NATIONAL AVENUE OWNERS ASSOCIATION v. STATE OF KERALA

NATIONAL AVENUE OWNERS ASSOCIATION, MANIMALA CROSS ROAD, EDAPALLY, COCHIN, REPRESENTED BY ITS SECRETARY, SMT.USHA VENUGOPAL, AGED 67 YEARS,W/O K.P.VENUGOPAL , RESIDING AT 101,NATIONAL AVENUE, MANIMALA CROSS ROAD, EDAPALLY, COCHIN, PIN - 682024 BY ADVS. CHANDINI G.NAIR G.SREEKUMAR (CHELUR) RESPONDENT/S: 1 2 3 4 DIRECTOR GENERAL KERALA FIRE AND RESCUE SERVICES FIRE FORCE JUNCTION, PULIMOODU P.O., THIRUVANANTHAPURAM, PIN - 695001 DISTRICT FIRE OFFICER OFFICE OF DISTRICT FIRE OFFICER, FIRE AND RESCUE SERVICES, ERNAKULAM, COCHIN, PIN - 682020 THE STATION OFFICER FIRE AND RESCUE STATION, ELOOR., PIN - 683501 DEPUTY COLLECTOR (DISASTER MANAGEMENT), ERNAKULAM DT., CIVIL LINES, KAKKANAD, COCHIN, PIN - 682030 THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON

09.01.2024, ALONG WITH WP(C).19057/2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: [WP(C) Nos.19057/2023, 23988/2023] 4 JUDGMENT The petitioner in these two writ petitions is an Association of the owners of apartments in a complex called ‘National Avenue’. The petitioner says that they face a predicament because, on account of a temporary car shed which has been constructed in their compound, the jurisdictional Fire Officer has raised an objection to the effect that Fire Engines cannot move around it effectively, in the event of an incendiary event; while, for the same reason, the Corporation of Kochi has now raised objections and has directed them to demolish the said construction, even without considering their application for regularisation, which they were entitled to prefer in law.

2. Sri.G.Sreekumar (Chelur) – learned counsel for the petitioner, pointed out that the [WP(C) Nos.19057/2023, 23988/2023] 5 controversy in this case has arisen because the party respondent in WP(C)No.19057/2023, raised an objection against the temporary car shed in question, saying that it obstructs the passage of Fire Engine to his Villa - which is adjacent to it and which is part of another project developed by the same builder. He pointed out that, in fact, the said respondent obtains no de jure right to use the property of the Apartment Complex; but that he still maintains the same, on untenable grounds, which has now triggered a situation, where the Fire Officers concerned say that the said complex has become fire unsafe; thus leading to the Corporation of Kochi to have issued orders for the demolition of the Car Shed.

3. Sri.P.M.Unni Namboothiri – learned counsel for the 6th respondent in WP(C)No.19057/2023, however, maintained, with [WP(C) Nos.19057/2023, 23988/2023] 6 equal vehemence that his client is entitled to access his Villa through the land of the Apartment Complex; and therefore, that it is essential that Fire Safety is maintained without any obstruction. He argued that the car shed in question disrupts the movement of Fire Engines to his client’s Villa; and that, therefore, the competent Authorities are without error in directing the same to be demolished.

4. Sri.K.S.Arun Kumar – learned Standing Counsel for the Corporation of Kochi, submitted that his client has issued Ext.P6 in WP(C)No.19057/2023 because, the construction made by the petitioner is beyond the sanctioned Building Permit and since the Fire Officers have found it disrupts the movement of Fire Engine. He added that, therefore, such a constructions cannot be, normally, regularised. He argued that, [WP(C) Nos.19057/2023, 23988/2023] 7 therefore, the officers of the Corporation has acted correctly; and prayed that the writ petition against his client be dismissed.

5. When I consider the afore rival stand of the parties, it is manifest that WP(C)No.19057/2023 was filed by the petitioner at a time when the competent Authority under the Kerala Apartment Ownership Act (‘Apartment Act’ for short) issued Ext.P4 on 18.01.2023, stating that it has obtained a report from the office of the Director General of Fire and Rescue, that the Apartment Complex is unsafe from the angle of Fire Safety, on account of the car shed in question. Of course, the said order also contains certain other directions which Sri.Sreekumar Chelur – learned counsel for the petitioner, submits his clients have complied with.

6. This led to a situation where the [WP(C) Nos.19057/2023, 23988/2023] 8 Corporation of Kochi, again based on the complaint of the 6th respondent in WP(C)No.19057/2023, issued Ext.P6 directing that the car shed be demolished and indicating that it cannot be regularised because, its existence inhibits the requirements of fire safety, under the applicable rules. The petitioner challenges both these orders are being unlawful and illegal.

7. That said, it appears that the petitioner had applied for the renewal of their fire safety clearance, which was then forwarded by the Fire Safety Officer, Eloor, to the District Fire Officer, Ernakulam, namely the 5th respondent in WP(C)No.19057/2023 and the 2nd respondent in WP(C)No.23988/2023 respectively. The said Authority transpires to have taken objection to the construction in question, again holding that it inhibits fire safety of the Complex and to the [WP(C) Nos.19057/2023, 23988/2023] 9 Villa project. This has been challenged by the petitioner, producing it as Ext.P5, in WP(C)No.23988/2023.

8. As is evident from the afore narrative, the singular stand of the petitioner is that the Fire Safety Officer, Ernakulam, had entered into certain conclusions, but without hearing them and based on the irrelevant and improper inputs.

9. Sri.Sreekumar Chelur – learned counsel for the petitioner, vehemently argues that since the access to the Villa project is not through the property of the Apartment Complex; and since the applicable Rules mandate that the Fire Engine has to travel around it only to a half circle - which is still possible, the Fire Authority was without competence to have issued Ext.P5 in WP(C)No.23988/2023.

10. However, as I have already seen above, [WP(C) Nos.19057/2023, 23988/2023] 10 Sri.P.M.Unni Namboothiri argues to the contrary; and asserts that his client has access through the land in question.

11. I, therefore, asked Sri.P.S.Appu – learned Government Pleader, as to whether Ext.P5 in WP(C)No.23988/2023 have been issued by the Fire Officer, after hearing the parties. He submitted that the said order does not indicate so; and added that if this Court is so inclined, there would be no impediment for the said Authority to hear them and cause further investigations - if so required, to verify the truth of the situation. He submitted that, however, the question whether the party respondent in WP(C)No.19057/2023 has any right over the land in question for access to his Villa is not something the Fire Officer can verify; and that he can only examine whether, in fact, he and [WP(C) Nos.19057/2023, 23988/2023] 11 others are using it for such purpose.

12. When I hear Sri.P.S.Appu as afore, it is indubitable that the Fire Authorities can only inspect the Apartment Complex and verify whether it is fire safety complaint depending upon the manner of its user, as it is presently available. The de jure rights of persons who claim access through its property cannot be evaluated by such officers; and it is for them to only verify whether, defacto, any such user is now confirmed.

13. To paraphrase, the controversy qua the question whether the party respondent in WP(C)No.19057/2023 and others are factually using the land of the Apartment Complex for access to their Villas; and if so, whether the construction in question impedes movement of fire engines, would require immediate assessment by the competent Authorities. [WP(C) Nos.19057/2023, 23988/2023] 12

14. This is a pure question of fact which cannot be decided by this Court in any manner, while acting under Article 226 of the Constitution of India.

15. That said, I am also an affirmation of the argument of Sri.P.S.Appu – learned Government Pleader, that the Fire Officer cannot decide the de jure rights over the parties and can only verify the defacto use of the property as available now. In the afore circumstances, I dispose of this writ petition with the following directions: a) Ext.P5 in WP(C)No.23988/2023 is set aside; with a consequential direction to the District Fire Officer, Ernakulam, to cause a comprehensive and proper evaluation of the area in question and take a final decision, after hearing the parties, as also any other person who [WP(C) Nos.19057/2023, 23988/2023] 13 may interested - who may be residents of either the Apartment Complex or the Villas; thus culminating in an appropriate orders and necessary action, as expeditiously as is possible, but not later than two months from the date of receipt of a copy of this judgment. b) WP(C)No.19057/2023 is allowed and Ext.P4 to the extent to which it relates to the construction in question, is set aside; however, with full liberty being reserved to the competent Authority under the Apartment Ownership Act to initiate fresh action, depending upon the decision to be taken by the Fire Officer and such other competent Authorities in terms of directions (a) above. This shall, however, be done and completed by the said Authority, if so found warranted in future, after hearing the parties and recording their version. [WP(C) Nos.19057/2023, 23988/2023] 14 c) Ext.P6 in WP(C)No.19057/2023 will stand stayed until such time as directions in (a) above are completed; and will be enforced only subject to the decision to be taken by the Fire Officer, or such other competent Authorities under the Rules applicable to fire safety. It is further clarified that the enforcement of Ext.P6 will stand deferred until such time as the parties are communicated the decision of the Fire Officer in terms of Clause (a) above. Sd/- SAS DEVAN RAMACHANDRAN JUDGE [WP(C) Nos.19057/2023, 23988/2023] 15 APPENDIX OF WP(C) 23988/2023 PETITIONER’S EXHIBITS : Exhibit P1 Exhibit P2 Exhibit P3 Exhibit P4 Exhibit P5 Exhibit P6 A TRUE COPY OF THE BYE LAW OF NATIONAL AVENUE OWNERS ASSOCIATION A TRUE COPY OF FIRE NOC DT.10.11.2008 ISSUED BY DIRECTOR TECHNICAL, COMMANDANT GENERAL OFFICE, THIRUVANANTHAPURAM A TRUE COPY OF THE INSPECTION REPORT DT.22.06.2023 ISSUED BY THE 3RD RESPONDENT A TRUE COPY OF THE LETTER NO.313/2023 DT.22.06.2023 ISSUED BY THE 3RD RESPONDENT A TRUE COPY OF LETTER NO.DFOEKM/2420/2023 - G DT. 04.07.2023 ISSUED BY THE 2ND RESPONDENT A TRUE COPY OF ORDER DT.18.01.2023 ISSUED BY THE 4TH RESPONDENT [WP(C) Nos.19057/2023, 23988/2023] 16 APPENDIX OF WP(C) 19057/2023 PETITIONER’S EXHIBITS Exhibit P1 Exhibit P2 Exhibit P3 Exhibit P4 Exhibit P5 Exhibit P6 Exhibit P7 A TRUE COPY OF THE BYE LAW OF NATIONAL AVENUE OWNERS ASSOCIATION A TRUE COPY OF SALE DEED NO.3383/2007 OF EDAPALLY SRO EXECUTED BY THE BUILDERS IN FAVOUR OF ONE OF THE APARTMENT OWNERS A TRUE COPY OF LETTER DT.7.01.2023 ISSUED BY THE 2ND RESPONDENT A TRUE COPY OF THE ORDER DT.18.01.2023 ISSUED BY THE 2ND RESPONDENT A TRUE COPY OF THE LETTER DT.01.05.2023 SUBMITTED BY THE PETITIONER TO 2ND RESPONDENT A TRUE COPY OF NOTICE DT.26.05.2023 ISSUED BY THE 4TH RESPONDENT A TRUE COPY OF LETTER NO.C NO.313/2023 DT.22.06.2023 ISSUED BY THE STATION OFFICER, ELOOR TO THE DISTRICT FIRE OFFICER, ERNAKULAM