K.P.Ebrayi vs Thiruvallur Grama Panchayath
2021 Latest Caselaw 15739 Ker

         IN THE HIGH COURT OF KERALA AT ERNAKULAM
                           PRESENT
           THE HONOURABLE MR.JUSTICE N.NAGARESH
   FRIDAY, THE 30TH DAY OF JULY 2021 / 8TH SRAVANA, 1943
                  WP(C) NO. 962 OF 2021
PETITIONERS:

    1    K.P.EBRAYI,
         AGED 75 YEARS,
         S/O. ABDULLA, EDATHIL MEETHAL HOUSE,
         KOTTAPPALLY, VATAKARA,
         KOZHIKODE DISTRICT,PIN-676 507
    2    K.IBRAYI,
         AGED 60 YEARS,
         S/O. MAMMU, KOROTH HOUSE,
         KOTTAPPALLY, VATAKARA,
         KOZHIKODE DISTRICT, PIN-676 507

         BY ADVS.
         SRI.P.VENUGOPAL
         SMT.T.J.MARIA GORETTI
         SMT.FERHA AZEEZ


RESPONDENTS:

    1    THIRUVALLUR GRAMA PANCHAYATH,
         THIRUVALLUR-P.O., VATAKARA,
         KOZHIKODE DISTRICT, PIN-673 541,
         REPRESENTED BY ITS SECRETARY
    2    SECRETARY,
         THIRUVALLUR GRAMA PANCHAYATH,
         THIRUVALLUR -P.O., VATAKARA,
         KOZHIKODE DISTRICT, PIN-673 541

         BY ADVS.
         SRI.R.SURENDRAN
         KUM.S.MAYUKHA

     THIS WRIT PETITION     (CIVIL) HAVING COME UP         FOR
ADMISSION ON 30.07.2021,    THE COURT ON THE SAME          DAY
DELIVERED THE FOLLOWING:
 WP(C) No.962/2021
                                  :2 :



                        JUDGMENT

~~~~~~~~~

Dated this the 30th day of July, 2021

The writ petition has been filed by the petitioners

seeking to set aside Exts.P4 and P6 issued by the 2 nd

respondent and to declare that the petitioners are entitled to

deemed occupancy certificate in respect of the building

constructed as per Ext.P1 without permit.

2. The petitioners would state that they were issued

with Ext.P1 Building Permit on 03.12.2008 for construction of

a commercial building. The permit was extended up to

01.12.2017. The petitioners submitted a completion plan with

required papers on 29.11.2017 to the 2 nd respondent and

requested to issue Occupancy Certificate.

3. The respondents did not issue Occupancy

Certificate nor did send any reply to the petitioners in respect

of their application. However, subsequently, after nearly two

years, the application of the petitioners for Occupancy WP(C) No.962/2021

Certificate was rejected as per Ext.P4 communication dated

07.07.2019.

4. The Secretary to the Municipality also issued

Ext.P6 communication stating that unless defects are cured,

the respondents will be proceeding against the petitioner in

accordance with law.

5. Heard the learned counsel for the petitioners and

the learned counsel appearing for the Panchayat.

6. In Ext.P4, the respondents have enumerated five

defects/shortcomings. Ext.P4 would indicate that all those

shortcomings/defects pointed out by the Panchayat are for

violation of the Kerala Panchayat Building Rules, 2011. A

perusal of Ext.P1 would show that the permit was granted as

per the Kerala Municipality Building Rules, 1999. When the

Building Permit was issued under the Kerala Municipality

Building Rules, 1999, the petitioners are not expected to

comply with the provisions of the Kerala Panchayat Building

Rules, 2011 which were brought into effect subsequently. For

the said reason, Exts.P4 and P6 cannot stand the scrutiny of WP(C) No.962/2021

law.

7. Furthermore, the petitioners had submitted an

application for Occupancy Certificate on 29.11.2017. In view

of Rule 22(3), the petitioners would be eligible for Deemed

Occupancy Certificate within a period of 15 days unless the

respondents rejected the application. The respondents have

not rejected the application within the stipulated time and

therefore, it is to be presumed that the petitioners are entitled

to Deemed Occupancy Certificate.

8. However, as Exts.P4 and P6 are passed under the

Building Rules of 2011, those orders cannot be sustained.

Accordingly, Exts.P4 and P6 orders are set aside. The 2 nd

respondent-Secretary is directed to reconsider the issue and

pass appropriate orders in the light of the Kerala Municipality

Building Rules, 1999, in accordance with law, within a period

of two months.

Writ petition is disposed of as above.

Sd/-

N. NAGARESH, JUDGE

aks/02.08.2021 WP(C) No.962/2021

APPENDIX OF WP(C) 962/2021

PETITIONERS' EXHIBITS:

EXHIBIT P1 TRUE COPY OF THE BUILDING PERMIT VIDE NO.BA-504/08-09 DATED 03.12.2008 ISSUED BY THE SECOND RESPONDENT EXHIBIT P2 TRUE COPY OF THE RECEIPT ISSUED BY THE FIRST RESPONDENT TO THE PETITIONER DATED 08.10.2014 EXHIBIT P3 TRUE COPY OF THE ASSESSMENT ORDER DATED 28.01.2017 ISSUED BY THE ASSESSING AUTHORITY TO THE PETITIONERS EXHIBIT P4 TRUE COPY OF THE COMMUNICATION VIDE NO.B1-8982/17 DATED 07.07.2019 ISSUED BY THE SECOND RESPONDENT, ALONG WITH A LEGIBLE/TYPEWRITTEN COPY EXHIBIT P5 TRUE COPY OF THE REPRESENTATION DATED 03.08.2019 SUBMITTED BY THE FIRST PETITIONER TO THE SECOND RESPONDENT EXHIBIT P6 TRUE COPY OF THE COMMUNICATION DATED 02.03.2020 ISSUED BY THE SECOND RESPONDENT TO THE PETITIONERS

SR