Brinda Suresh vs The Thiruvananthapuram ...
2021 Latest Caselaw 20821 Ker

               IN THE HIGH COURT OF KERALA AT ERNAKULAM
                               PRESENT
                 THE HONOURABLE MR.JUSTICE N.NAGARESH
    WEDNESDAY, THE 6TH DAY OF OCTOBER 2021 / 14TH ASWINA, 1943
                        WP(C) NO. 7489 OF 2019
PETITIONER:

          BRINDA SURESH,
          AGED 58 YEARS,
          W/O.LATE SURESH K.BABU, T.C.4/1248,
          THAYIL MANA, KBR-10, KOWDIAR P.O.,
          THIRUVANANTHAPURAM - 695 003,
          REPRESENTED BY POWER OF ATTORNEY HOLDER
          R.JOTHIRAJ, AGED 40 YEARS,
          COMPANY EXECUTIVE,
          S/O.A.RAMARAJAN, RESIDING AT T.C.39/1313,
          CHALAI, CHALAI P.O., THIRUVANANTHAPURAM - 695 036.

          BY ADVS.
          SRI.R.S.KALKURA
          SRI.M.S.KALESH
          SRI.HARISH GOPINATH
          SMT.R.BINDU
          SMT.P.ANJANA
          SRI.JOHNSON JOSE PANJIKKARAN
          SRI.P.I.NAJUMAL HUSSAIN
          SMT.NEENU PAVITHRAN
          SRI.R.HARIKRISHNAN (KAMBISSERIL)
          SRI.NIKHEL K GOPINATH


RESPONDENTS:

    1     THE THIRUVANANTHAPURAM CORPORATION,
          REPRESENTED BY ITS SECRETARY,
          CORPORATION BUILDING,
          THIRUVANANTHAPURAM - 695 033.
    2     THE SECRETARY,
          THIRUVANANTHAPURAM CORPORATION,
          CORPORATION BUILDING,
          THIRUVANANTHAPURAM - 695 033.

          BY ADVS.
          SRI.N.NANDAKUMAR MENON (SR.)
          SRI.P.K.MANOJKUMAR, SC, TVPM CORPORATION

     THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
06.10.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 WP(C).No.7489/2019

                                    2




                            JUDGMENT

Dated this the 6th day of October, 2021

The petitioner along with her late husband

possessed 44.160 Cents of land in Kowdiar Village within the

territorial limits of Thiruvananthapuram Corporation. The

petitioner has approached this Court seeking to quash Exts.P7

and P9 and to direct the 1st respondent-Thiruvananthapuram

Corporation to collect such amount from the petitioner as was

applicable as per Rules in respect of the omitted FAR at the

rate prescribed at the time for submission of plan for approval.

2. The petitioner propose to construct an Apartment

Complex having 20 floors plus 2 basement floors. Ext.P1

Building Permit was issued to the petitioner in the year 2007. WP(C).No.7489/2019

The petitioner wanted to revise the Building Plan and an

application was submitted on 05.11.2012 for revising the

building plan. By the proposed revision the petitioner wanted

to reduce the number of floors from 20 to 14. The petitioner

completed the construction and submitted a completion plan

on 10.06.2013.

3. The respondents refused to issue Occupancy

Certificate. Thereupon the petitioner approach the Tribunal for

Local Self Government Institutions filing Appeal No.414 of

2014. The Tribunal dismissed the appeal and directed the

petitioner to file an application for regularisation of the alleged

unauthorised construction. Aggrieved by Ext.P4 appeal, the

petitioner filed W.P.(C) No.31811 of 2015. This Court in Ext.P5

judgment found that there is no reason to think that the

petitioner has not acquired any deemed permit as claimed by

the petitioner and that there is no requirement of an application

for regularisation as directed by the Tribunal, in view of the

proviso to Rule 16 of the Rules. Accordingly, Ext.P4 order of WP(C).No.7489/2019

the Tribunal was quashed.

4. This Court taking into consideration the factual

circumstances of the case directed the 2 nd respondent to issue

a notice of demand if at all any fee is due with respect to any

additional area on the basis of the revised FAR calculation,

within 15 days from the date of receipt of a copy of a

judgment, failing which it was directed that if the petitioner is

not liable to pay any amount, the petitioner shall be issued

Occupancy Certificate and the Building shall be numbered in

accordance with law.

5. Pursuant to Ext.P5 judgment, the 1 st respondent

issued Ext.P6 demand to the petitioner requiring to pay an

amount of Rs.10,62,480/-. Ext.P6 was issued on 16.08.2017.

On 23.11.2018, the Secretary again issued Ext.P7 notice

wherein the amount claimed was reduced to Rs.9,38,259/-.

The petitioner is aggrieved by this demand.

6. The petitioner submits that the demand has been

made taking into consideration the revised FAR rates. WP(C).No.7489/2019

According to the petitioner, in the year 2007, when the Building

Permit was originally issued, the rate was only Rs.1000/- per

Square metre. In 2013, the rate was enhanced to Rs.3000/-

and again in the year 2017 it was enhanced to Rs.5000/- per

Square metre. The learned counsel for the petitioner

submitted that the petitioner is liable to pay fees only at the

rates as was available in the year 2007.

7. It was stated that this Court in Ext.P5 judgment has

held that there is no requirement of any regularisation of the

construction as this Court found that the petitioner had

acquired deemed licence for the construction. The petitioner

further urged that till date, apart from the above demand, the

petitioner has not been served with any notice of any illegal

construction whatsoever. In the circumstances, the

respondents are liable to recompute the amount due from the

petitioner and pass fresh orders. Furthermore, since there is

no violation of Building Plan or Permit conditions, the petitioner

is entitled to get Occupancy Certificate and also to get the WP(C).No.7489/2019

Building numbered by the respondents.

8. The 1st respondent entered appearance and

contested the writ petition. The 1 st respondent stated that the

petitioner has constructed a Multi Storied Building and the

petitioner has deposited an amount of Rs.9,38,259/- on

26.04.2019 during the pendency of this writ petition. The

petitioner has not produced the Final Fire NOC and NOC of

the Airport Authority. The petitioner was required to produce

those documents which have not been produced so far. When

petitioner has failed to produce Final Fire NOC and NOC of

the Airport Authority, the respondents are justified in not

issuing Occupancy Certificate.

9. The 1st respondent further submitted that a local

inspection was conducted by the Officers of the Engineering

Department on the basis of the plan submitted by the

petitioner and it was found that the construction of the building

has been made by petitioner in violation of the Kerala

Municipality Building Rules, 1999. The Engineering WP(C).No.7489/2019

Department noted 10 defects as stated in paragraph 9 of the

statement. The first respondent however submitted that once

the defects are cured by the petitioner, his application for

Occupancy Certificate and numbering the building can be

considered.

10. I have heard the learned counsel for the petitioner

and the learned Senior Counsel assisted by the Standing

Counsel for the 1st respondent.

11. From the pleadings and arguments, it is evident that

the petitioner had obtained a Building Permit for construction

of an Apartment Complex having 20 floors and 2 basement

floors in the year 2007. The petitioner submitted a revised

Building Plan in the year 2012 reducing the number of over

ground floors to 14. The building construction was completed

on 10.06.2013. When the respondents desisted from issuing

Occupancy Certificate, the petitioner approached the Tribunal

for Local Self Government Institutions. The Tribunal dismissed

the Appeal filed by the petitioner. When the petitioner WP(C).No.7489/2019

approached this Court challenging the order of the Tribunal,

this Court as per Ext.P5 judgment found that the petitioner

holds deemed licence for construction of the Building as per

the revised plan. This Court categorically found that in such

circumstances the question of regularisation of the

construction does not arise. The said judgment has not been

challenged and it has become final. Therefore, the

respondents cannot take any stand contrary to the findings of

this Court in Ext.P5 judgment.

12. While the facts being so, the only issue remaining is

on the rates applicable for levying FAR fee from the petitioner.

According to the petitioner, the rate of FAR applicable was

Rs.1000/- per Square meter which was subsequently

enhanced to Rs.3000/- in the year 2013 and to Rs.5000/- in

2017. According to the learned counsel for the petitioner, the

rates have to be taken as they existed as on the date of

submission of the application. From Exts.P6 and P7 it is not

discernible whether the Secretary has considered the legality WP(C).No.7489/2019

of levying a compounding fee from the petitioner as per the

revised rates. This is because as already held in Ext.P5

judgment that there is no question of regularisation of the

Building in so far as the construction made by the petitioner is

concerned. In such circumstances, this Court is of the

considered opinion that the Secretary to the 1 st respondent-

Corporation has to reconsider Ext.P6 communication.

13. It has to be kept in mind that this is a Building, the

construction of which was started in 2007 and it is an

Apartment Complex having residential Units. Therefore, this

Court is of the opinion that in view of Ext.P5 judgment the

respondents are to be directed to issue Occupancy Certificate

without further delay to the petitioner and also grant numbers

to the apartment units.

In such circumstances, the writ petition is disposed

of directing the 2nd respondent to compute the amount to be

levied from the petitioner toward FAR fee after giving an

opportunity of hearing to the petitioner. The 2 nd respondent WP(C).No.7489/2019

shall issue Occupancy Certificate to the petitioner within a

period of one month and number the Buildings also. However,

it is made clear that if there are any variations from the revised

Building Plan, the respondents will be at liberty to proceed

against the petitioner and take such action as is permissible

under law. To enable the 2 nd respondent to recompute the

amount due from the petitioner, Exts.P6 and P7

communications are set aside.

Sd/-

N. NAGARESH JUDGE SR WP(C).No.7489/2019

APPENDIX OF WP(C) 7489/2019

PETITIONER'S EXHIBITS:

   EXHIBIT P1           TRUE COPY OF THE BUILDING PERMIT DATED
                        30/5/2007     ISSUED     BY     THE    FIRST

RESPONDENT IN FAVOUR OF THE PETITIONER AND HER HUSBAND.

EXHIBIT P2 TRUE COPY OF THE COMPLETION CERTIFICATE DATED 08/06/2013.

EXHIBIT P3 TRUE COPY OF THE APPLICATION FOR ASSESSMENT OF BUILDING TAX SUBMITTED BY THE PETITIONER BEFORE THE FIRST RESPONDENT.

EXHIBIT P4 TRUE COPY OF THE ORDER IN APPEAL NO.414 OF 2014 DATED 5/2/2015 ON THE FILE OF THE TRIBUNAL FOR LOCAL SELF GOVERNMENT INSTITUTIONS, THIRUVANANTHAPURAM.

EXHIBIT P5 TRUE COPY OF THE JUDGMENT DATED 9/11/2018 IN W.P.(C) NO.31811/2015 ON THE FILE OF THE HON'BLE HIGH COURT OF KERALA.

   EXHIBIT P6           TRUE COPY OF THE LETTER DATED 16/8/2017
                        ISSUED BY THE 1ST RESPONDENT TO THE
                        PRINCIPAL    SECRETARY      GOVERNMENT    OF
                        KERALA.
   EXHIBIT P7           TRUE    COPY    OF   THE     LETTER    DATED

23/11/2018 ISSUED BY THE RESPONDENT TO THE PETITIONER.

EXHIBIT P8 TRUE COPY OF THE STATEMENT FILED BY THE 1ST RESPONDENT IN COC NO.44/2019.

EXHIBIT P9 TRUE COPY OF THE ADDITIONAL STATEMENT FILED BY THE 1ST RESPONDENT IN COC NO.44/2019.

EXHIBIT P10 TRUE COPY OF THE GOVERNMENT ORDER NO.167/2014/LSGD DATED 27/09/2014.

EXHIBIT P11 THE RELEVANT PORTIONS OF THE KERALA MUNICIPALITY BUILDING RULES, 1999 AS IT STOOD BEFORE 21/6/2010 IN RESPECT OF THE TABLE PERTAINING TO COVERAGE AND FLOOR AREA.

WP(C).No.7489/2019

EXHIBIT P12 THE RELEVANT PORTIONS OF THE KERALA MUNICIPALITY BUILDING RULES, 1999 AS IT STOOD AS ON 21/06/2010 IN RESPECT OF THE TABLE PERTAINING TO COVERAGE AND FLOOR AREA.

EXHIBIT P13 THE RELEVANT PORTIONS OF THE KERALA MUNICIPALITY BUILDING RULES, 1999 AS IT STOOD AS ON 31/10/2017 IN RESPECT OF THE TABLE PERTAINING TO COVERAGE AND FLOOR AREA.

EXHIBIT P14 TRUE COPY OF THE FILE NOTINGS MAINTAINED IN THE FILE OF THE FIRST RESPONDENT PERTAINING TO THE BUILDING OF THE PETITIONER OBTAINED UNDER THE RIGHT TO INFORMATION ACT.

Exhibit P15 TRUE COPY OF THE RECEIPT BEARING NO.

0293049 DATED 26/04/2019 ISSUED BY THE RESPONDENT TO THE PETITIONER INDICATING DEPOSIT OF AN AMOUNT OF RS.938259/-

COVERED BY EXHIBIT-P7