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2009 DIGILAW 1050 (KER)

Thankamma Mathew v. Corporation Of Cochin

2009-11-04

THOTTATHIL B.RADHAKRISHNAN

body2009
JUDGMENT Thottathil B. Radhakrishnan, J. 1. The latter among the captioned matters has come up for admission. 2. These cases relate to two buildings, Jewel whitefield Poothullil and Jewel Spring Field, two multi apartment complexes, the huge structures being available to be seen in photographs Ext.P4 in W.P(C).30475/09. 3. Nearing or after, the completion of those buildings, the corporation authorities took the stand that they will not issue occupancy certificate because there was misrepresentation of facts relating to the width of a road or the distance of the access road. That matter reached the Tribunal for Local Self Government Institutions. The Tribunal held, by order dated 23.6.2009, that at the hearing of the case, the respondent corporation was not in a position to point out any plans as submitted by the builders showing the width of the road wrongly as 5 metres. It was also held that the corporation was not in a position to establish the alleged misrepresentation which is stated to be the reason for revocation of the building permit under Rule 16 of the Kerala Municipality Building Rules. It was also noticed that in terms of the Rules, the notice should have contained the so called mistake or error. But the notice issued by the corporation alleging misrepresentation was not clear also. With that judgment, the builder approached this Court filing W.P(C).30475/09 requesting that the corporation be directed to issue occupancy certificate in view of the decision of the Tribunal. That writ petition was admitted on 28.10.2009 and an interlocutory order to the following effect was passed. " . . . . . . . . .The petitioners built two multi-storeyed apartment complexes on the basis of building permits issued by the Corporation. When they applied for occupancy certificates, the stand taken by the Corporation was that the distance of the buildings from the road margin is not properly maintained and that the plan and permit were obtained by misrepresentation of facts. Normally, misrepresentation is taken cognizance of in law in relation to matters which are within the exclusive knowledge domain of the person who, allegedly, makes the representation which, ultimately, turns out to be a misrepresentation. In terms of the Kerala Municipality Act and the KMBR, the statutory authorities are expected to make site inspections while approving applications for build permit. Normally, misrepresentation is taken cognizance of in law in relation to matters which are within the exclusive knowledge domain of the person who, allegedly, makes the representation which, ultimately, turns out to be a misrepresentation. In terms of the Kerala Municipality Act and the KMBR, the statutory authorities are expected to make site inspections while approving applications for build permit. It is all the more so when requests are made in connection with erection of huge structures, like apartment complexes. It should be a matter of share for a statutory authority to permit two apartment complexes to come out and then turn round to say that the permits were obtained by misrepresentation as to the distance from the road or the width of the access road. This Court has every reason to assume that Engineers and other officers who are involved in such matters use a measuring device called a tape. This is the first fundamental equipment that should be available with any person who will be making a site inspection. Rough estimate calculations or footage measurements are always kept out when specific statutory matters are considered. Be that as it may, the Tribunal for LSGIs set aside the earlier order (Ext.P10) and issued Ext.P11 order holding that the alleged misrepresentation has not even been approved or shown. Yet, now more than four months have passed. The occupancy certificates have not been issued. The owners of different apartments are entitled to occupy. They are entitled to enjoy occupation by obtaining facilities, like electricity supply, water supply etc. Under such circumstances, I find this an abundantly fit case for issuance of an interim order directing that the second respondent shall number all the apartments in the buildings, Jewel Whitefield Poothullil and Jewel Spring Field by issuing occupancy certificates provisionally to the petitioners forthwith. This order shall be complied and reported to this Court within a period of one week". 4. Being obliged to abide by the aforesaid direction, the corporation has now thought it fit to file W.P(C).31254/09 on 2.11.2009, challenging the order passed by the Tribunal on 23.6.2009. 5. This order shall be complied and reported to this Court within a period of one week". 4. Being obliged to abide by the aforesaid direction, the corporation has now thought it fit to file W.P(C).31254/09 on 2.11.2009, challenging the order passed by the Tribunal on 23.6.2009. 5. Having heard learned counsel for the corporation even on the matter of the correctness of the order of the Tribunal, the fact of the matter remains that the constructions of the buildings were completed in the open and as noticed in the order dated 28.10.2009 issued in W.P(C).30475/09 (quoted above), the alleged misrepresentation never ignited any action by any of the authorities in the corporation until the buildings were completed. Is it a case of corruption? Is it a case of mal- administration? At any rate, the exercise of this Court in visitorial jurisdiction cannot be extended to set aside the order of the Tribunal. It has to be taken that the ground reality remains that tons and tons of materials have been employed in putting up the construction which the corporation did not object to. If those materials could not have been put and utilised for the construction in hand, they would have been available at least for other people to utilise in these days of crunch of building materials, including sand. Is this Court to believe that the officers of the corporation did not even have a measuring tape with them to ultimately turn round to contend that there was misrepresentation regarding the width or length of a road? Or, is it that they never visited the site? Or was it that their eyelids were made to remain closed? In any view of the matter, the order of the Tribunal, in my considered view, does not merit interference in writ jurisdiction. W.P(C). 31254/09 therefore fails. That writ petition is, accordingly, dismissed and W.P(C).30475/09 is ordered making absolute the aforequoted interim order since nothing further survives in that writ petition.