBHAGAM, TRIPUNITHURA, VALIYAKAD - 682 301.

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R1 BY ADV. SRI.V.M.KURIAN, SC R2 BY ADVS. SRI.B.ASHOK SHENOY SRI.K.V.GEORGE SRI.P.N.RAJAGOPALAN NAIR SRI.P.S.GIREESH SRI.RIYAL DEVASSY R3 BY ADV. SRI.V.SUBHASH BHAT

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THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 05-12-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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WP(C).No. 2454 of 2017 (F)

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APPENDIX

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PETITIONER(S)' EXHIBITS

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P1 TRUE PHOTOCOPY OF ROUGH SKETCH OF THE PROPERTIES.

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P2 TRUE PHOTOCOPY OF THE BUILDING PERMIT DATED 01.10.2013 AND THE APPROVED PLAN ISSUED TO THE 2ND RESPONDENT.

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P3 TRUE PHOTOCOPY OF LETTER DATED 16.11.2016 ISSUED BY THE 1ST RESPONDENT UNDER THE RIGHT TO INFORMATION ACT.

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P4 TRUE PHOTOCOPY OF MINIMUM FIRE SAFETY GUIDELINES FOR HAZARDOUS BUILDINGS MFSS-9 PUBLISHED BY FIRE & RESCUE SERVICES, KERALA.

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P5 TRUE PHOTOCOPY OF PETITION DATED 30.12.2016 TOGETHER WITH RECEIPT ISSUED BY THE FIRST RESPONDENT.

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P6:- PHOTOGRAPHS OF THE VALIYAKADU LANE WHICH IS THE ONLY ROAD FOR ACCESS TO THE 2ND RESPONDENT'S GODOWN (4 IN NOS)

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RESPONDENT(S)' EXHIBITS

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EXHIBIT .R2(A):- TRUE COY OF CONSENT DATED 5.4.2013 SIGNED BY DASAN K.K, AND OTHERS INCLUDING PETITIONERS NOS.1 TO 4 TO 2ND RESPONDENT.

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EXHIBIT R2(B):- TRUE COPY OF LETTER DATED 24.3.2013 ISSUED BY VALIYAKAD PATTIKAJATHI COLONY WELFARE ASSOCIATION, THEKKUMBHAGOM TO 2ND RESPONDENT.

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EXHIBIT R2(C):- TRUE COPY OF CERTIFICATE NO.D/1118/14 DATED 24.2.2014 ISSUED BY HE DIVISIONAL OFFICER OF FIRE & RESCUE SERVICES, ERNAKULAM TO 2ND RESPONDENT.

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EXHIBIT R2(D):- TRUE COPY OF OCCUPANCY CERTIFICATE NO.DW2 BA115/13-14 DATED 4.3.2014 ISSUED BY THE 1ST RESPONDENT TO 2ND RESPONDENT.

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WP(C).No. 2454 of 2017 (F)

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EXHIBIT R2(E):_ TRUE COPY OF LETTER NO.G/SC/KL/06 /876(G 34519) DATED 2.4.2014 ALONG WITH LICENCE NO.G/SC/KL/06/876 (G34519) DATED 11.4.2014 ISSUED BY JOINT CHIEF CONTROLLER OF EXPLOSIVES, SOUTH CIRCLE OFFICE, CHENNAI. EXHIBIT R2(F):_ TRUE COPY OF TRADE LICENCE NO.2795 DATED 27.10.2016 ISSUED BY 1ST RESPONDENT TO 2ND RESPONDENT. EXHIBIT R2(G):- TRUE COPY OF NOTICE DATED NIL ISSUED BY 2ND RESPONDENT. EXHIBIT R2(H):- TRUE COPY OF ORDER DATED 26.10.2016 IN IA.NO.7791 OF 2016 IN OS NO.1371 OF 2016 BEFORE THE HON'BLE 1ST ADDITIONAL MUNSIFF COURT, ERNAKULAM.

/TRUE COPY/

PS TO JUDGE

A.K.JAYASANKARAN NAMBIAR, J.

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W.P.(C).NO.2454 OF 2017 (F) ----------------------------------Dated this the 5^th day of December, 2017

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J U D G M E N T

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The petitioners, who are stated to be persons residing on the western side of the Valiyakadu Lane in Ward No.34 of Tripunithura Municipality, have approached this Court seeking a direction to quash Ext.P2 building permit and plan that was obtained by the 2^nd respondent from the 1^st respondent Municipality. The facts in the writ petition would indicate that the 2^nd respondent had, pursuant to an application submitted by her before the 1^st respondent Municipality, obtained a building permit, which is produced as Ext.P2 in the writ petition. The case of the petitioner essentially is that while the Kerala Municipality Building Rules, 1999, and in particular, Rule 59(4) of the said Rules, mandates that the minimum clear width of access to a building and plot, as well as the width of the street giving access to the plot from the main street, shall be 7 meters and shall be motorable, the street that gives access to the plot in which a building has been constructed by the 2^nd respondent has currently a width of 3.6 meters and not 7 meters as contemplated under the Rules. It is

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W.P.(C).No.2454/2017

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pointing out the said facts, as also the fact that the 2^nd respondent had not obtained the necessary approval of the District Town Planner, as contemplated under Rule 59(1) of the Building Rules, that the petitioners submitted Ext.P5 complaint before the 1^st respondent, seeking an action on the same. It is the case of the petitioners that notwithstanding the submission of Ext.P5 complaint, the 1^st respondent did not take any action, and it is under those circumstances that they have approached this Court through the present writ petition.

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A counter affidavit has been filed on behalf of the 2^nd respondent, wherein, the said respondent has produced, as Ext.R2(a), a copy of the consent granted by persons including the petitioners to the construction that was proposed by the 2^nd respondent. She has also produced the No Objection Certificate granted by the Divisional Officer of Fire & Rescue Services for the proposed activity of storage of Liquified Petroleum Gas for retail distribution, as also the copy of the Occupancy Certificate for the godown issued by the 1^st respondent. The copies of the license under the Gas Cylinder Rules, 2004, as also the trade license issued by the 1^st respondent are also

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W.P.(C).No.2454/2017

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produced along with the counter affidavit. The said documents are relied upon to contend that the necessary permissions and consents had already been obtained by the 2^nd respondent, as early as in 2013 and 2014, and the inauguration of the building and the commencement of occupancy in the building for the purposes of retail distribution of LPG took place as early as in June, 2014. It is pointed out that the writ petition filed in 2017, has necessarily to be treated as a belated one, insofar as it impugns the building permit that was granted to the 2^nd respondent, and further, has to be treated as an afterthought since the petitioners are disgruntled with the 2^nd respondent for not acceding to certain requests made by them.

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I have heard the learned counsel for the petitioners, the learned counsel for the 1^st respondent as also the learned counsel for the 2^nd respondent.

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On a consideration of the facts and circumstances of the case, I find that the challenge to Ext.P2 building permit granted to the 2^nd respondent, at this distance of time, is virtually an exercise in futility, since, it is not in dispute that pursuant to the grant of the building

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W.P.(C).No.2454/2017

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permit, the construction of the building was completed by the 2^nd respondent, and after obtaining the necessary certificates and clearances, the said respondent also obtained the necessary occupancy certificate for occupying the building in connection with the proposed activities. It is also not in dispute that the 2^nd respondent has been carrying on the activity of retail sale of LPG in the premises during the last couple of years. A probe into the issue of whether or not the road in question had a width of 7 metres at the time when the Building Permit was granted, need not be gone into now. The grievance of the petitioners in the writ petition appears to be primarily as regards the lack of sufficient width for the road leading up to the premises of the 2^nd respondent. It is pointed out that the width of the road, as of now, is only 3.6 meters as against the stipulation in the Rules that the minimum clear width of access to the building should be 7 meters and the road has to be a motorable one. Inasmuch as the said apprehension of the petitioners pertains to an issue that would have an impact on the safety of the neighbouring land owners, vis-a-vis the activities that are carried on by the 2^nd respondent in the premises in question, I am of the view that Ext.P5 complaint of the petitioners, to the extent it deals with the reduced

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W.P.(C).No.2454/2017

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width of the road leading to the premises of the petitioner should be examined by the 1^st respondent Municipality, and appropriate steps taken to ensure that the width of the road is maintained at the level indicated in the Kerala Municipality Building Rules. I therefore dispose the writ petition, with a direction to the 1^st respondent Municipality to consider Ext.P5 complaint preferred by the petitioners, on this particular aspect, by referring to the Asset Register maintained by the 1^st respondent Municipality, as also the present lie and nature of the surrounding lands. The 1^st respondent shall consider and pass orders on Ext.P5 complaint, after hearing the petitioners, the 2^nd respondent and others likely to be affected by the orders to be passed by the respondent Municipality within a period of two months from the date of receipt of a copy of this judgment.

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A.K.JAYASANKARAN NAMBIAR JUDGE

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prp/6/12/17

Sajeevan K.K v. the Secretary

Case brief

What is this about?

What did the court decide?

Sajeevan K.K v. the Secretary

Case brief

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What did the court decide?

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