Kerala High Court
International Society For ... vs Guruvayoor Municipality & Others on 29 October, 2021
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. 5625 OF 2010
PETITIONER/S:
INTERNATIONAL SOCIETY FOR KRISHNA CONSCIOUSNESS
ISKCON), BOM REG.NO.225/1970. KERALA CHAPTER-,
REPRESENTED BY THE PRESIDENT,-BHAKTI VINODA SWAMI,
AGED 52 YEARS, S/O. R.A NARASIMHAN, ISKCON,, HARE
KRISHNA LAND, WEST NADA, GURUVAYOOR.
BY ADVS.
SRI.K.ANAND (A.201)
SMT.LATHA KRISHNAN
RESPONDENT/S:
1 GURUVAYOOR MUNICIPALITY & OTHERS
GURUVAYOOR,, REPRESENTED BY ITS SECRETARY.
2 STATE OF KERALA SECRETARY
PUBLIC WORKS DEPT. SECRETARIAT,, THIRUVANANTHAPURAM.
3 STATE OF KERALA
REPRESENTED BY SECRETARY,, LOCAL SELF
GOVERNMENT,SECRETARIAT,, THIRUVANANTHAPURAM.
ADDL.4 THE EXECUTIVE ENGINEER, PUBLIC WORKS DEPARTMENT,
GURUVAYOOR.
*ADDL R4 IS IMPLEADED VIDE ORDER DT.2/9/10 IN IA
NO.11827/10.
CORRECTED ** THE ASSISTANT EXECUTIVE ENGINEER, PWD ROADS
DIVISION, PUBLIC WORKS DEPARTMENT, CHAVAKKAD - 680506
VIA GURUVAYOOR
*THE ADDRESS OF THE 4TH RESPONDENT IS CORRECTED VIDE
ORDER DT. 26/10/10 IN IA NO.14580/10
R1- SRI.P.A.AHAMED,SC SRI.M.SREEKUMAR
R2 R3 AND R4 - SRI.K.P.HARISH,SENIOR GOVERNMENT
PLEADER
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
29.10.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C) NO. 5625 OF 2010
-2-
JUDGMENT
This writ petition is filed by a Society registered under the Societies
Registration Act, 1860. The main object of the Society apparently is building
or assist in building holy places, schools, hospitals, orphanages, cultural
centers etc., and it is doing lot of charitable works of a high degree and
quality, aimed at the poor and down trodden of the society, irrespective of any
caste, creed, sex or territory. According to the petitioner, in order to translate
its intentions, it purchased an extent of 33 cents, 53 cents, 35 cents and 1 acre
62.5 cents of properties as per registered documents nos. 1171/90, 1230/90,
1204/90, 1754/93, situated in survey nos 94/2A, 95/4 and 95/5, within the
limits of Guruvayoor Municipality, Guruvayoor Amsom, Chavakkad Taluk,
Trichur District.
2. Petitioner has submitted an application for building permit, which
was granted as per Ext.P1 for construction of ground+1st floor and later,
Ext.P2 application was submitted for construction of ground+3 floors.
Apparently, since a scheme was pending and in force, the petitioner had
approached the Government for modification of the scheme, whereupon,
Government has issued Ext.P3 Government Order dated 27.04.2005,
granting exemption on certain conditions. On the basis of Ext.P3, according
WP(C) NO. 5625 OF 2010
to the petitioner, a building permit dated 13.07.2005 was issued specifying
certain additional conditions in modification to the conditions prescribed in
Ext.P2 building permit, whereby, the petitioner was directed to cover the sub
drain which is being considered for diversion by the 2nd respondent - the
Public Works Department, being a health hazard, with concrete slabs, evident
from Ext.P4. The case of the petitioner is that, after the completion of the
building on 18.01.2008, petitioner submitted a request for the issuance of
occupancy certificate, evident from Ext.P5 (incorrectly stated as completion
certificate). The said request was rejected by the Municipality as per Ext.P3
order dated 03.03.2008.
3. Being aggrieved, petitioner has submitted Ext.P7 letter dated
07.03.2008, requesting the Municipality to assign reasons for rejection of the
occupancy certificate, to which, Ext.P8 reply dated 18.03.2008 was issued.
Anyhow, petitioner again addressed the Municipality as per Ext.P9 letter
dated 08.09.2009. However, the Municipality has not taken any steps and
accordingly, petitioner has submitted Ext.P10 series, and Exts.P11 and P12
representations. Thereafter, as per Ext.P13 letter dated 07.01.2010, the
reasons for rejection of occupancy certificate was communicated to the
petitioner. According to the petitioner, Ext.P13 letter and rejection of the
occupancy certificate are illegal and arbitrary and therefore, seeks to quash
WP(C) NO. 5625 OF 2010
Exts.P3 and P4 and other adverse communications issued by the
Municipality.
4. Municipality has filed a detailed counter affidavit justifying its stand
in not granting occupancy certificate. According to the Municipality, the
permit issued to the petitioner clearly specifies the conditions that are to be
complied with by the petitioner, and if the petitioner has not complied with
the conditions prescribed in the permit, the Municipality is not duty bound to
issue the occupancy certificate, since the constructions violate the permit
conditions and the approved plan. Other contentions are also raised.
5. The petitioner has also a case that the additional conditions
contained in Ext.P4 to cover the existing small drain of width of 12 inches at
the entrance of the property from Mammiyoor road, having a width of more
than 5 meter, with a concrete slab is not required, since diversion of the said
temporary drain has been sought from the Public Works Department as it is
known to be a health hazard to the public who visit the property of the
petitioner, and to which, an application is pending with the Public Works
Department for more than 10 years. It is also specified that further
developments have been notified by the Public Works Department, wherein,
there is an integrated development master plan for Guruvayoor town, which
was approved by the Government with a budget provision and the scheme is
WP(C) NO. 5625 OF 2010
in the process of planning and execution shortly. Under the scheme, the
existing PWD road from Tahani Hospital junction to West Nada, Guruvayoor,
will be widened to an extent of 15 meters and in the said process, the request
for diversion of waste water from the petitioner's land would automatically
get solved. Therefore, according to the petitioner, the construction of the
drain and covering it with slab will be unnecessary. That apart, it is pointed
out that the drain is not one which is coming within the jurisdiction of the 1st
respondent Municipality, but under the Public Works Department, which is
admitted by the Municipality itself. It is also submitted that the State
Government has sanctioned an amount of Rs.10 crores for the diversion of
the entire drain. Other contentions are also raised.
6. This writ petition was pending before this Court from the year 2010
and in fact, an interim order was passed by this Court on 04.11.2011, whereby,
the Municipality was directed to issue occupancy certificate to the petitioner
in respect of ground + 1stfloor, pending disposal of the writ petition, with a
further rider that functioning of the office of the petitioner shall be confined
to ground + 1st floor only.
7. I have heard, Sri. K.Anand, learned Senior Counsel appearing for the
petitioner assisted by Smt. Latha Krishnan, Sri.M.Sreekumar appearing for
the Municipality and Sri. K.P.Harish, learned Senior Government Pleader
WP(C) NO. 5625 OF 2010
appearing for respondents 2 to 4, and perused the pleadings and the
documents on record.
8. As I have pointed out earlier, construction of the building was
completed on the basis of the permit. However, when a completion certificate
was submitted along with attendant documents for securing occupancy
certificate, the Secretary of the Municipality has declined to grant the
occupancy certificate stating that the conditions contained in the permit was
not complied with by the petitioner, and therefore, action of the petitioner
being violative of the permit conditions, the Secretary of the Municipality is
not liable to issue any occupancy certificate. In fact, Ext.P13 dated 07.01.2010
is the communication issued by the Municipality assigning the reasons for
declining occupancy certificate, wherein it is stated that the petitioner was
bound to comply with the conditions contained in Ext.P3 G.O. dated
27.04.2005, which includes a condition to maintain the drain having a width
of 1.3 meters to 1.4 meters, and to protect the same; that the construction of
the lift is not completed and that even though notice was issued to rectify the
defects, petitioner has not taken any action, and unless and until the said
defects are rectified, the occupancy certificate need not be issued by the
Secretary of the Municipality.
WP(C) NO. 5625 OF 2010
9. In my considered opinion, the occupancy certificate was
declined about 11 years back and that too on the grounds of non compliance
of conditions included in the permit and non completion of the construction
of the lift. In that view of the matter, I am of the considered opinion that it is
only appropriate to issue a direction to the Secretary of the Municipality to
reconsider the matter, if not already reconsidered the completion certificate
submitted by the petitioner along with the attendant documents, on an early
basis and at any rate, within two months from the date of receipt of a copy of
this judgment, also taking into account, the submission of the petitioner that
as per Guruvayoor Township Scheme, construction of a larger drain through
some other way is under the consideration of the Public Works Department.
10. Therefore, the writ petition is disposed of, directing the Secretary
of the Municipality to reconsider the completion certificate and the attendant
documents produced by the petitioner, at the earliest and at any rate, within
three months from the date of receipt of a copy of this judgment, after
providing an opportunity of hearing to the representative of the petitioner.
Since 11 years have elapsed, the petitioner is directed to resubmit the
completion certificate and the attendant documents along with other
documents relied upon by the petitioner, at the earliest and at any rate,
within three weeks from today. The Secretary of the Municipality shall also
take into account the submission of the petitioner that, as per the new
WP(C) NO. 5625 OF 2010
Guruvayoor Township Scheme, the Public Works Department is
contemplating construction of a water drain through a different route by
which the drain in question which was directed to be covered, would become
redundant. In order to enable the Secretary to consider the directions
effectively, all the adverse orders passed by the Secretary of the Municipality
against the petitioner as discussed above in the matter of construction of the
building in question are quashed.
The writ petition is disposed of accordingly.
Sd/-
SHAJI P.CHALY
JUDGE
uu
01.11.2021
WP(C) NO. 5625 OF 2010
APPENDIX
PETITIONER'S/S EXHIBITS:
EXHIBIT P1 TRUE COPY OF BUILDING PERMIT
EXHIBIT P2 TRUE COPY OF BUILDING PERMIT DATED 13.7.2005
EXHIBIT P3 TRUE COPY OF G O NO.GO(RT)1706/05 DATED
27.04.2005
EXHIBIT P4 TRUE COPY OF LETTER DATED 07.03.2006
EXHIBIT P5 TRUE COPY OF REQUEST DATED 18.01.2008 BY THE
PETITIONER
EXHIBIT P6 TRUE COPY OF LETTER DATED 03.03.2008
EXHIBIT P7 TRUE COPY OF LETTER DATED 07.03.2008
EXHIBIT P8 TRUE COPY OF LETTER DATED 18.03.2008
EXHIBIT P9 TRUE COPY OF LETTER DATED 08.09.2009
EXHIBIT P10 TRUE COPY OF LETTERS DATED 16.10.2009,
16.12.2009 & 02.01.2010
EXHIBIT P11 TRUE COPY OF REPRESENTATION MADE BY
PETITIONER DATED 23.12.2009
EXHIBIT P12 TRUE COPY OF THE LETTER DATED 07.01.2010
EXHIBIT P13 TRUE COPY OF THE LETTER DATED 07.01.2010
RESPONDENT'S EXHIBITS:
EXHIBIT R1(a) TRUE COPY OF UNDERTAKING GIVEN TO THE
MUNICIPALITY BY THE PETITIONER
