Kerala High Court
Raju Varghese vs Thrippunithura Municipality on 7 January, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR
THURSDAY, THE 07TH DAY OF JANUARY 2021 / 17TH POUSHA, 1942
WP(C).No.9657 OF 2019(F)
PETITIONERS:
1 RAJU VARGHESE
AGED 66 YEARS
S/O LATE M.I.VARKEY,MUKKADACKAL HOUSE,SEAPORT AIRPORT
ROAD, IRUMPANAM.P.O,THIRUVANKULAM VILLAGE,-682309.
2 JOBY RAJ,
AGED 35 YEARS
S/O RAJU VARGHESE,MUKKADACKAL HOUSE,
SEAPORT AIRPORT ROAD,IRUMPAANAM.P.O,
THIRUVANKULAM VILLAGE-682309.
BY ADVS.
SRI.JOLLY JOHN
SMT.LIZA MEGHAN CYRIAC
RESPONDENTS:
1 THRIPPUNITHURA MUNICIPALITY
REPRESENTED BY ITS SECRETARY,
THRIPPUNITHURA.P.O.682301,ERNAKULAM,
REPRESENTED BY THE SECRETARY.
2 SECRETARY,
THRIPPUNITHURA MUNICIPALITY,
THRIPPUNITHURA.P.O.682031,
ERNAKULAM DISTRICT.
R1-2 BY ADV. SRI.C.V.MANUVILSAN
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
07.01.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C).No.9657 OF 2019(F)
2
W.P.(C) No.9657 of 2019
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JUDGMENT
The first petitioner is the father of the second petitioner.
The petitioners hold adjoining lands covered by Exts.P1 and P2 sale
deeds. They have obtained a building permit to put up a commercial
building in the said lands from the first respondent Municipality on
27.09.2014. Ext.P3 is the building permit obtained by the petitioners.
Ext.P3 was valid for a period of three years. It is stated that while the
construction of the building was proceeding on the basis of Ext.P3
building permit, a stranger preferred a complaint before the
Municipality alleging that the petitioners have encroached upon the
adjoining PWD Puramboke as also river Puramboke in the matter of
effecting the construction. The second respondent, in the
circumstances, issued Ext.P6 communication to the petitioners calling
upon them to produce the survey sketch and the possession certificate
of their lands and directed the petitioners to stop the construction
carried on by them. In Ext.P6, it was also mentioned by the second
respondent that the petitioners have not made available the No
Objection Certificate of the Fire Services Department in terms of the
WP(C).No.9657 OF 2019(F)
building permit. The petitioners could not comply with the directions in
Ext.P6 communication. Consequently, building permit granted to the
petitioners has been suspended by the second respondent. Ext.P7 is
the communication issued by the second respondent to the petitioners
in this regard. It is stated by the petitioners that as required by the
second respondent, the Tahasildar concerned has forwarded Ext.P8
report and sketch of the lands of the petitioners on 16.02.2016.
Subsequently, on 29.09.2016, the petitioners have obtained No
Objection Certificate from the Fire Services Department and the same
also produced by them before the Municipality. It is stated that despite
production of the documents referred to above, the suspension of the
building permit was not revoked by the Municipality. In the meanwhile,
as the validity of the building permit obtained by the petitioners was
due to expire, the petitioners preferred an application for renewal of
the building permit on 29.08.2017. Ext.P11 is the application preferred
by the petitioners in this regard. It is alleged by the petitioners that
Ext.P11 has not been considered. The writ petition is filed in the
circumstances seeking directions to the respondents to renew Ext.P3
building permit so as to enable them to complete the construction
carried on by them.
2. A statement has been filed on behalf of the
respondents. The fact that the petitioners have produced the
WP(C).No.9657 OF 2019(F)
documents required in Ext.P6 and complied with the condition in the
building permit concerning production of the No Objection Certificate
from the Fire Services Department is not disputed by the Municipality
in the statement. It is also admitted by the Municipality in paragraph 7
of the statement that the petitioners have not made any
encroachment. As regards the inaction on the part of the Municipality
in not considering the request of the petitioners for vacating the order
suspending the building permit and the inaction on the part of the
Municipality in not considering the application preferred by the
petitioners for renewal of the building permit, it is vaguely stated by
the Municipality in the statement that it is due to the delay on the part
of the petitioners in curing the defects noted by the Municipality.
3. Heard the learned counsel for the petitioners.
4. It is seen that all the documents required by the
Municipality so as to enable the petitioners to continue the
construction covered by Ext.P3 building permit have been made
available by the petitioners by September 2016. The Municipality has
no case in the statement that the petitioners are not entitled to
construct the building covered by Ext.P3 building permit or that they
have not complied with any of the requirements of the Municipality
concerning the same. In the circumstances, according to me, it was
highly inappropriate for the Municipality to refuse to vacate the
WP(C).No.9657 OF 2019(F)
suspension of the building permit granted to the petitioners. Similarly,
it was highly inappropriate in the aforesaid circumstances for the
Municipality to delay consideration of the application submitted by the
petitioners for renewal of the building permit applied for by them on
29.08.2017. Having stopped the construction carried on by the
petitioners investing sizable amounts midway, the Municipality was
obliged in law to vacate the suspension of the building permit once it
was found that the complaint against the construction was without any
basis. Similarly, it is seen that it was due to the interdiction of the
Municipality that the petitioners could not have completed the
construction within the time stipulated originally in the building permit.
The Municipality, in the circumstances, is obliged to renew the building
permit so as to enable the petitioners to complete the construction in
terms of the building permit issued to them.
In the circumstances, the writ petition is allowed and the
respondents are directed to renew Ext.P3 building permit for the usual
period of renewal so as to enable the petitioners to complete the
construction proposed by them. This shall be done within one month.
Sd/-
P.B.SURESH KUMAR
Mn JUDGE
WP(C).No.9657 OF 2019(F)
APPENDIX
PETITIONERS' EXHIBITS:
EXHIBIT P1 TRUE COPY OF THE SALE DEED NO 2848/06 DATED
26/06/2006 EXECUTED BY MR.JOHN PAULO IN
FAVOR OF THE 1ST PETITIONER.
EXHIBIT P2 TRUE COPY OF THE SALE DEED NO.2900/06 DATED
26/06/2006 EXECUTED BY MR.JOHN PAULO IN
FAVOR OF THE 2ND RESPONDENT
EXHIBIT P3 TRUE COPY OF THE BUILDING PERMIT DATED
27/09/2014 ISSUED BY THE 2ND RESPONDENT TO
THE PETITIONERS.
EXHIBIT P4 TRUE COPY OF THE NOTICE DATED 11/06/2015
ISSUED BY THE 2ND RESPONDENT TO THE
PETITIONERS.
EXHIBIT P5 TRUE COPY OF THE REPLY SUBMITTED BY THE
PETITIONER TO THE 2ND RESPONDENT DATED
12/06/2015.
EXHIBIT P6 TRUE COPY OF THE NOTICE FROM THE 2ND
RESPONDENT DATED 18/06/2015 TO THE
PETITIONERS.
EXHIBIT P7 TRUE COPY OF THE STOP MEMO DATED 25/09/2015
FROM THE 2ND RESPONDENT.
EXHIBIT P8 TRUE COPY OF THE REPORT OF THE ADDITIONAL
TAHSILDAR DATED 16/2/2016 ALONG WITH THE
SURVEY SKETCH DATED 3/12/2015
EXHIBIT P9 TRUE COPY OF THE FIRE SAFETY CLEARANCE FOR
SITE DATED 29/09/2016.
EXHIBIT P10 TRUE COPY OF THE APPLICATION BY THE
PETITIONERS TO THE 2ND RESPONDENT DATED
14/10/2016 FOR CONTINUATION OF CONSTRUCTION
EXHIBIT P-2 BUILDIG PERMIT.
EXHIBIT P11 TRUE COPY OF THE APPLICATION BY THE
PETITIONERS' TO THE 2ND RESPONDENT DATED
29/08/2017 ALONG WITH THE RESPECT OF
ACKNOWLEDGMENT
EXHIBIT P12 TRUE COPY OF THE APPLICATION ALONG WITH THE
COVERING LETTER FILED BY THE PETITIONER
WP(C).No.9657 OF 2019(F)
BEFORE THE SECOND RESPONDENT DATED
22/01/2019
EXHIBIT P13 TRUE COPY OF THE APPLICATION WITH THE
COVERING LETTER FILED BY THE PETITIONER
BEFORE THE SECOND RESPONDENT DATED
25/02/2019.
EXHIBIT P14 ORIGINALS OF THE PHOTOGRAPHS OF THE
CONSTRUCTION SITE OF THE PETITIONERS' TAKEN
IN THE MONTH OF FEBRUARY.
//TRUE COPY//
PA TO JUDGE
