Elizabetha Chakkappan vs Kalamassery Municipal Council
2022 Latest Caselaw 9826 Ker

                 IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                 PRESENT
                   THE HONOURABLE MR.JUSTICE N.NAGARESH
         WEDNESDAY, THE 31ST DAY OF AUGUST 2022 / 9TH BHADRA, 1944
                         WP(C) NO. 27309 OF 2022
PETITIONER

              ELIZABETHA CHAKKAPPAN
              AGED 86 YEARS
              W/O CHAKKAPPAN, RESIDING AT CHINGAMTHARA HOUSE,
              VYLOPPILLY ROAD, MAROTTICHUVAD, EDAPPALLY,
              ERNAKULAM DISTRICT - 682024

              BY ADVS.
              C.S.AJITH PRAKASH
              T.K.DEVARAJAN
              PAUL C THOMAS
              BABU M.
              ANCY THANKACHAN
              NIDHIN RAJ VETTIKKADAN
              HAARIS MOOSA
              GOURI KAILASH


RESPONDENTS:

     1        KALAMASSERY MUNICIPAL COUNCIL
              REPRESENTED BY ITS SECRETARY KALAMASSERY MUNICIPALITY
              CHANGAMPUZHA NAGAR P.O
              ERNAKULAM DISTRICT, PIN: 682033
     2        THE SECRETARY
              KALAMASSERY MUNICIPALITY CHANGAMPUZHA NAGAR P.O.
              ERNAKULAM DISTRICT, PIN: 682033

              SRI.M.K.ABOOBACKAR(SC) R1 & R2
     THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
31.08.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 WP(C) NO.27309 OF 2022
                                    2


                          JUDGMENT

Dated this the 31st day of August, 2022

The petitioner is joint owner of 55 Cents of property

situated in Thrikkakkara North Village. After obtaining a

Building Permit, the petitioner constructed a commercial

building. While submitting Completion Certificate, the

Municipal authorities allowed certain area as commercial

occupancy and the balance area as parking space in the

basement floor.

2. The petitioner states that one of such areas in the

basement floor is now occupied by a Margin Free Shop. While

so, the Kerala State Beverages (Manufacturing & Marketing)

Corporation (KSBC) approached the petitioner and requested

to provide space for the KSBC. Though the petitioner made a

proposal, the KSBC did not accept the proposal as the area in

the basement is marked as parking space in municipal

records.

WP(C) NO.27309 OF 2022

3. The petitioner thereupon applied to the municipal

authorities for a purpose change, by shifting parking space

from the basement floor to the open land available in front of

the building so that area in the basement floor can be marked

as commercial area. The said application was considered and

finally allowed by the Municipality as per Ext.P15.

4. The grievance of the petitioner is that the KSBC still

does not accept the proposal made by the petitioner in view of

the fact that the parking area is not demarcated in the open

space. The petitioner therefore submitted Ext.P17

representation to the Municipal authorities requesting to issue

a Certificate showing the additional area in the open land

marking the same as parking space. The occupancy of the

basement floor is also to be changed as commercial. The

petitioner from the municipal authorities sought issuance of a

Certificate showing the total area to be allowed for commercial

use, showing the area as 301.47 M2 in building No.33/559A1. WP(C) NO.27309 OF 2022

5. The petitioner therefore seeks to direct the 2nd

respondent to issue a Certificate or letter by adding additional

area/extent as requested by the petitioner in Ext.P17.

6. Standing Counsel entered appearance on behalf of

the Municipality and resisted the writ petition. The Standing

Counsel submitted that the petitioner's application for shifting

the parking place from the basement floor to the open area

already stands allowed as per Ext.P15 proceeding dated

01.07.2022 of the Secretary to the Kalamassery Municipality.

Therefore, the petitioner is at liberty to use the parking area

which was earlier situated in the basement floor for any

commercial purpose. The petitioner has sought for issuance of

a Certificate in the nature of Ext.P8 as per Ext.P17

representation. The representation submitted by the petitioner

will be considered by the Municipality in due course of time, in

accordance with law.

In the facts of the case and in view of the submissions

made as above, the writ petition is disposed of directing the WP(C) NO.27309 OF 2022

2nd respondent to consider Ext.P17 representation submitted

by the petitioner, within a period of three weeks and issue a

Certificate in the nature of Ext.P8 to the petitioner, if necessary

after marking the parking place in the open space.

sd/-

N.NAGARESH JUDGE hmh WP(C) NO.27309 OF 2022

APPENDIX OF WP(C) 27309/2022

PETITIONER EXHIBITS Exhibit P1 A TRUE COPY OF THE LAND TAX RECEIPT NO.KL07021813999/2021 DATED 12/08/2021 OF THE PROPERTY ISSUED BY THE THRIKKAKKARA NORTH VILLAGE Exhibit P2 A TRUE COPY OF THE POSSESSION CERTIFICATE NO.58866582 DATED 08/09/2021 ISSUED BY THE THRIKKAKKARA NORTH VILLAGE Exhibit P3 A TRUE COPY OF THE POSSESSION CERTIFICATE NO.58866096 DATED 08/09/2021 ISSUED BY THE THRIKKAKKARA NORTH VILLAGE Exhibit P4 A TRUE COPY OF THE REVISED PERMIT BA 638/2008 DATED 02/07/2015 Exhibit P5 A TRUE COPY OF THE BUILDING TAX RECEIPT NO 33401 FOR THE PERIOD 2021-2022 Exhibit P6 A TRUE COPY OF THE BUILDING TAX RECEIPT NO. 34238 DATED 25/03/2022 ISSUED BY THE KALAMASSERY MUNICIPALITY Exhibit P7 A TRUE COPY OF THE COMMUNICATION OF THE COMPANY SECRETARY OF THE KSBC DATED 31/12/2021 Exhibit P8 A TRUE COPY OF THE CERTIFICATE DATED 15/03/2022 DETAILING THE ASSESSMENT PARTICULARS AND THE AREA ISSUED BY THE KALAMASSERY MUNICIPALITY Exhibit P9 A TRUE COPY OF THE LETTER ISSUED BY THE DEPUTY COMMISSIONER FOR EXCISE DATED 18/03/2022 TO THE KSBC MANAGER FL-9 Exhibit P10 A TRUE COPY OF THE COVERING LETTER OF THE FRESH LICENSE APPLICATION SUBMITTED BY THE KSBC TO THE DEPUTY COMMISSIONER OF EXCISE DATED 19/03/2022 Exhibit P11 A TRUE COPY OF THE ORIGINAL PLAN OF THE BUILDING SUBMITTED AT THE TIME OF SUBMITTING COMPLETION CERTIFICATE Exhibit P12 A TRUE COPY OF THE APPLICATION FOR PURPOSE CHANGE SUBMITTED BY THE WP(C) NO.27309 OF 2022

PETITIONER BEFORE THE 2ND RESPONDENT DATED 11/03/2022 Exhibit P13 A TRUE COPY OF THE NOTICE NO.R1 (TP) -

4562/22 DATED 26/03/2022 ISSUED BY THE SECRETARY/2ND RESPONDENT TO THE PETITIONER Exhibit P14 . A TRUE COPY OF THE JUDGMENT IN WP(C) 12548/2022 DATED 18/05/2022 Exhibit P15 A TRUE COPY OF THE ORDER NO R1/4562/2022 DATED 01/07/2022 PASSED BY THE 2ND RESPONDENT Exhibit P16 A TRUE COPY OF THE APPLICATION SUBMITTED BY THE PETITIONER BEFORE THE 2ND RESPONDENT DATED NIL Exhibit P17 A TRUE COPY OF THE APPLICATION SUBMITTED BY THE PETITIONER FOR CERTIFICATE SHOWING ADDITIONAL AREA AS COMMERCIAL SPACE DATED NIL Exhibit P18 A TRUE COPY OF THE RECEIPT ISSUED FROM THE RESPONDENT MUNICIPALITY DATED 10.08.2022 Exhibit P19 A TRUE COPY OF THE FIVE SETS OF PLAN SUBMITTED BEFORE THE MUNICIPALITY FOR ISSUING THE COMMERCIAL OCCUPANCY CERTIFICATE SHOWING THE ADDITIONAL AREA TO BE ADDED IN THE BASEMENT FLOOR