A.K. Ibrahimkutty vs Guruvayoor Municipality
2022 Latest Caselaw 7653 Ker

                 IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                 PRESENT
                   THE HONOURABLE MR.JUSTICE N.NAGARESH
         TUESDAY, THE 28TH DAY OF JUNE 2022 / 7TH ASHADHA, 1944
                         WP(C) NO. 31415 OF 2017
PETITIONER:

              A.K. IBRAHIMKUTTY
              AGED 64 YEARS
              S/O.KHADER, KAKKARAMBATH HOUSE, K.K.ROAD,
              PAVARATTY POST, CHAVAKKAD, THRISSUR-680507.
              BY ADV SRI.PRAVEEN K. JOY


RESPONDENTS:

     1        GURUVAYOOR MUNICIPALITY
              GURUVAYOOR, REP BY ITS SECRETARY-680101.
     2        THE SECRETARY
              GURUVAYOOR MUNICIPALITY, GURUVAYOOR,
              THRISSUR DISTRICT-680101.
              BY ADVS.
              SRI.K.K.CHANDRAN PILLAI (SR.)
              SMT.S.AMBILI, SC, GURUVAYUR MUNICIPALITY


     THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
28.06.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 WP(C) NO. 31415 OF 2017

                                   2




                                JUDGMENT

Dated this the 28th day of June, 2022

The petitioner, who has constructed a building within the

Guruvayoor Municipality, is before this Court seeking the

following reliefs:

(1) To call for the records in respect of Ext.P19 order and to set aside the same, by issuing writ of certiorari, in the interest of justice. (2) Issue a writ, order or direction in the nature of Mandamus or other appropriate writ directing the Respondents to allow the application for building permit and approve plan for the additional floors under Ext.P17 plan and Ext.P18 receipt for application within a time limit following the dictum in 2005(11) SCC 222 in Raju Jethmalani Vs State of Maharashtra, in the interest of justice. (3) To declare that the petitioner has completed all formalities for building permit for additional 3 rd floor to 6th floor of the building under Ext.P1, P2, P5, P11 and there is clearance and NOC from other departments and there is no need for additional sanction for the consideration of Ext.P17 plan and Ext.P18 receipt for application and issuance of permit for the construction of the additional floors of the building.

(4) To issue writ, order or direction in nature of mandamus directing the 2nd respondent to withdraw Ext.P19 order and direct the 2 nd respondent to grant building permit and approve plan for the additional floors in Ext.P17 and P18 receipt for application, in tune with Ext.P1, P2, P5 and P11 building permit WP(C) NO. 31415 OF 2017

within a time limit, in the interest of justice. (5) Grant such other and further reliefs as may be prayed for hereafter and deemed fit and proper by this Honourable court, to permit the petitioner to continue the work for the additional floors under Ext.P17 plan and P18 receipt for application, in interest of justice.

2. The petitioner states that he started construction of

building on the basis of Ext.P1 Building Permit, which

contemplated construction of basement, ground floor, first floor

and second floor. The Building Permit was subsequently

revised as per Ext.P2, whereunder the petitioner was permitted

to construct upto and including sixth floor. It appears that the

petitioner could not complete the construction of such building

within the time stipulated.

3. The petitioner states that he has constructed upto

the second floor. The Municipal Authorities assessed the

building and granted Occupancy Certificate. Subsequently, the

petitioner proposed further construction over the building upto

sixth floor. The application of the petitioner was rejected as per

Ext.P19 on the ground that the plan proposed by the petitioner WP(C) NO. 31415 OF 2017

is without taking into consideration the Master Plan, that there is

lack of open space on one side of the building and that

sufficient car parking is not provided. The petitioner states that

he is willing to surrender land for road widening and on that

basis, the petitioner can be permitted to construct up to the sixth

floor.

4. Standing Counsel for the 1st respondent entered

appearance and resisted the writ petition. The Standing

Counsel pointed out that the validity of the original Building

Permit granted to the petitioner did expire. The petitioner has

submitted an application for fresh Building Permit for

construction above the second floor. By the time, the Kerala

Municipal Building Rules, 2019 came into force. Therefore, the

petitioner's application can be considered only as per the said

Rules. If the petitioner submits a fresh Building plan satisfying

the parameters of Rules, 2019 and applies for a permit, the

same can be considered by the 1st respondent. WP(C) NO. 31415 OF 2017

5. The counsel for the petitioner would submit that he is

proposing to reduce the hight of the building so as to comply

with the Building Rules, 2019.

In view of the facts and circumstances as stated above,

the writ petition is disposed of permitting the petitioner to submit

a revised Building Plan and make a fresh application for

Building Permit. If the petitioner submits such an application,

the respondents will consider the same in accordance with law

and take appropriate decision thereon. In order to enable the

Municipal Authorities to consider the fresh Building Permit

application to be submitted by the petitioner, Ext.P19 is set

aside.

Sd/-

N.NAGARESH JUDGE spk WP(C) NO. 31415 OF 2017

APPENDIX OF WP(C) 31415/2017

PETITIONER EXHIBITS EXHIBIT P1 THE TRUE COPY OF THE BUILDING PERMIT DATED 9-4-2001.

EXHIBIT P2 THE TRUE COPY OF THE REVISED BUILDING PERMIT DATED 04-12-2002.

EXHIBIT P3 THE TRUE COPY OF THE TAX RECEIPT DATED 15-

05-2017.

EXHIBIT P4 THE TRUE COPY OF POWER OF ATTORNEY DATED 30-4-2002.

EXHIBIT P5 THE TRUE COPY OF THE ORDER DATED 18-03-2004 OF THE 2ND RESPONDENT.

EXHIBIT P6 THE TRUE COPY OF THE OCCUPANCY CERTIFICATE DATED 3-9-2003.

EXHIBIT P7 THE TRUE COPY OF THE CERTIFICATE ISSUED BY FIRE DEPARTMENT DATED 17-01-2001. EXHIBIT P8 THE TRUE COPY OF THE OCCUPANCY CERTIFICATE DATED 08-10-2004.

EXHIBIT P9 THE TRUE COPY OF THE OCCUPANCY CERTIFICATE DATED 26-10-2005.

EXHIBIT P10 THE TRUE COPY OF THE OCCUPANCY CERTIFICATE DATED 05-11-2007.

EXHIBIT P11 THE TRUE COPY OF THE ORDER OF THE 2ND RESPONDENT DATED 03-11-2007.

EXHIBIT P12 THE TRUE COPY OF THE TAX RECEIPT NO.67374 DATED 03-02-2017.

EXHIBIT P13 THE TRUE COPY OF THE TAX RECEIPT NO.67375 DATED 03-02-2017.

EXHIBIT P14 THE TRUE COPY OF THE TAX RECEIPT NO.67376 DATED 03-02-2017.

EXHIBIT P15 THE TRUE COPY OF THE TAX RECEIPT NO.67377 DATED 03-02-2017.

EXHIBIT P16 THE TRUE COPY OF THE RECEIPT DATED 05-02-

2014.

EXHIBIT P17 THE TRUE COPY OF THE APPROVAL PLAN OF THE REMAINING FLOORS BEFORE THE 2ND RESPONDENT. EXHIBIT P18 THE TRUE COPY OF THE RECEIPT DATED 18-10-

2016.

EXHIBIT P19 THE TRUE COPY OF THE ORDER DATED 23-09-

2017.

RESPONDENT'S/S EXHIBITS : NIL