Moideen Haji P.K vs Tirur Municipality
2022 Latest Caselaw 2477 Ker

              IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                  PRESENT
             THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN
     FRIDAY, THE 4TH DAY OF MARCH 2022 / 13TH PHALGUNA, 1943
                         WP(C) NO.28586 OF 2021
PETITIONER :-

             MOIDEEN HAJI P.K., AGED 81 YEARS
             S/O. BEERAN HAJI, PUTHUKUDI THARIF MANZIL,
             PONMUNDAM P.O, TIRUR,
             MALAPPURAM DISTRICT, PIN - 676 106.

             BY ADV K.I.ABDUL RASHEED


RESPONDENTS :-

     1       TIRUR MUNICIPALITY
             REPRESENTED BY ITS SECRETARY, TIRUR,
             MALAPPURAM DISTRICT, PIN - 676 101.

     2       THE SECRETARY,
             TIRUR MUNICIPALITY, TIRUR,
             MALAPPURAM DISTRICT, PIN - 676 101.

     3       THE DISTRICT TOWN PLANNER,
             TIRUR, MALAPPURAM DISTRICT, PIN - 676 101.

           BY ADVS.
           SRI.P.VENUGOPAL, SC, TIRUR MUNICIPALITY
           SRI.SAYED MANSOOR BAFAKHY THANGAL
           SMT.VINITHA B., SR.GP


      THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION
ON   04.03.2022,   THE    COURT    ON   THE   SAME   DAY   DELIVERED   THE
FOLLOWING:
 WP(C) NO.28586 OF 2021

                                   -: 2 :-


                              JUDGMENT

Dated this the 4th day of March, 2022

This writ petition is filed seeking the following reliefs :-

"i) Issue a Writ of mandamus directing the respondents to issue occupancy certificate to the petitioner based on the completion certificate submitted by the petitioner as evidenced by Ext.P7 forthwith.

ii) Issue a Writ of mandamus directing the respondents to issue the occupancy certificate, without taking into account minor variation in the completion plan, if the variations do not conflict with the Kerala Municipality Building Rules as stated in Proviso to Rule 17(1) of the Rules."

2. Heard the learned counsel for the petitioner and the

learned Standing Counsel appearing for the Municipality.

3. It is submitted by the learned counsel for the petitioner

that the petitioner had been issued with Ext.P5 building permit on

26.3.2014 for the construction of a two storied building in his

property. It is submitted that though the construction of the

building is completed in the year 2016, the building permit had

been cancelled alleging minor variations in the construction

carried out. It is submitted that thereafter, the petitioner had

submitted application for regularisation and had also pointed out

that the minor variations sought for do not require any further

permissions in accordance with the Kerala Municipality Building WP(C) NO.28586 OF 2021

Rules. It is stated that the application submitted by the petitioner

for regularisation was also rejected. However, while matters stood

so, the respondents had convened an Adalath to consider

applications for occupancy certificate and by Ext.P9 had decided to

set aside the decision for cancellation of the permit. It is submitted

that in the above situation, there is no impediment to grant

occupancy certificate to the petitioner. However, long after

Ext.P9, even though requests had been made repeatedly by the

petitioner, no steps are taken to issue the occupancy certificate.

The learned counsel for the petitioner submits that it was only on

account of a road widening as proposed in a DTP Scheme that the

request for occupancy certificate has not been considered by the

Municipality. It is submitted that the said proposal for further road

widening had evidently been given up by the Municipality itself as

is evident from Exts.P2 and P4. It is submitted that the application

of the petitioner for occupancy certificate is liable to be considered

without reference to the objection with regard to the further road

widening in the DTP Scheme.

4. A statement has been placed on record by respondents 1

and 2. It is submitted that the petitioner had been issued with a

building permit, but in an inspection conducted it was found that

the construction was in violation of the permit, which was why a WP(C) NO.28586 OF 2021

stop memo as well as an order of revocation of the building permit

had been issued to the petitioner. It is submitted that on 16.8.2016

the petitioner submitted the completion plan before the 1 st

respondent, but the petitioner was informed that the said request

cannot be considered since the permit stood cancelled and the

petitioner was directed to submit an application for regularisation.

It is submitted that though an application was submitted by the

petitioner for regularisation on 31.5.2018, the same was

incomplete and that the petitioner had been required to submit a

proper application which was considered and referred to the 3 rd

respondent. It is stated that the 3 rd respondent, by letter dated

18.12.2018, had replied that there is violation of the DTP Scheme

and had directed to cure the Scheme. It is submitted that on

14.8.2019, an adalath was convened in the Municipality and it was

decided not to insist on the compliance of the DTP Scheme as the

Municipal Council had decided to reduce the width of the proposed

road to 14 metres. It was also decided to renew the building

permit and issue occupancy certificate, if the application is

otherwise in compliance with the Kerala Municipality Building

Rules. It is stated that though there is an observation in the

adalath not to insist for compliance of the DTP Scheme, since the

width of the proposed road in the Scheme is 18 metres and since WP(C) NO.28586 OF 2021

the Scheme remains in force, the application has to be considered

in accordance with the DTP Scheme.

5. I have considered the contentions advanced on either

side. It is evident that Ext.P5 permit had been issued to the

petitioner as early as on 26.3.2014. By Ext.P2 dated 20.11.2012, a

resolution had also been passed by the Panchayat stating that the

road widening is being limited to 14 metres. Ext.P4, which is the

minutes of the meeting which considered the application of the

petitioner for building permit, also contains a reference to such

decision. Ext.P9 would show that in the Municipal Adalath

conducted also, a decision had been taken not to insist on the 18

metre width of the road as per the DTP Scheme in the light of

Ext.P2 resolution of the Municipality and Ext.P4.

6. Having considered the contentions advanced and in view

of the fact that the permit had been issued by the Municipality in

the year 2014 considering Ext.P2 resolution as well, I am of the

opinion that the Municipality cannot now raise a contention that

the width of the road has to be maintained at 18 metres under the

DTP Scheme to deny the benefit of an occupancy certificate to the

petitioner. In view of Ext.P2 resolution as well as Exts.P4 and P9, I

am of the opinion that the request made by the petitioner for

occupancy certificate has to be considered without adverting to the WP(C) NO.28586 OF 2021

objection with regard to the width of the road to be maintained at

18 metres under the DTP Scheme.

In the above view of the matter, this writ petition is

disposed of with the following directions :-

The respondents shall take up the request made by the

petitioner for occupancy certificate and the request for

regularisation, if any and consider and pass orders on the same in

accordance with law, taking note of Ext.P5 building permit granted

to the petitioner. In case there are violations from the building

permit, the question whether the same can be regularised in

accordance with law shall also be considered by the respondents.

The respondents shall consider the request made by the petitioner

for occupancy certificate de hors the contention raised with regard

to the DTP Scheme which has been decided to be relaxed in the

light of Exts.P2 and P9. Appropriate orders shall be passed within

a period of one month from the date of receipt of a copy of this

judgment.

Sd/-

ANU SIVARAMAN JUDGE

Jvt/5.3.2022 WP(C) NO.28586 OF 2021

APPENDIX OF WP(C) 28586/2021

PETITIONER EXHIBITS

Exhibit P1 TRUE COPY OF THE LAND TAX RECEIPT DATED 25.10.2021 ISSUED BY THE VILLAGE OFFICER, TIRUR.

Exhibit P2 TRUE COPY OF THE RESOLUTION DATED 20.11.2012 TAKEN BY THE 1ST RESPONDENT.

Exhibit P3 TRUE COPY OF BUILDING PLAN SUBMITTED ALONG WITH THE BUILDING PERMIT APPLICATION DATED 14.02.2014.

Exhibit P4 TRUE COPY OF THE NOTICE OF AGENDA DATED 14.03.2014 CIRCULATED BY THE 2ND RESPONDENT.

Exhibit P5 TRUE COPY OF THE BUILDING PERMIT NO. B1/89/14 DATED 26.03.2014 ISSUED TO THE PETITIONER.

Exhibit P6 TRUE COPY OF THE ORDER NO. PW3/BA89/124 DATED 19.07.2016.

Exhibit P7 TRUE COPY OF THE RECEIPT DATED 16.08.2016 ISSUED BY THE 2ND RESPONDENT FORT RECEIVING THE COMPLETION PLAN.

Exhibit P8 TRUE COPY OF THE LETTER NO. PW3-B1/293/16 DATED 12.02.2018.

Exhibit P9 TRUE COPY OF THE RELEVANT PAGE OF THE FILE RECORDING THE DECISION OF THE ADALATH CONDUCTED ON 14.08.2019.