T. Vijayalakshmi also held thus:
"18. It is, thus, now well-settled law that an application for grant of permission for construction of a building is required to be decided in accordance with law applicable on the day on which such permission is granted. However, a statutory authority must exercise its jurisdiction within a reasonable time".
10. An amendment brought in must be possible of practical compliance. When a high rise building is constructed on a valid permit issued by the local authority and cleared for construction by the Fire and Rescue Services, then if a drastic change to the rules are brought about; like in the present case, increase in width of access, then it cannot be said that the entire project has to be scuttled.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
W.P.(C) No. 7620 of 2017 (B)
Decided On: 22.06.2017
Desai Homes Vs. The Divisional Officer, Fire & Rescue Services and Ors.
Hon'ble Judges/Coram:
K. Vinod Chandran, J.
Citation: AIR 2017(NOC) 905 kerala
1. The petitioner is aggrieved by the non-consideration of an application for issuance of final No Objection Certificate [for brevity "NOC"] by the 1st respondent, an officer of the Fire and Rescue Services department.
2. The petitioner had obtained a building permit, as is seen at Exhibit P1, which stood renewed upto 29.06.2017. The petitioner had completed the construction of a multi-storeyed apartment complex, filed a Completion Certificate and applied for Occupancy Certificate before the respondent, Municipality, as is seen from Exhibit P2. Prior to the Occupancy Certificate being granted, the Municipality conducts an inspection of the premises to ensure that the construction is done in accordance with the Kerala Municipality Building Rules, 1999 [for brevity "KMBR, 1999"] and on such satisfaction, seeks a NOC from the Fire and Rescue Services. The same was sought for by Exhibit P4. Certain defects were pointed out by the Divisional Officer of Fire and Rescue Service, the 1st respondent, on inspection. The petitioner is said to have rectified the same; which was intimated as per Exhibit P5. A further communication was also addressed to the Divisional Officer as per Exhibit P6, since the Divisional Officer had insisted on the access to be of 10 metres length as required by Table 4 under Rule 33(1) of KMBR, 1999.
3. The petitioner, by Exhibit P6 had informed the 1st respondent that when the permit was issued in the year 2008, the requirement was for providing an access of 5 metres width to multiple residential units. The same was enhanced to 7 metres in 2009 and then to 10 metres in 2013. The insistence of 10 metres width is not applicable to the petitioner's construction, which is as per Exhibit P1 permit. The petitioner also relies on the decision of the Hon'ble Supreme Court in T. Vijayalakshmi v. Town Planning Member [MANU/SC/8559/2006 : (2006) 8 SCC 502] and a decision of a learned Single Judge of this Court in W.P.(C) No. 28686 of 2010 dated 02.06.2011 [Roy M. Mathew v. The Director (Technical), Fire & Rescue Services & another] to urge the contention that the requirement for granting of Occupancy Certificate and NOC shall be, as found in the Building Rules, at the time of issuance of permit. The petitioner also relies on Exhibit P7 Circular issued by the Government to the very same effect.
4. The learned Standing Counsel for the Municipality submits that the Municipality has inspected the site and found the construction to be in accordance with the KMBR, 1999 as it existed at the time of issuance of the permit. Only after ensuring such compliance, the Municipality seeks a NOC from the Fire and Rescue Services, at Exhibit P4 is the categorical assertion.
5. A counter affidavit has been filed by the 1st respondent pointing out the various safety measures the Fire and Rescue Services has brought into effect based on the experience in carrying out fire-fighting and rescue operations in high rise buildings. It is contended that the Director General, Kerala Fire and Rescue Services vide Standing Order No. 01/2016 dated 26.02.2016 had brought in a check list in accordance with the Kerala Municipality/Panchayat Building Rules as also National Building Code of India. In accordance with the check list, as of now, based on the requirements as per the KMBR, 1999, there should be provided an access of 10 metres width and, hence, there cannot be a NOC issued, is the specific objection.
6. Though a specific order has not been issued, the defects noticed on inspection have been detailed in the counter affidavit at paragraph 9; of which only Serial No. 1 is relevant, which is extracted herein below:
"1) There are two entrances to the building from the main road. One access is having 6 meters and the 2nd is having 7 meters width. But the main road is having only 8 meters width instead of 10 meters according to the floor area".
With respect to Serial numbers 2 to 5, the petitioner would have to rectify the same, if not already done.
7. Admittedly at the time of issuance of Exhibit P1 permit the requirement for access was only a road of 5 metres width. Exhibit P1 was issued on 30.06.2008 and was valid for three years from the date of issue. The permit was renewed twice, once from 30.06.2011 to 29.06.2014 and then from 30.06.2014 to 29.06.2017. At the time of renewal, the Municipality had not sought for any further conditions in accordance with the change made to the Building Rules by way of amendment. The Fire and Rescue Services has also issued a NOC in the year 2014 for the purpose of renewal of the permit, which also did not insist on the requirements as it existed then to be complied with for the purpose of occupancy.
8. Roy M. Mathew was a case in which provision for a helipad on the roof top of the building was insisted by way of amendment to National Building Code, which was also incorporated in the Building Rules. Therein, the construction was permitted prior to such amendment introduced in the Building Rules. This Court found that the occupancy would have to be considered on the basis of the compliance of the requirements as it existed in the Building Rules at the time of issuance of the building permit. The facts of that case, but, disclose that the amendment came into the statute only after the builder therein filed for occupancy certificate. This decision hence will not aid the petitioner.
9. T. Vijayalakshmi also held thus:
"18. It is, thus, now well-settled law that an application for grant of permission for construction of a building is required to be decided in accordance with law applicable on the day on which such permission is granted. However, a statutory authority must exercise its jurisdiction within a reasonable time".
10. An amendment brought in must be possible of practical compliance. When a high rise building is constructed on a valid permit issued by the local authority and cleared for construction by the Fire and Rescue Services, then if a drastic change to the rules are brought about; like in the present case, increase in width of access, then it cannot be said that the entire project has to be scuttled. It is to take in such situations that the Building Rules itself provide for by Rule 15A(9); which reads as hereunder:
"(9) A development permit or a building permit issued before or after the commencement of the Kerala Municipality Building Rules, 1999 or these rules or under the Kerala Building Rules, 1984 including that under the orders of Government or District collector granting exemption from rule provisions, shall be extended or renewed, on proper application, on like terms and for like periods as a permit issued under these rules".
The Building Rules also provide for the extension of the validity period, as per Rule 15A(1), of three years; automatically twice as is provided in sub-rule (2) of Rule 15A, for a total of nine years, if the application is made within the validity period. Here the petitioner had received such renewal and the terms as applicable at the time of grant alone need be complied with.
11. On the above reasoning, this Court is of the opinion that there can be no insistence for provision of 10 metres width to the road access and the same would have to be considered on the basis of the requirement as laid down in the Building Rules at the time of issuance of Exhibit P1 permit, i.e., as on 30.06.2008. The Divisional Officer of the Fire and Rescue services would, hence, carry out a further inspection and if the other defects are rectified, would decide on the access based on the Building Rules as it existed at the time of issuance of Exhibit P1. The same shall be done within a period of one month from the date of receipt of a certified copy of this judgment.
Writ petition allowed. No costs.
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