N.B.Prasad vs Vaikom Municipality
2022 Latest Caselaw 5382 Ker

               IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                PRESENT
               THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN
        FRIDAY, THE 20TH DAY OF MAY 2022 / 30TH VAISAKHA, 1944
                        WP(C) NO. 11099 OF 2022
PETITIONER:

            N.B.PRASAD,
            AGED 55 YEARS
            S/O.BHASKARAN, NJAYAPALLITHARA HOUSE, VADAYAR (PO),
            KOTTAYAM DISTRICT, PIN-686 605.
            BY ADVS.
            T.U.ZIYAD
            K.B.ARUNKUMAR
            POOJA K.S.
RESPONDENTS:

    1       VAIKOM MUNICIPALITY,
            REPRESENTED BY ITS SECRETARY, WEST GATE, WEST GATE
            ROAD, VAIKOM, KOTTAYAM DISTRICT, PIN-686 146.
    2       THE SECRETARY,
            VAIKOM MUNICIPALITY, MUNICIPALITY OFFICE, WEST GATE,
            WEST GATE ROAD, VAIKOM, KOTTAYAM DISTRICT, PIN-686 146.
    3       MUNICIPAL ENGINEER,
            VAIKOM MUNICIPALITY, WEST GATE, WEST GATE ROAD, VAIKOM,
            KOTTAYAM DISTRICT, PIN-686 146.
            SMT.SREEKALA, SC
     THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
20.05.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 WP(C) NO. 11099 OF 2022

                                     2


                              JUDGMENT

Dated this the 20th day of May, 2022

This writ petition is filed seeking the following prayers:

"(i) Call for the records leading to Exhibits P5 and P6 and quash the same by issuing a writ of certiorari or any other appropriate writ or direction.

(ii) Issue a writ of mandamus directing the 2 nd respondent to grant permanent number to the building constructed by the petitioner in accordance with Exhibit P1 building permit."

2. Heard the learned counsel for the petitioner and the learned

standing counsel appearing for the respondents.

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

petitioner was issued with a building permit on 18.02.2021 pursuant

to which he had completed the construction of the building and

applied for occupancy certificate on 28.10.2021. It is submitted that

in spite of the passage of 15 days, no defect was intimated to the

petitioner and the petitioner became entitled to a deemed occupancy

certificate. It is submitted that thereafter, the petitioner again

approached the respondents, pursuant to which Ext.P5

communication was issued on 16.03.2022 stating that the petitioner WP(C) NO. 11099 OF 2022

had been intimated of certain defects and therefore, his application

for occupancy certificate cannot be considered. The learned counsel

for the petitioner submits that a reading of Ext.P5 itself would show

that the application for occupancy certificate was submitted by the

petitioner on 28.10.2021. It is further stated that no date is stated for

the reference (3) in Ext.P5 and that therefore, the same had not been

issued within the statutory period of 15 days and cannot be relied

upon.

4. The learned standing counsel appearing for the respondents

submits that the application for occupancy certificate had been

received from the petitioner on 28.10.2021 and that site inspection

had been conducted pursuant to which a report was generated. It is

submitted that a communication was issued to the petitioner to

rectify the defects on 06.01.2022. It is submitted that there are

defects in the construction carried out by the petitioner and

therefore, the occupancy certificate cannot be granted.

5. Having heard the learned counsel on either side, I notice that WP(C) NO. 11099 OF 2022

the submission of the application for occupancy certificate on

28.10.2021 is not disputed by the respondents. It is also clear that

the notice with regard to defects have not been communicated to the

petitioner within the statutory period of 15 days as provided in Rule

20(3) of the Kerala Municipality Building Rules, 2019. In the above

view of the matter, I am of the opinion that the petitioner is entitled

to a deemed occupancy certificate. The defects as noticed in Ext.P5

are to the effect that the building does not maintain the requisite

distance from the road. It is not clear from Ext.P5 whether the

defect is in the construction carried out by the petitioner or in the

issuance of the building permit as such.

6. In the above circumstances, I am of the opinion that the

respondents cannot rely on a communication dated 06.01.2022 or

Ext.P5 to contend that the petitioner is not entitled to an occupancy

certificate. Ext.P5 is therefore set aside. There will be a direction to

the respondents to issue occupancy certificate to the petitioner in

terms of Rule 20(3) of the Kerala Municipality Building Rules,

2019, within a period of three weeks from the date of receipt of a WP(C) NO. 11099 OF 2022

copy of this judgment.

This writ petition is ordered accordingly.

Sd/-

ANU SIVARAMAN JUDGE NP WP(C) NO. 11099 OF 2022

APPENDIX OF WP(C) 11099/2022

PETITIONER'S EXHIBITS Exhibit P1 THE TRUE COPY OF THE BUILDING PERMIT DATED 18.02.2021 ISSUED TO THE PETITIONER.

Exhibit P2 THE TRUE COPY OF THE RECEIPT DATED 28.10.2021 ISSUED BY THE 1ST RESPONDENT MUNICIPALITY.

Exhibit P3          THE TRUE COPY OF THE RECEIPT
                    NO.KL05050900600
                    /2022 DATED 11.,02.2022 ISSUED BY THE

VILLAGE OFFICER, NADUVILA VILLAGE FOR THE BUILDING TAX.

Exhibit P4 TRUE COPY OF THE SAID REPRESENTATION DATED 26.02.2022 SUBMITTED BY THE PETITIONER. Exhibit P5 TRUE COPY OF THE COMMUNICATION DATED 16.03.2022 ISSUED BY THE 2ND RESPONDENT. Exhibit P6 THE TRUE COPY OF THE DEMAND NOTICE DATED 16.03.2022.

RESPONDENTS' EXHIBITS: NIL