IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN
WEDNESDAY, THE 6TH DAY OF JULY 2022 / 15TH ASHADHA, 1944
WP(C) NO. 12444 OF 2021
PETITIONER:
C.N.HARIHARAN
AGED 80 YEARS
S/O. LATE C.K.NEELAKANDAN,
CHECKANATTU PARAMBIL, SREESAILAM,
PUNNAPRA, ALAPPUZHA, PIN-688004.
BY ADVS.
JOBY JACOB PULICKEKUDY
ANIL GEORGE
DAJISH JOHN
HARIKRISHNAN P.
RESPONDENTS:
1 THE MARADU MUNICIPALITY
REPRESENTED BY ITS SECRETARY,
MARADU, ERNAKULAM DISTRICT-682304
2 THE SECRETARY
MARADU MUNICIPALITY, MARADU,
ERNAKULAM DISTRICT-682304
3 SENIOR TOWN PLANNER,
REGIONAL TOWN PLANNING OFFICER,
ERNAKULAM, PIN - 682 032
BY ADVS.SHRI.T.R.RAJAN SC,MARADU MUNICIPALITY
ADVOCATE GENERAL OFFICE KERALA
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR
ADMISSION ON 06.07.2022, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
W.P.(C).No.12444/2021
2
P.V.KUNHIKRISHNAN, J.
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W.P.(C).No.12444 of 2021
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Dated this the 06th day of July, 2022
JUDGMENT
This writ petition is filed with following prayers:
i. Issue a writ of mandamus or any other appropriate writ, order or direction commanding the 2nd respondent to issue the Occupancy Certificate and number the building as per Exhibit P9 completion certificate without insisting for compliance of rules under KMBR 2019.
ii. Issue a writ of certiorari or any other appropriate writ, calling for the records of Exhibits P6 and P7 and quash the same. iii. Such further and other reliefs which this Hon'ble Court deems fit and proper in the facts and circumstance of the case. iv. Issue a writ of certiorari or any other appropriate Writ, order calling for the record relating to Exhibit P10 and P11 and thereafter, to quash the same.
(SIC) W.P.(C).No.12444/2021 3
2. The petitioner is the owner in possession of property having an extent of 15 Ares in Sy. No.199/25 of Maradu Village. He applied for a building permit for the construction of a commercial building in the year 2008.
Initially the application was submitted only for 3 rooms in the ground floor. During 2011, the petitioner submitted an application for building permit for rooms in the ground floor and 1st floor in the remaining property. A building permit was issued on 24/08/2011 as evident by Ext.P4. In the year 2013, ground floor was completed and occupancy was issued.
Thereafter the petitioner is paying property tax for the entire ground floor as evident by Ext.P5. The petitioner also completed the entire 1st floor in the year 2018. However Ext.P6 notice was issued on 06/11/2019 directing to stop the construction and to submit revised plan. Since the petitioner completed the construction strictly as per the building permit, it was not required to submit any revised plan. It is the case of the petitioner that as directed by the respondents, the petitioner submitted the revised plan which was rejected showing the defect that revised plan shall be as per the Kerala W.P.(C).No.12444/2021 4 Municipality Building Rules, 2019 ( for short, KMBR 2019).
Thereafter the petitioner submitted the completion plan and certificate in accordance with the building permit. However no action is taken on Ext.P9 even after the statutory period of 15 days. According to the petitioner, there is a deemed occupancy and the petitioner is entitled a certificate to that effect. Hence this Writ Petition.
3. Heard the learned counsel for the petitioner and the learned Standing Counsel for respondents 1 and 2. I also heard the learned Government Pleader appearing for the 3 rd respondent.
4. The learned Standing Counsel for respondents 1 and 2 submitted that a detailed counter affidavit is filed narrating all the facts.
5. The short point to be decided is whether Ext.P7 is sustainable or not. Ext.P4 is the building permit issued to the petitioner dated 24.08.2011. Admittedly the petitioner constructed the building based on Ext.P4 building permit. If that is the case, in the light of Ext.P13 Government Order, the rule applicable is KMBR 1999. It will be better to construct the relevant portion of Ext.P13: W.P.(C).No.12444/2021 5 "07.11.2019 വരെ സമർപ്പിച്ച കെട്ടിട നിർമ്മാണ അപേക്ഷകൾക്കും 07.11.2019 ന് മുമ്പ് സമർപ്പിച്ച അപേക്ഷകളിൽ ന്യൂനതകൾ പരിഹരിച്ച് വീണ്ടും സമർപ്പിക്കാൻ ആവശ്യപ്പെട്ടുള്ള അപേക്ഷകൾക്കും പഴയ കെട്ടിട നിർമ്മാണ ചട്ടങ്ങൾ (KMBR - 1999, KPBR - 2011) ബാധകമായിരിക്കും. എന്നാൽ, 07.11.2019 ന് മുമ്പ് സമർപ്പിച്ച പ്ലാനുകൾ റിവൈസ് ചെയ്യാൻ മടക്കി നൽകിയത് പ്രകാരം വീണ്ടും സമർപ്പിച്ച റിവൈസ്ഡ് പ്ലാനിൽ വിസ്തീർണം അധികരിക്കുന്നില്ലെങ്കിൽ മാത്രം പഴയ ചട്ടം ബാധകമായിരിക്കുന്നതാണ്. "
6. In the light of the same, I think Ext.P7 is to be set aside and respondents 1 and 2 can be directed to reconsider revised permit in the light of Ext.P13.
Therefore, this writ petition is allowed in the following manner:
1. Ext.P7 is set aside.
2. Respondents 1 and 2 are directed to consider the revised permit in the light of Ext.P13 Government Order.
3. While considering the above revised permit, respondents 1 and 2 will consider Exts.P1 and P2 also.
4. The above exercise should be completed by respondents 1 and 2, as expeditiously as W.P.(C).No.12444/2021 6 possible, at any rate, within one month from the date of receipt of a copy of this judgment.
sd/-
P.V.KUNHIKRISHNAN JV JUDGE W.P.(C).No.12444/2021 7 APPENDIX OF WP(C) 12444/2021 PETITIONER EXHIBITS Exhibit P1 THE TRUE COPY OF THE BASIC TAX RECEIPT DATED 8.10.2020 ISSUED BY VILLAGE OFFICE MARADU.
Exhibit P2 THE POSSESSION CERTIFICATE IN RESPECT OF THE PROPERTY OF THE PETITIONER DATED 22.1.2021.
Exhibit P3 THE TRUE COPY OF THE BUILDING PERMIT DATED 22.1.2008.
Exhibit P4 THE TRUE PHOTOCOPY OF THE BUILDING PERMIT DATED 24.8.2011.
Exhibit P5 THE TRUE PHOTOCOPY OF PROPERTY TAX DATED 14.10.2020.
Exhibit P6 THE TRUE PHOTOCOPY OF NOTICE DATED 28.9.2018 (RECEIVED ON 6.11.2019). Exhibit P7 THE TRUE COPY OF THE NOTICE DATED 16.12.2019.
Exhibit P8 TRUE PHOTOGRAPHS SHOWING THE COMPLETION OF THE BUILDING.
Exhibit P9 THE TRUE PHOTOCOPY OF THE COMPLETION CERTIFICATE DATED 20.6.2020.
Exhibit.P10 COPY OF LETTER DATED 16.07.2021 NO.E2/RA-46-2020, ISSUED BY THE 2ND RESPONDENT TO THE PETITIONER Exhibit.P11 COPY OF LETTER DATED 16.07.2021, NO.E3/BA-171/2011-12 ISSUED BY THE 2ND RESPONDENT TO THE PETITIONER RESPONDENT EXHIBITS Exhibit R1(a) TRUE COPY OF THE REPORT DATED 13/5/2019 OF THE OVERSEER OF THE 1ST RESPONDENT MUNICIPALITY.
Exhibit R1(b) TRUE COPY OF THE NOTICE DATED 14/5/2019 ISSUED TO THE WRIT PETITIONER.
Exhibit R1(c) TRUE COPY OF THE REPLY DATED 27/5/2019 SUBMITTED BY THE WRIT PETITIONER. W.P.(C).No.12444/2021 8 Exhibit R1(d) TRUE COPY OF THE RELEVANT PAGES OF THE STRUCTURAL PLAN (GENERAL TOWN PLANNING) FOR THE CENTRAL CITY OF KOCHI.
Exhibit R1(e) TRUE COPY OF THE NOTICE DATED 3/9/2019 ISSUED TO THE WRIT PETITIONER.
PETITIONER EXHIBITS Exhibit R1(f) TRUE COPY OF THE REPLY DATED 18/9/2019 SUBMITTED BY THE PETITIONER.
RESPONDENT EXHIBITS Exhibit R1(g) TRUE COPY OF THE REPORT DATED 26/9/2019 OF THE OVERSEER OF THE 1ST RESPONDENT MUNICIPALITY.
Exhibit R1(h) TRUE COPY OF THE COMMUNICATION DATED 7/10/2020 OF THE 2ND RESPONDENT TO THE PETITIONER.
Exhibit R1(i) TRUE COPY OF THE APPLICATION FOR REGULARISATION DATED 11/11/2020 SUBMITTED BY THE PETITIONER.
Exhibit R1(j) TRUE COPY OF THE COMMUNICATION DATED 5/2/2021 OF THE SENIOR TOWN PLANNER, ERNAKULAM TO THE 2ND RESPONDENT. Annexure R3(a) True copy of the letter No.TCPEKM/53/2021-D dated 05-02-2021of senior town planner,Ernakulam PETITIONER EXHIBITS Exhibit P12 COPY OF THE ENCUMBRANCE CERTIFICATE DATED 11.08.2021 FOR THE PERIOD FROM 01.01.1960 TO 12.07.2021 EXHIBIT P13 THE TRUE PHOTOCOPY OF THE CIRCULAR DATED 20.11.2019 NO. 201/RD1/2019