Kerala High Court
Sunny P.J vs The District Collector on 10 May, 2022
W.P.(C)No.2341 of 2021
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE T.R.RAVI
TUESDAY, THE 10TH DAY OF MAY 2022 / 20TH VAISAKHA, 1944
WP(C) NO. 2341 OF 2021
PETITIONER:
SUNNY P.J.
AGED 48 YEARS, S/O JOSE, PULLATTOZHUKAYIL HOUSE,
CHULLIYODU P.O. NENMENI, WYANAD DISTRICT, PIN-673
592.
BY ADVS.
SRI R.SUNIL KUMAR
SMT. S.SALINILAL
RESPONDENTS:
1 THE DISTRICT COLLECTOR
CIVIL STATION, KALPETTA, WAYANAD-673 121.
2 THE TOWN PLANNER,
WAYANAD, KALPETTA P.O., PIN-673 121.
3 THE NENMANI GRAMA PANCHAYATH,
REPRESENTED BY ITS SECRETARY, PANCHAYATH OFFICE,
NENMANI, WAYANAD-673 592.
4 THE SECRETARY,
NENMANI GRAMA PANCHAYATH, PANCHAYATH OFFICE,
NENMANI, WAYANAD-673 592.
5 THE TAHSILDAR,
SULTHANBETHERRY TALUK, WAYANAD DISTRICT, PIN-673
592.
6 THE VILLAGE OFFICER,
NENMANI VILLAGE, SULTHAN BATHERY TALUK, WAYANAD
DISTRICT, PIN-673 952.
BY ADVS.
SRI.NIRMAL V NAIR
SHRI.AKHIL ALPHONSE G.
SRI.B.S.SYAMANTHAK, GOVT. PLEADER
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
30.03.2022, THE COURT ON 10.5.2022 DELIVERED THE FOLLOWING:
W.P.(C)No.2341 of 2021
2
T.R. RAVI, J.
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W.P.(C)No.2341 of 2021
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Dated this the 10th day of May, 2022
JUDGMENT
Based on Ext.P1 building permit issued by the 4th
respondent, the petitioner constructed a commercial-cum-
residential building. According to the petitioner, the construction
was completed on 1.12.2014. Ext.P1 will show that permission
was granted for a basement floor, ground floor, and first-floor
having plinth areas of 103.20 M2, 122.40 M2, and 122.40 M2
respectively, and HR plinth area of 12.04 M2 totalling to 360.04 M2.
According to the petitioner, since leakages were noticed from the
top floor immediately after the construction, he has constructed an
additional floor of 265.72 M2 which is not residential. Ext.P2 is the
building tax assessment dated 12.12.2014 which would show that
the petitioner has been assessed for the entire building including
the additional construction which had been made which was not in
accordance with the building permit. Ext.P3 is the receipt issued
for payment of the building tax and Ext.P4 is the proceedings by
which luxury tax was assessed on the petitioner. Ext.P4 has also
been issued as early as in December 2014. The petitioner
W.P.(C)No.2341 of 2021
preferred an application for regularisation of the construction
which had been made without a permit. Ext.P6 is the application.
On 16.11.2018, the 4 th respondent issued Ext.P7 communication
pointing out certain defects. The petitioner submitted Ext.P8 on
10.1.2019 after curing the defects pointed out. Since no action
was being taken, the petitioner approached this Court by filing W.P.
(C)No.12877 of 2019 which was disposed of by Ext.P9 judgment
directing the 4th respondent to consider and pass orders on the
application submitted by the petitioner. The petitioner thereafter
received a scrutiny report prepared by the Town Planner pointing
out 48 defects. The petitioner submits that defects 1 to 47 can be
rectified, but the defect noted against Sl.No.48 that the height of
the building exceeds the limit prescribed by the District Disaster
Management Authority (DDMA) and hence concurrence from DDMA
has to be obtained, may not be insisted. The petitioner submits
that the construction was completed in 2014 and the condition
regarding height was introduced only by an amendment to the
Building Rules which came into effect from 30.6.2015. The
petitioner submitted Ext.P12 report stating that he has complied
with all the conditions, except the 48 th condition. The 4th
respondent has thereafter issued Ext.P13 letter to the petitioner
W.P.(C)No.2341 of 2021
stating that condition No.48 should also be complied with. The
reason stated in Ext.P13 is that the petitioner had requested for
regularisation only on 7.8.2019 which is four years after the
stipulation regarding height made by the DDMA. The letter does
not say anything about the fact that the construction was
completed prior to 30.6.2015. The petitioner has hence filed this
writ petition praying for a declaration that he is entitled to
regularisation of the construction of the second floor without
insisting on condition No.48 in the report of the Town Planner.
2. The 4th respondent has filed a counter-affidavit. The
contention taken is that the regularisation application can be
considered only in accordance with the law that is prevailing at the
time of consideration of the said request. It is contended that the
petitioner who had made an unauthorised construction cannot be
better placed than a person who made such construction after
following the due procedure.
3. A reply affidavit has been filed by the petitioner
producing Ext.P14 floor plan, which has been signed by the 5th
respondent on 7.10.2014, to submit that the entire building
including the unauthorised construction had been taken into
account for the purpose of assessment of building tax in December
W.P.(C)No.2341 of 2021
2014, prior to 30.6.2015.
4. The 5th respondent has also filed a counter affidavit
confirming the genuineness of Ext.P14 produced by the petitioner.
The 2nd respondent has filed an additional counter affidavit
reiterating that regularisation cannot be granted since the
conditions in the order issued by the DDMA on 30.6.2015 are not
complied with.
5. Heard learned counsel for the petitioner and
respondents.
6. The counsel for the petitioner relies on Ext.P10
judgment in W.P.(C)No.16334 of 2020 wherein this Court has
specifically held that the order dated 30.6.2015 issued by the
DDMA will have application only for building permits issued on or
after that date. In Ext.P10 judgment, this Court had followed an
earlier judgment in W.P.(C)No.29516 of 2015 dated 3.11.2015. I
find considerable force in the submissions made by the petitioner
regarding the application of the order dated 30.6.2015. I am in
respectful agreement with Ext.P10 judgment. The petitioner is
entitled to succeed.
7. In the result, the writ petition is allowed. The 4 th
respondent is directed to reconsider the application submitted by
W.P.(C)No.2341 of 2021
the petitioner for regularisation of the building and to allow the
same if it is otherwise in order. Condition No.48 in Ext.P11 report
of the Town Planner shall not be insisted upon, since the building
permit was issued in 2013 and the construction had been
admittedly completed prior to 30.6.2015. Necessary orders shall
be issued within six weeks from the date of receipt of a copy of
this judgment.
Sd/-
T.R. RAVI
JUDGE
dsn
W.P.(C)No.2341 of 2021
APPENDIX OF WP(C) 2341/2021
PETITIONERS' EXHIBITS
EXHIBIT P1 TRUE PHOTOCOPY OF THE BUILDING PERMIT
DATED 25.9.2013 ISSUED BY THE 4TH
RESPONDENT
EXHIBIT P2 PHOTOCOPY OF THE DEMAND NOTICE NO
D2/13925/2014 DATED 12.12.2014 ISSUED BY
THE 5TH RESPONDENT
EXHIBIT P3 PHOTOCOPY OF THE RECEIPTS ISSUED BY THE
5TH RESPONDENT
EXHIBIT P4 PHOTOCOPY OF THE PROCEEDINGS NO D2-
13925/14 DATED 12.12.2016 PASSED BY THE
5TH RESPONDENT
EXHIBIT P5 PHOTOCOPY OF THE TAX RECEIPT DATED
22.9.2018 ISSUED BY THE 5TH RESPONDENT
EXHIBIT P6 PHOTOCOPY OF THE APPLICATION DATED
25.9.2018 SUBMITTED BEFORE THE 4TH
RESPONDNET
EXHIBIT P7 PHOTOCOPY OF THE LETTER DATED 16.11.2018
ISSUED BY THE 4TH RESPONDENT
EXHIBIT P8 PHOTOCOPY OF THE APPLICATION DATED NIL
SUBMITTED BEFORE THE 4TH RESPONDENT
EXHIBIT P9 PHOTOCOPY OF THE JUDGMENT DATED 30.4.2019
IN WPC NO 12877/2019 PASSED BY THIS
HON'BLE COURT
EXHIBIT P10 PHOTOCOPY OF THE JUDGMENT DATED 25.8.2020
IN WPC NO 16334/2020 PASSED BY THIS
HON'BE COURT
EXHIBIT P11 PHOTOCOPY OF THE SCRUTINY REPORT ISSUED
BY THE TOWN PLANNER
EXHIBIT P12 PHOTOCOPY OF THE APPLICATION DATED
8.1.2021 SUBMITTED BEFORE RESPONDENTS 3
AND 4
EXHIBIT P13 PHOTOCOPY OF THE LETTER DATED 15.1.2021
ISSUED BY THE 4TH RESPONDENT
EXHIBIT P14 PHOTOCOPY OF THE FLOOR PLAN SIGNED BY THE
5TH RESPONDENT ON 07.10.2014
W.P.(C)No.2341 of 2021
RESPONDENTS' EXHIBITS
EXHIBIT R4(A) A TRUE COPY OF THE COMPLETION CERTIFICATE
DATED 11.11.2013 SUBMITTED BY THE
PETITIONER
EXHIBIT R4(B) A TRUE COPY OF THE PROPERTY TAX
ASSESSMENT DETAILS OF VARIOUS ROOMS IN
THE PETITINER'S BUILDING
ANNEXURE R1(A) TRUE COPY OF THE ORDER DATED 30.06.2015
OF THE CHAIRMAN, DISTRICT DISASTER
MANAGEMENT AUTHORITY AND THE DISTRICT
MAGISTRATE, WAYANAD
