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2018 DIGILAW 207 (KER)

Lekshmy Devy v. Assistant Divisional Officer

2018-03-02

ANTONY DOMINIC, DAMA SESHADRI NAIDU

body2018
JUDGMENT : Dama Seshadri Naidu, J. The issue concerns fire safety. And that calls into question the building-height and the method of its measurement. 2. Appellant Lekshmy Devy applied to the Municipal Corporation for permission to construct at Edappally Village a five-storied mercantile-cum-residential building (GF+4), having height below 15 metres. As a precondition to getting sanction from the Municipal Corporation, Lekshmy Devy had to obtain a No-Objection Certificate (“NOC”) from the 1st respondent-the Assistant Divisional Officer (“ADO”), the Fire and Rescue Services. 3. To obtain the NOC, Lekshmy Devy applied to the ADO; she also submitted Annexure A1 sketch showing the height of the proposed building as 14.80 metres. Acting on Lekshmy Devy's application, the ADO issued her Annexure A2 NOC. Later, having obtained the building permit from the Corporation, Lekshmy Devy completed the building and submitted a completion report to the Corporation to get occupancy certificate. As a matter of procedural compliance, the Corporation, in turn, asked the ADO to certify whether the construction, among other things, meets the requirements as required by the Fire and Rescue Services. At that time too, Lekshmy Devy submitted the Ext.A3 sketch showing the height of the completed building as 14.95 metres-slightly taller than what was shown in the Ext.A1 sketch, but still under 15 meters. 4. Yet ADO, this time, perhaps, after physically inspecting the building, informed the Corporation that the building height, in fact, exceeded 15 metres. To be precise, it stands at 15.85 metres, measured up to the roof-top. That apart, ADO informed Lekshmy Devi through the Ext.P5 letter that she should effect structural changes to the building, for it is now a high-rise building-beyond 15 meters. Aggrieved, Lekshmy Devy challenged the Ext.P5 in W.P.(C) No.29994/2017, which a learned Single Judge of this Court dismissed through judgment, dated 21.11.2017. Further aggrieved, Lekshmy Devy has filed this intra-court appeal. Submissions: Appellant’s: 5. In the above factual background, Sri P.K. Ibrahim, the appellant’s counsel, has submitted that Lekshmy Devy, in the first place, has suppressed no material facts. According to him, she submitted at the earliest point the building plan truly reflecting the height of the proposed building, measured from the base of the plot on which Lekshmy Devy intended to construct. In the above factual background, Sri P.K. Ibrahim, the appellant’s counsel, has submitted that Lekshmy Devy, in the first place, has suppressed no material facts. According to him, she submitted at the earliest point the building plan truly reflecting the height of the proposed building, measured from the base of the plot on which Lekshmy Devy intended to construct. He has further submitted that, even after completing the building, Lekshmy Devy submitted her completion report along with the sketch, once again showing the height of the building below 15 metres. This time, too, she measured the building height from the base of the plot. In other words, Sri Ibrahim contends that the authorities have been aware how Lekshmy Devy measured the height of the building all along. 6. To elaborate his submissions that the authorities could not take a different stand midstream to Lekshmy Devy's prejudice, Sri Ibrahim has, first, drawn our attention to the “height of building” as defined in Rule 2 (aq) of the Kerala Municipality Building Rules, 1999 (“the Building Rules”). Then, he referred to Rule 44 of the Building Rules to contend that the State has adopted the National Building Code of India (“the Building Code”). So Sri Ibrahim asserts that no part of the Building Rules that concerns the fire safety applies to Lekshmy Devvy building. According to him, the height of the building must be measured under clause 2.4 of the Building Code. 7. In elaborating the definitional dynamics as detailed in the Building Code, Sri Ibrahim has also contended that to determine the height, we must measure not from the road—but from the base of the plot on which the building stands. The road may have been, contends Sri Ibrahim, low lying affecting the building-height drastically. 8. Once again, Sri Ibrahim has reiterated that in neither Annexure A1 nor Annexure A3 has Lekshmy Devy ever shown any other property or road as the base than her own property. To support his contentions, Sri Ibrahim has relied on three unreported judgments rendered by this Court: T.V. Raman v. State of Kerala, Judgement, dt.27.03.2017, in W.P.(C) No.25722 of 2016 Sathyadas v. The Divisional Officer, Judgment, dt.12.04.2017, in W.P. (C) No.19981 of 2016 and M/s. Desai Homes v. The Divisional Officer, Judgment, dt.22.06.2017, in W.P. (C) No.7620 of 2017. 9. To support his contentions, Sri Ibrahim has relied on three unreported judgments rendered by this Court: T.V. Raman v. State of Kerala, Judgement, dt.27.03.2017, in W.P.(C) No.25722 of 2016 Sathyadas v. The Divisional Officer, Judgment, dt.12.04.2017, in W.P. (C) No.19981 of 2016 and M/s. Desai Homes v. The Divisional Officer, Judgment, dt.22.06.2017, in W.P. (C) No.7620 of 2017. 9. In the end, Sri Ibrahim has drawn our attention to grounds (F) and (G) of the grounds of appeal to hammer home his contention that Lekshmy Devy has throughout acted bona fide. And any insistence by the authorities at this juncture that she must modify the building-structure would wreak havoc on her. According to him, it is next to impossible for Lekshmy Devy to comply with the Ext.P5 directions, without doing substantial structural damage to the now-completed-building. 10. Therefore, Sri Ibrahim urges us to consider in true spirit the height of the building as defined in the Building Code and view the issue equitably. Respondents’: 11. The learned Government Pleader, on his part, has submitted that there can be no estoppel against the Statute. According to him, the learned Single Judge, in the impugned judgment, has rightly found that the Building Code is a mere code-at best, a guideline. So it has no statutory force. According to him, the Building Code cannot conflict with any statutory provision, such as Rule 2(aq) of the Building Rules. 12. In other words, the learned Government Pleader has contended that the authorities, in the end, have rightly measured the height of the building, relying on the definition given under the Building Rules, and found that it exceeded 15 metres. So it is labelled as a high-rise building. Any statutory requirement about the fire safety brooks no tinkering and, in fact, requires strict compliance, asserts the learned Government Pleader. 13. In the end, the learned Government Pleader has stressed that the Court may allow no latitude in the matters affecting public safety-more particularly involving a volatile substance, such as fire. In this regard, he has drawn our attention to Rule 2(aq), amended first in 2001, then in 2010, and later in 2013. 14. To conclude, the learned Government Pleader has urged that the impugned judgment calls for no interference, and the writ appeal deserves to be dismissed. 15. Heard Sri P.K. Ibrahim, the learned Counsel for the appellant, and the learned Government Pleader. Analysis: 16. 14. To conclude, the learned Government Pleader has urged that the impugned judgment calls for no interference, and the writ appeal deserves to be dismissed. 15. Heard Sri P.K. Ibrahim, the learned Counsel for the appellant, and the learned Government Pleader. Analysis: 16. To begin with, when Lekshmy Devy first applied to the ADO for an NOC, she submitted Annexure A1 sketch, showing the building height as 14.85 mts. Later, after completing the building, once again, Lekshmy Devy submitted a completion report to the Municipal Corporation along with Annexure A3 sketch, which again reflected the building height as 14.95 metres, a slight improvement from what has been shown in Annexure A1, but still within 15 mts., the permissible height. 17. Lekshmy Devy, in both instances, that is in Annexures A1 and A3, has measured the height of the building from the floor of the plot on which the building had been constructed; later, the authorities, perhaps on physical verification of the building, have realised that the height exceeded 15 metres. Throughout, she showed the height measured from the base of the plot the structure had been built on, undeniably. 18. So Lekshmy Devy’s singular contention is that the authorities cannot blow hot and cold. In other words, having accepted Annexures A1 and A3, which, in fact, measured the height from the base of the plot, the authorities could not later turn around and insist that the building exceeded 15 metres. To be specific, in Lekshmy Devy’s view, the authorities are estopped. 19. There is some uncertainty about whether the height of the building should be reckoned as defined under Rule 2(aq) of the Building Rules or Clause 2.4 of Building Code. The impugned judgment examined, we gather that the learned Single Judge has felt that the Building Code is advisory and cannot conflict with the Statutory Rules. Plainly read, both the definitions, we gather, present no substantial semantic difference. To appreciate this controversy, we may extract both the definitions. First, Rule 2 (aq) of the Building Rules: Rule 2(aq) 'height of building' means the vertical distance measured from the average level of the centre line of the adjoining street in the case where the plot abuts the street and average level of the adjoining ground in all other cases. To appreciate this controversy, we may extract both the definitions. First, Rule 2 (aq) of the Building Rules: Rule 2(aq) 'height of building' means the vertical distance measured from the average level of the centre line of the adjoining street in the case where the plot abuts the street and average level of the adjoining ground in all other cases. Then, Clause 2.4 of the Building Code: Clause 2.4 Building, Height of: The vertical distance measured in the case of flat roofs, from the average level of the ground around and contiguous to the building to the terrace of the last livable floor of the building adjacent to the external wall; and in the case of pitched roof up to the point where the external surface of the outer wall intersects the finished surface of the sloping roof, and in the case of gables facing the road, the mid point between the eaves level and the ridge. Architectural features serving no other function except that of decoration, shall be excluded for the purpose of measuring heights.” 20. The expressions used in those two definitions are adjoining, contiguous, adjacent, and abutting. Semantically, as per the Black’s Law Dictionary, adjoining, an adjective, means touching; sharing a common boundary; contiguous. Adjacent, on the other hand, signifies what is lying near or close to, but not necessarily touching. Contiguous, a synonym to ‘adjoining’ denotes what is touching at a point or along a boundary. The last expression ‘abutting’ is a verb: abut. Black’s defines it to mean “to join at a border or boundary; to share a common boundary with.” 21. Further explored, the lexical nuances of these related terms lead to a conclusion that they overlap in their meaning and signify what is touching or abutting-physically proximate. 22. Adjacent, adjoining, contiguous, and abutting, mean being in proximity or near. Adjacent, according to Webster’s New Dictionary of Synonyms4 does not always imply actual contact but it does indicate that nothing of the same kind comes between; adjacent lots are in contact, but adjacent houses may or may not be. Objects are adjoining when they meet and touch at some line or point of junction. Adjacent, according to Webster’s New Dictionary of Synonyms4 does not always imply actual contact but it does indicate that nothing of the same kind comes between; adjacent lots are in contact, but adjacent houses may or may not be. Objects are adjoining when they meet and touch at some line or point of junction. Contiguous adds to adjoining the implication of meeting and touching on one side or a considerable part of one side; for example, “streets lined with rows of contiguous houses.” It may be used figuratively of events as well as of objects. Abutting is usually applied to something that borders on or is in contact with something else, often with the implication of the termination of one thing by the other; for example, “land abutting on the road; the north wall, to which abutting rooms were added.” 23. A plain reading of both the provisions leaves no manner of doubt in our minds that the height of the building must be measured from the average level of the adjoining grounds. The only significant difference, if at all, observable from these two definitions is the absence of reference to the ‘abutting street’ in the Building Code, though it finds specifically mentioned in the Building Rules. 24. In fact, even the Building Rules have mentioned that where a building abuts no street, the adjoining grounds alone should be taken as the reckoning point. Lexically examined, almost all standard dictionaries have defined 'contiguous', an expression used in both the definitions, to mean ‘sharing an edge of the boundary, touching, neighbouring, or adjacent’. Under these circumstances, regrettably, we have failed to persuade ourselves to adopt the course of reasoning advanced by appellant Lekshmy Devy. 25. If at all we take as the reckoning point singularly the height of the plot where the structures had been raised, it leads to an incongruous situation. Some people, more often than not, raise their plots much above the mean ground-level to have an elevated structure and also to avoid the possible drainage problem due to the future piling up of the roads. It affects, the authorities may have felt, the topography of the area and the aesthetic aspect of a street with rows of houses on either side, undulating and without being uniform. So taking the height of the plot as the base has the potential of defeating the very statutory mandate. 26. It affects, the authorities may have felt, the topography of the area and the aesthetic aspect of a street with rows of houses on either side, undulating and without being uniform. So taking the height of the plot as the base has the potential of defeating the very statutory mandate. 26. To measure the height of a building it is requisite that it ought to conform with the neighbourhood-either the plots on either side of the building or the street the building abuts or faces. Therefore, without getting into the controversy as to which of the definitions-Rule 2(aq) of the Building Rules or Clause 2.4 of the Building Code-applies, we are prepared to take the building height from the base of Lekshmy Devy’s neighbouring plots on either side. The appellant’s counsel has fairly submitted that Lekshmy Devy’s plot is more elevated than the neighouring plots. Pithily put, both the Building Rules and the Building Code mandate that the building height be measured either from the lands or the street abutting the constructed plot. Thus measured, admittedly the building is above 15 mts., falling within the category of a high-rise building. Then, inescapably, the statutory mandate compels Leksmiy Devy to effect structural changes. 27. Now, we may turn our attention to the decisions the appellant cited; they have all been rendered by learned Single Judges. Yet the ratio may persuade us. In T. V. Raman the issue concerns the staircases and the fire-escape stairway. On facts, the learned Single Judge has held that the Fire and Rescue Authority did certify that the building has sufficient fire-safety measures. True, T.V. Raman further observes that if there is substantial compliance, minimal relaxation of the statutory rigour is permissible, as spelt out in Part 4 of the Building Code. 28. In Sathyadas the issue concerns the width of the staircase. The authorities alleged that the staircase was marginally narrow. The Court found that it was because of the handrails erected as a matter of safety. On the question that the second staircase does not abut the external wall on two sides, the learned Single Judge has felt that the objection amounts to “taking it too far.” In other words, the objection is hyper-technical and inconsequential. M/s. Desai deals with the problem of statutory changes midstream-in the middle of construction. On the question that the second staircase does not abut the external wall on two sides, the learned Single Judge has felt that the objection amounts to “taking it too far.” In other words, the objection is hyper-technical and inconsequential. M/s. Desai deals with the problem of statutory changes midstream-in the middle of construction. In that context, a learned Single Judge has observed that “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 … if a drastic change to the rules are [is] brought about … then it cannot be said that the entire project has to be scuttled.” Regrettably, M/s. Desai, too, cannot rescue the appellant. 29. We agree that Lkeshy Devy may have, throughout, acted bona fide. She may have genuinely mistaken about how to measure the height of the building. And the authorities, too, may have, initially, overlooked Lekshmy Devy’s mistaken approach. All this may inflict hardship on her. But there is no escape. The statue is strict, more particularly, when it concerns the public safety-from a substance like fire, at that. Nor can the appellant advance the theory of estoppel when the statutory mandate is compelling, even in the face of official omissions or shortcomings. It is a truism to assert that there is no estoppel against a statute. Put differently, when the Statute is clear and unambiguous, there cannot be any interpretation doing violence to the plain meaning, however onerous the consequences may be. 30. At this juncture, the learned Government Pleader submitted that the Government has already introduced Kerala Municipal Building Regularisation Scheme, 2018, under which Lekshmy Devi’s building comes. In that event, we clarify that Lekshmy Devi can apply to the authorities concerned. Then, the authorities may consider her application in accordance with the scheme in force, besides giving due regard to the substantial compliance Lekshmy Devi claims. The writ appeal is disposed of.