Muhammed Aslam vs The Kalamassery Municipality
2022 Latest Caselaw 8905 Ker

Citation : 2022 Latest Caselaw 8905 Ker
Judgement Date : 7 July, 2022

Kerala High Court

Muhammed Aslam vs The Kalamassery Municipality on 7 July, 2022

           IN THE HIGH COURT OF KERALA AT ERNAKULAM
                               PRESENT
                THE HONOURABLE MR.JUSTICE N.NAGARESH
 THURSDAY, THE 7TH DAY OF JULY 2022 / 16TH ASHADHA, 1944
                       WP(C) NO. 22065 OF 2022
PETITIONER:

               MUHAMMED ASLAM,
               AGED 49 YEARS
               S/O. M.S. UMMER, MAROTTICKAL HOUSE, PERINGAZHA
               KARA, HMT COLONY P.O., ERNAKULAM DISTRICT - 683
               503.
               BY ADVS.
               ABDUL JAWAD K.
               A.GRANCY JOSE


RESPONDENTS:

    1          THE KALAMASSERY MUNICIPALITY,
               REPRESENTED BY ITS SECRETARY, KALAMASSERY
               MUNICIPAL OFFICE, CHANGAMPUZHA NAGAR P.O.,
               KALAMASSERY, ERNAKULAM - 682 033.
    2          THE SECRETARY, KALAMASSERY MUNICIPALITY,
               KALAMASSERY MUNICIPAL OFFICE, CHANGAMPUZHA
               NAGAR P.O., KALAMASSERY, ERNAKULAM - 682 033.
               SRI.M.K ABOOBACKER (SC) R1 AND R2
        THIS    WRIT   PETITION    (CIVIL)   HAVING   COME   UP    FOR
ADMISSION       ON   07.07.2022,   THE   COURT   ON   THE   SAME   DAY
DELIVERED THE FOLLOWING:
 W.P(C) No.22065 of 2022         :2:




                          JUDGMENT

Dated this the 7th day of July, 2022

The petitioner, who is a resident of HMT Colony P.O,

Ernakulam District, has approached this Court seeking to

direct the 2nd respondent to grant Occupancy Certificate to

the petitioner by reconsidering his application dehors the

stipulation of the structural plan and to number the building

within a time frame fixed by this Court.

2. The petitioner states that he, along with his wife, is

holding 14.08 Ares of land in Thrikkakara North Village of

Ernakulam District. The petitioner wanted to construct a

special residential building in the property. Ext.P2 Building

Permit was issued to the petitioner after making due

enquiries. Ext.P2 was issued on 28.02.2019.

3. The petitioner states that he constructed the building

as approved by Ext.P2 and submitted Building Completion

Certificate. Now, the 2nd respondent has informed the

petitioner as per Ext.P4 that an Occupancy Certificate cannot

be granted to the building for the reason that the land has

been included in the Industrial Zone as per the structural

plan of the Municipality. It is aggrieved by Ext.P4 that the

petitioner is before this Court.

4. Standing Counsel entered appearance on behalf of

the respondents and defended the writ petition. The Standing

Counsel controverted all material allegations made by the

petitioner in the writ petition. It was urged on behalf of the

respondents that since the petitioner's land is included in

Industrial Zone, Occupancy Certificate cannot be granted.

Ext.P4 is legal and proper, contended the Standing Counsel.

5. I have heard the learned counsel for the petitioner

and the learned Standing Counsel representing the

respondents.

6. It is evident that the petitioner has constructed a

building after obtaining a valid Building Permit. The

application for Occupancy Certificate has been denied on the

ground that the land is included in Industrial Zone. The

learned Standing Counsel appearing for the respondents

places reliance on the judgment of this Court in Basheer v.

Kozhikode Corporation [2021 (4) KLT 82].

7. This Court finds that an identical fact situation came

up for consideration before this Court in respect of the very

same Municipality in respect of an Agricultural Zone, in

W.P(C) No.11970 of 2022. The facts arising in this writ

petition are similar to the facts in W.P(C) No.11970 of 2022.

In paragraph 7 of the judgment in W.P(C) No.11970 of 2022,

this Court held as follows:

"7. Having considered the contentions advanced on either side, I notice that the building was constructed specifically in accordance with the building permit granted by the Municipality. It is evident from the earlier judgments of this Court that the structural plan had become unworkable and that several building permits had been granted by the Municipality without reference to the zoning contained in the said structural plan for Kochi city. Since, admittedly, the building was constructed on the basis of a building permit granted by the Municipality, it cannot be later contended that the issuance of the same was by mistake."

9. Since the building was constructed by the petitioner

after obtaining a Building Permit and the Municipality earlier

had granted Building Permit to construct the ground floor of

the building and had numbered the ground floor of the

building, this Court finds that the petitioner is entitled to

succeed in the writ petition.

In the result, Ext.P4 notice of the Secretary is set aside.

There will be a direction to the 2 nd respondent to reconsider

the application submitted by the petitioner for Occupancy

Certificate and for numbering the building. The application of

the petitioner should be considered irrespective of the fact

that the land is included in Industrial Zone. Orders in this