Kerala High Court
Muneer A vs State Of Kerala on 11 September, 2024
2024:KER:69364
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE MOHAMMED NIAS C.P.
WEDNESDAY, THE 11TH DAY OF SEPTEMBER 2024 / 20TH BHADRA, 1946
WP(C) NO. 12993 OF 2024
PETITIONERS:
1 MUNEER A,
AGED 44 YEARS
S/O. ABDUL AZEEZ , KAIPPALLI KIZHAKKETHIL, KAMBALADY,
PORUVAZHI P.O, KOLLAM, PIN - 690520.
2 SUMAYYA,
AGED 35 YEARS,
W/O. MUNEER A., KAIPPALLI KIZHAKKETHIL, KAMBALADY,
PORUVAZHI P.O, KOLLAM, PIN - 690520.
BY ADVS.
V.PHILIP MATHEWS
SEBA ANNA SIMON
RESPONDENTS:
1 STATE OF KERALA,
LOCAL SELF GOVERNMENT DEPARTMENT REPRESENTED BY
PRINCIPAL SECRETARY, ROOM NO. 404A,4TH FLOOR, ANNEX I,
SECRETARIATE, THIRUVANANTHAPURAM, PIN - 695003.
2 DISTRICT TOWN PLANNER, KOLLAM,
DISTRICT TOWN PLANNING OFFICE MUNICIPAL BUILDING
CHINNAKKADA, KOLLAM, PIN - 691001.
3 THE SASTHAMCOTTA GRAMA PANCHAYATH,
SASTHAMKOTTA, SASTHAMKOTTA P.O, KOLLAM DISTRICT
REPRESENTED BY SECRETARY, PIN - 690521.
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4 THE SECRETARY,
SASTHAMCOTTA GRAMA PANCHAYATH SASTHAMKOTTA,
SASTHAMKOTTA P.O, KOLLAM DISTRICT, PIN - 690521
R1 & R2 BY SMT.PREETHA K.K., SENIOR GOVERNMENT
PLEADER
R3 & R4 BY ADVS.
P.MOHANDAS (ERNAKULAM)
K.SUDHINKUMAR
SABU PULLAN
GOKUL D. SUDHAKARAN
R.BHASKARA KRISHNAN
BHARATH MOHAN
K.P.SATHEESAN (SR.)
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
11.09.2024, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
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JUDGMENT
The petitioners, on the strength of the building permit granted to
them on 16.04.2022, for putting up a commercial building having an area
of 775.4 square meters, completed the construction and made a report of
completion for the purpose of grant of occupancy certificate. The said
application was returned as per Ext.P4 dated 17.11.2023, pointing out
slight variation, as regards the setback on one side which was made based
on the height of the building. They alleged that the building was
constructed without leaving 1.3 meters on one side and close to the
boundary on the other side, though the required setback was 0.5 metres
more. It is stated in Ext.P4 that the construction was made in accordance
with the permit and that the above mistake in granting the permit was an
oversight on the part of the Panchayat. The petitioners seek quashing of
Ext.P4 and a direction to respondents 2 and 3 to number the building
constructed by the petitioners on the basis of Ext.P1 building permit.
2. A counter affidavit has been filed on behalf of the Panchayat
wherein it is stated that a report was given by the Overseer, who found
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that the present setback provided in front was 6 Mtr., in the back was 2.1
Mtr., and in the side was 1.5 Mtr., which was not strictly in accordance
with the Kerala Panchayat Building Rules. This was stated as the reason
for not granting the occupancy certificate or assigning the building
number.
3. The petitioners filed a reply affidavit disputing the averments
made by the Panchayat and stating that as a matter of fact, there was
consent for the construction on one side, Ext.P8 given by the neighbouring
owner and that the second floor of the building was constructed leaving
1.50 meters width on the South, despite Ext.P8 consent. Accordingly, the
allegations against them on the violation of Rule 26(4) of the Kerala
Panchayat Building Rules was denied.
4. The learned counsel for the petitioners also relies on the
judgments of this Court reported in Bahseer v. Meenangadi Grama
Panchyat [2022(4) KLT Online 1255], Mohammed Habeebulla and
Others v. Corporation of Cochin and Another [2021 (3) KHC 201] and
Narahari Rao v. State of Kerala and Others [1999 KHC 36], for
substantiating the contention that as long as the petitioners constructed
the building in terms of the building permit granted, the respondent
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Panchayat could not have refused to grant the occupancy certificate. At
any rate, the violation is trivial, as the difference in height is only 14 cm
from the ground.
5. After hearing the learned counsel on either side, there is no
dispute that the petitioners have completed the construction in terms of
Ext.P1 permit granted. There is no allegation against the petitioners
violating the permit or making any changes in the drawings/plan. The
petitioners also had obtained Ext.P8 consent, which was produced before
the Panchayat from the owner residing on the southern side and
therefore, the allegation on facts against the petitioners is incorrect. At
any rate, the petitioners were not in any way responsible for making any
misrepresentation or mistake which led to the grant of the permit for the
petitioners to be held liable for the mistake committed by the Panchayat
while issuing the permit. It is conceded in Ext.P4 that the oversight was
on the part of the Panchayat. Further, as held in the decisions referred to
above, the defects of trivial nature cannot be taken as serious violations
for refusing the occupancy certificate.
6. For the reasons stated above, I am inclined to quash Ext.P4.
Consequently, there will be a direction to respondents 2 and 3 to issue the
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occupancy certificate to the petitioners and number the building, as the
building is constructed strictly in terms of the permit granted. This shall
be done within three weeks from the date of receipt of a copy of this
judgment.
The writ petition is allowed as above.
Sd/-
MOHAMMED NIAS C. P. ,
JUDGE
DCS
2024:KER:69364
APPENDIX OF WP(C) 12993/2024
PETITIONER EXHIBITS
EXHIBIT P 1 TRUE COPY OF THE SITE APPROVAL AND
BUILDING PERMIT NO. C2-BA (123180)/2022
DATED 16-04-2022 TO THE PETITIONERS
EXHIBIT P 2 PHOTOGRAPH SHOWING THE COMPLETED
CONSTRUCTION
EXHIBIT P 3 TRUE COPY OF THE ACKNOWLEDGMENT RECEIPT
ISSUED FROM THE SASTHAMKOTTA PANCHAYATH
OFFICE REGARDING SUBMISSION OF
APPLICATION DATED 07-10-2023
EXHIBIT P 4 TRUE COPY OF THE LETTER NUMBER
400278/BABC06/GPO /2023 /7351 (1) DATED
17-11-2023 TO THE PETITIONER FROM THE
THIRD RESPONDENT
EXHIBIT P 5 TRUE COPY OF THE REPRESENTATION 18-12-
2023 BEFORE THE PLANNING OFFICER, KOLLAM
DISTRICT SUBMITTED BY PETITIONER THROUGH
NAVA KERALA SADAS
EXHIBIT P 6 TRUE COPY OF THE PETITION DATED 18-12-
2023 TO THE HONOURABLE CHIEF MINISTER OF
KERALA THROUGH THE NAVA KERALA SADAS BY
FIRST PETITIONER
EXHIBIT P 7 TRUE COPY OF THE PETITION DATED 19-12-
2023 TO THE TO THE PRINCIPAL SECRETARY OF
KERALA, LOCAL SELF GOVERNMENT
INSTITUTIONS THROUGH THE NAVA KERALA
SADAS BY FIRST PETITIONER
EXHIBIT P8 TRUE COPY OF CONSENT DATED 15-01-2022
GIVEN BY MR. SASIDHARAN
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RESPONDENT EXHIBITS
EXHIBIT-R4(A) TRUE COPY OF THE REPORT GIVEN BY THE
OVERSEER AS APPROVED BY THE ASSISTANT
ENGINEER DATED 13-10-2023
