IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE N.NAGARESH
THURSDAY, THE 7TH DAY OF JULY 2022 / 16TH ASHADHA, 1944
WP(C) NO. 22065 OF 2022
PETITIONER:
MUHAMMED ASLAM,
AGED 49 YEARS
S/O. M.S. UMMER, MAROTTICKAL HOUSE, PERINGAZHA
KARA, HMT COLONY P.O., ERNAKULAM DISTRICT - 683
503.
BY ADVS.
ABDUL JAWAD K.
A.GRANCY JOSE
RESPONDENTS:
1 THE KALAMASSERY MUNICIPALITY,
REPRESENTED BY ITS SECRETARY, KALAMASSERY
MUNICIPAL OFFICE, CHANGAMPUZHA NAGAR P.O.,
KALAMASSERY, ERNAKULAM - 682 033.
2 THE SECRETARY, KALAMASSERY MUNICIPALITY,
KALAMASSERY MUNICIPAL OFFICE, CHANGAMPUZHA
NAGAR P.O., KALAMASSERY, ERNAKULAM - 682 033.
SRI.M.K ABOOBACKER (SC) R1 AND R2
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR
ADMISSION ON 07.07.2022, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
W.P(C) No.22065 of 2022 :2:
JUDGMENT
Dated this the 7th day of July, 2022 The petitioner, who is a resident of HMT Colony P.O, Ernakulam District, has approached this Court seeking to direct the 2nd respondent to grant Occupancy Certificate to the petitioner by reconsidering his application dehors the stipulation of the structural plan and to number the building within a time frame fixed by this Court.
2. The petitioner states that he, along with his wife, is holding 14.08 Ares of land in Thrikkakara North Village of Ernakulam District. The petitioner wanted to construct a special residential building in the property. Ext.P2 Building Permit was issued to the petitioner after making due enquiries. Ext.P2 was issued on 28.02.2019.
3. The petitioner states that he constructed the building as approved by Ext.P2 and submitted Building Completion Certificate. Now, the 2nd respondent has informed the W.P(C) No.22065 of 2022 :3: petitioner as per Ext.P4 that an Occupancy Certificate cannot be granted to the building for the reason that the land has been included in the Industrial Zone as per the structural plan of the Municipality. It is aggrieved by Ext.P4 that the petitioner is before this Court.
4. Standing Counsel entered appearance on behalf of the respondents and defended the writ petition. The Standing Counsel controverted all material allegations made by the petitioner in the writ petition. It was urged on behalf of the respondents that since the petitioner's land is included in Industrial Zone, Occupancy Certificate cannot be granted. Ext.P4 is legal and proper, contended the Standing Counsel.
5. I have heard the learned counsel for the petitioner and the learned Standing Counsel representing the respondents.
6. It is evident that the petitioner has constructed a building after obtaining a valid Building Permit. The application for Occupancy Certificate has been denied on the W.P(C) No.22065 of 2022 :4: ground that the land is included in Industrial Zone. The learned Standing Counsel appearing for the respondents places reliance on the judgment of this Court in Basheer v. Kozhikode Corporation [2021 (4) KLT 82].
7. This Court finds that an identical fact situation came up for consideration before this Court in respect of the very same Municipality in respect of an Agricultural Zone, in W.P(C) No.11970 of 2022. The facts arising in this writ petition are similar to the facts in W.P(C) No.11970 of 2022. In paragraph 7 of the judgment in W.P(C) No.11970 of 2022, this Court held as follows:
"7. Having considered the contentions advanced on either side, I notice that the building was constructed specifically in accordance with the building permit granted by the Municipality. It is evident from the earlier judgments of this Court that the structural plan had become unworkable and that several building permits had been granted by the Municipality without reference to the zoning contained in the said structural plan for Kochi city. Since, admittedly, the building was constructed on the basis of a building permit granted by the Municipality, it cannot be later contended that the issuance of the same was by mistake."
W.P(C) No.22065 of 2022 :5:
9. Since the building was constructed by the petitioner after obtaining a Building Permit and the Municipality earlier had granted Building Permit to construct the ground floor of the building and had numbered the ground floor of the building, this Court finds that the petitioner is entitled to succeed in the writ petition.
In the result, Ext.P4 notice of the Secretary is set aside. There will be a direction to the 2 nd respondent to reconsider the application submitted by the petitioner for Occupancy Certificate and for numbering the building. The application of the petitioner should be considered irrespective of the fact that the land is included in Industrial Zone. Orders in this regard shall be passed within a period of one month.
Sd/-
N. NAGARESH, JUDGE smm/08.07.2022 W.P(C) No.22065 of 2022 :6: APPENDIX OF WP(C) 22065/2022 PETITIONER EXHIBITS Exhibit P1 TRUE COPY OF THE LAND TAX RECEIPT DATED 25/06/2022 ISSUED IN FAVOUR OF THE PETITIONER.
Exhibit P1 A TRUE COPY OF THE LAND TAX RECEIPT DATED 25/06/2022 ISSUED IN FAVOUR OF THE WIFE OF THE PETITIONER.
Exhibit P2 TRUE COPY OF THE BUILDING PERMIT NO.BA2-77/19 DATED 28/02/2019 ISSUED BY THE 2ND RESPONDENT.
Exhibit P3 TRUE COPY OF THE NOTICE DATED 17/11/2020 ISSUED BY THE 2ND RESPONDENT TO THE PETITIONER.
Exhibit P4 TRUE COPY OF THE NOTICE DATED 22/05/2022 ISSUED BY THE 2ND RESPONDENT TO THE PETITIONER.
Exhibit P5 TRUE PHOTOGRAPHS SHOWING THE PETITIONER'S LAND AND THE NATURE OF CONSTRUCTIONS IN THE SURROUNDING LANDS.
Exhibit P6 TRUE COPY OF THE JUDGEMENT DATED 07/06/2022IN A SIMILAR CASE IN W.P.
(C).17234/2022 ON THE FILE OF THIS HON'BLE COURT.