Bosemon Joseph Nedumpalakunnel v. Pala Municipality

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **MONDAY, THE 01ST DAY OF JUNE 2020 / 11TH JYAISHTA, 1942** ## **WP(C).No.10679 OF 2020(H)** ## **PETITIONER/S:** **BOSEMON JOSEPH NEDUMPALAKUNNEL HOUSE, PALA P. O., BT COLLEGE ROAD, KOTTAYAM.** **BY ADV. SRI.MATHEW JOHN (K)** ## **RESPONDENT/S:** **1 PALA MUNCIPALITY REPRESENTED BY ITS SECRETARY, PALA, KOTTAYAM DISTRICT, PIN - 685 575. 2 THE SECRETARY PALA MUNICIPALITY, PALA, KOTTAYAM DISTRICT, PIN - 686 575.** ## **OTHER PRESENT:** ## **SRI.SUJITH MATHEW JOSE** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 01.06.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** WP(C).No.10679 OF 2020(H) 2 ## **ALEXANDER THOMAS, J.** ------------------------------------------W.P.(C)No.10679 of 2020 ---------------------------------------------Dated this the 1[st] day of June, 2020 ## **JUDGMENT** The case set up in this Writ Petition (Civil) is that the petitioner is aggrieved by Ext.P15 notice of the 2[nd] respondent rejecting the application for issue of occupancy certificate in respect of the construction completed by the petitioner in 2017. The main contentions raised by the petitioner is as follows:- (a) The additional construction said to have been made by the petitioner in Ext.P15 is 25.23 Sq. meters. This is factually incorrect. The additional construction is only 14.88 Sq. meters and the same is lesser than 5% of the sanctioned area. It is a matter of common knowledge that when a construction is made, a small variation to this extent is bound to occur. (b) The 2[nd] respondent has insisted upon the petitioner to ensure that the construction conforms to the Building Rules as it stood on the date of completion of the construction. This is contrary to the specific direction in Ext.P12 judgment which is WP(C).No.10679 OF 2020(H) 3 inter-partes and which has become final. (c) Ext.P15 is also vitiated on account of the violation of the principles of natural justice in so far as the materials relied on Ext.P15 namely the report of the Municipal Engineer has thus far been not made available to the petitioner. 2. It is in the light of the above factual averments and contentions that the petitioner has filed instant Writ Petition (Civil) with the following prayers:- _“i) Call for the records leading upto Ext.P15 and issue a writ in the nature of certiorari or any other appropriate writ, direction or order quashing Ext.P15._ _ii) Issue a writ in the nature of mandamus or any other appropriate writ, direction or order commanding the 2[nd] respondent to forthwith issue an occupancy certificate to the petitioner pursuant to Ext.P4 application submitted by him._ _iii) Declare that the construction made by the petitioner on the strength of Ext.P1 building permit as renewed by Exts.P2 and P3 are legal and proper._ _iv) Issue such other writs, directions or orders as are just and necessary in the facts and circumstances of the case to meet the ends of justice.”_ 3. Heard Sri.Mathew John, learned counsel appearing for petitioner and Sri. Sujith Mathew Jose, learned Standing Counsel for the respondents (Pala Municipality). 4. This is the third round the petitioner has constrained to approach this Court, in regard to his grievance relating to his WP(C).No.10679 OF 2020(H) 4 construction and issuance of occupancy certificate. As per the averments, the petitioner has made the construction of the building pursuant to Ext.P-1 building permit dated 19.03.2008 issued by the 2[nd] respondent-Secretary of the Pala municipality. In Ext.P-12 judgment dated 31.10.2019 rendered by this Court in W.P.(C) No.3856/2019, filed by the petitioner herein, this Court has intermittently held that it is well settled by a series of rulings of this Court as in _**Heera Construction (P) Ltd. v. Corporation of Trivandrum**_ [2008 (3) KLT 553] that a local self body like a municipality/municipal corporation, cannot impose any restrictive condition based on any _ex post facto_ rule, in respect of a construction that has been made on the basis of the approved building plan and permit granted much earlier. Accordingly this Court held that the restrictions that can be imposed in the petitioner's case could be only with reference to the restrictions that could be legally imposed as per the Building Rules that stood at the time of the grant of the building permit and not the Building Rules which are in force subsequently at the time of the request for grant of occupancy certificate. In that view of the matter, this Court held that the impugned decision taken by WP(C).No.10679 OF 2020(H) 5 the respondents to refuse the grant of occupancy certificate to the completed construction of the petitioner is legally untenable and unsustainable and accordingly this Court has quashed the impugned order therein and has directed the 2[nd] respondentSecretary of the Pala municipality to reconsider the application of the petitioner for grant of occupancy certificate exclusively on the basis of the approved Plan and Permit and the Rules in force at the time when the building permit was granted after affording reasonable opportunity of being heard to the petitioner, without much delay, at any rate, within one month from the date of production of a certified copy of this judgment. 5. Now, the 2[nd] respondent-Secretary of the Pala municipality has issued impugned Ext.P15 rejection order dated 28.01.2020, which reads as follows:- _“From_ _Bosemon Joseph, Nedumpalakunnel House, Pala P.O._ _To The Secretary, Pala Municipality._ സ�ർ, പ�ല� മനനസനപ�ലനറനയനൽBA 270/07-08 Dated 19/03/2008 ആയന ഒര commercial building extension നന വവണന permit അനവദനകകയണ�യന. ടന permit ക�ല�വധനകന മൻപ�യന കകടനട നനർമ�ണ# പർത&കരനകവ�ൻ സ�ധനക�തനരനതനന�ൽ WP(C).No.10679 OF 2020(H) 6 ക�ല�വധനകന മൻപ�യന പതകവ�ൻ അവപകനകകയ# രണന പ�വശ/# പതകനതരകയ# ക0യനരന. [26/04/2011 ല# 30/05/2014 ല#] ടന കകടനട നനർമ�ണ# ഇവപ�ൾ പർത&കരനചതനന�ൽcompletion certificate ഉ# plan ഉ# സമർപനകന. ഇതന പരനഗണനചന ടന കകടനടതനനന occupancy certificate നൽകണകമനന അവപകനകന. എനന _sd/Bosemon Joseph_ _Pala 14/02/2017.”_ 6. Two grounds of rejection has stated in Ext.P15 for justifying the rejection of the plea for grant of occupancy certificate. The first ground is that inspection has been conducted by the respondent Municipality in which it has been found that the actual construction made by the petitioner would be in excess of 25.23 Sq. mtr. compared to the extent of construction permitted as per the approved plan. The second ground of rejection stated therein is that the plea of the petitioner can be considered only on the basis of the Building Rules that are in force at the time of the request of the petitioner for regularisation. 7. It is asserted by the petitioner that the so called inspection referred in Ext.P15 has been conducted behind the back of the petitioner and said inspection has not been done with due prior notice to the petitioner and copy of the inspection report has also not been given to the petitioner before the decision taken WP(C).No.10679 OF 2020(H) 7 as per Ext.P15. 8. The second contention of the petitioner is that the other ground of rejection that the plea for regularisation can be considered by the respondent only on the basis of the Building Rules that was in force at the time of the said plea, etc. is against the well settled law and is also in blatant violation of _inter parte_ judgment which regularise the field as per Ext.P12 judgment. 9. After hearing both sides, this Court has no hesitation to hold that the elementary principles of natural justice and fairness would demand that such an inspection, as referred to in Ext.P1 would have been done only with prior notice to the petitioner and petitioner's objection should also have been duly noted by the inspection officer before the report is submitted and a copy of the inspection report should necessarily have been given by the 2[nd] respondent before the decision is taken in the matter. Petitioner would assert that the petitioner has recently conducted a meticulous measurement of the entire constructed area and it is found that the excess constructed area does not exceed 14.88 Sq. mtr. which is less than the condonable 5% of the sanctioned area and it is well settled that in matters like this such excess area upto WP(C).No.10679 OF 2020(H) 8 ## 5% is only to be condoned. 10. As regards the second ground, this Court has no hesitation to hold that the impugned stand taken by the 2[nd] respondent in Ext.P15 is not only illegal and ultra vires but also in flagrant violation of the _inter parte_ judgment and in this matter as can be seen from Ext.P12 judgment dated 31.12.2019 in W.P.(C) No.3856 of 2019. It is well settled that the restrictions that can be pressed into service in cases like this should be adjusted with reference to the restrictions stipulated as per the Building Rules which were in force at the time of the building permit and not the subsequently engrafted Rules. It is not known as to why the 2[nd] respondent, who is a responsible officer should have passed an order in the nature of Ext.P15, in violation of Ext.P12 judgment., which is already concluded between the parties. Hence, in the light of these aspects this Court is constrained to interdict in this judicial review proceedings. Accordingly the impugned decision in Ext.P15 will stand quashed and set aside. The matter in relation to the application of grant of occupancy certificate will stand remitted to the 2[nd] respondent-Secretary of the Pala municipality for consideration of the matte and taking a decision WP(C).No.10679 OF 2020(H) 9 afresh. In that regard the following orders and directions were passed:- (i) The 2[nd] respondent-Secretary of the Pala municipality will immediately ensure that inspection of the subject construction is made by their Municipal Engineer, with due prior notice to the petitioner. In that regard, the petitioner is permitted to engage a qualified Civil Engineer of his choice and petitioner will be at liberty to request the Inspection Officer/Municipal Officer to note their points as may be made out by the said private Engineer of the petitioner. One of the important things would be to take measurements of the completed construction to ascertain as to whether there is any excess construction compared to the sanctioned construction area, etc. In that regard, during the process of such measurement, if the petitioner wants to make any particular submissions, he may do it through his private Engineer, who may give it in writing to the Inspection Officer/Municipal Engineer, concerned. After he inspection process is over, Inspection Officer will duly advert to the said submissions/objections that may be submitted by the petitioner through his Engineer and thereafter, the Engineer may draw up WP(C).No.10679 OF 2020(H) 10 inspection report dealing with the factual aspect and also precisely stating as to the actual total extent of the constructed area and and whether there is any excess compared to the sanctioned area and if so, the percentage thereof, etc. The inspection report should be given by the Inspection Officer to the 2[nd] respondentSecretary of the Pala municipality, who will ensure that copy of the inspection report is given to the petitioner in advance. Thereafter the 2[nd] respondent will afford reasonable opportunity of being heard to the petitioner through his authorised representative/counsel, if any, will render a considered decision on the plea of the petitioner to grant of occupancy certificate, without much delay, preferably within a period of six weeks from the date of production of a certified copy of this judgment. 11. In this regard, since this Court would also venture to observe that since this is a third round of litigative writ proceedings, it is expected and hoped that the entire decision making will be fair and transparent. 12. Needless to say as has already been ordered in Ext.P12 judgment the Rules that are to be taken in to account to ascertain as to whether the petitioner has adhered to the restrictions, etc. WP(C).No.10679 OF 2020(H) 11 should be with reference to the Building Rules that were in force at the time of the grant of the building permit and not the subsequently engrafted Rules. So also, this Court would also venture to act that in case the excess constructed area of the petitioner is within the condonable limit, then necessary discretion may also be exercised in that regard, as per the Rules, so that the party is not unnecessarily driven to litigate before this Court. 13. Petitioner will forward a copy of the memorandum of this writ petition (civil) along with all the exhibits as well as the certified copy of this judgment to the 2[nd] respondent-Secretary of the Pala Municipality for necessary information and further action. With these observations and directions, the above Writ Petition (Civil) will stand finally disposed of. ## **Sd/-** ## **ALEXANDER THOMAS, JUDGE** Skk//16062020 WP(C).No.10679 OF 2020(H) 12 ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** - **EXHIBIT P1 TRUE COPY OF THE BUILDING PERMIT ISSUED BY THE RESPONDENT ON 19.03.2008 TO THE PETITIONER.** **EXHIBIT P2 TRUE COPY OF THE ORDER GRANTING EXTENSION OF BUILDING PERMIT ON 26.04.2011 BY THE 2ND RESPONDENT.** **EXHIBIT P3 TRUE COPY OF THE ORDER GRANTING EXTENSION OF BUILDING PERMIT ON 30.05.2014 BY THE 2ND RESPONDENT TO THE PETITIONER.** - **EXHIBIT P4 TRUE COPY OF THE APPLICATION FOR COMPLETION CERTIFICATE SUBMITTED BY THE PETITIONER IN THE PRESCRIBED FORMAT BEFORE THE 2ND RESPONDENT.** - **EXHIBIT P5 TRUE COPY OF THE APPLICATION DATED 14.02.2017 SUBMITTED BY THE PETITIONER BEFORE THE 2ND RESPONDENT FOR ISSUANCE OF OCCUPANCY CERTIFICATE.** - **EXHIBIT P6 TRUE COPY OF THE RECEIPT ISSUED BY THE MUNICIPALITY PROVING ACCEPTANCE OF EXT. P5.** - **EXHIBIT P7 TRUE COPY OF THE JUDGMENT DATED 21.11.2018 IN W.P.(C) NO.36221 OF 2018 OF THIS HON'BLE COURT.** - **EXHIBIT P8 TRUE COPY OF THE INTIMATION VIDE NO.BA/270/07-08 FORWARDED BY THE 2ND RESPONDENT TO THE PETITIONER.** - **EXHIBIT P9 TRUE COPY OF THE PLAN SANCTIONED IN FAVOUR OF THE PETITIONER BY THE 2ND RESPONDENT.** **EXHIBIT P10 TRUE COPY OF THE COUNTER AFFIDAVIT FILED IN W.P.(C) NO.3856/2019 BY THE RESPONDENTS.** WP(C).No.10679 OF 2020(H) 13 ## **EXHIBIT P11** **TRUE COPY OF THE REPLY AFFIDAVIT FILED BY THE PETITIONER TO EXT.P10 COUNTER AFFIDAVIT FILED BY THE RESPONDENTS.** **EXHIBIT P12** - **TRUE COPY OF THE JUDGMENT IN W.P.(C) NO.3856/2019 DATED 31.10.2019 OF THIS HON'BLE COURT.** - **EXHIBIT P13** - **TRUE COPY OF THE NOTICE OF HEARING DATED 21.12.2019 ISSUED BY THE 2ND RESPONDENT TO THE PETITIONER.** - **EXHIBIT P14 TRUE COPY OF THE WRITTEN REPLY SUBMITTED BY THE PETITIONER BEFORE THE OFFICE OF THE 2ND RESPONDENT ON 24.12.2019.** - **EXHIBIT P15 TRUE COPY OF THE NOTICE DATED 28.01.2020 ISSUED BY THE 2ND RESPONDENT TO THE PETITIONER.** - **EXHIBIT P16 TRUE COPY OF THE TAX RECEIPT NO.2573209 DATED 03.04.2012 ISSUED IN FAVOUR OF THE PETITIONER.** - **EXHIBIT P17 TRUE COPY OF THE TAX RECEIPT NO.4467967 DATED 05.04.2013 ISSUED IN FAVOUR OF THE PETITIONER.** ## **RESPONDENTS' EXHIBITS: NIL**