Jewel Homes Pvt. Ltd vs Kottayam Municipality And Others
2021 Latest Caselaw 21290 Ker

W. P. (C) No. 29686 of 2010 -1-


         IN THE HIGH COURT OF KERALA AT ERNAKULAM
                          PRESENT
         THE HONOURABLE MR. JUSTICE SHAJI P.CHALY
 FRIDAY, THE 29TH DAY OF OCTOBER 2021 / 7TH KARTHIKA, 1943
                  WP(C) NO. 29686 OF 2010
PETITIONER/S:

         JEWEL HOMES (P)PVT. LTD.
         REPRESENTED BY ITS MANAGING DIRECTOR, P.A.JIHAS,,
         CASAGRANITE BUILDING, KALOOR, KOCHI-682 017.
         BY ADVS.
         SRI.K.R.VINOD
         SMT.M.S.LETHA


RESPONDENT/S:

    1    KOTTAYAM MUNICIPALITY,
         REPRESENTED BY ITS SECRETARY,, KOTTAYAM - 686
         001.
    2    SECRETARY
         KOTTAYAM MUNICIPALITY,, KOTTAYAM - 686 001.
    3    M.MADHU SO.MADHAVAN
         PUTHENPURACKAL,, NAGAMPADAM, KOTTAYAM DISTRICT -
         686 001.
 ADDL. 4 DIVISIONAL OFFICER
         FIRE & RESCUE SERVICES, KOTTAYAM - 686 001.
         IMPLEADED AS ADDITIONAL 4TH RESPONDENT AS PER
         ORDER DATED 20.08.2015 IN IA 10083 OF 2015
 ADDL. 5 DIRECTOR GENERAL/COMMANDANT GENERAL
         FIRE AND RESCUE SERVICES, THIRUVANANTHAPURAM -
         695 001.
         IMPLEADED AS ADDITIONAL 5TH RESPONDENT AS PER
         ORDER DATED 17.09.2015 IN IA 13390 OF 2015
         BY ADVS.
         SRI.S.RANJIT (KOTTAYAM), SC, KOTTAYAM
         MUNICIPALITY
         SRI.GEORGE VARGHESE KIZHAKKAMBALAM
         SRI.B.PREMNATH E
         SRI.PHILIP J.VETTICKATTU
         SRI.V.RAJENDRAN PERUMBAVOOR
         SRI.SIBY MATHEW
         SRI.SIBY CHENAPPADY,SC FOR R1
         SRI.JACOB E SIMON, GP FOR R4 AND R5
 W. P. (C) No. 29686 of 2010 -2-


     THIS   WRIT   PETITION    (CIVIL)   HAVING   COME    UP    FOR
ADMISSION   ON   29.10.2021,   THE   COURT   ON   THE    SAME   DAY
DELIVERED THE FOLLOWING:
 W. P. (C) No. 29686 of 2010 -3-


                          JUDGMENT

This writ petition is filed by a company incorporated under the

Companies Act, 1956 and is engaged in construction of multistoried

buildings.

2. Apparently, the petitioner had secured by way of assignment a

parcel of property and a building permit for construction of a

multistoried building complex from one M.K Murali and Dr M.K.

Geetha, issued by the Kottayam Municipality, however the building

construction was apparently interfered with by various court

proceedings at different stages. Anyhow, ultimately on the basis of the

directions issued by this Court in Ext. P21 judgment dated 18.06.2010

in W. P. (C) No. 36207 of 2009, the Secretary of the Municipality has

considered the issues raised by the petitioner company in the matter of

construction of the building and has passed Ext. P22 order dated

08.09.2010, interdicting further constructions on the basis of the

building permit assigned in favour of the petitioner.

3. The reason for interdiction with the permit issued was that the

width of the access road to enter into the building complex at two

points near to a cross tower were only 4.50 meters and 4.65 meters,

whereas the rule requirement as per the Kerala Municipality Building

Rules, 1999 is 5 meters. It is thus challenging Ext. P22 order passed

by the Secretary of the Municipality, this writ petition is filed.

4. The 3rd respondent, namely one M. Madhu, Puthenpurackal,

Nagampadam, Kottayam, has filed a counter affidavit basically

justifying the stand adopted by the Municipality. Apparently, the said

person seems to be the complainant against the construction carried

out by the petitioner.

5. Anyhow, when the matter came up for admission before this

Court on 20.12.2010, an interim order was passed by a learned Single

Judge of this Court permitting the petitioner to proceed with the

construction of the building, after staying the operation of the stop

memo issued by the Secretary of the Municipality, but with a rider that

the construction, if any made by the petitioner, would be subject to the

outcome of the writ petition, and at the risk and cost of the petitioner.

6. The said interim order was taken in appeal before the

Division Bench of this Court in W. A. No. 130 of 2011 by the 3 rd

respondent, i.e. Sri. M. Madhu, which was dismissed by the Division

Bench as per judgment dated 11.02.2011. Anyhow, during the

pendency of the writ petition, various interim orders were passed by

this Court and in I. A. No. 10084 of 2015, the following order was

passed on 21.08.2015:-

"Heard. Allowed.

2. The additional 4th respondent is directed to issue NOC in respect of the building constructed on the basis of Ext.P1 building permit within two weeks from today.

3. The learned counsel for the 3rd respondent submits that the construction undertaken by the petitioner is illegal and the proceedings are being initiated against the petitioner.

4. Therefore, it is made clear that the grant of NOC will not stand in the way of the authorities concerned in proceeding against the petitioner if the construction offends the permit or any law for the time being in force.

5. In the event of production of the NOC as stated above, the respondent Municipality shall consider the application for numbering the building within 2 weeks from today and issue provisional occupancy certificate if the same is otherwise in order. This shall be after affording the petitioner and the 3 rd respondent an opportunity of being heard." The NOC referred to in the order above is the clearance to be issued by the fire and rescue authority i.e. the Divisional Officer Fire and Rescue Services, Kottayam.

7. I have heard learned counsel for the Municipality Sri. Siby

Chanappady and learned Government Pleader Sri. Jacob E. Simon and

perused the pleadings and material on record.

8. A detailed deliberation of the matter is not required,

consequent to the developments that have taken place subsequent to

the filing of the writ petition. First of all, after the interim order

extracted above, the Fire and Rescue Authority had issued an NOC in

favour of the petitioner. That apart, by virtue of the interim order,

according to the learned Standing Counsel for the Municipality, the

construction was completed, UA numbers are given in terms of the

provisions of the Kerala Municipality Act 1994, and the buildings are

being occupied by the persons who have purchased the apartments.

9. It is also submitted that after the construction, a completion

certificate along with plan and other documents were submitted before

the Secretary of the Municipality and the Secretary is in the process of

adjudicating the issues on the basis of the completion plan, certificate

and all other attendant documents.

10. That apart, learned Standing Counsel submitted that on

04.06.2021, the petitioner was directed to rectify certain defects, and

the response is awaited. It is also submitted that subsequent to the

filing of this writ petition, the railway has acquired certain properties

by which the width of the road has increased considerably, thus

satisfying the building rule requirement for minimum width of 5

meters for the access road.

11. Taking into account the above said aspects, I am of the

considered opinion that the writ petition can be disposed of recording

the above and issuing suitable directions. The submissions as above

are recorded.

12. The Secretary of the Kottayam Municipality is directed to

attain finality to the proceedings pursuant to the completion certificate

and all other attendant documents submitted by the petitioner or

hereafter submitted, at the earliest, and at any rate within three months

from the date of receipt of a copy of this judgment, after providing a

notice of hearing to the builder and the apartment owners association

of the apartment in question.

The parties would be guided by the orders passed by the

Secretary, in accordance with the directions as above.

Sd/-

SHAJI P. CHALY JUDGE Eb

///TRUE COPY/// P. A. TO JUDGE

APPENDIX OF WP(C) 29686 OF 2010

PETITIONER EXHIBITS

EXHIBIT P1 TRUE COPY OF THE BUILDING PERMIT ISSUED BY THE 2ND RESPONDENT EXHIBIT P2 TRUE COPY OF THE RECEIPT EVIDENCING PAYMENT OF PERMIT FEE EXHIBIT P3 TRUE COPY OF THE SITE PLAN OF THE PROPERTY ILLUSTRATING THE ROADS LEADING TO THE SITE EXHIBIT P4 TRUE COPY OF THE NOTICE ISSUED BY THE 1ST RESPONDENT EXHIBIT P4(A) TRUE COPY OF THE REPLY GIVEN BY THE LAND OWNERS EXHIBIT P5 TRUE COPY OF THE ORDER OF THE 2ND RESPONDENT EXHIBIT P6 TRUE COPY OF THE JUDGMENT ISSUED BY THE TRIBUNAL FOR LOCAL SELF GOVERNMENT INSTITUTIONS, THIRUVANANTHAPURAM IN APPEAL NO. 69 OF 2008 EXHIBIT P7 TRUE COPY OF THE JUDGMENT OF THIS HON'BLE COURT IN W.P.(c) NO. 14826 OF 2008 EXHIBIT P8 TRUE COPY OF THE ORDER OF THE TRIBUNAL IN APPEAL NO. 69 OF 2008 EXHIBIT P9 TRUE COPY OF THE COMPLAINT FILED BEFORE THE OMBUDSMAN FOR LOCAL SELF GOVERNMENT INSTITUTIONS EXHIBIT P10 TRUE COPY OF THE ORDER OF THE OMBUDSMAN FOR LOCAL SELF GOVERNMENT INSTITUTIONS EXHIBIT P11 TRUE COPY OF THE PROCEEDINGS OF THE 2ND RESPONDENT EXHIBIT P12 TRUE COPY OF THE ORDER ISSUED BY THE TRIBUNAL FOR LOCAL SELF GOVERNMENT INSTITUTIONS, THIRUVANANTHAPURAM IN APPEAL NO. 239 OF 2009 EXHIBIT P13 TRUE COPY OF THE NOTICE ISSUED BY THE 2ND RESPONDENT EXHIBIT P14 TRUE COPY OF THE JUDGMENT OF THIS HON'BLE COURT IN W.P. (c) 6455 OF 2009 EXHIBIT P15 TRUE COPY OF THE ORDER OF THE OMBUDSMAN FOR LOCAL SELF GOVERNMENT INSTITUTIONS EXHIBIT P16 TRUE COPY OF THE LETTER OF THE PETITIONER EXHIBIT P17 TRUE COPY OF THE REMINDER SEND BY THE PETITIONER.

EXHIBIT P18 TRUE COPY OF THE NO OBJECTION CERTIFICATE FROM THE COMMANDANT GENERAL, FIRE AND RESCUE SERVICES HEAD QUARTRS, THIRUVANANTHAPURAM EXHIBIT P18(A) TRUE COPY OF THE CONSENT FROM KERALA STATE POLLUTION CONTROL BOARD

EXHIBIT P19 TRUE COPY OF THE COUNTER AFFIDAVIT FILED BY THE RESPONDENTS 1 AND 2 IN W.P. (c) No. 36207 of 2009 EXHIBIT P20 TRUE COPY OF THE APPLICATION UNDER RIGHT TO INFORMATION ACT EXHIBIT P20(A) TRUE COPY OF THE REPLY TO APPLICATION EXHIBIT P21 TRUE COPY OF THE JUDGMENT IN W.P. (c) 36207 OF 2009 EXHIBIT P22 TRUE COPY OF THE ORDER OF RESPONDENT