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V.K.L. Resorts India Pvt.Ltd., Represented by Its Director, Shaji Mathew, Cochin v/s The Director, Department of Fire & Rescue Services, Kerala Fire & Rescue Services, Trivandrum & Others

    WP(C). No. 22842 of 2018
    Decided On, 07 February 2019
    At, High Court of Kerala
    For the Petitioner: P.B. Sahasranaman, T.S. Harikumar, Advocates. For the Respondents: S. Dileep, Government Pleader.

Judgment Text

1. Petitioner, a Private Limited Company represented by its Director, seeks to set aside Ext.P3 order of the 2nd respondent-Regional Fire Officer and to direct the 2nd respondent to issue necessary approval of fire safety as contemplated under Rule 33(7)(c) of the Kerala Municipality Building Rules, 1999.

2. The petitioner contends that it is the owner of property having an extent of 10 acres 58 cents in Mullackal Village, Alappuzha Municipality. The petitioner proposed to construct a six storied building. For getting building permit and environmental clearance, the petitioner requires approval from the 2nd respondent. The application submitted by the petitioner for building permit was forwarded by the Alappuzha Municipality to the 2nd respondent on 22.03.2018. The 3rd respondent-Divisional Fire Officer noted certain defects in the said application. One of the defects pointed out was that the land is surrounded by water on all sides and Fire Engines have no road access to the Island.

3. The petitioner gave a detailed reply to the 3rd respondent. In the said reply, the petitioner agreed to buy a Jankar ready for operation on all times. The petitioner pointed out that from the mainland, one can reach the Island in five minutes. However, after considering Ext.P2 reply dated 24.05.2018 of the petitioner, the 2nd respondent rejected the application made by the petitioner for fire safety clearance certificate as per Ext.P3 for the reason that the waterway cannot be taken as an entrance to the land of the petitioner. Hence, the petitioner challenges Ext.P3 order.

4. The 2nd respondent filed a statement in the writ petition defending his stand. According to the 2nd respondent, the proposed building of the petitioner will be surrounded by water on all sides. The argument of the petitioner that a Jankar can be kept ready for transportation of fire vehicles is not acceptable since there always exists a chance of Jankar becoming faulty at any time since it is a machine. The 2nd respondent further stated that Rule 33(7)(c) of the Kerala Municipal Building Rules provides that waterway other than sea routes will be considered as an access to the Island, provided an approval from Fire and Rescue Services Department is obtained. Since the land in question is inaccessible for fire services vehicles, the Department is not in a position to issue clearance for site certificate.

5. The learned counsel for the petitioner argued that the stand taken by the 2nd respondent is incorrect. As per amendment made to Rule 33(7), waterway other than sea routes can be considered as access to Islands. The only condition is that the waterway must be navigable and road access to the Island shall be up to the public boat landing/jetty area. The learned counsel for the petitioner pointed out that the petitioner's land is accessible by waterway. It has a boat jetty.

6. The learned counsel for the petitioner further pointed out that in its Ext.P2 reply submitted by them, it has been pointed out that the distance between the main land and the project land is hardly 300 metres. Even as of now, the company has a 40 Ton Jankar which is used for transportation to the said land. It requires hardly five minutes for the Jankar to reach the Island from mainland.

7. The petitioner denied the contention of the 2nd respondent that the road leading to the building has only 6.2 metre width. According to the petitioner, the road has 12 to 14 metres width. It is only at certain points, the road width reduces to 6.2 metres. Once the master plan comes into force, the entire road will be widened to 18 metres. The petitioner pointed out that the resort to be started by the petitioner will have all the facilities for the domestic and foreign tourists to view the famous Punnamada Boat Race. According to the petitioner, the stand of the 2nd respondent is discriminatory in as much as Islands and Islanders are treated differently.

8. The learned Government Pleader, on the other hand, argued that when viewed from the life safety point of view, accessibility of service vehicles is of utmost importance. Only if the fire service vehicle reaches a spot, any effective rescue can be done.

9. I have considered the pleadings in the case and the arguments made on either side.

10. Rule 33(7) of the Kerala Municipality Building Rules, 1999 reads as follows:-

“Waterway other than sea routes will be considered as an access to islands as per these Rules, if the following conditions are satisfied:-

(a) Waterway which is considered as access to the island shall be navigable.

(b) Road access as per these Rules shall be provided upto the public boat landing/jetty area.

(c) Approval shall be obtained from the Fire and Rescue Department.”

Respondents 1 to 3 have no case that the waterway to the Island is not navigable. They do not have a case that there is no road access upto the public boat landing/jetty area. Still the respondents have declined fire safety clearance certificate, on the ground that there is no access to the proposed building. The respondents will be normally justified in insisting that there should be a motorable road for service of fire safety vehicles. But, as far as buildings in Islands are concerned, the respondents cannot expect that every Island is connected by bridges. The landscape of Kerala is dotted by large number of Islands. Many of these Islands are living places for large number of inhabitants and also attract domestic and foreign tourists. Construction of buildings and development of Islands are necessary in the social point of view. Such developments will result in ease of living, generate revenue to the State and give livelihood to the common man. Insistence of stringent condition by the 2nd respondent for fire safety clearance which are impossible of compliance by the petitioner and without regard to the circumstances and factual situation, is not justifiable.

11. The Apex Court had occasion to consider human safety factor, though in divergent circumstances. In the judgment in F.A.C.T. Ltd. Employees Association v. Law Society of India [(2004) 4 SCC 420], the Apex Court observed that sabotage, attack by terrorists, earthquake etc. are all unenforceable events. We have to strike a balance between existing utilities which exist in public interest on one hand and human safety conditions on the other hand. Risks in such circumstances cannot be discounted. But, we have to live with such risks which is counterbalanced by services and amenities provided by these utilities.

12. From the pleadings, it is evident that there exists a 12 to 14 metre wide road leading to the Island/proposed building, though the road narrows down to 6.2 metres at some points. Once the master plan comes into force, the road is likely to be widened up to 18 metres. The distance between the mainland and the Island is hardly 300 metres and can be reached by Boat/Jankar in five minutes.

13. The petitioner has stated that it has a 40 Ton Jankar as of now and is ready and willing to keep one Jankar exclusively for fire safety. As pointed out by the petitioner, fire engines are not the only method for fire fighting. Where fire engines cannot reach, static water storage tanks can be constructed and used for fighting fire. Further more, the respondents have a public duty to acquire afloat fire fighting equipments in order to reach places surrounded by water. As pointed out by the petitioner, the Cochin Port Trust is having afloat fire fighting equipments and they are always prepared to assist City Fire Brigade during emergencies. The respondents cannot be heard to contend that since th

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ey do not have suitable fire fighting equipments to reach Islands, no construction work or development activities can be permitted in such Islands. 14. Taking into account the facts and circumstances cited above, I am of the opinion that rejection of the petitioner's request as per Ext.P3 order of the 2nd respondent is arbitrary and unjustified. Accordingly, Ext.P3 is set aside. The 2nd respondent is directed to reconsider the application of the petitioner taking into account the observations made hereinabove. It is made clear that the 2nd respondent will be at liberty to insist on such safety measures including static storage tanks which are suitable for Islands. An order in this regard shall be passed within a period of two months from the date of receipt of a copy of this judgment. Writ petition is disposed of as above.