Kerala High Court
Al-Ameen Educational Trust vs Kodungallur Municipality on 1 July, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE SHAJI P.CHALY
THURSDAY, THE 1ST DAY OF JULY 2021 / 10TH ASHADHA, 1943
WP(C) NO. 24850 OF 2015
PETITIONER:
AL-AMEEN EDUCATIONAL TRUST (REGD),
AGED 69 YEARS
EDAPPALLY, KOCHI-24, REPRESENTED BY ITS CHAIRMAN,
SRI.T.P.M.IBRAHIM KHAN.
BY ADV SRI.A.A.MOHAMMED NAZIR
RESPONDENT:
KODUNGALLUR MUNICIPALITY
MUNICIPAL OFFICE,P.O.KODUNGALLOOR, THRISSUR DISTRICT
680664, REPRESENTED BY ITS SECRETARY.
BY SRI.K.A.NOUSHAD
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
01.07.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
W.P.(C) No.24850/2015 2
JUDGMENT
This writ petition is filed by the petitioner seeking the following reliefs:
a) Issue a writ of mandamus and direct the respondent Municipality to
issue total Completion Certificate in respect of the school building
constructed by the petitioner in Sy.No.36/1 of Methala Village and
Occupancy Certificate in respect of the 1st floor of the said building after
numbering the same, ignoring Exhibit P9 communication.
b) Issue a writ of certiorari and quash Exhibit P9 notice.
c) Issue such other writ, order or direction which may be prayed for from
time to time and which this Hon'ble Court deem fit to grant.
2. Subject issue relates to construction of a building for conducting a public school
within the territorial limits of the Kodungallur Municipality. It is an admitted fact
that the ground floor of the building was completed by the petitioner and
accordingly completion certificate was submitted and consequent to the same,
Exhibit P6 occupancy certificate was issued by the Municipality, numbered the
building and received the property tax. However, after completing the construction
of the 1st floor, apparently during July, 2015, a completion certificate viz., Exhibit
P8 was submitted by the petitioner before the Secretary. However, on receipt of
the same, Exhibit P9 notice was issued by the Secretary of the Municipality,
basically stating that the completion certificate cannot be issued since the
property in question is a paddy field protected under the provisions of the Kerala
Conservation of Paddy land and Wetland Act, 2008. It is at this stage challenging
Exhibit P9 notice issued by the Secretary/Assistant Engineer of Kodungallur
Municipality, petitioner filed this writ petition.
3. When the matter was admitted to the files of this Court, an interim
direction was issued by the learned Single Judge to the respondent Municipality to
provisionally number the petitioner's additional construction and to issue a
provisional occupancy certificate within a period of two weeks, which shall be
subject to the final outcome of the writ petition. Petitioner has also filed I.A.No.1
of 2020 producing certain documents in order to impress upon this Court that
certain circulars are issued by the State Government, which would extend help to
the petitioner in the matter of Exhibit P9 notice issued by the Secretary of the
Municipality. Anyhow I am not going into the details of the matter.
4. I have heard learned counsel for petitioner Sri.A.A.Mohammed Nazir and
counsel for respondent Municipality Sri.K.A..Noushad, represented by Smt.Amrin
Fathima and perused the pleadings and materials on record.
5. On the basis of the submissions made above by counsel on either side,
I have gone through rule 22 of the Kerala Municipality Building Rules, 1999, which
reads thus:
"22. Completion certificate, development certificate and occupancy
certificate.- (1) Every owner shall, on completion of the development
redevelopment of land or construction or reconstruction or addition or
alteration of building, as per the permit issued to him, submit a completion
certificate certified and signed by him, to the Secretary in the form in
Appendix E: Provided that in the case of buildings, other than single
residential units up to two floors with total floor area not exceeding 150 sq.
meters, the completion certificate shall be certified and signed by the owner
and registered architect or engineer or supervisor also as in Appendix F. (2)
The Secretary shall, on receipt of the completion certificate and on being
satisfied that the development or redevelopment of land has been effected in
conformity with the permit given, issue a development certificate in the form
in Appendix G, not later than 15 days from the date of receipt of the
completion certificate: Provided that if no such development certificate is
received within the said fifteen days, the owner may proceed as if such a
development certificate has been duly issued to him. (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 not later than fifteen days from the date of receipt of the
completion certificate: Provided that if no such occupancy certificate is issued
within the said fifteen days, the owner may proceed as if such occupancy
certificate has been duly issued to him. (4) The owner of a building may if he
intends to occupy the building before its completion, apply to the Secretary
for that purpose and the Secretary shall, on being satisfied that such
occupancy will not endanger life issue occupancy certificate in respect of the
completed part. "
6. It is clear from the provision of law that when a completion
certificate is submitted by the owner of a building seeking occupancy
certificate, the Secretary is vested with ample powers to consider as to
whether there is any violation, before granting the occupancy certificate.
7. Therefore, taking into account the provision of law and the other
aspects put forth by the learned counsel for the petitioner and the arguments
advanced by the learned Standing Counsel for the Municipality, I am of the
considered opinion that, the petitioner ought to have filed a suitable objection
and participated in the proceedings, which is the appropriate way out to sort out
the issue.
8. Therefore, I think it is only appropriate that an opportunity is provided
to the petitioner to participate in the proceedings especially due to the fact that
the factual issues raised by the learned counsel for petitioner is disputed by the
Municipality by contending that after the issuance of Exhibit P9 notice the
petitioner has approached the Revenue Divisional Officer concerned seeking
suitable orders under the provisions of the Kerala Conservation of Paddy land
and Wetland Act, 2008 and the Revenue Divisional Officer has passed
appropriate orders.
9. Anyhow, I am not going into those details and the writ petition is
disposed of granting liberty to the petitioner to file suitable objection to Exhibit
P9 notice issued by the Municipality within a month from the date of receipt of a
copy of this judgment and a final decision shall be taken by the Secretary of the
Municipality at the earliest possible time and at any rate within a period of two
months thereafter. Since the interim order was granted by this Court and action
was taken by the Municipality in accordance with law, the interim order would
continue to be in force till a final decision is taken by the Municipality in
accordance with the directions contained above. Thereafter, the parties will be
guided by the orders so passed by the Secretary of the Municipality.
Sd/-
SHAJI P.CHALY
smv JUDGE
APPENDIX OF WP(C) 24850/2015
PETITIONER ANNEXURE
EXT.P1: TRUE COPY OF SALE DEED BEARING
NO.3367/2011 OF S.R.O KODUNGALLOOR.
EXT.P2: TRUE COPY OF SALE DEED BEARING
NO.4373/2011 OF S.R.O, KODUNGALLUR.
EXT.P3: TRUE COPY OF PRIOR TITLE DEED BEARING
NO.5209/2008.
EXT.P4: TRUE COPY OF PRIOR TITLE DEED BEARING
NO.5208/2008.
EXT.P5: TRUE COPY OF BUILDING PERMIT DATED
01/01/2014 ISSUED TO THE PETITIONER.
EXT.P6: TRUE COPY OF OCCUPANCY CERTIFICATE
DATED 10/11/2014 ISSUED BY THE KODUNGALLUR
MUNICIPALITY.
EXT.P7: TRUE COPY OF DEMAND NOTICE DATED
29/12/2014 FOR PROPERTY TAX IN RESPECT OF THE
GROUND FLOOR OF THE SCHOOL BUILDING.
EXT.P8: TRUE COPY FO THE COMPLETION
CERTIFICATE DATED 20/07/2015 SUBMITTED BY THE
PETITIONER BEFORE THE KODUNGALLUR
MUNICIPALITY.
EXT.P9: TRUE COPY OF THE NOTICE DATED
10/07/2015 ISSUED BY THE KODUNGALLUR
MUNICIPALITY TO THE PETITIONER.
EXHIBIT P10 TRUE COPY OF THE CERTIFICATE ISSUED BY THE
AGRICULTURAL OFFICER,METHALA.
EXHIBIT P11 TRUE COPY OF CIRCULAR DATED 13.8.2018 ISSUED
BY THE STATE GOVERNMENT
