Kalyanadayini Sabha v. Kodungallur Municipality and Others

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN** **MONDAY, THE 10[TH] DAY OF JULY 2023 / 19TH ASHADHA, 1945** ## **WP(C) NO. 35170 OF 2015** ## **PETITIONER** ## **KALYANADAYINI SABHA** **AGED 46 YEARS P.O.ANAPUZHA, KODUNGALLUR, THRISSUR DISTRICT, REPRESENTED BY ITS PRESIDENT, ANILKULAR.P.P., S/O.PRABHAKARAN** **BY ADVS. SRI.RENJITH THAMPAN (SR.) SMT.P.R.REENA** ## **RESPONDENTS:** |**1**|**KODUNGALLUR MUNICIPALITY**| |---|---| ||**REP. BY ITS SECRETARY,**| ||**MUNICIPAL OFFICE,**| ||**KODUNGALLUR,**| ||**THRISSUR DISTRICT,**| ||**PIN 680 664.**| |**2**|**SECRETARY**| ||**KODUNGALLUR MUNICIPALITY,**| ||**MUNICIPAL OFFICE,**| ||**KODUNGALLUR,**| ||**THRISUR DISTRICT,**| ||**PIN 680 664.**| |**3**|**CHIEF TOWN PLANNER**| ||**OFFICE OF CHIEF TOWN PLANNER,**| ||**THIRUVANANTHPAURAM PIN 695 001.**| |**4**|**STATE OF KERALA**| ||**REPRESENTED BY SECRETARY,**| ||**DEPARTMENT OF LOCAL SELF GOVERNMENT INSTITUTIONS,**| ||**SECRETARIAT,**| ||**THIRUVANANTHPAURAM.**| **W.P.(C.) No. 35170 OF 2015** 2 **R1 & R2 ADV.SRI.K.A.NOUSHAD BY ADVS.SRI.BABU KARUKAPADATH SRI.MITHUN BABY JOHN SRI.J.RAMKUMAR SMT.M.A.VAHEEDA BABU** **R3 & R4 BY SMT.DEEPA NARAYANAN, SENIOR GOVERNMENT PLEADER** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 10.07.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **W.P.(C.) No. 35170 OF 2015** 3 ## **JUDGMENT** ## **DATED THIS THE 10TH DAY OF JULY, 2023.** This writ petition is filed seeking the following reliefs:- - _“i) Call for records leading to Ext.P12 and issue a writ in the nature of certiorari quashing Ext.P12;_ - _ii) Issue a writ in the nature of mandamus commanding the respondents 1 and 2 to grant occupancy certificate to the petitioner's building, within such time as may be fixed by this Hon'ble Court and number the building covered by Ext.P1, if the construction is done in accordance with Ext.P1 approved building plan and the direction in Ext.P9 for replacing the staircase;”_ 2. Heard the learned Senior counsel for the petitioner and the learned Standing Counsel appearing for the respondent Municipality as well as the learned Senior Government Pleader. 3. It is submitted by the learned Senior Counsel appearing for the petitioner that the petitioner had carried out the construction in accordance with Ext.P1 plan, which was duly approved by the Municipality. Ext.P1 was provided for the construction of a basement floor, ground floor and four floors along with the terrace floor with a total area of **W.P.(C.) No. 35170 OF 2015** 4 1632.84 M[2] . It is submitted that parking space for 10 cars was also provided in accordance with Ext.P1 approved plan. It is submitted that since there was some delay in getting NOC from the Fire and Rescue Department, the petitioner had initially carried out the construction of the basement, ground, first and second floors and Ext.P6 occupancy certificate was issued to the petitioner. It is submitted that further constructions were also carried out by the petitioner strictly in accordance with Ext.P1 and completion plan was also submitted. By Ext. P7, dated 29.12.2010, the petitioner was informed that there was violation of Rule 112 of the Kerala Municipality Building Rules, 1999, since an additional staircase has to be provided in the high rise building of the petitioner. It is submitted that the petitioner had approached the Government which had called for a report from the Regional Joint Director. Ext.P9 report was submitted by the Regional Joint Director specifying that the building had been constructed strictly in accordance with the building permit granted on 11.10.2006 and the ## **W.P.(C.) No. 35170 OF 2015** 5 completion plan, dated 08.11.2009 is in accordance with the approved building permit and plan. Relying on Ext.P9 report, Ext.P8 order was passed by the Government on 13.04.2012 requiring the Secretary to number the building. Thereafter, inspections were conducted and on 22.03.2014, Ext.P10 notice was issued to the petitioner pointing out that there are violations of the Building Rules in Ext.P1 plan. The petitioner submitted detailed replies, but Ext.P12 order has been passed requiring further compliance on the ground that there are violations in Ext.P1 plan approved by the Municipality. The learned Senior Counsel appearing for the petitioner submits that the petitioner had carried out the constructions only in accordance with Ext.P1 approved plan and that after having approved the plan, the Municipality was not justified in requiring any further compliance from the petitioner, since there is no violation of the approved building plan by the petitioner. It is further contended that the petitioner had, as a matter of fact, carried out all possible rectifications including the **W.P.(C.) No. 35170 OF 2015** 6 construction of an additional staircase in the building and that the said aspect would be clear from any inspection to be conducted in the property. 4. Relying on the decision of this Court in M/s. Heera Construction (Pvt.) Ltd. v. Corporation of Thiruvananthapuram and Another [2008(3) KHC 422], it is contended that once a building permit has been granted and a plan duly approved by the Municipality, the Municipality cannot contend that there were errors in the plan and require further rectifications by the petitioner. 5. A counter affidavit has been placed on record by the respondents 1 and 2 wherein it is stated that though the application had been submitted by the petitioner for the construction of a six storied high rise building, the building permit had been issued initially only till the first floor of the building. It is stated that the first respondent had issued building permit for construction till the first floor of the six storied building on condition that the initial NOC from the Fire and Rescue Department will be produced by the **W.P.(C.) No. 35170 OF 2015** 7 petitioner and the building permit fee for the entire building was also to be remitted. Upon receiving the fee, the building permit was issued by the first respondent for constructing the basement, ground floor and 1[st] floor respectively. It is further stated that the initial NOC from the Fire and Rescue Department, dated 16.01.2008 was received by the office of the first respondent and the petitioner submitted completion plan and application for issuance of occupancy certificate for the building. The first respondent found that the construction had been made by the petitioner in violation of Rules 112 and 113 of the Kerala Municipality Building Rules, 1999 and therefore, the letter, dated 22.09.2010 was issued informing the petitioner about the violations. It is stated that an application for partial occupancy certificate for basement, ground, 1[st] , 2[nd] , 3[rd] and 4[th] floors was submitted by the petitioner on 21.03.2011. On conducting an inspection of the building, partial occupancy was granted to the basement, ground, 1[st] and 2[nd] floors and the petitioner was informed that the 3[rd] **W.P.(C.) No. 35170 OF 2015** 8 and 4[th] floors shall be used only after the construction of the second staircase. Accordingly, the 1[st] floor and 2[nd] floor of the building were numbered. Thereafter also, inspections were conducted and it was found that the 2[nd] staircase had not been completed. It is further contended that there was no requisite parking space as mandated under the Kerala Municipality Building Rules, 1999 and that several other defects were also noted which led to the passing of Ext.P12 order. The violations are described in the counter affidavit. 6. A reply affidavit has been placed on record by the petitioner stating that the building permit was granted for the entire building and Ext.P1 plan was also sanctioned by the Municipality on 11.10.2006 for the construction of a high rise building having a height of 18.60 meters. It is submitted that since the construction is specifically in accordance with Ext.P1, the Municipality is estopped from raising these contentions after having approved Ext.P1 building plan. It is submitted that the petitioner is being forced to pay exorbitant amounts as property tax for the **W.P.(C.) No. 35170 OF 2015** 9 building on the ground that two of the floors are unauthorised, even in spite of the fact that the construction is strictly in accordance with Ext.P1. 7. Ext.P1 which is admittedly the approved plan provides for construction of a high rise building with basement, ground floor, 4 floors and a terrace. Ext.P9, which is the report of the Regional Joint Director also refers to building permit No.262/12067, dated 11.10.2006 for construction of a high rise building having six floors. It is only in Ext.P10 that the Municipality states, for the first time, that the building permit was granted only for basement + ground floor + first floor + Mezzanine floor. However from the counter affidavit of the Municipality itself, though it is contended that the building permit was granted only for basement, ground floor and first floor, it appears that occupancy certificate has been issued for the second floor as well. 8. Having considered the contentions advanced and in the absence of any material having been produced, I am ## **W.P.(C.) No. 35170 OF 2015** 10 of the opinion that the contention that the building permit had been granted only for the basement, ground floor and first floor to the petitioner cannot be accepted, especially in view of Ext.P1 approved building plan for the entire building and as also the fact the second floor of the building also stood numbered by the Municipality. 9. In the above view of the matter, the question which requires a consideration is whether the construction has been carried out in accordance with Ext.P1 approved building plan. The learned Senior Counsel appearing for the petitioner submits that the defect with regard to the second staircase now stands rectified by the said construction having been carried out by the petitioner. In the above view of the matter, this writ petition is disposed of with a direction to the Municipality to conduct further inspection taking note of the completion plan and also Ext.P1. In case the construction is carried out in accordance with Ext.P1 approved plan and the 2[nd] staircase is also provided by the petitioner, the respondents shall **W.P.(C.) No. 35170 OF 2015** 11 number the remaining two floors of the building and shall issue occupancy certificate for the same and accept tax, at the rates applicable to regularly numbered buildings. Necessary steps shall be done, within a period of two months from the date of receipt of a copy of this judgment. Sd/- ANU SIVARAMAN JUDGE DCS/10.07.2023 **W.P.(C.) No. 35170 OF 2015** 12 ## **APPENDIX** ## **PETITIONER EXHIBITS** **P1- TRUE COPY OF THE APPROVED SITE PLAN, WITH SEAL OF THE MUNICIPALITY** **P2- TRUE COPY OF THE LETTER DATED 15.10.2007 OF THE SECRETARY OF THE MUNICIPALITY** **P3- TRUE OCPY OF THE CHALAN DATED 3.10.2007** **P4- TRUE COPY OF THE CERTIFICATE DATED 16.1.2008 ISSUED BY THE FIRE AND RESCUE DEPARTMENT** **P5- TRUE COPY OF THE NO OBJECTION CERTIFICATE (FINAL) DATED 31.8.2010 OF FIRE & RESCUE SERVICES DEPARTMENT** **P6- TRUE COPY OF THE OCCUPANCY CERTIFICATE DATED 25.4.2011 ISSUED TO THE PETITIONER'S BUILDING FOR GROUND PLUS, 1ST, 2ND AND 3RD FLOORS** **P7- TRUE COPY OF THE LETTER DATED 29.12.2010 OF THE SECRETARY OF THE MUNICIPALITY** **P8- TRUE COPY OF THE LETTER DATED 13.4.2012 OF THE LOCAL SELF GOVERNMENT DEPARTMENT** **P9- TRUE COPY OF THE REPORT DATED 8.2.2012 OF REGIONAL DIRECTOR** **P10- TRUE COPY OF THE NOTICE DATED 22.3.2014 OF THE SECRETARY** **P11- TRUE COPY OF THE LETTER DATED 20.1.2015 OF CHIEF TOWN PLANNER** **P12- TRUE COPY OF THE PROCEEDINGS DATED 16.10.2015 OF THE MUNICIPALITY** **P13- TRUE COPY OF THE GO.(RT.)NO. 167/2014/LSGD DATED 27.09.2014** **P14- TRUE COPY OF THE REPRESENTATION DATED NIL FILED BY THE PETITIONER BEFORE THE 1ST RESPONDENT**