Kerala High Court
C Vijayan vs State Of Kerala on 23 May, 2024
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE MOHAMMED NIAS C.P.
THURSDAY, THE 23RD DAY OF MAY 2024 / 2ND JYAISHTA, 1946
WP(C) NO. 10417 OF 2024
PETITIONER:
C VIJAYAN,
AGED 74 YEARS
S/O KRISHNANKUTTY PANICKER,
ASA-13, 54/580A, KUMARANSHAN ROAD,
KATHRIKADAVU, KADAVANTHARA P.O,
ERNAKULAM, PIN - 682020
BY ADVS.
M.S.AMAL DHARSAN
BIJU MATHEW
RESPONDENTS:
1 STATE OF KERALA,
REPRESENTED BY THE SECRETARY TO THE LOCAL SELF
GOVERNMENT, SECRETARIAT, STATUE,
THIRUVANANTHAPURAM, PIN - 695001
2 KOCHI MUNICIPAL CORPORATION,
PB NO-1016, ERNAKULAM,
REPRESENTED BY ITS SECRETARY, PIN - 682011
3 THE SECRETARY,
KOCHI MUNICIPAL CORPORATION, PB NO-1016,
ERNAKULAM, PIN - 682011
4 THE ASSISTANT EXECUTIVE ENGINEER,
KOCHI MUNICIPAL CORPORATION,
VYTILA ZONAL OFFICE,
MAHAKAVI VAILOPPILLI ROAD,
ERNAKULAM, PIN - 682019
BY ADV C.N.PRABHAKARAN
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
23.05.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
-2-
WPC 10417/2024
MOHAMMED NIAS C.P., J.
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WP(C)No.10417 of 2024
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Dated this the 23rd day of May, 2024
JUDGMENT
The petitioner, stated to be the owner of properties measuring an extent of
6.944 cents in Survey No.709/2 in Elamkulam Village, Kanayannur Taluk,
Ernakulam District, had obtained a building permit from the second respondent to
construct a residential building in the said property as per Ext.P1. The petitioner
was granted a permit to put up a G+3 residential building. Thereafter,
purportedly based on the order passed by this Court in WP(C)No.1816/2015 dated
15.06.2015, a stop memo was issued through Ext.P2. The petitioner had
preferred WP(C)No.8115/2019 challenging the stop memo, in which an interim
order was passed on 03.04.2019, Ext.P3, wherein, the Secretary of the
Corporation was directed not to interfere with the construction activity carried
out by the petitioner in terms of the building permit issued on 15.02.2018. The
petitioner submits that the Corporation had later withdrawn the stop memo as
seen from Ext.P4 proceedings dated 21.09.2023 and accordingly the petitioner
completed the construction and submitted the completion certificate and applied
for occupancy certificate on 27.11.2023. The prayer in the writ petition is to
direct the third respondent to issue an occupancy certificate in view of Rule 20(3)
of the Kerala Municipality Building Rules, 2019 and to number the building
constructed as per Ext.P1 building permit. Learned counsel for the petitioner also
submits that they are entitled to a deemed occupancy certificate in the light of
Rule 20(3) of the Kerala Municipality Building Rules, 2019.
2. The Corporation resists the prayers in the writ petition by filing a
statement in which they rely on the orders passed by this Court in IA
No.7179/2015 in WP(C)No.1816/2015, injuncting any further construction or
conversion in the Girinagar Housing Colony area. Though the order granted on
15.06.2015 was modified as per Ext.R3(a) order dated 12.2.2019, clarifying that
the interim order passed on 15.6.2015 does not stand in the way of the
Corporation from considering the applications for a building permit, in respect of
all categories of residential building permits other than those for flats/apartments
in the Girinagar Housing Colony.
3. Learned standing counsel for the Corporation, therefore, submits
that the order concerning the apartments still holds the field despite the
clarification as the construction put up by the petitioner is a flat or an apartment
complex. The said contention cannot be accepted as the Corporation itself had
granted Ext, P1 building permit when the order was in force. That apart, by
Ext.P3 order of this Court the petitioner was permitted to carry on the
constructions in terms of the building permit. In that view of the matter the
objections now made by the Corporation to refuse the numbering of the building
and issuing the occupancy certificate cannot be countenanced. If the petitioner
could not have constructed the building in view of the orders of this Court stated
above, equally, the Corporation also could not have issued a permit. Accordingly,
there will be a direction to the third respondent to consider the application
preferred by the petitioner, Ext.P5 seeking occupancy certificate, in accordance
with law, after ensuring that the construction has been put up in terms of the
building permit issued. Orders on Ext.P5 shall be passed within a month from the
date of receipt of a copy of this judgment.
The writ petition is allowed as above.
Sd/-
MOHAMMED NIAS C.P.
JUDGE
dlk/23.05.2024
APPENDIX OF WP(C) 10417/2024
PETITIONER'S EXHIBITS
EXHIBIT P1 TRUE COPY OF THE BUILDING PERMIT NO.
KRP1/437/17/COC/KRP/1130/17 DATED
15/02/2018 ISSUED BY THE 2ND RESPONDENT TO
THE PETITIONER
EXHIBIT P2 TRUE COPY OF THE STOP MEMO DATED 15/11/2018
ISSUED BY THE 3RD RESPONDENT TO THE
PETITIONER
EXHIBIT P3 TRUE COPY OF THE INTERIM ORDER DATED
03/04/2019 IN W.P(C) NO. 8115/2019
EXHIBIT P4 TRUE COPY OF THE ORDER DATED 21/09/2023
ISSUED BY THE 4TH RESPONDENT TO THE
PETITIONER
EXHIBIT P5 TRUE COPY OF THE COMPLETION CERTIFICATE
DATED 27/11/2023 SUBMITTED BY THE
PETITIONER TO THE 3RD RESPONDENT ALONG WITH
THE ACKNOWLEDGMENT RECEIPT ISSUED BY THE
2ND RESPONDENT
RESPONDENTS ANNEXURES
ANNEXURE-R3(A) THE TRUE COPY OF THE ORDER DATED 12-02-2019
IN I.A.1/2019 IN W.P.(C) NO.1816/2015
