## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`**
## **`PRESENT`**
## **`THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN WEDNESDAY, THE 31[ST] DAY OF AUGUST 2022 / 9TH BHADRA, 1944`**
## **`WP(C) NO. 14316 OF 2022`**
## **`PETITIONER:`**
```
INDIRA J MENON
AGED 68 YEARS
W/O. JAYAPRAKASH MENON, MANAGING DIRECTOR
I J BUILDERS AND DEVELOPERS PRIVATE LTD,
KUMARIVILAS, POOTHAMPILLIL TOWERS,
SWAMI CHINMAYANANDA ROAD, COCHIN 16
BY ADVS.
JOBY JACOB PULICKEKUDY
ANIL GEORGE
DAJISH JOHN
HARIKRISHNAN P.
POOJA SEBASTIAN
```
## **`RESPONDENTS:`**
```
1STATE OF KERALA
REPRESENTED BY SECRETARY TO GOVERNMENT LOCAL
ADMINISTRATION (M) DEPARTMENT, SECRETARIAT,
THIRUVANANTHAPURAM 695 001
2THE CORPORATION OF COCHIN
REPRESENTED BY ITS SECRETARY,
CORPORATION OFFICE ERNAKULAM 682 011
3THE SECRETARY
CORPORATION OF COCHIN, CORPORATION OFFICE,
ERNAKULAM 682 011
BY ADV SHRI.K.JANARDHANA SHENOY, SC, CORPORATION
SMT.DEEPA NARAYANAN, SR.GP
```
```
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR
ADMISSION ON 31.08.2022, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
```
**W.P.(C).No.14316/2022**
**2**
**P.V.KUNHIKRISHNAN, J. -------------------------------W.P.(C).No.14316 of 2022 ---------------------------------------------Dated this the 31[st ] day of August, 2022**
## **JUDGMENT**
This writ petition is filed with following prayers:
i. Declare that the petitioner is entitled for a deemed occupancy as on 17/09/2004 and therefore, the petitioner is entitled to have Occupancy Certificate to be issued physically. ii. Issue a writ of mandamus or any other appropriate writ, Order or direction commanding the second respondent to number the buildings namely floors 2 to 6 as the building was completed and tax was received in 2005 itself.
iii. Issue a writ of certiorari or any other appropriate writ, calling for the records relating to Exhibit P20 and quash the same.
iv.
Issue a writ of mandamus or any other appropriate writ, Order or direction commanding the second respondent to regularize the building in case it is found not completed, as per the law prevailed at the
**W.P.(C).No.14316/2022**
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time of granting building permit that too without insisting for any deficiency occurred on account of the land acquisition for the Kochi Metro Rail.
v. Such further and other reliefs which this Hon'ble Court deems fit and proper in the facts and circumstance of the case.
**==> picture [35 x 12] intentionally omitted <==**
2. Petitioner is the owner of property having an extent of 15.100 cents of land in Survey No.702/5 of Ernakulam Village. She applied for a building permit for the construction of an eight storied building (basement + ground + 6 floors) on 21.5.1997. The permit was issued as per Ext.P1 based on the exemption granted by the Government as per Ext.P3. Subsequently the petitioner was directed to produce NOC from Aviation Department, Department of Telecommunications and also Fire Department. As per Exts.P4, P5 and P6 the authorities granted NOC. The building permit was renewed from time to time up to 2006. The petitioner initially completed basement+ground+1[st] floor, for which completion certificate was submitted on 16.03.2001, as per Ext.P9. Thereafter, it is the case of the petitioner that the entire construction was
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## **W.P.(C).No.14316/2022**
completed in September 2004. The completion certificate was submitted in respect of floors 2 to 6 on 02.09.2004, as evident by Ext.P10. Thereafter there was no communication from the Corporation. On completion of the entire building, the petitioner was directed to pay one time building tax as per Ext.P11 assessment order. Ext.P12 demand notice was also issued to the petitioner to pay the building tax in four instalments. The petitioner paid the amount. It is also submitted by the petitioner that the notification of acquisition of land for the construction of Metro Rail was published during that time and a portion of the property was acquired from the petitioner. Though the construction of the entire floors were completed in September 2004, the interior works in the 2 to 6 floors were not completed. After acquisition of a portion of the property including the car parking area, it is submitted that the petitioner lost a major portion of the car parking area provided for the building. In the meanwhile, the respondents collected the property tax as unauthorized construction. The petitioner approached the respondents to number the building and issue occupancy certificate. However,
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## **W.P.(C).No.14316/2022**
the 3[rd] respondent directed to submit regularization application as per the present rules. Since the building was completed within the period of building permit, according to the petitioner, he is not liable to submit regularization application as per the present rules. It is the case of the petitioner that the 3[rd] respondent is duty bound to issue occupancy certificate and number the building. Hence this writ petition.
3. Heard the learned counsel for the petitioner and the learned Standing Counsel appearing for respondents 2 and 3. I also heard the learned Government Pleader.
4. It is an admitted fact that the petitioner constructed the building (basement + ground floor + 6 floors). Exts.P9 and P10 are the completion certificates. Ext.P9 will show that the basement floor, ground floor and first floor are completed. Ext.P10 will show that the 2[nd] , 3[rd] , 4[th ] , 5[th] and 6[th] floors are completed. As far as Ext.P9 completion certificate is concerned, the petitioner obtained the occupancy certificate. Ext.P10 is dated 02.09.2004. Admittedly there is no response to Ext.P10 completion certificate submitted by the petitioner
**W.P.(C).No.14316/2022**
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as required under Rule 22 of the Kerala Municipality Building Rules. As per the second proviso to Rule 22(3) of the Municipality Building Rules, if no occupancy certificate is issued within fifteen days, the owner may proceed as if such an occupancy certificate has been duly issued to him. If that is the case, there is no unauthorised construction by the petitioner and the petitioner proceeded because there is a presumption in the light of the second proviso to Rule 22(3). It is to be presumed that the occupancy certificate is deemed to have issued to the petitioner as far as floors 2 to 6 are concerned. If that is the case, respondents are bound to issue deemed occupancy certificate and there can be a direction to number the building. The Standing Counsel for the Corporation takes me through paragraph 4 of the counter affidavit filed by respondents 2 and 3. But it is a fact that no orders are passed in Ext.P10 and therefore there is a deemed occupancy certificate.
Therefore, this writ petition is allowed in the following manner:
1. Ext.P20 is quashed.
2. Respondents 2 and 3 are directed to issue
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## **W.P.(C).No.14316/2022**
deemed occupancy certificate based on Ext.P10, as expeditiously as possible, at any rate, within six weeks from the date of receipt of a copy of this judgment.
3. Respondents 2 and 3 will number the building based on the occupancy certificate and accept tax in accordance to law.
JV
Sd/- **P.V.KUNHIKRISHNAN JUDGE**
**W.P.(C).No.14316/2022**
**8**
## **`APPENDIX OF WP(C) 14316/2022`**
## `PETITIONER EXHIBITS`
|`Exhibit P1`|`THE TRUE PHOTO COPY OF BUILDING PERMIT`|
|---|---|
||`NO.MOP4-4/97`|
|`Exhibit P2`|`THE TRUE PHOTO COPY OF GOVERNMENT`|
||`ORDER DATED 21/5/1997 ISSUED FOR THE`|
||`INITIAL BUILDING PERMIT,`|
|`Exhibit P3`|`THE TRUE PHOTO COPY OF GOVERNMENT`|
||`ORDER NO.GO (RT) NO.2770/97/LAD DATED`|
||`12/8/1997.`|
|`Exhibit P4`|`THE TRUE PHOTO COPY OF NO OBJECTION`|
||`CERTIFICATE DATED 22/5/1998 ISSUED BY`|
||`THE FLAG OFFICER COMMANDING IN CHIEF`|
|`Exhibit P5`|`THE TRUE PHOTOCOPY OF NO OBJECTION`|
||`CERTIFICATE ISSUED BY THE DEPARTMENT`|
||`OF TELECOMMUNICATIONS DATED 16/12/1996`|
|`Exhibit P6`|`NO OBJECTION CERTIFICATE DATED`|
||`10/02/1999 ISSUED BY THE FIRE`|
||`DEPARTMENT`|
|`Exhibit P7`|`THE MEMO DATED 8-4-2003 ISSUED BY THE`|
||`SECOND RESPONDENT`|
|`Exhibit P8`|`THE TRUE PHOTOCOPY OF RENEWAL LETTER`|
||`DATED 8/4/03 FOR THE PERIOD 14/11/2003`|
||`TO 13/11/06`|
|`Exhibit P9`|`THE TRUE PHOTOCOPY OF COMPLETION`|
||`CERTIFICATE DATED 16/03/2001`|
|`Exhibit P10`|`THE TRUE PHOTOCOPY OF COMPLETION`|
||`CERTIFICATE SUBMITTED BY THE`|
||`PETITIONER IN RESPECT OF THE FLOORS 2`|
||`TO 6 DATED 02/09/2004`|
|`Exhibit P11`|`THE TRUE PHOTOCOPY OF ASSESSMENT ORDER`|
||`DATED 28/09/2004`|
|`Exhibit P12`|`THE NOTICE OF DEMAND DATED 28/09/2004`|
|`Exhibit P13`|`THE NOTICE DATED 5/8/2004 ISSUED BY`|
||`THE TAHSILDAR KANAYANOOR TALUK`|
|`Exhibit P14`|`THE TRUE PHOTO COPY OF BUILDING TAX`|
||`RECEIPT OF THE VILLAGE OFFICE`|
||`ERNAKULAM DATED 25/10/2004`|
|`Exhibit P14A`|`THE TRUE PHOTO COPY OF BUILDING TAX`|
||`RECEIPT OF THE VILLAGE OFFICE`|
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## **W.P.(C).No.14316/2022**
```
ERNAKULAM DATED 27/01/2005
Exhibit P14BTHE TRUE PHOTO COPY OF BUILDING TAX
RECEIPT OF THE VILLAGE OFFICE
ERNAKULAM DATED 25/5/05
```
- `Exhibit P14C THE TRUE PHOTO COPY OF BUILDING TAX RECEIPT OF THE VILLAGE OFFICE ERNAKULAM DATED 27/09/2005`
- `Exhibit P15 THE PROPERTY TAX DATED 8/7/2005 IN RESPECT OF THE 6TH FLOOR`
- `Exhibit P16 THE DEMAND NOTICE ISSUED BY THE CORPORATION DATED 07/07/2005 IN RESPECT OF THE 6TH FLOOR`
- `Exhibit P17 THE TRUE PHOTOCOPY OF PROPERTY TAX RECEIPT DATED 31/12/2021 IN RESPECT OF BUILDING NO 62/3476`
- `Exhibit P17A THE PROPERTY TAX RECEIPT DATED 31/12/2021 IN RESPECT OF DOOR NO.62/3477`
- `Exhibit P17B THE TRUE PHOTOCOPY OF PROPERTY TAX RECEIPT DATED_31/12/2021 FOR BUILDING NO .62/3478`
- `Exhibit P17C THE TRUE PHOTOCOPY OF PROPERTY TAX RECEIPT IN RESPECT OF 62/3479 DATED 31/12/2021`
- `Exhibit P 17D THE TRUE PHOTOCOPY OF PROPERTY TAX RECEIPT IN RESPECT OF 62/3482 DATED 31/12/2021`
- `Exhibit P17 E THE TRUE PHOTOCOPY OF PROPERTY TAX RECEIPT IN RESPECT OF 62/3483 DATED 31/12/2021`
- `Exhibit P17 F THE TRUE PHOTOCOPY OF PROPERTY TAX RECEIPT IN RESPECT OF 62/3484 DATED 31/12/2021`
- `Exhibit P17 G THE TRUE PHOTOCOPY OF PROPERTY TAX RECEIPT IN RESPECT OF 62/3489 DATED 31-12-2021`
```
Exhibit P17HTHE TRUE PHOTOCOPY OF PROPERTY TAX
RECEIPT IN RESPECT OF 62/3490 DATED
31/12/2021
Exhibit P17 (1)THE TRUE PHOTOCOPY OF PROPERTY TAX
RECEIPT IN RESPECT OF 62/3491 DATED
31/12/2021
```
**W.P.(C).No.14316/2022**
**10**
```
Exhibit P17 JTHE TRUE PHOTOCOPY OF PROPERTY TAX
RECEIPT IN RESPECT OF 62/3492 DATED
31/12/2021
```
- `Exhibit P17 K THE TRUE PHOTOCOPY OF PROPERTY TAX RECEIPT IN RESPECT OF 62/3493 DATED 31/12/2021`
- `Exhibit P18 THE PROPERTY TAX RECEIPT DATED 31/12/2021 FOR THE 6TH FLOOR IN RESPECT OF 62/3479`
- `Exhibit P19 THE TRUE PHOTOCOPY OF APPLICATION DATED 26/04/2021 ALONG WITH RECEIPT BEFORE THE 3RD RESPONDENT`
- `Exhibit P20 THE TRUE PHOTOCOPY OF NOTICE DATED 27/08/2021 ISSUED BY THE 2ND RESPONDENT`
- `Exhibit P21 THE TRUE PHOTOCOPY OF THE LETTER DATED 17/11/2021`
```
Exhibit P22THE TRUE PHOTOCOPY OF NOTICE DATED
20/12/2021 ISSUED BY THE 2ND
RESPONDENT
```
