Kerala High Court
Dr. Prasanna vs The Perinthalmanna Municipality on 30 September, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE N.NAGARESH
THURSDAY, THE 30TH DAY OF SEPTEMBER 2021 / 8TH ASWINA, 1943
WP(C) NO. 829 OF 2021
PETITIONERS:
1 DR. PRASANNA,
AGED 60 YEARS,
W/O. DR.LOHITHAKSHAN, EDAVANA HOUSE, KOKOOR P.O.,
EDAPPAL, MALAPPURAM DISTRICT,PIN-679 591
2 DR.E.K.LOHITHAKSHAN,
AGED 69 YEARS,
S/O. KRISHNAN, EDAVANA HOUSE, KOKOOR P.O.,
EDAPPAL, MALAPPURAM DISTRICT,PIN-679 591
BY ADVS.
SRI.K.M.SATHYANATHA MENON
SRI.A.SANTHOSHKUMAR
RESPONDENTS:
1 THE PERINTHALMANNA MUNICIPALITY,
REPRESENTED BY ITS SECRETARY, MUNICIPAL OFFICE,
PERINTHALMANNA, MALAPPURAM DISTRICT,PIN-676 505
2 THE SECRETARY,
PERINTHALMANNA MUNICIPALITY, MUNICIPAL OFFICE,
PERINTHALMANNA, MALAPPURAM DISTRICT,PIN-676 505
BY ADV SHRI.P.C.SASIDHARAN, SC, PERINTHALMANNA
MUNICIPALITY
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR
ADMISSION ON 30.09.2021, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
WP(C) No.829/2021
:2 :
JUDGMENT
~~~~~~~~~
Dated this the 30th day of September, 2021
The petitioners are before this Court seeking to
quash Ext.P5 and to direct respondents 1 and 2 to issue
Occupancy and Completion Certificate and allot building
number to the petitioners' building on the basis of the
application dated 09.09.2020. The petitioner has also sought
certain incidental reliefs.
2. The petitioners would contend that they applied for
Building Permit for construction of a commercial building in
their property having an extent of 4.25 Ares in Survey
Nos.117/1 and 117/2-20 of Perinthalmanna Village in
Perinthalmanna Taluk. The application was submitted as per
the Kerala Municipality Building Rules, 1999. The Municipality
issued Ext.P2 Building Permit.
WP(C) No.829/2021
3. The petitioners were forced to make certain
additional construction for the building. The construction was
completed and a Completion Certificate was submitted on
09.09.2020.
4. The Municipal authorities, however, informed the
petitioners that there are two major defects in the application,
namely (1) violation of the provisions in Master Plan and (2)
excess construction than permitted. The petitioners were
required to cure the defects and resubmit the application.
5. The learned counsel for the petitioners urged that
the application for Building Permit was of the year 2015 and
the draft master plan came into force only on 27.09.2016.
Since the petitioners have started the construction of the
building as per an approved Building Permit issued, the
subsequent changes brought about through the draft master
plan cannot be imposed upon the petitioners. As regards the
defect relating to excess construction in violation of the
Building Permit, the petitioners submit that they are ready to
compound any violation from the Building Permit paying the
WP(C) No.829/2021
prescribed fee if their construction is regularised.
6. The learned Standing Counsel appeared for the
respondent-Municipality and opposed the writ petition. The
learned Standing Counsel submitted that though there is not a
detailed Town Planning Scheme, the Municipality has a draft
master plan which was published on 27.09.2016. The said
draft master plan was finalised and final master plan was
published on 20.04.2018. In such circumstances, the said
defect was pointed out to the petitioners.
7. As regards the excess construction, the learned
Standing Counsel for the petitioners submitted that the
Secretary to the Municipality is not empowered to condone
such violation in view of Rules 17 and 143 of the Kerala
Municipality Building Rules, 1999. Therefore, for
regularisation of the construction, the petitioners will have to
approach the Government.
8. Heard the learned counsel for the petitioners and
the learned Standing Counsel for the respondents.
WP(C) No.829/2021
9. In view of the fact that the Municipal authorities are
not empowered to regularise the construction made by the
petitioners in violation of the Building Permit issued and in
view of the fact that only the Government can consider the
request of the petitioners, this Court is of the opinion that the
petitioners should be permitted to approach the Government
seeking regularisation.
In such circumstances, the writ petition is disposed
of permitting the petitioners to approach the respondents or
the Government filing an application for regularisation of the
construction with all supporting documents. If such
application is submitted by the petitioners, a decision shall be
taken thereon within six months from the date of receipt of the
application, positively.
Sd/-
N. NAGARESH, JUDGE
aks/30.09.2021
WP(C) No.829/2021
APPENDIX OF WP(C) 829/2021
PETITIONERS' EXHIBITS
EXHIBIT P1 TRUE COPY OF THE POSSESSION CERTIFICATE
NO.38198144 DATED 22.02.2019 ISSUED IN
FAVOUR OF THE PETITIONERS FROM
PERINTHALMANNA VILLAGE OFFICE
EXHIBIT P2 TRUE COPY OF THE BUILDING PERMIT NO.E2-
BA(23025)/2015 ISSUED BY THE 2ND
RESPONDENT DATED 2.06.2015
EXHIBIT P3 TRUE COPY OF THE FIRE SAFETY CLEARANCE
NO.A-7787/2016 ISSUED BY THE ASSISTANT
DIVISIONAL OFFICER, FIRE AND RESCUE
SERVICES, MALAPPURAM DATED 22.11.2016
EXHIBIT P4 TRUE COPY OF THE COMMUNICATION
NO.TPI/BA 722/17-18 DATED 19.08.2020
ISSUED BY THE 2ND RESPONDENT TO
SRI.SYED MOHAMMED K.P. AND ANOTHER
EXHIBIT P5 TRUE COPY OF THE COMMUNICATION
NO.TPI/BA -547/14-15 DATED 30.11.2020
ISSUED BY THE 2ND RESPONDENT TO THE
PETITIONERS
EXHIBIT P6 TRUE COPY OF THE PURCHASE NOTICE DATED
4.12.2020 SERVED BY THE PETITIONER UPON
THE RESPONDENT MUNICIPALITY
Exhibit P7 TRUE COPY OF THE APPROVED BUILDING PLAN
OF PETITIONERS BUILDING.
Exhibit P8 TRUE COPY OF THE REPLY ISSUED TO THE
PETITIONERS BY THE UNDERSECRETARY AND
THE STATE PUBLIC INFORMATION OFFICER,
LOCAL SELF GOVERNMENT (RURAL
DEVELOPMENT) DEPARTMENT DATED
18.08.2021
SR
