Kerala High Court
C.N.Hariharan vs The Maradu Municipality on 6 July, 2022
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN
WEDNESDAY, THE 6TH DAY OF JULY 2022 / 15TH ASHADHA, 1944
WP(C) NO. 12444 OF 2021
PETITIONER:
C.N.HARIHARAN
AGED 80 YEARS
S/O. LATE C.K.NEELAKANDAN,
CHECKANATTU PARAMBIL, SREESAILAM,
PUNNAPRA, ALAPPUZHA, PIN-688004.
BY ADVS.
JOBY JACOB PULICKEKUDY
ANIL GEORGE
DAJISH JOHN
HARIKRISHNAN P.
RESPONDENTS:
1 THE MARADU MUNICIPALITY
REPRESENTED BY ITS SECRETARY,
MARADU, ERNAKULAM DISTRICT-682304
2 THE SECRETARY
MARADU MUNICIPALITY, MARADU,
ERNAKULAM DISTRICT-682304
3 SENIOR TOWN PLANNER,
REGIONAL TOWN PLANNING OFFICER,
ERNAKULAM, PIN - 682 032
BY ADVS.SHRI.T.R.RAJAN SC,MARADU MUNICIPALITY
ADVOCATE GENERAL OFFICE KERALA
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR
ADMISSION ON 06.07.2022, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
W.P.(C).No.12444/2021
2
P.V.KUNHIKRISHNAN, J.
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W.P.(C).No.12444 of 2021
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Dated this the 06th day of July, 2022
JUDGMENT
This writ petition is filed with following prayers:
i. Issue a writ of mandamus or any other
appropriate writ, order or direction
commanding the 2nd respondent to issue the
Occupancy Certificate and number the
building as per Exhibit P9 completion
certificate without insisting for compliance of
rules under KMBR 2019.
ii. Issue a writ of certiorari or any other
appropriate writ, calling for the records of
Exhibits P6 and P7 and quash the same.
iii. Such further and other reliefs which this
Hon'ble Court deems fit and proper in the
facts and circumstance of the case.
iv. Issue a writ of certiorari or any other
appropriate Writ, order calling for the record
relating to Exhibit P10 and P11 and
thereafter, to quash the same.
(SIC)
W.P.(C).No.12444/2021
2. The petitioner is the owner in possession of
property having an extent of 15 Ares in Sy. No.199/25 of
Maradu Village. He applied for a building permit for the
construction of a commercial building in the year 2008.
Initially the application was submitted only for 3 rooms in the
ground floor. During 2011, the petitioner submitted an
application for building permit for rooms in the ground floor
and 1st floor in the remaining property. A building permit was
issued on 24/08/2011 as evident by Ext.P4. In the year 2013,
ground floor was completed and occupancy was issued.
Thereafter the petitioner is paying property tax for the entire
ground floor as evident by Ext.P5. The petitioner also
completed the entire 1st floor in the year 2018. However
Ext.P6 notice was issued on 06/11/2019 directing to stop the
construction and to submit revised plan. Since the petitioner
completed the construction strictly as per the building permit,
it was not required to submit any revised plan. It is the case of
the petitioner that as directed by the respondents, the
petitioner submitted the revised plan which was rejected
showing the defect that revised plan shall be as per the Kerala
W.P.(C).No.12444/2021
Municipality Building Rules, 2019 ( for short, KMBR 2019).
Thereafter the petitioner submitted the completion plan and
certificate in accordance with the building permit. However no
action is taken on Ext.P9 even after the statutory period of 15
days. According to the petitioner, there is a deemed occupancy
and the petitioner is entitled a certificate to that effect. Hence
this Writ Petition.
3. Heard the learned counsel for the petitioner and
the learned Standing Counsel for respondents 1 and 2. I also
heard the learned Government Pleader appearing for the 3 rd
respondent.
4. The learned Standing Counsel for respondents 1
and 2 submitted that a detailed counter affidavit is filed
narrating all the facts.
5. The short point to be decided is whether Ext.P7 is
sustainable or not. Ext.P4 is the building permit issued to the
petitioner dated 24.08.2011. Admittedly the petitioner
constructed the building based on Ext.P4 building permit. If
that is the case, in the light of Ext.P13 Government Order, the
rule applicable is KMBR 1999. It will be better to construct
the relevant portion of Ext.P13:
W.P.(C).No.12444/2021
"07.11.2019 വരെ സമർപ്പിച്ച കെട്ടിട നിർമ്മാണ
അപേക്ഷകൾക്കും 07.11.2019 ന് മുമ്പ് സമർപ്പിച്ച
അപേക്ഷകളിൽ ന്യൂനതകൾ പരിഹരിച്ച് വീണ്ടും
സമർപ്പിക്കാൻ ആവശ്യപ്പെട്ടുള്ള അപേക്ഷകൾക്കും പഴയ
കെട്ടിട നിർമ്മാണ ചട്ടങ്ങൾ (KMBR - 1999, KPBR -
2011) ബാധകമായിരിക്കും. എന്നാൽ, 07.11.2019 ന്
മുമ്പ് സമർപ്പിച്ച പ്ലാനുകൾ റിവൈസ് ചെയ്യാൻ മടക്കി
നൽകിയത് പ്രകാരം വീണ്ടും സമർപ്പിച്ച റിവൈസ്ഡ്
പ്ലാനിൽ വിസ്തീർണം അധികരിക്കുന്നില്ലെങ്കിൽ മാത്രം പഴയ
ചട്ടം ബാധകമായിരിക്കുന്നതാണ്. "
6. In the light of the same, I think Ext.P7 is to be set
aside and respondents 1 and 2 can be directed to reconsider
revised permit in the light of Ext.P13.
Therefore, this writ petition is allowed in the following
manner:
1. Ext.P7 is set aside.
2. Respondents 1 and 2 are directed to consider
the revised permit in the light of Ext.P13
Government Order.
3. While considering the above revised permit,
respondents 1 and 2 will consider Exts.P1 and
P2 also.
4. The above exercise should be completed by
respondents 1 and 2, as expeditiously as
W.P.(C).No.12444/2021
possible, at any rate, within one month from
the date of receipt of a copy of this judgment.
sd/-
P.V.KUNHIKRISHNAN
JV JUDGE
W.P.(C).No.12444/2021
APPENDIX OF WP(C) 12444/2021
PETITIONER EXHIBITS
Exhibit P1 THE TRUE COPY OF THE BASIC TAX RECEIPT
DATED 8.10.2020 ISSUED BY VILLAGE
OFFICE MARADU.
Exhibit P2 THE POSSESSION CERTIFICATE IN RESPECT
OF THE PROPERTY OF THE PETITIONER
DATED 22.1.2021.
Exhibit P3 THE TRUE COPY OF THE BUILDING PERMIT
DATED 22.1.2008.
Exhibit P4 THE TRUE PHOTOCOPY OF THE BUILDING
PERMIT DATED 24.8.2011.
Exhibit P5 THE TRUE PHOTOCOPY OF PROPERTY TAX
DATED 14.10.2020.
Exhibit P6 THE TRUE PHOTOCOPY OF NOTICE DATED
28.9.2018 (RECEIVED ON 6.11.2019).
Exhibit P7 THE TRUE COPY OF THE NOTICE DATED
16.12.2019.
Exhibit P8 TRUE PHOTOGRAPHS SHOWING THE
COMPLETION OF THE BUILDING.
Exhibit P9 THE TRUE PHOTOCOPY OF THE COMPLETION
CERTIFICATE DATED 20.6.2020.
Exhibit.P10 COPY OF LETTER DATED 16.07.2021
NO.E2/RA-46-2020, ISSUED BY THE 2ND
RESPONDENT TO THE PETITIONER
Exhibit.P11 COPY OF LETTER DATED 16.07.2021,
NO.E3/BA-171/2011-12 ISSUED BY THE 2ND
RESPONDENT TO THE PETITIONER
RESPONDENT EXHIBITS
Exhibit R1(a) TRUE COPY OF THE REPORT DATED
13/5/2019 OF THE OVERSEER OF THE 1ST
RESPONDENT MUNICIPALITY.
Exhibit R1(b) TRUE COPY OF THE NOTICE DATED
14/5/2019 ISSUED TO THE WRIT
PETITIONER.
Exhibit R1(c) TRUE COPY OF THE REPLY DATED 27/5/2019
SUBMITTED BY THE WRIT PETITIONER.
W.P.(C).No.12444/2021
Exhibit R1(d) TRUE COPY OF THE RELEVANT PAGES OF THE
STRUCTURAL PLAN (GENERAL TOWN
PLANNING) FOR THE CENTRAL CITY OF
KOCHI.
Exhibit R1(e) TRUE COPY OF THE NOTICE DATED 3/9/2019
ISSUED TO THE WRIT PETITIONER.
PETITIONER EXHIBITS
Exhibit R1(f) TRUE COPY OF THE REPLY DATED 18/9/2019
SUBMITTED BY THE PETITIONER.
RESPONDENT EXHIBITS
Exhibit R1(g) TRUE COPY OF THE REPORT DATED
26/9/2019 OF THE OVERSEER OF THE 1ST
RESPONDENT MUNICIPALITY.
Exhibit R1(h) TRUE COPY OF THE COMMUNICATION DATED
7/10/2020 OF THE 2ND RESPONDENT TO THE
PETITIONER.
Exhibit R1(i) TRUE COPY OF THE APPLICATION FOR
REGULARISATION DATED 11/11/2020
SUBMITTED BY THE PETITIONER.
Exhibit R1(j) TRUE COPY OF THE COMMUNICATION DATED
5/2/2021 OF THE SENIOR TOWN PLANNER,
ERNAKULAM TO THE 2ND RESPONDENT.
Annexure R3(a) True copy of the letter
No.TCPEKM/53/2021-D dated 05-02-2021of
senior town planner,Ernakulam
PETITIONER EXHIBITS
Exhibit P12 COPY OF THE ENCUMBRANCE CERTIFICATE
DATED 11.08.2021 FOR THE PERIOD FROM
01.01.1960 TO 12.07.2021
EXHIBIT P13 THE TRUE PHOTOCOPY OF THE CIRCULAR
DATED 20.11.2019 NO. 201/RD1/2019
