1. The petitioner, a Company dealing with construction of multistoried buildings, has filed this writ petition seeking to quash Ext.P10 order of the 1st respondent and to direct the 1st respondent to issue Fire and Rescue Certificate of Approval to the building of the petitioner.2. Vendors of 42 cents of land comprised in Re-Survey Nos.5 and 34 of Muttambalam Village, Kottayam Taluk had obtained building permit for construction of a multistoried residential complex in their property from the 4th respondent-Municipality on 20.11.2007. The petitioner company purchased the said property as per Sale Deed No.3857/2007 of SRO, Kottayam. The building permit was changed into the name of the petitioner, as evidenced by Ext.P1 dated 06.11.2012.3. The petitioner states that the Fire and Rescue Department issued Ext.P12 on 20.09.2007 recommending to issue No Objection Certificate in respect of the plan submitted by the petitioner, subject to the conditions that all fire fighting arrangements should be made as per the existing relevant Rules and fire escape and main stair cases should reach up to the rooftop. In order to obtain the said initial NOC, the petitioner had shown 5.5 metre wide access road to the building, which was called Illikkadavu road.4. Later on, the Railway Authorities acquired the said area proposing to construct Nagampadam Road Over Bridge. A part of the Illikadavu Road was also acquired. A service road of 5 metre width was proposed to substitute Illikadavu Road passing through the acquired area. The reduction of the width of the road to 5 metres was apparently due to the reason that the Railways were constructing Nagampadam Railway Over Bridge, which would occupy larger space.5. After construction of the multistoried building, the petitioner submitted application for Certificate of Approval from the 1st respondent-Regional Fire Officer. On 28.11.2018, an inspection was conducted. The petitioner was issued with Ext.P3 letter dated 04.12.2018 stating that the available road has already been acquired by the Railway Authorities and the proposed 5 metre wide road is not yet constructed and therefore a Certificate of Approval cannot be granted. The 1st respondent pointed out certain other anomalies also in Ext.P3 letter.6. The petitioner, after rectifying the anomalies, submitted a representation dated 08.12.2018 to the 1st respondent. However, by Ext.P6 communication dated 05.01.2019, the 1st respondent rejected the representation. The petitioner states that for issuance of Fire and Rescue Certificate of Approval, an approach road with 5 metre width is necessary. The Road Register of Kottayam Municipality would show that the width of Illikkadavu road is 5.5 metre.7. Subsequently, the petitioner filed W.P.(C) No.8535/2019 before this Court. This Court directed the 1st respondent to consider and finalise the issue, taking into account the access road now existing in the area. To the predicament of the petitioner, the 1st respondent passed Ext.P10 order dated 01.10.2019 rejecting the application for Certificate of Approval stating that in two areas of the newly constructed Service Road, the road is having width of 4.68 metre and 4.95 metre and hence, approval cannot be granted. The petitioner states that as per the Road Register, the said road is having 5.5 metre width. If the Railway Authorities acquired the land for the construction of Railway Over Bridge and the road is reconstructed, that cannot affect the entitlement of the petitioner for receiving Certificate of Approval from the 1st respondent. This Court has held in Ext.P11 judgment that if the width of the road is reduced due to encroachment, it is the duty of the authorities to restore the same and application for approval should not be rejected on that ground. The petitioner therefore seeks to direct the 1st respondent to issue Fire and Rescue Certificate of Approval to the building.8. The 1st respondent contested the writ petition filing counter affidavit. The learned Government Pleader Advocate Deepa Narayanan representing the 1st respondent argued that the initial NOC issued by the 1st respondent was subject to conditions. The conditions contained therein are not satisfied. An inspection was conducted by a Committee headed by the 1st respondent on 28.11.2018. The inspection revealed that a portion of the access road starting from the main road along with other properties was acquired. The said area was remaining as an open land and hence it was not possible to measure the width of the road.9. The learned Government Pleader further pointed out that on the one side of the road, there is a wall constructed by the Railway which is part of the Railway Over Bridge. After the construction, the width of the access road is only 4.68 metre to 4.95 metre for a distance of 24 metre length. The said portion of the road came into existence only after building construction was completed by the petitioner. However, as per Rule 116 of the Kerala Municipality Building Rules, the width of access to a high rise building and plot as well as the width of the street giving access to the plot from the main street shall be 5 metre. In view of the said building rule, Certificate of Approval cannot be issued to the petitioner. Rule 116 of the KMBR is intended to ensure public safety. Grant of Certificate of Approval in violation of the said rule would be a grave threat to the general public as also to the occupants of the multistoried building constructed by the petitioner, at the time of emergencies.10. Advocate Asha Cherian, Standing Counsel for the 3rd respondent, submitted that the old access road to the building of the petitioner had no width of 5 metres. The 3rd respondent had no occasion to measure the width of the original access. According to the 3rd respondent, the said road was less than 4 metro wide. The reconstruction of the road was necessitated for the construction of ROB for public conveyance. The Railways cannot be faulted with for reconstruction of the road. The Railways have spent substantial amount for constructing the ROB, service road and for acquiring land for the said purpose. No modification can be made to the service road, as it will affect the security of the retaining walls of the ROB.11. I have heard Advocate K.R. Vinod, counsel for the petitioner, Advocate Deepa Narayanan, learned Government Pleader appearing for respondents 1 and 2 and Advocate Asha Cherian, Standing Counsel for the 3rd respondent.12. The petitioner was issued with Ext.P1 building permit as early on 06.11.2012 by the additional 4th respondent-Municipality. The 1st respondent issued Ext.P12 certificate recommending issue of Fire NOC to the building to be constructed as early on 20.09.2007. It is discernible from Ext.P4 that the road, at the time of construction of the multistoried building, had a width of 5.5 metre as per the records maintained by the additional 4th respondent- Municipality. It is not disputed that the road as it originally stood at the time of grant of building permit was more than 5 metre in width.13. Issue arose when the Railway authorities acquired the land for the purpose of construction of ROB and converted the old road into a new service road. Ext.P7 letter issued by the Deputy Chief Engineer, Construction, Southern Railway on 25.07.2017 would show that the length and width of the proposed service road were 80 metres and 5 metres respectively. However, an actual inspection of the road, after construction, showed that there is a shortage of 5 centimetres to 32 centimetres at certain portions of the road, on the basis of which Fire and Rescue Certificate of Approval has been declined to the petitioner.14. The petitioner had obtained a valid building permit. He had also obtained an initial NOC from the Fire Authorities, before constructing the building. The building in question is a multistoried apartment complex which has already been sold out to many persons. A subsequent encroachment to the road by any person or acquisition by any authority cannot take away the right of the petitioner to construct the building, the work of which started on the basis of a valid permit. This Court has held in Ext.P11 judgment that subsequent encroachments made into the road cannot be pleaded as a reason for recalling a building permit already granted. In the present case, it is not an issue of encroachment. On the other hand, it was a case of land acquisition by Railway Authorities for the construction of an ROB and a service road. The Railway also proposed to construct the service road, which is the access road to the multistoried building, with a width of 5 metres. But, after construction, it was noted that the service road is narrower by 5 centimetres to 32 centimetres at some places.15. Taking into account the negligible shortfall in the width and also taking into account the fact that the petitioner had started the construction of the m
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ultistoried building after obtaining building permit and after obtaining initial Fire NOC, complying with all the statutory requirements under the KMBR, it would be highly arbitrary and unreasonable to decline Fire and Rescue Certificate of Approval for the building of the petitioner. The public authorities who diverted the old access road and constructed new service road ought to have maintained 5 metre width to the service road as planned. The negligible shortage of width, if relied upon to decline Certificate of Approval to the petitioner, would cause irreparable injury not only to the petitioner but also to those local residents who purchased units in the apartment complex, which was constructed on the basis of valid building permit.16. In the circumstances, Ext.P10 order passed by the 1st respondent is set aside and the 1st respondent is directed to issue Fire and Rescue Certificate of Approval to the building of the petitioner forthwith.Writ petition is disposed of as above.