Georgekutty O.T vs State Of Kerala
2021 Latest Caselaw 22100 Ker

                IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                PRESENT
            THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN
    FRIDAY, THE 5TH DAY OF NOVEMBER 2021 / 14TH KARTHIKA, 1943
                        WP(C) NO. 15147 OF 2021
PETITIONER/S:

    1     GEORGEKUTTY O.T,
          AGED 51 YEARS,
          S/O THOMAS, OLICKAL HOUSE, VAZHOOR, VAZHOOR VILLAGE,
          CHANGANACHERY TALUK, KOTTAYAM-686 504.

    2     MINI VIJAYAN,
          W/O PURUSHOTHAMAN, AGED 43 YEARS, PANDIMACKAL HOUSE,
          VAZHOOR, VAZHOOR VILLAGE, CHANGANACHERY TALUK-686 504.

          BY ADVS.
          GEORGE MATHEW
          PRAVEEN S.
          ELSA DENNY PINDIS
          M.D.SASIKUMARAN
          SUNIL KUMAR A.G
          DIPU JAMES
          MATHEW K.T.
          GEORGE K.V.
          STEPHY K REGI


RESPONDENT/S:

    1     STATE OF KERALA REPRESENTED BY ITS SECRETARY, LOCAL
          SELF GOVERNMENT DEPARTMENT., GOVERNMENT SECRETARIAT,
          THIRUVANANTHAPURAM-695 001.

    2     VAZHOOR GRAMA PANCHAYATH, REP BY ITS SECRETARY, GRAMA
          PANCHAYATH OFFICE, VAZHOOR P.O.KOTTAYAM DISTRICT-686
          504.

    3     THE SECRETARY, VAZHOOR GRAMA PANCHAYATH, GRAMA
          PANCHAYATH OFFICE, VAZHOOR P.O.CHANGANACHERY TALUK,
          KOTTAYAM-686 504.

    4     PRADEESH KUMAR, S/O BALAKRISHNAN NAIR, AGED 43 YEARS,
          CHIRACKAL HOUSE, VAZHOOR EAST P.O.VAZHOOR VILLAGE,
          CHANGANACHERRY TALUK, KOTTAYAM-686 504.

          R1 BY SRI. APPU P.S., GP
          LIJI.J.VADAKEDOM
 WP(C) NO. 15147 OF 2021
                                      -2-

             TOM E. JACOB
             REXY ELIZABETH THOMAS


      THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION
ON   05.11.2021,   THE   COURT   ON    THE   SAME   DAY   DELIVERED   THE
FOLLOWING:
 WP(C) NO. 15147 OF 2021
                                 -3-



                          JUDGMENT

This writ petition is filed seeking the following reliefs:-

"i) to call for the records which lead to the issuance of Ext.P6 and to issue writ in the nature of certiorari or any other appropriate writ, order or direction, quashing the same;

ii) to issue a writ in the nature of mandamus or any other appropriate writ, order or direction commanding the 3rd respondent to assess and issue occupancy certificate to building constructed pursuant to Ext.P1 in the property covered by Ext.P2 within a time frame to be fixed by this Hon'ble Court;

iii) to grant such other reliefs or direction or order as this Hon'ble Court deems fit and proper to grant."

2. Heard learned Counsel for the petitioners, learned

Government Pleader as well as learned Counsel appearing for

respondents 2 and 3.

3. Though notice was taken out to the 4 th respondent, WP(C) NO. 15147 OF 2021

there is no appearance for the 4th respondent.

4. Learned Counsel for the petitioners submits that the

2nd petitioner is the owner in possession of 2.83 Ares of

property in Sy.No.236/2-7 of Vashoor Village, Changanassery

Taluk, Kottayam District. The 2nd petitioner had purchased the

property from the 1st petitioner. It is submitted that a building

permit had been obtained and the construction had been

carried out in the property, however, on the ground that there

is a suit pending between the 1 st petitioner and the 4th

respondent, the Panchayat has refused to consider the

application for occupancy certificate and for numbering the

building. Learned Counsel for the petitioners submits that, a

reading of Ext.P6 reply given by the Panchayat itself shows

that there is absolutely no justification in refusing to consider

the application for occupancy certificate and numbering the

building on the ground that there is a case pending between

the parties in a Civil Court. It is submitted that there is no

interdiction with regard to the consideration of the application

for occupancy certificate and for numbering of building in WP(C) NO. 15147 OF 2021

question and that the rejection of the application on the

ground of pendency of a Civil suit, is completely unjustifiable.

5. A detailed counter affidavit has been placed on record

by the 2nd and 3rd respondents. It is submitted there in that

the 1st petitioner has obtained Ext.P1 No Objection Certificate

for the construction of a building and a plan showing the

measurement of the site was also submitted. It is submitted

that the 4th respondent had submitted an objection before the

Panchayat stating that the building is constructed by

encroaching into his property. It is submitted that a

communication had been issued to the 1st petitioner to get the

boundaries of the property fixed by the revenue officials, as

evident from Exhibit R3(b). It is stated that the 4 th respondent

had also intimated that there is a civil case pending by and

between the parties. It is in the above circumstances that

Ext.P6 has been issued. It is further submitted that after filing

of the writ petition, an inspection had been conducted in the

site and notices of deviation from Exts.R3(a) and R3(c) had

been duly intimated to the petitioners. It is submitted that WP(C) NO. 15147 OF 2021

those proceedings will be finalized after giving the petitioners

an opportunity to produce the revised plan and permit in

accordance with law.

6. I have considered the contentions advanced on either

side. I am of the opinion that since the building had been

constructed on the basis of Ext.P1 No Objection Certificate

and Ext.R3(a) plan, the contention raised in Ext.P6 to the

effect that the request for occupancy certificate and

numbering of the building cannot be considered as long as a

Civil Suit is pending between the 1 st petitioner and the 4th

respondent, is untenable.

7. In the above view of the matter, Ext.P6 rejection is set

aside. There will be a direction to the 3 rd respondent to

proceed with the consideration of the application submitted by

the petitioners for completion certificate and occupancy

certificate and for numbering of the building and pass

appropriate orders in accordance with law, after hearing the

petitioners as well as the 4th respondent through any

appropriate means including video conferencing. Appropriate WP(C) NO. 15147 OF 2021

orders shall be passed within a period of one month from the

date of receipt of a copy of this judgment.

The writ petition is disposed of accordingly.

Sd/-

ANU SIVARAMAN JUDGE

uu 06.11.2021 WP(C) NO. 15147 OF 2021

APPENDIX OF WP(C) 15147/2021

PETITIONER EXHIBITS

Exhibit P1 TRUE COPY OF NO OBJECTION CERTIFICATE NO A3-3534/16 DATED 23.6.2016 ISSUED BY 3RD RESPONDENT

Exhibit P2 TRUE COPY OF TAX RECEIPT NO 05011405155/2020 DATED 14.7.2020

Exhibit P3 TRUE COPY OF PLAINT DATED 11.9.2018 IN OS NO 197 OF 2018 OF THE MUNSIFFS COURT, KANJIRAPALLY

Exhibit P4 TRUE COPY OF COMMISSION REPORT DATED 20.10.2018 IN EXT P3

Exhibit P5 TRUE COPY OF WRITTEN STATEMENT DATED 28.5.2020 FILED BY 1ST PETITIONER IN EXT P3 SUIT

Exhibit P6 TRUE COPY OF INTIMATION NO A3 3310/20 DATED 23.10.2020 ISSUED BY 3RD RESPONDENT TO 2ND PETITIONER

RESPONDENT EXHIBITS

Exhibit R3(A) TRUE COPY OF THE PLAN SUBMITTED BY THE 1ST PETITIONER FOR OBTAINING NO OBJECTION CERTIFICATE

Exhibit R3(B) TRUE COPY OF THE NOTICE DATED 06/09/2018 ISSUED BY THE 3RD RESPONDENT TO THE 1ST PETITIONER

Exhibit R3(C) TRUE COPY OF THE PLAN SUBMITTED ALONG WITH THE APPLICATION FOR THE COMPLETION CERTIFICATE