Kerala High Court
Kalamassery Municipality vs Meritra Homes Pvt. Ltd on 19 January, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS
TUESDAY, THE 19TH DAY OF JANUARY 2021 / 29TH POUSHA, 1942
RP.No.607 OF 2020 IN WP(C). 10059/2020
AGAINST THE ORDER/JUDGMENT IN WP(C) 10059/2020(F) OF HIGH COURT OF
KERALA
REVIEW PETITIONER/S:
KALAMASSERY MUNICIPALITY
REP.BY ITS SECRETARY,CHANGAMPUZHA NAGAR,
SOUTH KAMALASSERY,ERNAKULAM-682033.
BY ADV. SRI.M.K.ABOOBACKER
RESPONDENT/S:
MERITRA HOMES PVT. LTD.
3RD FLOOR,VALAMATTOM ESTATE,
M.G.ROAD,RAVIPURAM,ERNAKULAM-682015,REP.BY MANAGING
DIRECTOR,
SRI.RAVISANKAR.T.N,AGED 49 YEARS,
S/O.T.P.NARAYANAN.
R1 BY ADV. SRI.PEEYUS A.KOTTAM
THIS REVIEW PETITION HAVING BEEN FINALLY HEARD ON 19.01.2021,
THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
Review Petition No.607 of 2020
in
W.P(C) No.10059 of 2020
2
ALEXANDER THOMAS, J.
==================================
Review Petition No.607 of 2020
(arising out of the judgment dated 21.05.2020
in W.P(C) No.10059/2020)
==================================
Dated this the 19th day of January, 2021
ORDER
The aforecaptioned petition has been filed seeking review of the
impugned judgment dated 21.05.2020 rendered by this Court in W.P(C)
No.10059/2020 filed by the sole respondent herein/writ petitioner.
2. Heard Sri.M.K.Aboobacker, learned Standing Counsel for
the Kalamasserry Municipality appearing for the review petitioner in
the R.P / sole respondent in the W.P(C) and Sri.Peeyus A.Kottam,
learned counsel appearing for the sole respondent in the R.P / writ
petitioner.
3. The petitioner has filed the aforecaptioned W.P(C)
No.10059/2020 with the following prayers :
"i) Call for the entire records leading to Ext-P5 issued by
respondent municipality and quash the same by issuing a writ
of certiorari or any other appropriate writ order or direction.
ii) Issue a writ of mandamus or any other appropriate writ or
direction or order and thereby command the respondent
Review Petition No.607 of 2020
in
W.P(C) No.10059 of 2020
municipality to allow the petitioner's application for occupancy
certificate, de-hors the stipulation the structural plan within a
stipulated time as fixed by this Hon'ble Court.
iii)Grant such other reliefs which are just and necessary in the
interest of justice."
4. The impugned Ext.P-5 order dated 04.04.2020 issued by
the respondent in the W.P(C) reads as follows : (see page No.18 of the
paper book in the W.P(C).
"മമേൽ സൂചന അമപേക്ഷ പേരരിമശശോധരിച്ചതരിൽ KMBR-1999-ൽ
വരിമധയമേശോയശോണണ് എനശോൽ നരിലവരിലുള്ള സ്ട്രചറൽ പശോൻ പ്രകശോരരം പേഴയ സർമവ
നമ്പർ 1163/1 ററീസർമവ നരം 291/1 മബശോകണ് 5ൽ ഉൾപപ്പെട്ട സ്ഥലരം
അഗരികൾചറൽ മസശോൺ ആയരി കശോണുന. ആയതുപ്രകശോരരം
Zoning regularization നടതരിയതരിനു മശഷമമേ ത ങള ട അമപേക്ഷ
പേരരിഗണരിക്കുവശോൻ നരിർവശോഹമുള്ളൂ എന വരിവരരം അറരിയരിക്കുന."
5. It may be profitable to refer to the relevant contents of
paragraph Nos.7 & 8 of the impugned judgment rendered by this Court
on 21.05.2020 in the above W.P(C), which read as follows :
"7. .................................. After hearing both sides, this Court is
of the considered view that the ground of rejection cited in the
impugned Ext.P5 rejection order is not sustainable or tenable, more
so, particularly, in the light of the dictum laid down by this Court in
decisions as in Exts.P6 to P8 etc. In this case also, there is no serious
dispute that the respondent Municipality has granted the building
permit and has also approved the building plan and the construction
has been made in pursuance thereof. At this stage, when the building
construction has been completed, it is not open to the respondent
Municipality to reject the plea of the petitioner for occupancy
certificate on the ground cited in Ext.P5 order. Accordingly, the
matter requires serious reconsideration at the hands of the
respondent and would warrant a remit.
Review Petition No.607 of 2020
in
W.P(C) No.10059 of 2020
8. For effectuating such a remit, it is ordered that the
impugned Ext.P5 rejection order will stand set aside and the
application of the petitioner for grant of occupancy certificate and
building numbers will stand remitted to the Secretary of the
respondent-Kalamassery Municipality for consideration and decision
afresh. It will be open to the respondent to conduct an effective
inspection of the construction made by the petitioner, through its
authorised official concerned with due prior notice to the petitioner. If
that be so, copy of the inspection report should be given to the
petitioner in advance. Thereafter, the Secretary of the respondent-
Kalamassery Municipality will invite the petitioner for a personal
hearing and should afford reasonable opportunity of being heard to
the petitioner through their authorised representative/counsel, if any
and then should pass orders on the plea of the petitioner for grant of
occupancy certificate and building permit, in accordance with the law,
without much delay, preferably within a period of 6 weeks from the
date of production of a certified copy of this judgment. However, it is
made clear that while doing so, the Secretary of the respondent
Kalamassery Municipality cannot reject the abovesaid plea of the
petitioner on the ground cited in Ext.P5 as the same has already been
quashed and interdicted by this Court."
6. It appears that the review petitioner/respondent in the
W.P(C) has not complied with the abovesaid directions issued by this
Court in the above W.P(C) and has taken the stand that some of the
important aspects could not be earlier brought to the notice of this
Court by the respondent in the W.P(C) and that the case warrants a
review and hence, the above review petition has been filed.
7. The review petitioner would point out that after the
rendering of the impugned judgment in the W.P(C), the review
petitioner-Municipality has received Annexure-1 communication
Review Petition No.607 of 2020
in
W.P(C) No.10059 of 2020
bearing No.RB1/126/2020-LSGD dated 09.06.2020 and that in view of
the grounds stated in Annexure-1, the judgment in the W.P(C) would
require a review, etc. The impugned Annexure-1 dated 09.06.2020,
reads as follows:
"നമ്പർ -RBI/126/2020-തസസ്വഭവ 09 / 06 / 2020 തരിരുവനന്തപുരരം
പ്രരിൻസരിപ്പെൽ പസക്രട്ടറരി
പസക്രട്ടറരി
കളമേമശ്ശേരരി നഗരസഭ
സർ,
വരിഷയരം:- തസസ്വഭവ - എറണശോകുളരം ജരില്ല - കളമേമശ്ശേരരി നഗരസഭ -
അനധരികൃതനരിർമശോണരം സരംബനരിച്ചണ്
സൂചന :- CTPVIG പന്റെ 12 / 12 / 2019 പല CTPVIG/980/19 നമ്പർ റരിമപ്പെശോർട്ടണ്
സൂചനകളരിമലയണ് തശോങ്കളുപട ശ്രദ്ധ ക്ഷണരിക്കുന. എറണശോകുളരം ജരില്ല
കളമേമശ്ശേരരി നഗരസഭ പേരരിധരിയരിൽ നശോലശോരം ഡരിവരിഷനരിൽ തൃകശോകര മനശോർതണ്
വരിമല്ലജരിൽ സർമവ നമ്പർ 291/1-ൽ പപ്പെടുന സ്ഥലപത അനധരികൃത നരിർമശോണരം
സരംബനരിച്ചണ് സൂചന (1) റരിമപ്പെശോർട്ടരിപല നടപേടരി ശുപേശോർശ(2)(4) എനരിവ പ്രകശോരരം
തുടർനടപേടരി സസ്വറീകരരിക്കുനതരിനശോയരി ടരി റരിമപ്പെശോർട്ടരിപന്റെ പേകർപ്പെണ് ഇമതശോപടശോപ്പെരം (sic)
പചയ്യുന "
8. The case of the review petitioner-Municipality is that as
stated in Annexure-1, the office of the Chief Town Planner (Local Self
Government Department), Vigilance has recommended to take action
Review Petition No.607 of 2020
in
W.P(C) No.10059 of 2020
in respect of the apartment constructed by the writ petitioner and that
the defects noted in the construction are as follows :
"(i) the building is constructed in a property which comes
within the agricultural zone as per the structural plan
prepared as per the provisions of the Town Planning Act.
(ii)the building permit has been issued by the Municipality
without verifying and perusing the nature of the land.
(iii) the basement floor has been constructed by the writ
petitioner without obtaining development permit issued
by the Municipality."
However, since Sri.M.K.Aboobacker, learned Standing Counsel for the
Kalamasserry Municipality appearing for the review petitioner has
submitted that the review petition has been filed mainly on account of
the issuance of Annexure-1 letter dated 09.06.2020 on the basis of the
report of the Chief Town Planner (LSGD), Vigilance, etc., this Court has
considered various aspects in regard to the abovesaid additional
grounds as well. The matter in relation to item No.(i) above emanating
from Annexure-1 is essentially the same ground stated in the impugned
Review Petition No.607 of 2020
in
W.P(C) No.10059 of 2020
Ext.P-5 rejection order. Those aspects of the matter will be dealt with
after dealing with the objection as per item No.(ii) noted above. The
objection as per item No.(ii) above is that the building permit has been
issued by the review petitioner-Municipality without verifying the
nature of the land. The said objection No.(ii) may either mean that the
Kalamasserry Municipality has not verified the nature of the land in
which the construction has been made, as to whether the said land is
classified either as 'dry land / purayidam' or as 'paddy land / Nilam', as
per the entries in the Basic Tax Register (BTR) prepared, as per Rule 4
of the Kerala Land Tax Rules framed under the Kerala Land Tax Act or
that the land is included within the agricultural zone, as per the
structural plan prepared as per the Town Planning Scheme. If what is
meant to be conveyed is the latter, that is the one in respect of the
agricultural zoning as per the Town Planning Scheme, then the said
objection is the same as objection No.(i). In the said objection as per
item No.(ii) above is regarding the nature of land, as per the Basic Tax
Register, the following aspects may be relevant :
The respondent in the R.P /writ petitioner has filed an
additional counter affidavit dated 03.11.2020 in this R.P,
Review Petition No.607 of 2020
in
W.P(C) No.10059 of 2020
whereby it is asserted that the nature of the land, in which
the construction has been made is clearly shown as
'purayidam / dry land' in the BTR, which is seen mainly
certifying in Ext.R1(d) land tax receipt dated 18.05.2019
issued by the Village Officer, Thrikkakara North Village and
also in Ext.R1(e) possession certificate dated 09.03.2020
issued by the said village office. The review petitioner-
Municipality has not raised any serious objection, as to the
genuineness and correctness of Exts.R1(d) & R1(e). It
appears that before grant of the building permit, the review
petitioner-Municipality has in fact verified and has been
satisfied that the nature of the land, in which the
construction was proposed, is shown as 'garden land /
purayidam', as per the BTR prepared by the revenue
authorities concerned. Therefore, the said objection as per
item No.(ii) above does not appear to be tenable.
9. As noted hereinabove, objection No.(i) as regards the land is
included in agricultural zone, as per the Kochi Structural Plan, notified
as per the provisions of the town planning scheme, etc., the said
objection is in a sense the same as the one raised in the impugned
Ext.P-5 rejection order, which has been duly considered in the W.P(C).
However, since Sri.M.K.Aboobacker, learned Standing Counsel for the
Review Petition No.607 of 2020
in
W.P(C) No.10059 of 2020
Kalamasserry Municipality appearing for the review petitioner-
Municipality has raised various submissions and contentions in that
regard, this Court has examined those aspects as well. That apart, at
the outset it is by now well settled by a series of rulings as in
Mohinder Singh Gill v. Chief Election Commissioner
[(1978) 1 SCC 405] based on the dictum laid down by the Apex Court in
a series of earlier cases as in Commissioner of Police, Bombay v.
Gordhandas Bhanji [AIR (1952) SC 16]. It is well settled that the
legality and correctness of an impugned decision is to be primarily
decided on the basis of the grounds stated in the impugned order and
not on the basis of additional grounds canvassed by the party by filing
affidavit subsequently in the litigative proceedings. It has to be noted
that the sole ground of rejection, as made out in Ext.P-5 was the one as
per item No.(1) above.
10. After hearing both sides, it can be seen that the sole ground
of rejection as per Ext.P-5 and that as per item No.(ii) supra is that the
construction has been made in a land which falls within the agricultural
zone, as per zoning regulations prepared as per the Kochi Structural
Review Petition No.607 of 2020
in
W.P(C) No.10059 of 2020
Plan notified as per the provisions of the Town Planning Scheme. The
very same Kochi Structural Town Planning Scheme was also cited as a
ground of rejection in similar cases coming within the neighbouring
Thrikkakara Municipality.
11. A Division Bench of this Court as per Ext.R1(a) judgment
dated 26.10.2016 in W.A No.559/2016 [arising out of W.P(C)
No.15551/2015], has found that in the said case, though the said land in
question falls under the agricultural zone as per the said Town Planning
Scheme, the said scheme has not been implemented for a very long time
and that consequently a large number of schools, colleges, commercial
establishments and residential houses have been put up in the said
area. Indisputably, the land in question is fully surrounded by
commercial as well as residential buildings and even a lot of schools are
also being run there and that in view of the said scheme even it is
assumed that the said zonal regulations as per the Town Planning
Scheme have been issued, the same have not been implemented at all.
The Division Bench of this Court as per Ext.R1(a) judgment has noted
the categorical dictum laid down by the Apex Court in decisions as in
Review Petition No.607 of 2020
in
W.P(C) No.10059 of 2020
Raju S.Jethmalani v. State of Maharashtra [(2005) 11 SCC
222], wherein it has been held that the land holder cannot be prevented
from putting up his property for any use merely on the basis of the
restrictions in the Town Planning Scheme, which has become
antiquated and outdated and that since all adjoining and nearby lands
are already for putting up commercial buildings, office structures,
schools, play grounds, residential buildings, etc., the land holder cannot
be restricted to use the property for the purposes, which are otherwise
lawful and proper. In that regard, it has to be borne in mind that
Article 300A of the Constitution of India stipulates that the property
right of a person cannot be deprived except on the basis of a procedure
established by law and that it is by now well established that such a
procedure established by law should be just, fair and reasonable.
Hence, such a ground of rejection restricting the land holder from using
his property on the basis of antiquated and outdated Town Planning
Scheme as in the instant case would amount to restricting the right of
the land holder, though on the basis of a procedure established in law,
but the same would be ultra vires, as such a procedure established in
Review Petition No.607 of 2020
in
W.P(C) No.10059 of 2020
law cannot satisfy the elementary constitutional rights of
reasonableness, fairness, etc. So long as, such a procedure depriving
the property rights is not fair, just and reasonable, the same is ultra
vires under Article 300A of the Constitution of India. It is in the light
of these aspects, that the Division Bench of this Court has rendered
Ext.R1(a) judgment, by placing reliance on the abovesaid dictum laid
down by the Apex Court in Raju S.Jethmalani's case supra [(2005)
11 SCC 222].
12. The said restrictions based on the Kochi Structural Plan
have been considered in similar cases in the neighbouring Thrikkakara
Municipality in a catena of cases by this Court. This Court as per
common judgment dated 24.06.2020 in W.P (C)Nos.12020, 11810,
11767 of 2020 has held that on the basis of the dictum laid down by the
Division Bench of this Court in cases as in Padmini v. State of
Kerala [1999 (3) KLT 465] as well as the judgment of the Apex Court
in Raju S.Jethmalani's case supra [(2005) 11 SCC 222] that the
refusal to grant building permit relying on obsolete and antiquated
detailed Town Planning Scheme is a clear violation of the provisions of
Review Petition No.607 of 2020
in
W.P(C) No.10059 of 2020
the Constitution, more particularly under Article 300A of the
Constitution of India. In those judgments, this Court has set aside the
impugned rejection order rendered by the Thrikkakara Municipality in
such similar cases by citing the restrictions from the said structural plan
for Kochi notified as per the Town Planning Scheme and held that since
lot of colleges, schools and hospitals have come in the area, merely
because of such zonal regulations, will not amount to a
reasonable and fair procedure for depriving the property rights of the
land holders concerned. Such a view has been so rendered by this
Court in a series of judgments relating to restrictions of granting
building permission in the neighbouring Thrikkakara Municipality, as
can be seen from the judgment dated 16.12.2018 in W.P(C)
No.22153/2014, judgment dated 30.10.2014 in W.P(C) No.12868/2014,
judgment dated 24.11.2014 in W.P(C) No.28985/2014, judgment dated
21.10.2014 in W.P(C) No.25371/2014 & the judgment dated 23.03.2020
in W.P(C) No.9057/2020, wherein this Court has consistently held
that the said provisions of the Town Planning Scheme pursuant to
which the Structural plan for Kochi have become obsolete and
Review Petition No.607 of 2020
in
W.P(C) No.10059 of 2020
antiquated and therefore, in the light of the legal principles laid down
by the Apex Court in cases as in Raju S.Jethmalani's case supra
[(2005) 11 SCC 222], the applications of the respective petitioners for
grant of building permit will have to be considered on merit by the
Thrikkakara Municipality, etc. In those judgments, this Court has
found that the scheme was not implemented and consequently a
number of colleges, schools, commercial buildings and residential
buildings have been built up in the said area and the land in question
was fully surrounded by commercial buildings, residential buildings
and even schools were run there, etc.
13. There is yet another judgment of the Division Bench in the
case in Gopalakrishnan.T.B v. State of Kerala & Ors.
[(2011) 3 KHC 162 = (2011) 3 KLT 317], wherein also the Division
Bench of this Court has considered the legal efficacy of such zonal
regulations, wherein permission for construction of a commercial
building was denied on the ground that the land is situated in a
residential zone, etc. The Division Bench of this Court in
Gopalakrishnan.T.B's case supra [(2011) 3 KHC 162] in paragraph
Review Petition No.607 of 2020
in
W.P(C) No.10059 of 2020
No.4 thereof has observed that though the property is stated to be
located in the residential zone, as per the zonal regulations, there are
not many number of residential houses in the said area and in fact the
large number of commercial buildings were constructed in the said
residential zone and that even the building opposite to the appellant's
property therein is a cinema theatre and the materials would clearly
show that the municipal body themselves have permitted such large
number of constructions for commercial purposes and that the zoning
regulations classified the area as residential zone, had become
practically unimplemented and antiquated, etc. and had ordered the
grant of reliefs in that case therein, etc. In the case at hand, the specific
case of the writ petitioner is that the area in question is very much in
proximity of a well-known Church in the locality coming under the
Latin Catholic archdiocese and the name of the said church is St.Pius X
Roman Catholic Church, which has been established in the early 50s or
late 50s and is situated in a very huge compound and large number of
houses and shoprooms, etc. has been constructed in the close proximity
of the said St.Pius X Church. Further that, even big flats and
Review Petition No.607 of 2020
in
W.P(C) No.10059 of 2020
apartments are also come up in the said proximity of the said St.Pius X
Church, in the last 10 or 15 years. Further that, very famous school viz.,
Rajagiri School has been established by the Carmelite order in 1963 or
1964 and the said school is situated in a vast property, where schools
are being run both under the Kerala scheme as well as the CBSE
scheme, starting from kindergarten to class-XII as well as the boarding
facilities for the students. That the said Rajagiri school campus is
within one kilometer or so from the St.Pius X church. Further that, the
Rajagiri College of Social Sciences is also situated adjacent to the
Rajagiri school. Further that, a monastery of the Carmelite monks and
priests and a sisters' monastery are also situated very much within the
part of the school property. Further that, large number of commercial
buildings, residential buildings, shop rooms, etc. has come up very
much in the vicinity of the abovesaid property, which is claimed to be
within the agricultural zone, as per the zonal regulations prepared as
per the Kochi Structural Plan, etc.
14. Sri.Peeyus A.Kottam, learned counsel appearing for the
respondent in the R.P / writ petitioner would submit that any person in
Review Petition No.607 of 2020
in
W.P(C) No.10059 of 2020
the locality can only come to the conclusion that the said locality is one
with lot of residential buildings, residential houses, commercial
buildings, shoprooms, flats, apartments, churches, schools, etc. and
that therefore any reasonable and prudent person instructed on facts
and law can only come to the sole conclusion that the case in hand is
identically situated as the abovesaid cases decided by this Court in a
catena of cases referred to hereinabove. Hence, it is pointed out that
the dictum laid down by this Court in the aforecited cases, with respect
to the Kochi Structural Plan laid down in the context of the
neighbouring Thrikkakara Municipality would apply with equal force
and vigor in the present case, where the land is coming under the
Kalamassery Municipality. Of course, the review petitioner-
Municipality has filed an additional statement dated 09.12.2020
claiming that the zonal regulations as per the Kochi Structural Plan
have been implemented in the area of review petitioner-Kalamassery
Municipality.
15. After hearing both sides, it appears that the case of the
review petitioner-municipality would be that the said provisions of the
Review Petition No.607 of 2020
in
W.P(C) No.10059 of 2020
Kochi Structural Plan regarding zonal regulations may have been
notified in the manner prescribed in the Town Planning Scheme and
Town Planning Act. Even if that be so, the fact situation in the present
case relating to the Kalamassery Municipality is almost identical or
similar to the cases dealt with in the aforecited judgments of this Court
in respect of the Kochi Structural Plan in the neighbouring Thrikkakara
Municipality. Merely because the Kochi Structural Plan is notified does
not necessarily mean that the Structural Plan has been implemented
with all efficacy and vigour. If, the fact situation is as stated above, then
the only irresistible conclusion is the one, as already made by this Court
in a series of cases in respect of the Thrikkakara Municipality and
therefore, it is only to be held that the said structural plan, has become
antiquated and redundant, which had been seen from the very ground
realities in existence. Hence, it is to be only held that the present stand
to reject the plea for occupancy certificate, would amount to an
impugned rejection on the basis of a procedure which is not fair, just
and reasonable and hence, the depravation of the constitutional right of
the writ petitioner to enjoy his property, is not in accordance with the
Review Petition No.607 of 2020
in
W.P(C) No.10059 of 2020
procedure, which is just, fair and reasonable and hence, the said
impugned rejection is only to be held as illegal, ultra vires and
unreasonable.
16. Sri.Peeyus A.Kottam, learned counsel appearing for the
respondent in the R.P / writ petitioner has also raised a contention that
the criteria for zonal regulation based on agricultural zone is a
permitted criteria for zoning, as per Sec.34 (3) of the Kerala Town and
Country Planning Act, 2016, as can be seen from clauses (i) to (xiii) of
the said provision. This Court need not get into that aspect, as this
Court is of the considered view that the dictum laid down by this Court
in the aforecited judgments rendered by the Division Bench of this
Court and other judgments, relating to the efficacy or otherwise of the
Kochi Structural Plan in regard to the neighbouring Thrikkakara
Municipality would apply with equal force and vigour in the present
case as well and hence the impugned rejection can only be seen as one,
which is illegal and ultra vires, etc. Moreover, it has to be borne in
mind that the Chief Town Planner, has found in page No.2 of Annexure-
A1 that the construction made by the writ petitioner is in conformity
Review Petition No.607 of 2020
in
W.P(C) No.10059 of 2020
with the provisions of the Kerala Building Rules and that no deviation
therefrom has been noticed, etc.
17. That apart, the crucial aspect of the matter is that earlier
when the writ petitioner had submitted application for building permit
for construction of the apartment complex in question before the review
petitioner-Municipality, the same was considered and was granted, in
accordance with the provisions contained in the Kerala Municipality
Building Rules framed under the Kerala Municipality Act, 1994.
Thereafter, the writ petitioner has invested his money and has made
constructions and has also made several transactions with prospective
flat purchasers and has duly executed registered sale deeds, whereby
the rights of the respective flats have been conveyed to the flat allottees
concerned. Thereafter, it appears that the writ petitioner has completed
the construction and has applied for occupancy certificate in terms of
Rule 22(3) of the Kerala Municipality Building Rules. It is at this final
stage of consideration of the application for occupancy certificate, after
due completion of the construction that the municipality has now taken
the impugned stand as per Ext.P-5 rejection order and has subsequently
Review Petition No.607 of 2020
in
W.P(C) No.10059 of 2020
reiterated in Annexure-1 letter. The said stand reflected in Ext.P5 and
Annexure-1 has never been raised by the municipality while considering
the application for building permit. Such a ground is taken for the first
time by the municipality, at the time of issuance of Ext.P5 order. After
considering the applicability for building permit submitted by the writ
petitioner and after duly granting it, in accordance with the provisions
of the Kerala Building Rules and after the writ petitioner had altered its
position to his detriment by entering into various transactions not only
with the landholder but with the series of prospective flat purchasers
and after investing their precious money in completing the
construction, the review petitioner-Municipality is estopped from
taking such a stand at such a late juncture.
18. After completing the construction in pursuance of the
building permit issued as per the Building Rules, the final step is
securing occupancy certificate and door numbering of the constructed
building. The statutory norms for consideration of occupancy
certificate are contained in Rule 22 (3) of the Kerala Municipal Building
Rules, which reads as follows :
Review Petition No.607 of 2020
in
W.P(C) No.10059 of 2020
"Rule 22. Completion certificate, development certificate and
occupancy certificate:
(1) XXX XXX XXX
(2) XXX XXX XXX
(3) The Secretary shall, on receipt of the completion certificate and on
being satisfied that the construction or reconstruction or addition or
alteration has been carried out in conformity with the permit given,
issue occupancy certificate in the form in Appendix H;
(Proviso is omitted)"
It can be seen from a mere reading of the provisions contained in
Rule 22 (3) of the Kerala Municipal Building Rules that the only
predominant consideration for the municipality for grant of completion
certificate is that they should be satisfied that the construction in
question has been carried out in conformity with the building permit.
In the instant case, the review petitioner-Municipality does not have
any case that the impugned construction made by the writ petitioner is
in any manner not in conformity with the building permit issued by the
Municipality to the writ petitioner. The provisos to Rule 22(3) are
omitted, as they are not relevant and germane for the present case.
19. Issues in that regard have also been considered by this
Court in the judgment dated 06.08.2020 in W.P(C) No.14427/2020
Review Petition No.607 of 2020
in
W.P(C) No.10059 of 2020
and it may be profitable to refer to paragraph Nos.29 to 34 of the said
judgment in the abovesaid W.P(C), which read as follows :
"29. Rule 22 (3) of the KMBR, 1999 mandates that if the construction has been made
in consonance with the building permit given to the party, then necessarily occupancy
certificate will have to be issued in favour of the party. It is beyond any doubt that
Ext.P9 building permit has been issued on the basis of Ext.P8 sketch and the approved
plan. There is no case for respondents 1 and 2 that the construction has been made by
the petitioner in divergence from the abovesaid building permit or the approved plan.
In the impugned Ext.P20 rejection order,the 2nd respondent has no case that the
impugned construction has been made either in violation of the building permit, or in
violation of the approved plan or in violation of Ext.P8 sketch on the basis of
whichExt.P9 permit was given.
30. It has been held by this Court in decisions as in George Joseph and anr. V.
Pala Municipality and others [2015 (2) KHC 431 = 2015 (2) KLT 551] that a
person can be penalized if he deviates from the work commenced in the statutory
terms, only if the deviation has been occasioned, out of his voluntary acts, but not
owing to his supervening event, which he could neither foresee nor prevent, more
pertinently if the supervening act in itself is not tainted with any illegality. In that
case, it was held by this Court that the State has exercised its right of eminent domain,
perfectly legally and the beneficiary is the Municipality which now shows an accusing
finger towards the unwary citizen and that an act of the State cannot make a citizen
suffer the adverse consequences, if the said citizen has not contributed anything to
add to his plight. It was held that since the petitioners had constructed strictly in
compliance with the sanctioned plan, which never stood altered, notwithstanding
subsequent changes,essentially brought about at the behest of the respondent-
Municipality it cannot refuse to regularize the said construction etc. It will be
pertinent to refer to para Nos. 26and 28 of the judgments of this Court in George
Joseph's case (supra) [2015 (2) KHC 431] which reads as follows :
26. "A person can be penalised if he deviates from the work
commenced in statutory terms, only if the deviation has been
occasioned out of his voluntary act, but not owing a supervening
event, which he could neither foresee nor prevent; more pertinently,
if the supervening act in itself is not tainted with any illegality. The
State has exercised its right of eminent domain, perfectly legally,
and the beneficiary is the Municipality, which now shows an
accusing finger toward an unwary citizen. An act of State cannot
make a citizen suffer adverse consequences, if the said citizen has
not contributed anything to add to his plight.
28. Under these circumstances, since the petitioners have
constructed strictly in compliance with the sanctioned plan which
never stood altered, notwithstanding the subsequent changes,
essentially brought about at the behest of the respondent
Review Petition No.607 of 2020
in
W.P(C) No.10059 of 2020
Municipality, it cannot, in my considered view, refuse to regularize
the construction. I may not be wrong in observing that Rule 143 of
the Rules creates a legal fiction that the construction raised under
the circumstances enumerated therein is legal and it does not call
for any regularisation, either."
31. This Court in George Joseph's case (supra) [2015 (2) KHC 431]has also placed
reliance on the judgment of this Court in M/s.Heera Construction(Pvt.) LTD v.
Corporation of Thiruvananathapuram and anr. [2008 (3) KHC422] = 2008
(3) KLT 553] etc. In Heera Construction's case (supra) [2008 (3) KHC 422], this
Court has dealt with a case, where the building permit has been granted by the
special committee, which did not have the proper forum and building was thereafter
constructed and huge investment has been made. In this context, this Court held that
it is not open to the Municipal body to contend that the building permit was
irregularly issued and that the Municipal authorities are estopped in that regard
This Court also dealt with the issues relating to the defect in the constitution of
special committee and that it was held that the citizen is entitled to presume that the
internal management of the Corporation has been regular and is being carried
down in accordance with the Act,Rules and the by-laws of the statutory body. It will
be pertinent to refer to para No.12 of the judgment of this Court in M/s.Heera
Construction's case (supra) which reads as follows :
"12. I have considered the submissions made by both sides. A the
outset I should state that the reasons stated in Ext.P21, except the
vague allegation of violation of Rules, are not attributable to the
petitioner. A reading of Ext.P21order shows that the Secretary who
is the Convener of the Special Committee was absent in the meeting
which decided to grant building permit and it is on that basis it is
contended that the committee did not have the quorum. Defect in
the constitution of the Special Committee which decided to grant the
building permit cannot be a ground for the Corporation to raise a
plea that the decision of the Special Committee is invalid for that
reason. A citizen is entitled to presume that the internal
management of the Corporation has been regular and is being
carried on in accordance with the Act, Rules and Bye-laws of the
Corporation. Persons who bona fide deal with the Corporation in the
manner authorised by the Act are not affected by any irregularity in
the internal management of the Corporation of which they have no
notice. In my view the object of section 531 of the Kerala
Municipality Act, is to extend such protection to those who deal with
the Corporation, although this protection does not extend to the
members of the Committee as such. In other words, the members of
the Committee or the Corporation cannot avoid a decision taken by
the Committee on the ground that the Committee was irregularly
constituted or that it did not have quorum. In this case, there is
nothing to indicate that the petitioner was not dealing with the
Review Petition No.607 of 2020
in
W.P(C) No.10059 of 2020
Corporation in a bona fide manner. Therefore, I cannot accept the
contention of the Corporation that the decision taken by the Special
Committee to grant building permit, is invalid."
32. After hearing both sides, this Court is of the considered view that the abovesaid
dictum laid down by this Court in the aforecited judgments in George Joseph's
case (supra) [2015 (2)KHC 431], M/s.Heera Construction's case (supra) [2008
(3) KHC 422] etc. would be broadly applicable to the facts and circumstances of this
case The petitioner has purchased the property long after the issuance of Exts.P5 and
P8 sketches, the first of which was prepared and finalized by none other than the
District Survey Superintendent,who is the head of the Survey department in the
District and latter of which has been prepared by none other than the 4 th respondent-
Taluk Surveyor. If the District Survey Superintendent has committed any alleged
mistake in approving Ext.P5 sketch issued as early as in 2000 and consequently any
mistake has also crept inExt.P8 sketch issued on 4.4.2009, the petitioner cannot be
blamed or penalized for such alleged mistakes, if any committed by any of the
Governmental officers concerned. Nobody can have a case that the petitioner has
even remotely played any act of collusion etc. in that regard for the simple reason
that the petitioner came to the scene by purchasing the property from a third party
long after the issuance of Exts.P5 and P8. Therefore, it may not be right and proper
to say that the petitioner cannot place any reliance on Ext.P8 sketch on account of
the view taken by the 4th respondent at this point of time, that Ext.P5 sketch
approved by the District Survey Superintendent is in divergence with the old survey
sketch and that therefore, Ext.P8 sketch issued by none other than the 4th respondent
on 4.4.2009 is also to be found fault with. What exactly are the details of the old
survey sketch is not even remotely mentioned in Ext.P21 sketch. Hence, in the facts
and circumstances of this case, this Court is of the considered view that the grounds
cited in Ext.P20 cannot be legal basis for rejecting the plea of the petitioner for
occupancy certificate in terms of the Rule 22(3) of the KMBR, 1999 and to hold
otherwise, would amount to prejudicing the petitioner for alleged mistakes said to
have been committed by the Governmental officials on whom he had no control and
in respect of the documents which has been issued by them long before the petitioner
had come to the scene by purchasing the property.
33. Sri.Peeyus A Kottam, learned Standing Counsel appearing for the respondent-
Kothamangalam Municipality would submit that it is learnt that the 2nd respondent
has not examined the other issues as to whether the construction has been made in
terms of the building permit and the approved plan. Of course, if that is the stand of
the 2nd respondent, certainly in exercise of the discretionary jurisdiction, this Court
should give opportunity to the 2nd respondent to examine such limited issues.
However, the conclusive finding made by the 4th respondent-Taluk Surveyor in
Ext.P21 is that the impugned construction has been made within the limits of the
property as shown in Ext.P8 sketch prepared and approved by the 4 th respondent-
Taluk Surveyor. Therefore, the other findings made by the 4threspondent in Ext.P21
that Ext.P5 LA sketch issued in the year 2000 are in divergence from the old survey
sketch and that therefore, Ext.P8 is also been faulted with etc. are not relevant and
Review Petition No.607 of 2020
in
W.P(C) No.10059 of 2020
germane for deciding the issue relating to the entitlement of the petitioner for grant
of occupancy certificate in view of the statutory mandate contained in the operative
portion of the Sub-rule (3) of Rule 22 of the KMBR, 1999 for the aforementioned
reasons.
34. Accordingly, it is ordered that the 2nd respondent-Secretary of the Municipality
may conduct an inspection through the Municipal Engineer concerned with due
prior notice to the petitioner to determine the limited issue as to whether the
construction completed as stated in Ext.P16 is in consonance with the building
permit issued to the petitioner as envisaged in the operative portion of Sub-rule(3)
of Rule 22 of the Kerala Municipal Building Rules, 1999 and such inspection should
be conducted with due prior notice to the petitioner and copy of the inspection
should be given to the petitioner in advance and thereafter, the 2nd respondent will
afford reasonable opportunity of being heard to the petitioner and then should a
considered decision should be taken on the plea of the petitioner for grant of
occupancy certificate by determining as to whether the construction completed in
terms of Ext.P16 is in consonance with the building permit as envisaged in the
operative portion of Sub-Rule 3 of Rule 22 of the KMBR, 1999, without much delay,
preferably within a period of 2weeks from the date of production of a certified copy
of this judgment."
20. In some of the cases, the local bodies have initially granted
the building permit in lands, which are classified as 'Nilam/paddy land'
as per the Basic Tax Register and which were converted as 'garden
land / purayidam' before coming into force of the Kerala Conservation
of Paddy Land & Wetland Act, 2008 (which came into force on
12.08.2008). Thereafter, some of the local bodies concerned have
either directed the stoppage of work or have not given completion
certificate/occupancy certificate to such completed construction citing
subsequently the ground that the construction is made in converted
lands which are classified as 'Nilam/paddy land', as per the Basic Tax
Review Petition No.607 of 2020
in
W.P(C) No.10059 of 2020
Register. Such ground for rejection has been held by this Court to be
untenable in a series of cases as in Mahin & Anr. v. Keezhmad
Grama Panchayat & Anr.[2020 (2) KLT 478], judgment dated
26.02.2020 in W.P(C) No.5520/2020, judgment dated 06.11.2019 in
W.P(C) No.29637/2019, etc., which has been dealt with in the present
impugned judgment dated 21.05.2020 in the instant W.P(C)
No.10059/2020. The said dictum laid down in the aforecited
judgments, though in the context of rejection based on nature of land,
as per the BTR, would also apply with equal force in the present case, as
such a ground of rejection in the instant case as well, as already dealt
with in the impugned judgment in the W.P(C).
21. For all these reasons, this Court is constrained to take the
view that the abovesaid ground of rejection based on item No.(i) supra
cannot be said to be tenable or sustainable in the eye of law and the said
objection only deserves to be as rejected, as has been rightly found by
this Court in the impugned judgment in the WP(C). Item No.(iii) of the
ground of rejection supra is that the building permit was obtained by
the writ petitioner without initially obtaining development permit from
Review Petition No.607 of 2020
in
W.P(C) No.10059 of 2020
the review petitioner-Municipality and that the basement to the
abovesaid construction has been made without obtaining development
permit. Indisputably, the construction in question has been made by
the writ petitioner after securing building permit from the review
petitioner-Municipality, in terms of the statutory provisions contained
in the Kerala Building Rules framed under the Kerala Municipality Act,
1994. If at all, the review petitioner-Municipality was of the view that
the development permit should have been first obtained by the writ
petitioner before consideration of the application for building permit
submitted by them, then it was for the review petitioner-Municipality to
direct the writ petitioner that they should file an application for grant of
development permit and only after consideration for grant of the
development permit, can the application for building permit for the flat
construction be considered, etc. Such a course of action has admittedly
not been resorted to by the review petitioner-Municipality. At this
distance of time, the review petitioner-Municipality and the
governmental authorities concerned cannot raise such an objection and
if it is so permitted to raise, it would amount to an arbitrary and
Review Petition No.607 of 2020
in
W.P(C) No.10059 of 2020
capricious exercise of power. Moreover, it is the admitted stand of the
Municipality that the construction in question has been made in
conformity with the provisions of the building permit. Hence, in the
light of these aspects, it is only to be held that the non-issuance of
development permit in the facts of this case, cannot be said to be a
vitiating factor, so as to go to the root of the matter. Such a ground of
objection cannot be raised at this late stage. It appears that the review
petitioner-Municipality is only raising their ground of rejection, as the
governmental authorities have raised in Annexure-1. Apart from the
abovesaid three items of rejections mentioned hereinabove,
Sri.M.K.Aboobacker, learned Standing Counsel for the Kalamasserry
Municipality appearing for the review petitioner has pointed out that a
fourth and final ground of rejection has also been been raised in the last
part of internal page No.3 of Annexure-1 letter, wherein it is stated that
a complaint has been submitted by a third party before the Chief Town
Planner, LSGD (Vigilance) alleging that the title deed in respect of the
abovesaid property in question is allegedly defective. However, it is
seen that no details are forthcoming, as to the very basis of the said
Review Petition No.607 of 2020
in
W.P(C) No.10059 of 2020
complaint in order to even disclose that there is any prima facie
substance in the very such allegation. Sri.Peeyus A.Kottam, learned
counsel appearing for the writ petitioner would point out that one
person claiming that his name is one Sri.Bastin, had approached the
writ petitioner company alleging that the title deed in respect of the
subject property is vested with a Trust created in the year 1830 and that
on that basis, the said complainant allegedly has got title claims of the
subject property, etc. On going through Annexure-1, it is seen that the
contents of the said allegation do not disclose any prima facie substance
and appears to be based on completely vague allegations. Such an
allegation cannot be the basis either for the review petitioner-
Municipality or for responsible governmental authorities to direct the
Municipality to stall the issuance of occupancy certificate, where the
building permit has already been issued and third party substantive
rights have been created by execution of registered sale deeds in favour
of the flat allottees concerned. This Court is certain that the review
petitioner-Municipality and the responsible governmental authorities
concerned can never take into account any such allegations seriously
Review Petition No.607 of 2020
in
W.P(C) No.10059 of 2020
and if as a matter of fact, any such allegation has been taken seriously,
then the only view that can be rendered by this Court is that such
allegations cannot be the basis to stall the occupancy and completion
certificate to the completed construction and if it is so permitted, it will
amount to rank and capricious arbitrariness of the first order. It is after
thorough evaluation and vetting of the application for building permit
submitted by the writ petitioner that the review petitioner-Municipality
has considered such application and granted the building permit for
constructing the flat complex in question, in accordance with the
provisions of the Kerala Building Rules framed under the Kerala
Municipalities Act. There is no question of raising any valid objection
on such vague basis and that too, at this distance of time.
22. For all these reasons, this Court is of the considered view
that the impugned judgment in the W.P(C) and the reasonings and the
conclusions therein cannot be said to amount to any error apparent on
face of record. So also, it cannot be said that the review petitioner has
made out any other grounds, which are worthy of consideration of
review. The upshot of the above discussion is that the issuance of
Review Petition No.607 of 2020
in
W.P(C) No.10059 of 2020
Ext.P-5 & Annexure-1 proceedings cannot be said to be legally tenable
or sustainable, etc. In other words, the impugned judgment in the
W.P(C) does not deserve any interdiction in exercise of the review
jurisdiction. However, it is ordered that the time limit for compliance
of the directions in the judgment of the W.P(C), for consideration and
disposal of the application for occupancy certificate/completion
certificate, in terms of Rule 22(3) of the Kerala Building Rules, in this
case, will stand extended by a further period of four weeks from the
date of receipt of a certified copy of this order. The impugned judgment
in the W.P(C) will stand modified to that extent alone.
With these observations and directions, the above Review Petition
will stand disposed of.
Sd/-
ALEXANDER THOMAS,
JUDGE
vgd
Review Petition No.607 of 2020
in
W.P(C) No.10059 of 2020
APPENDIX
PETITIONER'S/S EXHIBITS:
ANNEXURE 1 COPY OF THE LETTER SENT BY THE PRINCIPAL
SECRETARY,LSGD ALONG WITH REPORT OF CTP
(VIGILANCE)DATED 9.6.2020.
RESPONDENT'S/S EXHIBITS:
EXHIBIT R1 C TRUE COPY OF THE OCCUPANCY CERTIFICATE
DATED 18.2.2020 ISSUED BY KALAMASSERY
MUNICIPALITY FOR NEW CONSTRUCTION IN THE
PROPERTY IN SY.NO 1176/1(RE-SY.291/1) OF
THRIKKAKARA NORTH VILLAGE HAVING 2721.68
M2 CONSTRUCTED AS PER BUILDING PERMIT NO-
TP2-TBA (24014)/2018 ISSUED BY THE
PETITIONER IN THE REVISION PETITIONER.
EXHIBIT R1(d) THE TRUE COPY OF THE TAX RECEIPT SHOWING
PAYMENT OF PROPERTY TAX FOR THIS PROPERTY
FOR THE YEAR 2019-2020.
EXHIBIT R1(e) TRUE COPY OF THE POSSESSION CERTIFICATE
DATED 09.03.2020 ISSUED BY THE VILLAGE
OFFICER, THRIKKAKARA NORTH.
