Kalamassery Municipality Rep. by its Secretary v Meritra Homes Pvt. Ltd.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **TUESDAY, THE 19TH DAY OF JANUARY 2021 / 29TH POUSHA, 1942** ## **RP.No.607 OF 2020 IN WP(C). 10059/2020** **AGAINST THE ORDER/JUDGMENT IN WP(C) 10059/2020(F) OF HIGH COURT OF KERALA** ## **REVIEW PETITIONER/S:** **KALAMASSERY MUNICIPALITY REP.BY ITS SECRETARY,CHANGAMPUZHA NAGAR, SOUTH KAMALASSERY,ERNAKULAM-682033.** **BY ADV. SRI.M.K.ABOOBACKER** ## **RESPONDENT/S:** **MERITRA HOMES PVT. LTD. 3RD FLOOR,VALAMATTOM ESTATE, M.G.ROAD,RAVIPURAM,ERNAKULAM-682015,REP.BY MANAGING DIRECTOR, SRI.RAVISANKAR.T.N,AGED 49 YEARS, S/O.T.P.NARAYANAN.** **R1 BY ADV. SRI.PEEYUS A.KOTTAM** **THIS REVIEW PETITION HAVING BEEN FINALLY HEARD ON 19.01.2021, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** Review Petition No.607 of 2020 in W.P(C) No.10059 of 2020 2 ## **ALEXANDER THOMAS, J.** ## **==================================** ## **Review Petition No.607 of 2020** ( _arising out of the judgment dated 21.05.2020 in W.P(C) No.10059/2020_ ) **==================================** Dated this the 19[th] day of January, 2021 ## **ORDER** The aforecaptioned petition has been filed seeking review of the impugned judgment dated 21.05.2020 rendered by this Court in W.P(C) No.10059/2020 filed by the sole respondent herein/writ petitioner. 2. Heard Sri.M.K.Aboobacker, learned Standing Counsel for the Kalamasserry Municipality appearing for the review petitioner in the R.P / sole respondent in the W.P(C) and Sri.Peeyus A.Kottam, learned counsel appearing for the sole respondent in the R.P / writ petitioner. 3. The petitioner has filed the aforecaptioned W.P(C) No.10059/2020 with the following prayers : - _“i)Call for the entire records leading to Ext-P5 issued by respondent municipality and quash the same by issuing a writ of certiorari or any other appropriate writ order or direction._ - _ii) Issue a writ of mandamus or any other appropriate writ or direction or order and thereby command the respondent_ Review Petition No.607 of 2020 in W.P(C) No.10059 of 2020 3 _municipality to allow the petitioner's application for occupancy certificate, de-hors the stipulation the structural plan within a stipulated time as fixed by this Hon'ble Court._ _iii)Grant such other reliefs which are just and necessary in the interest of justice.”_ ## 4. The impugned Ext.P-5 order dated 04.04.2020 issued by the respondent in the W.P(C) reads as follows : (see page No.18 of the paper book in the W.P(C). "മമേൽ സൂചന അമപേക്ഷ പേരരിമശശോധരിച്ചതരിൽ KMBR-1999-ൽ വരിമധയമേശോയശോണണ് എനശോൽ നരിലവരിലുള്ള സ്ട്രചറൽ പശോൻ പ്രകശോരരം പേഴയ സർമവ നമ്പർ 1163/1 ററീസർമവ നരം 291/1 മബശോകണ് 5 ൽ ഉൾപപ്പെട്ട സ്ഥലരം അഗരികൾചറൽ മസശോൺ ആയരി കശോണുന. ആയതുപ്രകശോരരം Zoning regularization ത�ങള�ട� നടതരിയതരിനു മശഷമമേ അമപേക്ഷ പേരരിഗണരിക്കുവശോൻ നരിർവശോഹമുള്ളൂ എന വരിവരരം അറരിയരിക്കുന.” ## 5. It may be profitable to refer to the relevant contents of paragraph Nos.7 & 8 of the impugned judgment rendered by this Court on 21.05.2020 in the above W.P(C), which read as follows : _“7. .................................. After hearing both sides, this Court is of the considered view that the ground of rejection cited in the impugned Ext.P5 rejection order is not sustainable or tenable, more so, particularly, in the light of the dictum laid down by this Court in decisions as in Exts.P6 to P8 etc. In this case also, there is no serious dispute that the respondent Municipality has granted the building permit and has also approved the building plan and the construction has been made in pursuance thereof. At this stage, when the building construction has been completed, it is not open to the respondent Municipality to reject the plea of the petitioner for occupancy certificate on the ground cited in Ext.P5 order. Accordingly, the matter requires serious reconsideration at the hands of the respondent and would warrant a remit._ Review Petition No.607 of 2020 in W.P(C) No.10059 of 2020 4 _8. For effectuating such a remit, it is ordered that the impugned_ Ext.P5 rejection order will stand set aside and the application of the petitioner for grant of occupancy certificate and building numbers will _stand remitted to the Secretary of the respondent-Kalamassery_ Municipality for consideration and decision afresh. It will be open to the respondent to conduct an effective inspection of the construction made by the petitioner, through its authorised official concerned with due prior notice to the petitioner. If that be so, copy of the inspection report should be given to the petitioner in advance. Thereafter, the Secretary of the _respondentKalamassery Municipality will invite the petitioner for a_ personal hearing and should afford reasonable opportunity of being heard to the petitioner through their authorised representative/counsel, if any and then should pass orders on the plea of the petitioner for grant of occupancy certificate and building permit, in accordance with the law, _without much delay, preferably within a period of 6 weeks from the date of_ production of a certified copy of this judgment. However, it is made clear that while doing so, the Secretary of the respondent Kalamassery _Municipality cannot reject the abovesaid plea of the petitioner on the_ ground cited in Ext.P5 as the same has already been quashed and interdicted by this Court. _”_ 6. It appears that the review petitioner/respondent in the W.P(C) has not complied with the abovesaid directions issued by this Court in the above W.P(C) and has taken the stand that some of the important aspects could not be earlier brought to the notice of this Court by the respondent in the W.P(C) and that the case warrants a review and hence, the above review petition has been filed. 7. The review petitioner would point out that after the rendering of the impugned judgment in the W.P(C), the review petitioner-Municipality has received Annexure-1 communication Review Petition No.607 of 2020 in W.P(C) No.10059 of 2020 5 bearing No.RB1/126/2020-LSGD dated 09.06.2020 and that in view of the grounds stated in Annexure-1, the judgment in the W.P(C) would require a review, etc. The impugned Annexure-1 dated 09.06.2020, reads as follows: “നമ്പർ -RBI/126/2020-തസസ്വഭവ 09 / 06 / 2020 തരിരുവനന്തപുരരം പ് ൻസരിപ്പെൽ പസക്രട്ടറരി പസക്രട്ടറരി കളമേമശ്ശേരരി നഗരസഭ സർ, വരിഷയരം:- തസസ്വഭവ - എറണശോകുളരം ജരില്ല - കളമേമശ്ശേരരി നഗരസഭ - അനധരികൃതനരിർമശോണരം സരംബനരിച്ചണ് സൂചന :- CTPVIG പന്റെ 12 / 12 / 2019 പല CTPVIG/980/19 നമ്പർ റരിമപ്പെശോർട്ടണ് സൂചനകളരിമലയണ് തശോങ്കളുപട ശ്രദ്ധ ക്ഷണരിക്കുന. എറണശോകുളരം ജരില്ല കളമേമശ്ശേരരി നഗരസഭ പേരരിധരിയരിൽ നശോലശോരം ഡരിവരിഷനരിൽ തൃകശോകര മനശോർതണ് വരിമല്ലജരിൽ സർമവ നമ്പർ 291/1-ൽ പപ്പെടുന സ്ഥലപത അനധരികൃത നരിർമശോണരം സരംബനരിച്ചണ് സൂചന (1) റരിമപ്പെശോർട്ടരിപല നടപേടരി ശുപേശോർശ(2)(4) എനരിവ പ്രകശോരരം തുടർനടപേടരി സസ്വറീകരരിക്കുനതരിനശോയരി ടരി റരിമപ്പെശോർട്ടരിപന്റെ പേകർപ്പെണ് ഇമതശോപടശോപ്പെരം (sic) പചയ്യുന " 8. The case of the review petitioner-Municipality is that as stated in Annexure-1, the office of the Chief Town Planner (Local Self Government Department), Vigilance has recommended to take action Review Petition No.607 of 2020 in W.P(C) No.10059 of 2020 6 in respect of the apartment constructed by the writ petitioner and that the defects noted in the construction are as follows : - “(i) the building is constructed in a property which comes within the agricultural zone as per the structural plan prepared as per the provisions of the Town Planning Act. - (ii)the building permit has been issued by the Municipality without verifying and perusing the nature of the land. - (iii) the basement floor has been constructed by the writ petitioner without obtaining development permit issued by the Municipality.” However, since Sri.M.K.Aboobacker, learned Standing Counsel for the Kalamasserry Municipality appearing for the review petitioner has submitted that the review petition has been filed mainly on account of the issuance of Annexure-1 letter dated 09.06.2020 on the basis of the report of the Chief Town Planner (LSGD), Vigilance, etc., this Court has considered various aspects in regard to the abovesaid additional grounds as well. The matter in relation to item No.(i) above emanating from Annexure-1 is essentially the same ground stated in the impugned Review Petition No.607 of 2020 in W.P(C) No.10059 of 2020 7 Ext.P-5 rejection order. Those aspects of the matter will be dealt with after dealing with the objection as per item No.(ii) noted above. The objection as per item No.(ii) above is that the building permit has been issued by the review petitioner-Municipality without verifying the nature of the land. The said objection No.(ii) may either mean that the Kalamasserry Municipality has not verified the nature of the land in which the construction has been made, as to whether the said land is classified either as 'dry land / purayidam' or as 'paddy land / Nilam', as per the entries in the Basic Tax Register (BTR) prepared, as per Rule 4 of the Kerala Land Tax Rules framed under the Kerala Land Tax Act or that the land is included within the agricultural zone, as per the structural plan prepared as per the Town Planning Scheme. If what is meant to be conveyed is the latter, that is the one in respect of the agricultural zoning as per the Town Planning Scheme, then the said objection is the same as objection No.(i). In the said objection as per item No.(ii) above is regarding the nature of land, as per the Basic Tax Register, the following aspects may be relevant : _The respondent in the R.P /writ petitioner has filed an additional counter affidavit dated 03.11.2020 in this R.P,_ Review Petition No.607 of 2020 in W.P(C) No.10059 of 2020 8 _whereby it is asserted that the nature of the land, in which the construction has been made is clearly shown as 'purayidam / dry land' in the BTR, which is seen mainly certifying in Ext.R1(d) land tax receipt dated 18.05.2019 issued by the Village Officer, Thrikkakara North Village and also in Ext.R1(e) possession certificate dated 09.03.2020 issued by the said village office. The review petitionerMunicipality has not raised any serious objection, as to the genuineness and correctness of Exts.R1(d) & R1(e). It appears that before grant of the building permit, the review petitioner-Municipality has in fact verified and has been satisfied that the nature of the land, in which the construction was proposed, is shown as 'garden land / purayidam', as per the BTR prepared by the revenue authorities concerned. Therefore, the said objection as per item No.(ii) above does not appear to be tenable._ 9. As noted hereinabove, objection No.(i) as regards the land is included in agricultural zone, as per the Kochi Structural Plan, notified as per the provisions of the town planning scheme, etc., the said objection is in a sense the same as the one raised in the impugned Ext.P-5 rejection order, which has been duly considered in the W.P(C). However, since Sri.M.K.Aboobacker, learned Standing Counsel for the Review Petition No.607 of 2020 in W.P(C) No.10059 of 2020 9 Kalamasserry Municipality appearing for the review petitionerMunicipality has raised various submissions and contentions in that regard, this Court has examined those aspects as well. That apart, at the outset it is by now well settled by a series of rulings as in _**Mohinder Singh Gill v. Chief Election Commissioner**_ [(1978) 1 SCC 405] based on the dictum laid down by the Apex Court in a series of earlier cases as in _**Commissioner of Police, Bombay v. Gordhandas Bhanji**_ [AIR (1952) SC 16]. It is well settled that the legality and correctness of an impugned decision is to be primarily decided on the basis of the grounds stated in the impugned order and not on the basis of additional grounds canvassed by the party by filing affidavit subsequently in the litigative proceedings. It has to be noted that the sole ground of rejection, as made out in Ext.P-5 was the one as per item No.(1) above. 10. After hearing both sides, it can be seen that the sole ground of rejection as per Ext.P-5 and that as per item No.(ii) supra is that the construction has been made in a land which falls within the agricultural zone, as per zoning regulations prepared as per the Kochi Structural Review Petition No.607 of 2020 in W.P(C) No.10059 of 2020 10 Plan notified as per the provisions of the Town Planning Scheme. The very same Kochi Structural Town Planning Scheme was also cited as a ground of rejection in similar cases coming within the neighbouring Thrikkakara Municipality. 11. A Division Bench of this Court as per Ext.R1(a) judgment dated 26.10.2016 in W.A No.559/2016 [arising out of W.P(C) No.15551/2015], has found that in the said case, though the said land in question falls under the agricultural zone as per the said Town Planning Scheme, the said scheme has not been implemented for a very long time and that consequently a large number of schools, colleges, commercial establishments and residential houses have been put up in the said area. Indisputably, the land in question is fully surrounded by commercial as well as residential buildings and even a lot of schools are also being run there and that in view of the said scheme even it is assumed that the said zonal regulations as per the Town Planning Scheme have been issued, the same have not been implemented at all. The Division Bench of this Court as per Ext.R1(a) judgment has noted the categorical dictum laid down by the Apex Court in decisions as in Review Petition No.607 of 2020 in W.P(C) No.10059 of 2020 11 _**Raju S.Jethmalani v. State of Maharashtra**_ [(2005) 11 SCC 222], wherein it has been held that the land holder cannot be prevented from putting up his property for any use merely on the basis of the restrictions in the Town Planning Scheme, which has become antiquated and outdated and that since all adjoining and nearby lands are already for putting up commercial buildings, office structures, schools, play grounds, residential buildings, etc., the land holder cannot be restricted to use the property for the purposes, which are otherwise lawful and proper. In that regard, it has to be borne in mind that Article 300A of the Constitution of India stipulates that the property right of a person cannot be deprived except on the basis of a procedure established by law and that it is by now well established that such a procedure established by law should be just, fair and reasonable. Hence, such a ground of rejection restricting the land holder from using his property on the basis of antiquated and outdated Town Planning Scheme as in the instant case would amount to restricting the right of the land holder, though on the basis of a procedure established in law, but the same would be _ultra vires_ , as such a procedure established in Review Petition No.607 of 2020 in W.P(C) No.10059 of 2020 12 law cannot satisfy the elementary **constitutional rights** of reasonableness, fairness, etc. So long as, such a procedure depriving the property rights is not fair, just and reasonable, the same is _ultra vires_ under Article 300A of the Constitution of India. It is in the light of these aspects, that the Division Bench of this Court has rendered Ext.R1(a) judgment, by placing reliance on the abovesaid dictum laid down by the Apex Court in **Raju** _**S.Jethmalani'**_ **s case** supra [(2005) 11 SCC 222]. 12. The said restrictions based on the Kochi Structural Plan have been considered in similar cases in the neighbouring Thrikkakara Municipality in a catena of cases by this Court. This Court as per common judgment dated 24.06.2020 in W.P (C)Nos.12020, 11810, 11767 of 2020 has held that on the basis of the dictum laid down by the Division Bench of this Court in cases as in _**Padmini v. State of Kerala**_ [1999 (3) KLT 465] as well as the judgment of the Apex Court in **Raju** _**S.Jethmalani'**_ **s case supra** [(2005) 11 SCC 222] that the refusal to grant building permit relying on obsolete and antiquated detailed Town Planning Scheme is a clear violation of the provisions of Review Petition No.607 of 2020 in W.P(C) No.10059 of 2020 13 the Constitution, more particularly under Article 300A of the Constitution of India. In those judgments, this Court has set aside the impugned rejection order rendered by the Thrikkakara Municipality in such similar cases by citing the restrictions from the said structural plan for Kochi notified as per the Town Planning Scheme and held that since lot of colleges, schools and hospitals have come in the area, merely because of such zonal regulations, will not amount to a reasonable and fair procedure for depriving the property rights of the land holders concerned. Such a view has been so rendered by this Court in a series of judgments relating to restrictions of granting building permission in the neighbouring Thrikkakara Municipality, as can be seen from the judgment dated 16.12.2018 in W.P(C) No.22153/2014, judgment dated 30.10.2014 in W.P(C) No.12868/2014, judgment dated 24.11.2014 in W.P(C) No.28985/2014, judgment dated 21.10.2014 in W.P(C) No.25371/2014 & the judgment dated 23.03.2020 in W.P(C) No.9057/2020, wherein this Court has consistently held that the said provisions of the Town Planning Scheme pursuant to which the Structural plan for Kochi have become obsolete and Review Petition No.607 of 2020 in W.P(C) No.10059 of 2020 14 antiquated and therefore, in the light of the legal principles laid down by the Apex Court in cases as in **Raju** _**S.Jethmalani'**_ **s case supra** [(2005) 11 SCC 222], the applications of the respective petitioners for grant of building permit will have to be considered on merit by the Thrikkakara Municipality, etc. In those judgments, this Court has found that the scheme was not implemented and consequently a number of colleges, schools, commercial buildings and residential buildings have been built up in the said area and the land in question was fully surrounded by commercial buildings, residential buildings and even schools were run there, etc. 13. There is yet another judgment of the Division Bench in the case in _**Gopalakrishnan.T.B v. State of Kerala & Ors.**_ [(2011) 3 KHC 162 = (2011) 3 KLT 317], wherein also the Division Bench of this Court has considered the legal efficacy of such zonal regulations, wherein permission for construction of a commercial building was denied on the ground that the land is situated in a residential zone, etc. The Division Bench of this Court in _**Gopalakrishnan.T.B’s case**_ supra [(2011) 3 KHC 162] in paragraph Review Petition No.607 of 2020 in W.P(C) No.10059 of 2020 15 No.4 thereof has observed that though the property is stated to be located in the residential zone, as per the zonal regulations, there are not many number of residential houses in the said area and in fact the large number of commercial buildings were constructed in the said residential zone and that even the building opposite to the appellant’s property therein is a cinema theatre and the materials would clearly show that the municipal body themselves have permitted such large number of constructions for commercial purposes and that the zoning regulations classified the area as residential zone, had become practically unimplemented and antiquated, etc. and had ordered the grant of reliefs in that case therein, etc. In the case at hand, the specific case of the writ petitioner is that the area in question is very much in proximity of a well-known Church in the locality coming under the Latin Catholic archdiocese and the name of the said church is St.Pius X Roman Catholic Church, which has been established in the early 50s or late 50s and is situated in a very huge compound and large number of houses and shoprooms, etc. has been constructed in the close proximity of the said St.Pius X Church. Further that, even big flats and Review Petition No.607 of 2020 in W.P(C) No.10059 of 2020 16 apartments are also come up in the said proximity of the said St.Pius X Church, in the last 10 or 15 years. Further that, very famous school viz., Rajagiri School has been established by the Carmelite order in 1963 or 1964 and the said school is situated in a vast property, where schools are being run both under the Kerala scheme as well as the CBSE scheme, starting from kindergarten to class-XII as well as the boarding facilities for the students. That the said Rajagiri school campus is within one kilometer or so from the St.Pius X church. Further that, the Rajagiri College of Social Sciences is also situated adjacent to the Rajagiri school. Further that, a monastery of the Carmelite monks and priests and a sisters’ monastery are also situated very much within the part of the school property. Further that, large number of commercial buildings, residential buildings, shop rooms, etc. has come up very much in the vicinity of the abovesaid property, which is claimed to be within the agricultural zone, as per the zonal regulations prepared as per the Kochi Structural Plan, etc. 14. Sri.Peeyus A.Kottam, learned counsel appearing for the respondent in the R.P / writ petitioner would submit that any person in Review Petition No.607 of 2020 in W.P(C) No.10059 of 2020 17 the locality can only come to the conclusion that the said locality is one with lot of residential buildings, residential houses, commercial buildings, shoprooms, flats, apartments, churches, schools, etc. and that therefore any reasonable and prudent person instructed on facts and law can only come to the sole conclusion that the case in hand is identically situated as the abovesaid cases decided by this Court in a catena of cases referred to hereinabove. Hence, it is pointed out that the dictum laid down by this Court in the aforecited cases, with respect to the Kochi Structural Plan laid down in the context of the neighbouring Thrikkakara Municipality would apply with equal force and vigor in the present case, where the land is coming under the Kalamassery Municipality. Of course, the review petitionerMunicipality has filed an additional statement dated 09.12.2020 claiming that the zonal regulations as per the Kochi Structural Plan have been implemented in the area of review petitioner-Kalamassery Municipality. 15. After hearing both sides, it appears that the case of the review petitioner-municipality would be that the said provisions of the Review Petition No.607 of 2020 in W.P(C) No.10059 of 2020 18 Kochi Structural Plan regarding zonal regulations may have been notified in the manner prescribed in the Town Planning Scheme and Town Planning Act. Even if that be so, the fact situation in the present case relating to the Kalamassery Municipality is almost identical or similar to the cases dealt with in the aforecited judgments of this Court in respect of the Kochi Structural Plan in the neighbouring Thrikkakara Municipality. Merely because the Kochi Structural Plan is notified does not necessarily mean that the Structural Plan has been implemented with all efficacy and vigour. If, the fact situation is as stated above, then the only irresistible conclusion is the one, as already made by this Court in a series of cases in respect of the Thrikkakara Municipality and therefore, it is only to be held that the said structural plan, has become antiquated and redundant, which had been seen from the very ground realities in existence. Hence, it is to be only held that the present stand to reject the plea for occupancy certificate, would amount to an impugned rejection on the basis of a procedure which is not fair, just and reasonable and hence, the depravation of the constitutional right of the writ petitioner to enjoy his property, is not in accordance with the Review Petition No.607 of 2020 in W.P(C) No.10059 of 2020 19 procedure, which is just, fair and reasonable and hence, the said impugned rejection is only to be held as illegal, _ultra vires_ and unreasonable. 16. Sri.Peeyus A.Kottam, learned counsel appearing for the respondent in the R.P / writ petitioner has also raised a contention that the criteria for zonal regulation based on agricultural zone is a permitted criteria for zoning, as per Sec.34 (3) of the Kerala Town and Country Planning Act, 2016, as can be seen from clauses (i) to (xiii) of the said provision. This Court need not get into that aspect, as this Court is of the considered view that the dictum laid down by this Court in the aforecited judgments rendered by the Division Bench of this Court and other judgments, relating to the efficacy or otherwise of the Kochi Structural Plan in regard to the neighbouring Thrikkakara Municipality would apply with equal force and vigour in the present case as well and hence the impugned rejection can only be seen as one, which is illegal and _ultra vires_ , etc. Moreover, it has to be borne in mind that the Chief Town Planner, has found in page No.2 of AnnexureA1 that the construction made by the writ petitioner is in conformity Review Petition No.607 of 2020 in W.P(C) No.10059 of 2020 20 with the provisions of the Kerala Building Rules and that no deviation therefrom has been noticed, etc. 17. That apart, the crucial aspect of the matter is that earlier when the writ petitioner had submitted application for building permit for construction of the apartment complex in question before the review petitioner-Municipality, the same was considered and was granted, in accordance with the provisions contained in the Kerala Municipality Building Rules framed under the Kerala Municipality Act, 1994. Thereafter, the writ petitioner has invested his money and has made constructions and has also made several transactions with prospective flat purchasers and has duly executed registered sale deeds, whereby the rights of the respective flats have been conveyed to the flat allottees concerned. Thereafter, it appears that the writ petitioner has completed the construction and has applied for occupancy certificate in terms of Rule 22(3) of the Kerala Municipality Building Rules. It is at this final stage of consideration of the application for occupancy certificate, after due completion of the construction that the municipality has now taken the impugned stand as per Ext.P-5 rejection order and has subsequently Review Petition No.607 of 2020 in W.P(C) No.10059 of 2020 21 reiterated in Annexure-1 letter. The said stand reflected in Ext.P5 and Annexure-1 has never been raised by the municipality while considering the application for building permit. Such a ground is taken for the first time by the municipality, at the time of issuance of Ext.P5 order. After considering the applicability for building permit submitted by the writ petitioner and after duly granting it, in accordance with the provisions of the Kerala Building Rules and after the writ petitioner had altered its position to his detriment by entering into various transactions not only with the landholder but with the series of prospective flat purchasers and after investing their precious money in completing the construction, the review petitioner-Municipality is estopped from taking such a stand at such a late juncture. 18. After completing the construction in pursuance of the building permit issued as per the Building Rules, the final step is securing occupancy certificate and door numbering of the constructed building. The statutory norms for consideration of occupancy certificate are contained in Rule 22 (3) of the Kerala Municipal Building Rules, which reads as follows : Review Petition No.607 of 2020 in W.P(C) No.10059 of 2020 22 _“_ _**Rule 22. Completion certificate, development certificate and occupancy certificate** :_ _(1) XXX XXX XXX (2) XXX XXX XXX_ _(3) The Secretary shall, on receipt of the completion certificate and on being satisfied that the construction or reconstruction or addition or alteration has been carried out in conformity with the permit given, issue occupancy certificate in the form in Appendix H;_ _(Proviso is omitted)”_ It can be seen from a mere reading of the provisions contained in Rule 22 (3) of the Kerala Municipal Building Rules that the only predominant consideration for the municipality for grant of completion certificate is that they should be satisfied that the construction in question has been carried out in conformity with the building permit. In the instant case, the review petitioner-Municipality does not have any case that the impugned construction made by the writ petitioner is in any manner not in conformity with the building permit issued by the Municipality to the writ petitioner. The provisos to Rule 22(3) are omitted, as they are not relevant and germane for the present case. 19. Issues in that regard have also been considered by this Court in the judgment dated 06.08.2020 in W.P(C) No.14427/2020 Review Petition No.607 of 2020 in W.P(C) No.10059 of 2020 23 ## and it may be profitable to refer to paragraph Nos.29 to 34 of the said judgment in the abovesaid W.P(C), which read as follows : _“29. Rule 22 (3) of the KMBR, 1999 mandates that if the construction has been made in consonance with the building permit given to the party, then necessarily occupancy certificate will have to be issued in favour of the party. It is beyond any doubt that Ext.P9 building permit has been issued on the basis of Ext.P8 sketch and the approved plan. There is no case for respondents 1 and 2 that the construction has been made by the petitioner in divergence from the abovesaid building permit or the approved plan. In the impugned Ext.P20 rejection order,the 2nd respondent has no case that the impugned construction has been made either in violation of the building permit, or in violation of the approved plan or in violation of Ext.P8 sketch on the basis of whichExt.P9 permit was given._ _30. It has been held by this Court in decisions as in_ _**George Joseph and anr. V. Pala Municipality and others** [2015 (2) KHC 431 = 2015 (2) KLT 551] that a person can be penalized if he deviates from the work commenced in the statutory terms, only if the deviation has been occasioned, out of his voluntary acts, but not owing to his supervening event, which he could neither foresee nor prevent, more pertinently if the supervening act in itself is not tainted with any illegality. In that case, it was held by this Court that the State has exercised its right of eminent domain, perfectly legally and the beneficiary is the Municipality which now shows an accusing finger towards the unwary citizen and that an act of the State cannot make a citizen suffer the adverse consequences, if the said citizen has not contributed anything to add to his plight. It was held that since the petitioners had constructed strictly in compliance with the sanctioned plan, which never stood altered, notwithstanding subsequent changes,essentially brought about at the behest of the respondentMunicipality it cannot refuse to regularize the said construction etc. It will be pertinent to refer to para Nos. 26and 28 of the judgments of this Court in_ _**George Joseph’s** case (supra) [2015 (2) KHC 431] which reads as follows :_ _26. “A person can be penalised if he deviates from the work commenced in statutory terms, only if the deviation has been occasioned out of his voluntary act, but not owing a supervening event, which he could neither foresee nor prevent; more pertinently, if the supervening act in itself is not tainted with any illegality. The State has exercised its right of eminent domain, perfectly legally, and the beneficiary is the Municipality, which now shows an accusing finger toward an unwary citizen. An act of State cannot make a citizen suffer adverse consequences, if the said citizen has not contributed anything to add to his plight._ _28. Under these circumstances, since the petitioners have constructed strictly in compliance with the sanctioned plan which never stood altered, notwithstanding the subsequent changes, essentially brought about at the behest of the respondent_ Review Petition No.607 of 2020 in W.P(C) No.10059 of 2020 24 _Municipality, it cannot, in my considered view, refuse to regularize the construction. I may not be wrong in observing that Rule 143 of the Rules creates a legal fiction that the construction raised under the circumstances enumerated therein is legal and it does not call for any regularisation, either.”_ _31. This Court in_ _**George Joseph’s** case (supra) [2015 (2) KHC 431]has also placed reliance on the judgment of this Court in_ _**M/s.Heera Construction(Pvt.) LTD v. Corporation of Thiruvananathapuram and anr.** [2008 (3) KHC422] = 2008 (3) KLT 553] etc. In_ _**Heera Construction’s** case (supra) [2008 (3) KHC 422], this Court has dealt with a case, where the building permit has been granted by the special committee, which did not have the proper forum and building was thereafter constructed and huge investment has been made. In this context, this Court held that it is not open to the Municipal body to contend that the building permit was irregularly issued and that the Municipal authorities are estopped in that regard This Court also dealt with the issues relating to the defect in the constitution of special committee and that it was held that the citizen is entitled to presume that the internal management of the Corporation has been regular and is being carried down in accordance with the Act,Rules and the by-laws of the statutory body. It will be pertinent to refer to para No.12 of the judgment of this Court in_ _**M/s.Heera Construction’s** case (supra) which reads as follows :_ _“12. I have considered the submissions made by both sides. A the outset I should state that the reasons stated in Ext.P21, except the vague allegation of violation of Rules, are not attributable to the petitioner. A reading of Ext.P21order shows that the Secretary who is the Convener of the Special Committee was absent in the meeting which decided to grant building permit and it is on that basis it is contended that the committee did not have the quorum. Defect in the constitution of the Special Committee which decided to grant the building permit cannot be a ground for the Corporation to raise a plea that the decision of the Special Committee is invalid for that reason. A citizen is entitled to presume that the internal management of the Corporation has been regular and is being carried on in accordance with the Act, Rules and Bye-laws of the Corporation. Persons who bona fide deal with the Corporation in the manner authorised by the Act are not affected by any irregularity in the internal management of the Corporation of which they have no notice. In my view the object of section 531 of the Kerala Municipality Act, is to extend such protection to those who deal with the Corporation, although this protection does not extend to the members of the Committee as such. In other words, the members of the Committee or the Corporation cannot avoid a decision taken by the Committee on the ground that the Committee was irregularly constituted or that it did not have quorum. In this case, there is nothing to indicate that the petitioner was not dealing with the_ Review Petition No.607 of 2020 in W.P(C) No.10059 of 2020 25 _Corporation in a bona fide manner. Therefore, I cannot accept the contention of the Corporation that the decision taken by the Special Committee to grant building permit, is invalid.”_ _32. After hearing both sides, this Court is of the considered view that the abovesaid dictum laid down by this Court in the aforecited judgments in_ _**George Joseph’s** case (supra) [2015 (2)KHC 431],_ _**M/s.Heera Construction’s** case (supra) [2008 (3) KHC 422] etc. would be broadly applicable to the facts and circumstances of this case The petitioner has purchased the property long after the issuance of Exts.P5 and P8 sketches, the first of which was prepared and finalized by none other than the District Survey Superintendent,who is the head of the Survey department in the District and latter of which has been prepared by none other than the 4[th] respondentTaluk Surveyor. If the District Survey Superintendent has committed any alleged mistake in approving Ext.P5 sketch issued as early as in 2000 and consequently any mistake has also crept inExt.P8 sketch issued on 4.4.2009, the petitioner cannot be blamed or penalized for such alleged mistakes, if any committed by any of the Governmental officers concerned. Nobody can have a case that the petitioner has even remotely played any act of collusion etc. in that regard for the simple reason that the petitioner came to the scene by purchasing the property from a third party long after the issuance of Exts.P5 and P8. Therefore, it may not be right and proper to say that the petitioner cannot place any reliance on Ext.P8 sketch on account of the view taken by the 4th respondent at this point of time, that Ext.P5 sketch approved by the District Survey Superintendent is in divergence with the old survey sketch and that therefore, Ext.P8 sketch issued by none other than the 4th respondent on 4.4.2009 is also to be found fault with. What exactly are the details of the old survey sketch is not even remotely mentioned in Ext.P21 sketch. Hence, in the facts and circumstances of this case, this Court is of the considered view that the grounds cited in Ext.P20 cannot be legal basis for rejecting the plea of the petitioner for occupancy certificate in terms of the Rule 22(3) of the KMBR, 1999 and to hold otherwise, would amount to prejudicing the petitioner for alleged mistakes said to have been committed by the Governmental officials on whom he had no control and in respect of the documents which has been issued by them long before the petitioner had come to the scene by purchasing the property._ _33. Sri.Peeyus A Kottam, learned Standing Counsel appearing for the respondentKothamangalam Municipality would submit that it is learnt that the 2nd respondent has not examined the other issues as to whether the construction has been made in terms of the building permit and the approved plan. Of course, if that is the stand of the 2nd respondent, certainly in exercise of the discretionary jurisdiction, this Court should give opportunity to the 2nd respondent to examine such limited issues. However, the conclusive finding made by the 4th respondent-Taluk Surveyor in Ext.P21 is that the impugned construction has been made within the limits of the property as shown in Ext.P8 sketch prepared and approved by the 4[th] respondentTaluk Surveyor. Therefore, the other findings made by the 4threspondent in Ext.P21 that Ext.P5 LA sketch issued in the year 2000 are in divergence from the old survey sketch and that therefore, Ext.P8 is also been faulted with etc. are not relevant and_ Review Petition No.607 of 2020 in W.P(C) No.10059 of 2020 26 _germane for deciding the issue relating to the entitlement of the petitioner for grant of occupancy certificate in view of the statutory mandate contained in the operative portion of the Sub-rule (3) of Rule 22 of the KMBR, 1999 for the aforementioned reasons._ _34. Accordingly, it is ordered that the 2nd respondent-Secretary of the Municipality may conduct an inspection through the Municipal Engineer concerned with due prior notice to the petitioner to determine the limited issue as to whether the construction completed as stated in Ext.P16 is in consonance with the building permit issued to the petitioner as envisaged in the operative portion of Sub-rule(3) of Rule 22 of the Kerala Municipal Building Rules, 1999 and such inspection should be conducted with due prior notice to the petitioner and copy of the inspection should be given to the petitioner in advance and thereafter, the 2nd respondent will afford reasonable opportunity of being heard to the petitioner and then should a considered decision should be taken on the plea of the petitioner for grant of occupancy certificate by determining as to whether the construction completed in terms of Ext.P16 is in consonance with the building permit as envisaged in the operative portion of Sub-Rule 3 of Rule 22 of the KMBR, 1999, without much delay, preferably within a period of 2weeks from the date of production of a certified copy of this judgment.”_ 20. In some of the cases, the local bodies have initially granted the building permit in lands, which are classified as 'Nilam/paddy land' as per the Basic Tax Register and which were converted as 'garden land / purayidam' before coming into force of the Kerala Conservation of Paddy Land & Wetland Act, 2008 (which came into force on 12.08.2008). Thereafter, some of the local bodies concerned have either directed the stoppage of work or have not given completion certificate/occupancy certificate to such completed construction citing subsequently the ground that the construction is made in converted lands which are classified as 'Nilam/paddy land', as per the Basic Tax Review Petition No.607 of 2020 in W.P(C) No.10059 of 2020 27 Register. Such ground for rejection has been held by this Court to be untenable in a series of cases as in _**Mahin & Anr. v. Keezhmad Grama Panchayat & Anr.**_ [2020 (2) KLT 478], judgment dated 26.02.2020 in W.P(C) No.5520/2020, judgment dated 06.11.2019 in W.P(C) No.29637/2019, etc., which has been dealt with in the present impugned judgment dated 21.05.2020 in the instant W.P(C) No.10059/2020. The said dictum laid down in the aforecited judgments, though in the context of rejection based on nature of land, as per the BTR, would also apply with equal force in the present case, as such a ground of rejection in the instant case as well, as already dealt with in the impugned judgment in the W.P(C). 21. For all these reasons, this Court is constrained to take the view that the abovesaid ground of rejection based on item No.(i) supra cannot be said to be tenable or sustainable in the eye of law and the said objection only deserves to be as rejected, as has been rightly found by this Court in the impugned judgment in the WP(C). Item No.(iii) of the ground of rejection supra is that the building permit was obtained by the writ petitioner without initially obtaining development permit from Review Petition No.607 of 2020 in W.P(C) No.10059 of 2020 28 the review petitioner-Municipality and that the basement to the abovesaid construction has been made without obtaining development permit. Indisputably, the construction in question has been made by the writ petitioner after securing building permit from the review petitioner-Municipality, in terms of the statutory provisions contained in the Kerala Building Rules framed under the Kerala Municipality Act, 1994. If at all, the review petitioner-Municipality was of the view that the development permit should have been first obtained by the writ petitioner before consideration of the application for building permit submitted by them, then it was for the review petitioner-Municipality to direct the writ petitioner that they should file an application for grant of development permit and only after consideration for grant of the development permit, can the application for building permit for the flat construction be considered, etc. Such a course of action has admittedly not been resorted to by the review petitioner-Municipality. At this distance of time, the review petitioner-Municipality and the governmental authorities concerned cannot raise such an objection and if it is so permitted to raise, it would amount to an arbitrary and Review Petition No.607 of 2020 in W.P(C) No.10059 of 2020 29 capricious exercise of power. Moreover, it is the admitted stand of the Municipality that the construction in question has been made in conformity with the provisions of the building permit. Hence, in the light of these aspects, it is only to be held that the non-issuance of development permit in the facts of this case, cannot be said to be a vitiating factor, so as to go to the root of the matter. Such a ground of objection cannot be raised at this late stage. It appears that the review petitioner-Municipality is only raising their ground of rejection, as the governmental authorities have raised in Annexure-1. Apart from the abovesaid three items of rejections mentioned hereinabove, Sri.M.K.Aboobacker, learned Standing Counsel for the Kalamasserry Municipality appearing for the review petitioner has pointed out that a fourth and final ground of rejection has also been been raised in the last part of internal page No.3 of Annexure-1 letter, wherein it is stated that a complaint has been submitted by a third party before the Chief Town Planner, LSGD (Vigilance) alleging that the title deed in respect of the abovesaid property in question is allegedly defective. However, it is seen that no details are forthcoming, as to the very basis of the said Review Petition No.607 of 2020 in W.P(C) No.10059 of 2020 30 complaint in order to even disclose that there is any prima facie substance in the very such allegation. Sri.Peeyus A.Kottam, learned counsel appearing for the writ petitioner would point out that one person claiming that his name is one Sri.Bastin, had approached the writ petitioner company alleging that the title deed in respect of the subject property is vested with a Trust created in the year 1830 and that on that basis, the said complainant allegedly has got title claims of the subject property, etc. On going through Annexure-1, it is seen that the contents of the said allegation do not disclose any prima facie substance and appears to be based on completely vague allegations. Such an allegation cannot be the basis either for the review petitionerMunicipality or for responsible governmental authorities to direct the Municipality to stall the issuance of occupancy certificate, where the building permit has already been issued and third party substantive rights have been created by execution of registered sale deeds in favour of the flat allottees concerned. This Court is certain that the review petitioner-Municipality and the responsible governmental authorities concerned can never take into account any such allegations seriously Review Petition No.607 of 2020 in W.P(C) No.10059 of 2020 31 and if as a matter of fact, any such allegation has been taken seriously, then the only view that can be rendered by this Court is that such allegations cannot be the basis to stall the occupancy and completion certificate to the completed construction and if it is so permitted, it will amount to rank and capricious arbitrariness of the first order. It is after thorough evaluation and vetting of the application for building permit submitted by the writ petitioner that the review petitioner-Municipality has considered such application and granted the building permit for constructing the flat complex in question, in accordance with the provisions of the Kerala Building Rules framed under the Kerala Municipalities Act. There is no question of raising any valid objection on such vague basis and that too, at this distance of time. 22. For all these reasons, this Court is of the considered view that the impugned judgment in the W.P(C) and the reasonings and the conclusions therein cannot be said to amount to any error apparent on face of record. So also, it cannot be said that the review petitioner has made out any other grounds, which are worthy of consideration of review. The upshot of the above discussion is that the issuance of Review Petition No.607 of 2020 in W.P(C) No.10059 of 2020 32 Ext.P-5 & Annexure-1 proceedings cannot be said to be legally tenable or sustainable, etc. In other words, the impugned judgment in the W.P(C) does not deserve any interdiction in exercise of the review jurisdiction. However, it is ordered that the time limit for compliance of the directions in the judgment of the W.P(C), for consideration and disposal of the application for occupancy certificate/completion certificate, in terms of Rule 22(3) of the Kerala Building Rules, in this case, will stand extended by a further period of four weeks from the date of receipt of a certified copy of this order. The impugned judgment in the W.P(C) will stand modified to that extent alone. With these observations and directions, the above Review Petition will stand disposed of. **Sd/-** **ALEXANDER THOMAS, JUDGE** vgd Review Petition No.607 of 2020 in W.P(C) No.10059 of 2020 33 ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **ANNEXURE 1 COPY OF THE LETTER SENT BY THE PRINCIPAL SECRETARY,LSGD ALONG WITH REPORT OF CTP (VIGILANCE)DATED 9.6.2020.** ## **RESPONDENT'S/S EXHIBITS:** **EXHIBIT R1 C TRUE COPY OF THE OCCUPANCY CERTIFICATE DATED 18.2.2020 ISSUED BY KALAMASSERY MUNICIPALITY FOR NEW CONSTRUCTION IN THE PROPERTY IN SY.NO 1176/1(RE-SY.291/1) OF THRIKKAKARA NORTH VILLAGE HAVING 2721.68 M2 CONSTRUCTED AS PER BUILDING PERMIT NOTP2-TBA (24014)/2018 ISSUED BY THE PETITIONER IN THE REVISION PETITIONER.** **EXHIBIT R1(d) THE TRUE COPY OF THE TAX RECEIPT SHOWING PAYMENT OF PROPERTY TAX FOR THIS PROPERTY FOR THE YEAR 2019-2020.** **EXHIBIT R1(e) TRUE COPY OF THE POSSESSION CERTIFICATE DATED 09.03.2020 ISSUED BY THE VILLAGE OFFICER, THRIKKAKARA NORTH.**