Bindu Joseph vs The Corporation Of ...
2021 Latest Caselaw 10274 Ker

         IN THE HIGH COURT OF KERALA AT ERNAKULAM

                         PRESENT

         THE HONOURABLE MR. JUSTICE SHAJI P.CHALY

 FRIDAY, THE 26TH DAY OF MARCH 2021 / 5TH CHAITHRA, 1943

                WP(C).No.26999 OF 2011(Y)

PETITIONERS:

     1     BINDU JOSEPH
           W/O.JOSEPH,
           RESIDING AT CHETTUPUZHA VEEDU,
           IYYATTIL, HOSPITAL JUNCTION,
           KOCHI 682 016.

     2     BEENA THOMAS
           W/O.THOMAS,
           RESIDING AT PATTARA PUTHEN VEEDU,
           MUHAMMA,ALAPPUZHA.
           (THE PETITIONERS ARE REPRESENTED BY
           THEIR POWER OF ATTORNEY HOLDER A.V.JOSE,
           S/O.PUDUSSERY ALUKKA VARGHESE,RESIDING AT,
           ALUKKA HOUSE, ARISTO ROAD,THRISSUR).

           BY ADVS.
           SRI.T.C.SURESH MENON
           SRI.P.S.APPU
           SRI.C.A.ANOOP
           SRI.K.JAJU BABU (SR.)
           SRI.JIBU P THOMAS

RESPONDENTS:

     1     THE CORPORATION OF THIRUVANANTHAPURAM
           REPRESENTED BY ITS SECRETARY,
           CORPORATE OFFICE,
           THIRUVANANTHAPURAM 695 001.

     2     THE ASSISTANT TOWN PLANNING OFFICER
           CORPORATION OF THIRUVANANTHAPURAM,
           CORPORATION OFFICE,
           THIRUVANANTHAPURAM 695 001.
   W.P,(C).26999/2011
                               2

      3        THE HEALTH INSPECTOR
               OFFICE OF THE HEALTH INSPECTOR,
               CORPORATION OFFICE,
               CHALAI CIRCLE,
               THIRUVANANTHAPURAM 695 001.

      4        THE STATE OF KERALA
               REPRESENTED BY THE SECRETARY TO LOCAL SELF,
               GOVERNMENT INSTITUTIONS,
               SECRETARIAT,THIRUVANANTHAPURAM 695 001.

               R1 BY ADV. SRI.P.K.MANOJKUMAR
               R1 BY ADV. SRI.N.NANDAKUMARA MENON (SR.)

     THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD
ON 26-03-2021, THE COURT ON THE SAME DAY, DELIVERED THE
FOLLOWING:
    W.P,(C).26999/2011
                                      3



                               JUDGMENT

Dated this the 26th day of March, 2021

This writ petition is filed by the petitioner seeking to issue a writ of

mandamus directing the Secretary of Thiruvananthapuram Corporation

to renew Ext.P2 building permit, issued as per the Kerala Municipality

Building Rules, 1999 and the Kerala Municipality Act, 1994, as it stood

before amendment and issue Occupancy Certificate.

2. Material facts for the disposal of the writ petition are as follows:

Petitioners were granted permit to construct the building after complying

with the formalities evident from Ext.P2 building permit. According to

the petitioners, construction of the building was complete during

January, 2007 and during the currency of the building permit. However,

the case projected is that no one came forward to occupy the

commercial complex and thereafter a dispute arose with a stranger in

regard to the right of way to the property. According to the petitioners,

they are now armed with a concurrent decree of civil court granting

injunction, restraining the stranger from interfering with the right of way

to the property in question. It is also stated that the building was let out

to a large commercial cloth merchant. The fact remains, though the W.P,(C).26999/2011

construction was completed within the validity period of the permit, no

application was submitted seeking Occupancy, which complicated the

issue. Thereupon, the building was not numbered by the Corporation.

It is thereupon the petitioners have approached this Court by filing the

writ petition.

3. Learned Senior Counsel for the Corporation submitted that in

fact an application was submitted by the petitioner seeking extension of

the building permit, which according to the petitioners, was for the

purpose of numbering the building.

4. Be that as it may, it is an admitted fact that Completion

Certificate was not submitted before the Secretary, along with

necessary documents and application for securing occupancy

certificate. It is under the said constrained circumstances, appropriate

orders are sought for in this writ petition, which are as follows:

"i) issue a writ in the nature of mandamus directing the respondents to renew Ext.P12 building permit issued as per the Kerala Municipality Building Rules as it stood before amendment and issue Occupancy Certificate;

ii) declare that the amendment to the Kerala Municipality Building Rules which comes into force with effect from 21.6.2010 does not apply to the renewal of Ext.P2 building permit issued as early as on 26.5.2004;

W.P,(C).26999/2011

iii) issue a writ in the nature of mandamus directing the respondents to issue a renewed building permit within a period of two weeks on payment of compounding fee as per the Rules before amendment;

iv) issue a writ in the nature of mandamus directing the first respondent to assign a provisional door number to the premises covered by Ext.P2 building permit pending disposal of the writ petition."

5. I have heard learned Senior Counsel for the petitioners Sri. K.

Jaju Babu, assisted by Adv. Sri. T.C. Suresh Memon, learned Senior

Counsel appearing for the Thiruvananthapuram Corporation Mr. N.

Nandakumara Menon assisted by Smt. Smitha S. Pillai and perused the

pleadings and material on record.

6. When a building permit is secured from the statutory authority

in contemplation of any law, after completion of the construction, it is a

mandatory requirement that an application has to be submitted seeking

Occupancy Certificate by producing Completion Certificate and other

attendant documents. Here is a case where petitioners admit that the

application for occupancy was not submitted before the Secretary.

However, an application was filed seeking extension of the building

permit, which according to the petitioner was for the purpose of W.P,(C).26999/2011

submitting application for occupancy and securing building number.

7. Since it is a mandatory requirement under law, as is

contemplated under the Kerala Municipality Building Rules, 1999 and as

per the new Kerala Municipality Building Rules 2019, petitioners

necessarily will have to submit an application for occupancy. When this

writ petition was admitted to the files of this Court, and interim order was

passed directing the Secretary of the Thiruvananthapuram Corporation

to provisionally number the building. I am informed that in compliance

of the direction, the building was provisionally numbered and UA

number is assigned. Whatever that be, learned Senior Counsel

appearing for the petitioner submitted that the petitioners are prepared

to submit application seeking occupancy along with all attendant

documents.

8. I have gone through Rule 92 of the Rules 2019, whereby

power is conferred on the Secretary of the Corporation to regularise any

construction carried out, however, without violating the rules. The said

rule reads thus:

"92. Power of the Secretary to regularise certain constructions.-- The Secretary shall have the power to regularise construction or reconstruction or addition or alteration of any building or digging of any well or telecommunication tower or any structure or land W.P,(C).26999/2011

development or any other work for which permission of the Secretary is necessary under this rule commenced, being carried on or completed without obtaining approved plan or in deviation of the approved plan:

Provided that such work shall not be in violation of any of the provisions of the Act or these rules.

Provided that permit may be granted for continuing works already commenced without obtaining permit after levying fee equivalent to the compounding fee for regularization as per these rules for such part already constructed and permit fee for the remaining unconstructed part;

Provided further that such power shall not relieve the Secretary of his responsibility in detecting and preventing such work and in taking other actions as per these rules:

Provided also that where the work was commenced, being carried on or completed after the statutory period specified in rules 14, 49(6), 70 or 87 and as per rules, such work shall be considered as duly permitted and not one requiring regularisation. "

9. That apart, Rule 15 of the Rules 2019 deals with extension and

renewal of period of permits. Sub Rule (4) thereto empowers the

Secretary, if he deems fit to grant renewal for a period of five years on

application submitted after the expiry of the permit, subject to the W.P,(C).26999/2011

condition that the total period of validity of permit from the date of issue

of original permit shall not exceed ten years. But the proviso thereto

clearly specifies that in case the permits needs to be renewed beyond

the period of ten years, the applicant shall submit an application in

writing to the committee constituted under Chapter IX of the Rules 2019,

within three years from the date of expiry of the permit and the

committee may after having satisfied with the genuineness of the

application, recommend for renewal of the permit once with or without

condition, as he deems fit. Therefore, on a conjoint reading of Rule 15

as well as Rule 19, it is quite clear and evident that the Secretary is

vested with ample power to entertain any application for occupancy

even at this belated point of time and pass appropriate orders bearing in

mind the fact that the building permit has expired some time back.

10. In that view of the matter, this writ petition is disposed of

leaving open liberty of the petitioner to file suitable application in terms

of law, before the Secretary of the Corporation and if any such

application is submitted along with requisite documents within a month

from the date of receipt of a copy of this judgment, it shall be considered

in accordance with law and the observations made above, at the

earliest and at any rate within a period of two months thereafter. In that

process, the Secretary may also take into account Ext.P9 Government W.P,(C).26999/2011

Order dated 23.5.2005, apparently passed under similar circumstances.

Till such orders are passed, interim order granted by this Court will

continue to be in force.

Sd/-

Shaji P. Chaly, Judge sou.

W.P,(C).26999/2011

APPENDIX

PETITIONER'S EXHIBITS

EXHIBIT P1 TRUE COPY OF THE POSSESSION CERTIFICATE ISSUED BY THE VILLAGE OFFICER, MANACAUD DATED 17.7.2020

EXHIBIT P2 TRUE COPY OF THE BUILDING PERMIT ISSUED BY THE FIRST RESPONDENT DATED 26.5.2004.

EXHIBIT P3 TRUE COPY OF THE REPRESENTATION SUBMITTED BY THE PETITIONERS DATED 7.6.2010

EXHIBIT P4 TRUE COPY OF THE NOTICE ISSUED BY THE THIRD RESPONDENT DATED 24.7.2010.

EXHIBIT P5 TRUE COPY OF THE REPRESENTATION SUBMITTED BY THE PETITIONERS DATED 4.8.2010

EXHIBIT P6 TRUE COPY OF THE JUDGMENT IN W.P(C). NO.

25763/2010 ON THE FILE OF THIS HONOURABLE COURT DATED 31.1.2011.

EXHIBIT P7 TRUE COPY OF THE LEGAL OPINION OBTAINED BY THE PETITIONERS UNDER THE RIGHT TO INFORMATION ACT DATED 10.6.2011.

// TRUE COPY//

P.A. TO JUDGE