Ameena Haneefa vs Muvattupuzha Municipality
2023 Latest Caselaw 2930 Ker

              IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                  PRESENT
             THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN
     MONDAY, THE 13TH DAY OF MARCH 2023 / 22ND PHALGUNA, 1944
                         WP(C) NO.27606 OF 2022
PETITIONER :-

             AMEENA HANEEFA,
             PARATHOTTIL (H), MUVATTUPUZHA P.O.,
             ERNAKULAM, PIN - 686 661

             BY ADVS.
             ENOCH DAVID SIMON JOEL
             S.SREEDEV
             RONY JOSE
             LEO LUKOSE
             CIMIL CHERIAN KOTTALIL


RESPONDENTS :-

     1       MUVATTUPUZHA MUNICIPALITY
             MUVATTUPUZHA P.O., ENAKULAM - 686 661
             REPRESENTED BY ITS SECRETARY.

     2       SECRETARY
             MUVATTUPUZHA MUNICIPALITY, MUVATTUPUZHA P.O.
             ERNAKULAM, PIN - 686 661

     3       ASSISTANT ENGINEER
             MUVATTUPUZHA MUNICIPALITY, MUVATTUPUZHA P.O.
             ERNAKULAM, PIN - 686 661

             BY ADVS.
             C.S.AJITH PRAKASH, SC, MUVATTUPUZHA MUNICIPALITY
             RAJAN T R


      THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION
ON   13.03.2023,   THE    COURT   ON   THE   SAME   DAY   DELIVERED   THE
FOLLOWING:
 WP(C) NO.27606 OF 2022

                                   -: 2 :-


                              JUDGMENT

Dated this the 13th day of March, 2023

This writ petition is filed seeking the following reliefs :-

"(i) Issue a writ of certiorari or any other appropriate writ, order or direction calling for the records leading to Ext.P6 and quash the same.

(ii) Issue a writ of mandamus or any other appropriate writ, order or direction directing the respondents to issue Occupancy Certificate to the petitioner."

2. Heard the learned counsel for the petitioner and the

learned Standing Counsel appearing for the respondent

Municipality.

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

that the petitioner, who is the owner of a small plot measuring 0.75

Ares (1.85 cents), had submitted an application for building permit

which was granted in the year 2016. It is submitted that the

building was constructed and a completion plan was submitted

seeking numbering of the building and issuance of occupancy

certificate. Ext.P6 notice was issued to the petitioner on 22.6.2022

stating that there are deviations from the approved building plan

and therefore, she has to obtain a survey sketch from the Taluk

Surveyor. The learned counsel for the petitioner submits that there

is no deviation in the extent of the land and that the said WP(C) NO.27606 OF 2022

requirement was not supported by any material. The petitioner has

approached this Court seeking issuance of occupancy certificate

and numbering of the building.

4. A counter affidavit has been placed on record by the 2 nd

respondent stating that there were discrepancies in the completion

plan submitted by the petitioner. It is stated that though the permit

was granted in respect of a residential building having three floors,

the completion plan shows a four storey building having a plinth

area of 157.17M2 while the approved plan area was only 133.80M 2.

It is stated that a building constructed in a small plot should not

exceed more than three floors and that a set back of 3 metres from

the road is not provided in the completion plan even though there is

3 metre set back from the road in the approved plan.

5. An additional counter affidavit was also placed on record

stating that there is deviation from the approved plan and that

there is a chance that the building will be put to commercial use

and if so, the fourth floor could not have been constructed in the

building even with a sheet roofing as attempted by the petitioner.

6. A reply affidavit has also been filed by the petitioner

stating that the plinth area of the completed building is only

133.8M2 and not 157.17M2 as claimed by the respondents. It is

further submitted that even if all the contentions are accepted, the WP(C) NO.27606 OF 2022

use of the small portion in the ground floor as a shop room or for

commercial purpose will not take the building out of the ambit of a

residential building in terms of Rule 25 of the Kerala Municipality

Building Rules, 2019 and that the resultant contention placing

reliance on Rule 74(6) also would not be applicable. It is further

submitted that the petitioner is ready and willing to submit an

application for regularisation since the plot is a small plot and that

all defects pointed out are permissible under the Building Rules.

Having considered the contentions advanced and in view

of the submission made by the learned counsel for the petitioner

that the building is being put to use mainly as a residential building

and that there is no commercial activity intended which would take

it outside the scope of a residential building as provided in Rule 25

of the Kerala Municipality Building Rules, I am of the opinion that

the request made by the petitioner for occupancy certificate and

numbering of the building is liable to be considered in accordance

with law. The petitioner shall submit an application for

regularisation of the construction within ten days from the date of

receipt of a copy of this judgment, which shall be considered and

appropriate decision taken thereon, within a period of three weeks

thereafter. The respondents shall take specific note of the

contention of the petitioner that the use of a portion of the property WP(C) NO.27606 OF 2022

for a commercial purpose will not take the building outside the

scope of residential occupancy as provided in the Rules. The

question with regard to the front yard and the leaving of the 3

metres shall also be considered specifically in accordance with the

Building Rules and taking note of the fact that the construction is in

a small plot. Once the application for regularisation is considered

and orders passed thereon, the request for occupancy and

numbering shall also be considered. Appropriate orders shall be

passed on the said application also within a period of two weeks

thereafter. The application shall be considered strictly in

accordance with notices already issued by the Municipality and

without raising further objections.

This writ petition is ordered accordingly.

Sd/-

ANU SIVARAMAN JUDGE

Jvt/13.3.2023 WP(C) NO.27606 OF 2022

APPENDIX OF WP(C) 27606/2022

PETITIONER EXHIBITS

Exhibit P1 TRUE COPY OF THE BUILDING PERMIT DATED 05.02.2016 ISSUED BY THE 3RD RESPONDENT.

Exhibit P1(a) A TRUE COPY OF THE RENEWED BUILDING PERMIT ISSUED BY THE 3RD RESPONDENT.

Exhibit P2 TRUE COPY OF THE COMPLETION PLAN OF THE BUILDING CONSTRUCTED BY THE PETITIONER.

Exhibit P3 TRUE COPY OF THE NOTICE DATED 30.12.2021 ISSUED BY THE 3RD RESPONDENT.

Exhibit P3(a) TRUE COPY OF THE LETTER DATED 01.02.2022 SUBMITTED BY THE PETITIONER BEFORE THE 3RD RESPONDENT.

Exhibit P4 TRUE COPY OF THE NOTICE DATED 03.02.2022 ISSUED BY THE 3RD RESPONDENT.

Exhibit P5 TRUE COPY OF THE REPLY DATED 27.04.2022 SUBMITTED BY THE PETITIONER BEFORE THE 3RD RESPONDENT.

Exhibit P6 TRUE COPY OF THE NOTICE DATED 22.06.2022 ISSUED BY THE 3RD RESPONDENT.

Exhibit P7 True 2 photographs of the building constructed by the Petitioner.

RESPONDENT EXHIBITS

Exhibit R2(a) A TRUE COPY OF THE RELEVANT PAGE OF THE PLAN OF THE PROPOSED RESIDENTIAL BUILDING APPROVED BY THE MUNICIPALITY WHILE SUBMITTING APPLICATION FOR BUILDING PERMIT

Exhibit R2(b) A TRUE COPY OF THE NOTICE NO. PW4BA278/15-16 DATED 03.08.2021