Indira Menon vs State Of Kerala
2022 Latest Caselaw 9869 Ker

          IN THE HIGH COURT OF KERALA AT ERNAKULAM
                           PRESENT
        THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN
  WEDNESDAY, THE 31ST DAY OF AUGUST 2022 / 9TH BHADRA, 1944
                   WP(C) NO. 14316 OF 2022
PETITIONER:

          INDIRA J MENON
          AGED 68 YEARS
          W/O. JAYAPRAKASH MENON, MANAGING DIRECTOR
          I J BUILDERS AND DEVELOPERS PRIVATE LTD,
          KUMARIVILAS, POOTHAMPILLIL TOWERS,
          SWAMI CHINMAYANANDA ROAD, COCHIN 16
          BY ADVS.
          JOBY JACOB PULICKEKUDY
          ANIL GEORGE
          DAJISH JOHN
          HARIKRISHNAN P.
          POOJA SEBASTIAN

RESPONDENTS:

    1     STATE OF KERALA
          REPRESENTED BY SECRETARY TO GOVERNMENT LOCAL
          ADMINISTRATION (M) DEPARTMENT, SECRETARIAT,
          THIRUVANANTHAPURAM 695 001
    2     THE CORPORATION OF COCHIN
          REPRESENTED BY ITS SECRETARY,
          CORPORATION OFFICE ERNAKULAM 682 011
    3     THE SECRETARY
          CORPORATION OF COCHIN, CORPORATION OFFICE,
          ERNAKULAM 682 011
          BY ADV SHRI.K.JANARDHANA SHENOY, SC, CORPORATION
          SMT.DEEPA NARAYANAN, SR.GP


    THIS WRIT PETITION (CIVIL) HAVING COME UP FOR
ADMISSION ON 31.08.2022, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
 W.P.(C).No.14316/2022

                                     2




                    P.V.KUNHIKRISHNAN, J.
                     --------------------------------
                    W.P.(C).No.14316 of 2022
              ----------------------------------------------
            Dated this the 31st day of August, 2022


                            JUDGMENT

This writ petition is filed with following prayers:

i. Declare that the petitioner is entitled for a deemed occupancy as on 17/09/2004 and therefore, the petitioner is entitled to have Occupancy Certificate to be issued physically. ii. Issue a writ of mandamus or any other appropriate writ, Order or direction commanding the second respondent to number the buildings namely floors 2 to 6 as the building was completed and tax was received in 2005 itself.

iii. Issue a writ of certiorari or any other appropriate writ, calling for the records relating to Exhibit P20 and quash the same. iv. Issue a writ of mandamus or any other appropriate writ, Order or direction commanding the second respondent to regularize the building in case it is found not completed, as per the law prevailed at the W.P.(C).No.14316/2022

time of granting building permit that too without insisting for any deficiency occurred on account of the land acquisition for the Kochi Metro Rail.

v. Such further and other reliefs which this Hon'ble Court deems fit and proper in the facts and circumstance of the case.

(SIC)

2. Petitioner is the owner of property having an extent of

15.100 cents of land in Survey No.702/5 of Ernakulam Village.

She applied for a building permit for the construction of an

eight storied building (basement + ground + 6 floors) on

21.5.1997. The permit was issued as per Ext.P1 based on the

exemption granted by the Government as per Ext.P3.

Subsequently the petitioner was directed to produce NOC from

Aviation Department, Department of Telecommunications and

also Fire Department. As per Exts.P4, P5 and P6 the

authorities granted NOC. The building permit was renewed

from time to time up to 2006. The petitioner initially completed

basement+ground+1st floor, for which completion certificate

was submitted on 16.03.2001, as per Ext.P9. Thereafter, it is

the case of the petitioner that the entire construction was W.P.(C).No.14316/2022

completed in September 2004. The completion certificate was

submitted in respect of floors 2 to 6 on 02.09.2004, as evident

by Ext.P10. Thereafter there was no communication from the

Corporation. On completion of the entire building, the

petitioner was directed to pay one time building tax as per

Ext.P11 assessment order. Ext.P12 demand notice was also

issued to the petitioner to pay the building tax in four

instalments. The petitioner paid the amount. It is also

submitted by the petitioner that the notification of acquisition

of land for the construction of Metro Rail was published

during that time and a portion of the property was acquired

from the petitioner. Though the construction of the entire

floors were completed in September 2004, the interior works

in the 2 to 6 floors were not completed. After acquisition of a

portion of the property including the car parking area, it is

submitted that the petitioner lost a major portion of the car

parking area provided for the building. In the meanwhile, the

respondents collected the property tax as unauthorized

construction. The petitioner approached the respondents to

number the building and issue occupancy certificate. However, W.P.(C).No.14316/2022

the 3rd respondent directed to submit regularization

application as per the present rules. Since the building was

completed within the period of building permit, according to

the petitioner, he is not liable to submit regularization

application as per the present rules. It is the case of the

petitioner that the 3rd respondent is duty bound to issue

occupancy certificate and number the building. Hence this

writ petition.

3. Heard the learned counsel for the petitioner and

the learned Standing Counsel appearing for respondents 2

and 3. I also heard the learned Government Pleader.

4. It is an admitted fact that the petitioner constructed

the building (basement + ground floor + 6 floors). Exts.P9

and P10 are the completion certificates. Ext.P9 will show that

the basement floor, ground floor and first floor are completed.

Ext.P10 will show that the 2nd, 3rd, 4th , 5th and 6th floors are

completed. As far as Ext.P9 completion certificate is

concerned, the petitioner obtained the occupancy certificate.

Ext.P10 is dated 02.09.2004. Admittedly there is no response

to Ext.P10 completion certificate submitted by the petitioner W.P.(C).No.14316/2022

as required under Rule 22 of the Kerala Municipality Building

Rules. As per the second proviso to Rule 22(3) of the

Municipality Building Rules, if no occupancy certificate is

issued within fifteen days, the owner may proceed as if such

an occupancy certificate has been duly issued to him. If that is

the case, there is no unauthorised construction by the

petitioner and the petitioner proceeded because there is a

presumption in the light of the second proviso to Rule 22(3).

It is to be presumed that the occupancy certificate is deemed

to have issued to the petitioner as far as floors 2 to 6 are

concerned. If that is the case, respondents are bound to issue

deemed occupancy certificate and there can be a direction to

number the building. The Standing Counsel for the

Corporation takes me through paragraph 4 of the counter

affidavit filed by respondents 2 and 3. But it is a fact that no

orders are passed in Ext.P10 and therefore there is a deemed

occupancy certificate.

Therefore, this writ petition is allowed in the following

manner:

1. Ext.P20 is quashed.

2. Respondents 2 and 3 are directed to issue W.P.(C).No.14316/2022

deemed occupancy certificate based on

Ext.P10, as expeditiously as possible, at any

rate, within six weeks from the date of receipt

of a copy of this judgment.

3. Respondents 2 and 3 will number the building

based on the occupancy certificate and accept

tax in accordance to law.

Sd/-

                                             P.V.KUNHIKRISHNAN
JV                                                  JUDGE
 W.P.(C).No.14316/2022





                 APPENDIX OF WP(C) 14316/2022

PETITIONER EXHIBITS
Exhibit P1        THE TRUE PHOTO COPY OF BUILDING PERMIT
                  NO.MOP4-4/97
Exhibit P2        THE TRUE PHOTO COPY OF GOVERNMENT

ORDER DATED 21/5/1997 ISSUED FOR THE INITIAL BUILDING PERMIT, Exhibit P3 THE TRUE PHOTO COPY OF GOVERNMENT ORDER NO.GO (RT) NO.2770/97/LAD DATED 12/8/1997.

Exhibit P4 THE TRUE PHOTO COPY OF NO OBJECTION CERTIFICATE DATED 22/5/1998 ISSUED BY THE FLAG OFFICER COMMANDING IN CHIEF Exhibit P5 THE TRUE PHOTOCOPY OF NO OBJECTION CERTIFICATE ISSUED BY THE DEPARTMENT OF TELECOMMUNICATIONS DATED 16/12/1996 Exhibit P6 NO OBJECTION CERTIFICATE DATED 10/02/1999 ISSUED BY THE FIRE DEPARTMENT Exhibit P7 THE MEMO DATED 8-4-2003 ISSUED BY THE SECOND RESPONDENT Exhibit P8 THE TRUE PHOTOCOPY OF RENEWAL LETTER DATED 8/4/03 FOR THE PERIOD 14/11/2003 TO 13/11/06 Exhibit P9 THE TRUE PHOTOCOPY OF COMPLETION CERTIFICATE DATED 16/03/2001 Exhibit P10 THE TRUE PHOTOCOPY OF COMPLETION CERTIFICATE SUBMITTED BY THE PETITIONER IN RESPECT OF THE FLOORS 2 TO 6 DATED 02/09/2004 Exhibit P11 THE TRUE PHOTOCOPY OF ASSESSMENT ORDER DATED 28/09/2004 Exhibit P12 THE NOTICE OF DEMAND DATED 28/09/2004 Exhibit P13 THE NOTICE DATED 5/8/2004 ISSUED BY THE TAHSILDAR KANAYANOOR TALUK Exhibit P14 THE TRUE PHOTO COPY OF BUILDING TAX RECEIPT OF THE VILLAGE OFFICE ERNAKULAM DATED 25/10/2004 Exhibit P14A THE TRUE PHOTO COPY OF BUILDING TAX RECEIPT OF THE VILLAGE OFFICE W.P.(C).No.14316/2022

ERNAKULAM DATED 27/01/2005 Exhibit P14B THE TRUE PHOTO COPY OF BUILDING TAX RECEIPT OF THE VILLAGE OFFICE ERNAKULAM DATED 25/5/05 Exhibit P14C THE TRUE PHOTO COPY OF BUILDING TAX RECEIPT OF THE VILLAGE OFFICE ERNAKULAM DATED 27/09/2005 Exhibit P15 THE PROPERTY TAX DATED 8/7/2005 IN RESPECT OF THE 6TH FLOOR Exhibit P16 THE DEMAND NOTICE ISSUED BY THE CORPORATION DATED 07/07/2005 IN RESPECT OF THE 6TH FLOOR Exhibit P17 THE TRUE PHOTOCOPY OF PROPERTY TAX RECEIPT DATED 31/12/2021 IN RESPECT OF BUILDING NO 62/3476 Exhibit P17A THE PROPERTY TAX RECEIPT DATED 31/12/2021 IN RESPECT OF DOOR NO.62/3477 Exhibit P17B THE TRUE PHOTOCOPY OF PROPERTY TAX RECEIPT DATED_31/12/2021 FOR BUILDING NO .62/3478 Exhibit P17C THE TRUE PHOTOCOPY OF PROPERTY TAX RECEIPT IN RESPECT OF 62/3479 DATED 31/12/2021 Exhibit P 17D THE TRUE PHOTOCOPY OF PROPERTY TAX RECEIPT IN RESPECT OF 62/3482 DATED 31/12/2021 Exhibit P17 E THE TRUE PHOTOCOPY OF PROPERTY TAX RECEIPT IN RESPECT OF 62/3483 DATED 31/12/2021 Exhibit P17 F THE TRUE PHOTOCOPY OF PROPERTY TAX RECEIPT IN RESPECT OF 62/3484 DATED 31/12/2021 Exhibit P17 G THE TRUE PHOTOCOPY OF PROPERTY TAX RECEIPT IN RESPECT OF 62/3489 DATED 31-12-2021 Exhibit P17H THE TRUE PHOTOCOPY OF PROPERTY TAX RECEIPT IN RESPECT OF 62/3490 DATED 31/12/2021 Exhibit P17 (1) THE TRUE PHOTOCOPY OF PROPERTY TAX RECEIPT IN RESPECT OF 62/3491 DATED 31/12/2021 W.P.(C).No.14316/2022

Exhibit P17 J THE TRUE PHOTOCOPY OF PROPERTY TAX RECEIPT IN RESPECT OF 62/3492 DATED 31/12/2021 Exhibit P17 K THE TRUE PHOTOCOPY OF PROPERTY TAX RECEIPT IN RESPECT OF 62/3493 DATED 31/12/2021 Exhibit P18 THE PROPERTY TAX RECEIPT DATED 31/12/2021 FOR THE 6TH FLOOR IN RESPECT OF 62/3479 Exhibit P19 THE TRUE PHOTOCOPY OF APPLICATION DATED 26/04/2021 ALONG WITH RECEIPT BEFORE THE 3RD RESPONDENT Exhibit P20 THE TRUE PHOTOCOPY OF NOTICE DATED 27/08/2021 ISSUED BY THE 2ND RESPONDENT Exhibit P21 THE TRUE PHOTOCOPY OF THE LETTER DATED 17/11/2021 Exhibit P22 THE TRUE PHOTOCOPY OF NOTICE DATED 20/12/2021 ISSUED BY THE 2ND RESPONDENT