Kerala High Court
Wilson Thomas vs Mathilakam Grama Panchayath on 20 April, 2023
WP(C) No. 41858 of 2022 1
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE VIJU ABRAHAM
THURSDAY, THE 20TH DAY OF APRIL 2023 / 30TH CHAITHRA, 1945
WP(C) NO. 41858 OF 2022
PETITIONER:
WILSON THOMAS
AGED 53 YEARS
MANJALY HOUSE, PAPPINIVATTOM, MATHILAKAM
P.O.,KODUNGALLUR, THRISSUR, REPRESENTED BY HIS
POWER OF ATTORNEY HOLDER, THAMPI, AGED 53 YEARS,
SON OF THOMAS, PAREKKATTIL HOUSE,
THAMMANIMATTAMKARA, AIKARNAD SOUTH, RAMAMANGALAM
P.O., KOLENCHERY, ERNAKULAM, PIN - 680685
BY ADVS.
B.ASHOK SHENOY
P.S.GIREESH
SALIH P.A.
ARJUN R NAIK
THEJALAKSHMI R.S.
RESPONDENTS:
1 MATHILAKAM GRAMA PANCHAYATH
REPRESENTED BY ITS SECRETARY, MATHILAKAM P.O.,
THRISSUR, PIN - 680685
2 THE SECRETARY
MATHILAKAM GRAMA PANCHAYATH, MATHILAKAM P.O.,
THRISSUR, PIN - 680685
BY ADVS.
AMRIN FATHIMA
K.A.NOUSHAD(K/003014/1999)
GOPIKA T.G.(K/922/2021)
REJI R.(K/000674/2021)
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR
ADMISSION ON 20.04.2023, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
WP(C) No. 41858 of 2022 2
VIJU ABRAHAM , J.
===========================
WP(C) No. 41858 of 2022
============================
Dated this the 20th day of April, 2023
JUDGMENT
Petitioner seeks to file this writ petition being aggrieved by
inaction and omission of respondents to number the residential
building constructed by the petitioner along with his wife,
pursuant to Building Permit issued to them by the 2 nd respondent,
since having completed its construction in terms of Building
Permit and submitted completion with certificate to the 2nd
respondent on 08.11.2021 in terms of Rule 20(3) of Kerala
Panchayat Building Rules 2019 (hereinafter referred to as Rules
2019), acknowledged by the 2nd respondent as per Ext P1
acknowledgement receipt and over which Ext P2 letter in terms of
the said proviso issued by the petitioner to 2nd respondent,
acknowledged by the 2nd respondent with stamp and date,
operate as deemed Occupancy Certificate, as per the aforesaid
proviso to aforesaid Rule 20(3).
2. Petitioner submits that though Ext P1 was submitted
on 08.11.2021 seeking issuance of Occupancy Certificate and
number the building, no decision was taken on the same even
after lapse of one year. Ext P2 letter was submitted on 30.11.2022
claiming that he is entitled to get occupancy certificate. Despite
the same, the respondent Panchayat is not numbering the
building on the premise that occupancy certificate has not so far
been issued and due to the same, the petitioner could not occupy
the building in spite of having completed the construction almost
a year back. Petitioner has submitted Ext P2 in compliance with
the proviso to Rule 20(3) of the Rules 2019.
3. A counter affidavit has been filed by the respondents in
which it is admitted that the petitioner has undertaken the
construction after obtaining a building permit and on 08.11.2021
he has submitted an application for numbering the building and in
the site inspection various defects were noted and Ext R1(a) letter
was issued on 30.11.2021 to cure the defects. Thereafter, Ext
R1(b) letter dated 07.12.2022 was also issued intimating that only
on curing the defects noted therein occupancy certificate will be
granted. Rule 20(3) of Rules 2019 mandates that the Secretary
shall on receipt of a completion certificate issue occupancy
certificate in the prescribed form, not later than 15 days from the
date of receipt of a completion certificate if he is satisfied that
construction or reconstruction or addition or alteration has been
carried out in conformity with the permit. The proviso to the said
Rules mandates that if no such occupancy certificate is issued
within 15 days the owner may proceed as if such occupancy
certificate has been duly issued to him. The proviso further
mandates that on the expiry of the 15 clear days from the date of
valid application for occupancy certificate, the applicant shall
submit a letter stating that he is liable to get occupancy
certificate and now it is deemed to have been issued by the
authority and all Secretaries of Local Self Government Institutions
shall acknowledge the receipt of the letter stating the above
paragraph with stamp and date on the same day on the duplicate
copy of the letter and the same shall be a deemed occupancy
certificate and such deemed occupancy certificate shall be
accepted by all public authorities as proof of completion of the
building in compliance with Rules.
4. Admittedly in the present case, no decision rejecting or
accepting the completion certificate was taken by the local
authority within 15 days of the receipt of the same, and a reply
has been given noting certain defects only on 30.11.2021, which
is admittedly beyond 15 days of the receipt of the application for
issuance of occupancy certificate. Ext P2 letter given by the
petitioner as per the proviso to Rule 20(3) has been accepted and
the same has been duly acknowledged and going by the Rules the
said letter acknowledged by the Secretary of the local authority
shall be a deemed occupancy certificate.
5. Petitioner relies on the judgment in Prasad N.B. v.
Vaikom Municipality and Others [2022 KHC 3495] in support
of his contention. Paragraph 4 of the judgment reads as follows:
"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."
6. In view of the facts and circumstances of the case and
in the light of the judgment in Prasad N.B.'s case cited supra,
there will be a declaration that the petitioner is deemed to have
been granted Ext P2 occupancy certificate in respect of the
building constructed pursuant to building permit no. A4-4760/17
dated 26.09.2017 issued by the 2nd respondent.
7. It is also to be noted that as per Rule 20 of the Kerala
Panchayat Building Rules 2019, the Secretary is obliged to issue
an occupancy certificate only if he is satisfied that the
construction has been carried out in conformity with the permit.
In the present case going by Ext R1(b) various violations have
been noted which is against the terms of the permit. A deemed
occupancy certificate is provided as per the Rules only in case
where no occupancy certificate has been issued within 15 days of
the submission of the application. I am of the opinion that such a
stipulation is made in the Rules 2019 only to see that there shall
be no delay from the part of the authorities in issuing an
occupancy certificate even after the construction of the building
has been completed in terms of the permit and that the said
proviso to the Rule providing for deemed occupancy certificate is
not for validating illegal constructions. The Division Bench of this
Court in Malik Bin Deenar Islamic Complex v.
Kaipamangalam Grama Panchayat [2020 (2) KLT 394],
though granted deemed occupancy certificate held that the same
will not disable the Secretary of the Grama Panchayat to conduct
an enquiry as contemplated in Rules 25 of Kerala Panchayat
Building Rules, 2011. The enquiry contemplated as per the said
Rules is for the satisfaction of the Secretary to verify whether
construction of the building has been carried out in conformity
with the requirements of the Rules. Therefore, going by the
dictum laid down in Malik Bin Deenar's case supra, even if
deemed occupancy certificate has been granted the Secretary
can conduct an enquiry to verify whether the construction of the
building has been carried out in conformity with the Rules.
8. Section 235H of the Kerala Panchayat Raj Act, 1994,
(hereinafter referred to as Act of 1994) mandates that no
construction work of a building shall be commenced until
Secretary has granted permission for the same and going by
Section 235 I and 235 J of the Act of 1994, the Secretary shall
take a decision on the application within a period of 30 days.
Section 235 K of the Act of 1994 mandates that if the Secretary
does not take a decision on the same within 30 days, the
applicant could approach the Village Panchayat with a written
request and if the Village Panchayat does not take a decision
within 1 month thereafter, such approval or permission shall be
deemed to have been given and the applicant can proceed to
execute the work but the same is with a rider that it shall not be
so as to contravene any of the provisions of the Act or any Rules
or Bye laws made there under. Section 235 W of the Act of 1994
empowers the Secretary to demolish or require alteration in the
work if any contravention of the Rules is noted. Therefore, the
deemed occupancy granted cannot be treated as a blanket
permission granted to the petitioner.
9. It is made clear that the declaration given by this Court
that Ext P2 can be treated as a deemed occupancy certificate is
only due to the laches on the part of the respondent Panchayat in
not taking a decision on the application seeking occupancy
certificate. Various defects have been noted as is evident from Ext
R1(a) and R1 (b). The petitioner is bound to cure the said defects
and the respondent panchayat is free to conduct an enquiry as
permitted as per in Malik Bin Deenar's case supra and to take
appropriate action as contemplated in Section 235 W of the Act of
1994 in case the defect noted in Ext R1(a) and Ext R1(b) is not
cleared within a reasonable time to be granted by the Respondent
Panchayat in writing.
With the above said directions and observation, the above
writ petition is disposed of.
Sd/-
VIJU ABRAHAM
JUDGE
sbk/-
APPENDIX OF WP(C) 41858/2022
PETITIONER EXHIBITS
Exhibit P1 TRUE COPY OF ACKNOWLEDGEMENT RECEIPT
DATED 08.11.2021 UNDER FILE
NO.400734/BABC06/GENERAL/2021/1709
ISSUED BY 1ST RESPONDENT
Exhibit P2 TRUE COPY OF DUPLICATE COPY OF LETTER
DATED 30.11.2022 SUBMITTED BY PETITIONER
TO 2ND RESPONDENT, BEARING THE STAMP AND
DATE OF ACKNOWLEDGEMENT OF 2ND
RESPONDENT
RESPONDENT EXHIBITS
Exhibit R2(a) A true copy of the letter bearing No. S
C 2-1709/2021 dated 30/11/2021 issued to
the petitioner
Exhibit R2(b) A true copy of the letter bearing No.
400734/BAIN02/General/2022/8864/(1)
dated 07/12/2022 issued to the
petitioner, along with the postal
receipt
