Sajini Jayaprakash vs Thiruvananthapuram Corporation
2021 Latest Caselaw 16324 Ker

         IN THE HIGH COURT OF KERALA AT ERNAKULAM
                            PRESENT
              THE HONOURABLE MR.JUSTICE N.NAGARESH
WEDNESDAY, THE 4TH DAY OF AUGUST 2021 / 13TH SRAVANA, 1943
                     WP(C) NO. 3249 OF 2021
PETITIONER:

         SAJINI JAYAPRAKASH,
         AGED 61 YEARS,
         W/O.M.S.JAYAPRAKASH,
         RESIDING AT SIVADA, T.C. 31/602,
         PETTAH P.O., THIRUVANANTHAPURAM-695 024.

         BY ADVS.
         SRI.T.C.SURESH MENON
         SRI.P.S.APPU


RESPONDENTS:

    1    THIRUVANANTHAPURAM CORPORATION,
         REPRESENTED BY ITS SECRETARY,
         CORPORATION OFFICE, VIKAS BHAVAN P.O.,
         THIRUVANANTHAPURAM-695 033.
    2    THE TOWN PLANNING OFFICER,
         THIRUVANANTHAPURAM CORPORATION,
         VIKAS BHAVAN P.O.,
         THIRUVANANTHAPURAM-695 033.
    3    THE ASSISTANT ENGINEER,
         THIRUVANANTHAPURAM CORPORATION,
         VIKAS BHAVAN P.O.,
         THIRUVANANTHAPURAM-695 033.

         BY ADVS.
         SRI.N.NANDAKUMARA MENON (SR.)
         SHRI.P.K.MANOJKUMAR, SC, TVPM CORPORATION

     THIS WRIT PETITION       (CIVIL) HAVING COME UP   FOR
ADMISSION ON 04.08.2021,      THE COURT ON THE SAME    DAY
DELIVERED THE FOLLOWING:
 WP(C) No.3249/2021
                                :2 :




                        JUDGMENT

~~~~~~~~~

Dated this the 4th day of August, 2021

The petitioner, who is the owner of a parcel of land

abutting Pettah-Chakka Road in the Thiruvananthapuram

Corporation, is before this Court seeking to set aside Exts.P3

to P5 and to direct the respondents to issue Occupancy

Certificate to the petitioner for the building constructed by her

on the basis of Ext.P2 Building Permit.

2. The petitioner proposed to construct a building and

applied for a Building Permit. The Building Permit was issued

to the petitioner for construction of a residential-cum-

commercial building having total area of 571.60 square

metres. The building permit was issued on 16.05.2018. After

completion of the building, when the petitioner approached the

1st respondent-Corporation for Occupancy Certificate, the

Town Planning Officer of the 1 st respondent has issued WP(C) No.3249/2021

Ext.P3 notice dated 09.01.2020 stating that taking into

account the proposed road widening, the building of the

petitioner would violate Rule 24(5) of the Kerala Municipality

Building Rules.

3. The learned counsel for the petitioner submits that

Ext.P2 Building Permit was issued to the petitioner taking into

consideration the existing width of the road and the

Corporation did not reject the application of the petitioner for

building permit on the basis of proposed widening of the

existing road and the petitioner was permitted to construct the

building in accordance with the permit. Therefore, now the 1 st

respondent cannot turn around and state that the building is

constructed in violation of the proposed road widening.

4. The learned Standing Counsel for the 1 st

respondent appeared in the writ petition and contested the

case filing a statement dated 16.03.2021. The 1 st respondent

stated that when a local inspection was conducted for the

purpose of issuance of Occupancy Certificate, it was found

that the building was constructed in violation of the approved WP(C) No.3249/2021

plan and permit. The construction is in violation of various

provisions of the Kerala Municipality Building Rules, 1999. It

was under such circumstances that a provisional order under

Section 406(1) and (2) of the Kerala Municipality Act, 1994

was issued to the petitioner. The construction, which violates

the permit conditions, is unauthorised. The petitioner has

submitted an application for regularisation subsequently. This

would show that even the petitioner is admitting violations of

the conditions of permit.

5. Heard learned counsel for the petitioner and

learned Standing Counsel for the respondents.

6. If the petitioner has constructed the building in

accordance with Ext.P2 Building Permit, then the 1 st

respondent will not be justified in rejecting the application for

Occupancy Certificate on the ground that there is a proposed

road widening and the construction of the building would

violate the building rules once the road widening occurs. To

that extent, Ext.P3 cannot stand the scrutiny of law. WP(C) No.3249/2021

7. If the respondents have a case that the constructed

building violates various conditions in the building permit, it is

then for the petitioner to cure the defect or seek regularisation

of the building.

In such circumstances, the writ petition is disposed

of permitting the petitioner to cure the defect or prosecute his

application for regularisation of the construction. However,

Occupancy Certificate/regularisation of the building shall not

be rejected on the ground that in view of the proposed road

widening, the constructed building violates building rules.

Sd/-

N. NAGARESH, JUDGE

aks/04.08.2021 WP(C) No.3249/2021

APPENDIX OF WP(C) 3249/2021

PETITIONER'S EXHIBITS:

EXHIBIT P1 TRUE COPY OF THE TAX RECEIPT DATED 03.12.2020.

EXHIBIT P2              TRUE COPY OF THE BUILDING PERMIT VIDE
                        PERMIT     NO.E11/BA/133643/17   DATED
                        16.05.2018.
EXHIBIT P3              TRUE COPY OF THE NOTICE ISSUED TO THE

PETITIONER BY THE 2ND RESPONDENT DATED 09.01.2020.

EXHIBIT P4 TRUE COPY OF THE NOTICE ISSUED BY THE 2ND RESPONDENT DATED 18.08.2020.

EXHIBIT P5 TRUE COPY OF THE NOTICE ISSUED BY THE 2ND RESPONDENT DATED 14.10.2020.

SR