High Court of KeralaSingle Judge2022-08-12Writ petition disposed of with directions to th...

M/S ARTECH REALTORS (P) LTD v STATE OF KERALA & THE KOLLAM CORPORATION

Case / Petition Number:WP(C) No.19370/2022

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: N. Nagareesh
Judgment Date: 2022-08-12
Court Decision / Holding: Writ petition disposed of with directions to the Secretary to the 2nd respondent-Corporation to consider the applicant’s representation within two weeks and decide thereon within two months after hearing, with coercive action deferred if representation is filed.
Final Disposition: Writ petition disposed of with directions to the Secretary to consider representation within two weeks and decide within two months after hearing; coercive action deferred pending this process.

Parties to the Case

Appellants / Petitioners

M/S ARTECH REALTORS (P) LTD THYCAUD, T.C. 24/2040(1), THYCAUD P.O, THIRUVANANTHAPURAM, KERALA - 695014, represented by its Managing Director, T.S. Asok

Respondents

State of Kerala, represented by the Secretary, Department of Local Self Government Institutions, Secretariat, Thiruvananthapuram - 695001
The Kollam Corporation, represented by its Secretary, Corporation Office, Kollam - 691001

Legal Representation & Advocates

Counsels for Petitioners

• B.G. Harindranath
• Amith Krishnan
• H. M. Gopikrishnan Mathews
• K. Nelluvely Ashin Dinesh

Counsels for Respondents

• Sri. M.K. Chandra Mohan Das
• Sri. S. Sreekumar (Kollam)
• Sri. Syamantak B.S. (Government Pleader)

Case Synopsis & Summary

Facts: The petitioner, M/S ARTECH REALTORS (P) LTD, seeks issuance of Occupancy Certificate under Kerala Municipality Building Rules, 1999, for an apartment complex whose permit was issued on 03.03.2017 for a built-up area of 18,166.5 sq m. Due to technical difficulties, the built-up area increased to 19,613.75 sq m, and construction was completed in 2019. The Kerala Municipality Building Rules, 2019 came into force on 08.11.2019. The building permit was valid until 02.03.2023. The petitioner filed for Completion Certificate under the 1999 Rules. In Exts.P4 and P5, the State issued circulars directing that when there is a deviation from the approved plan and the total built-up area exceeds the plan, the 2019 Rules would apply, and accordingly the application was rejected. Arguments: The petitioner argued that the building permit was issued under the 1999 Rules and construction occurred during the permit’s validity; the 2019 Rules cannot retroactively affect the petitioner’s right to a Completion Certificate; circulars cannot override statutory text; relied on CCE v Ratan Melting and Wire Industries (2008) 13 SCC 1 and M.K. Baby v District Collector (2021 SCC OnLine Ker 4049). The State’s Circulars cannot govern the interpretation of statutory provisions. Respondents contend that the construction deviated from the building permit, including increased height and built-up area, and no revised plan has been filed; regularisation is required; thus Completion Certificate cannot be issued under the 1999 Rules. Disposition: The court did not decide the issue now but directed the Secretary to consider the petitioner’s representation to the 2nd respondent within two weeks; if filed, the Secretary shall consider it and pass appropriate orders within two months after hearing; coercive action is deferred pending this process.

Provisions of Law Cited

Kerala Municipality Building Rules, 1999Kerala Municipality Building Rules, 2019

Legal Doctrines & Maxims

Clarifications/Circulars issued by executive authorities cannot govern interpretation of statutory provisions.
Well accepted principles of statutory interpretation.

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioner contends that the Building Permit was issued under the Kerala Municipality Building Rules, 1999 and construction occurred during the permit’s validity; the 2019 Rules cannot affect the right to a Completion Certificate. Circulars cannot override statutory text and are cited to support the proposition that circulars are not binding on the Court (CCE v. Ratan Melting and Wire Industries; M.K. Baby v. District Collector).

Contentions of Respondents

The respondents assert that the construction deviated from the permit including increased height and built-up area, and no revised plan has been filed; under the 2019 Rules, deviations require applying the 2019 regime and regularisation; therefore, Completion Certificate cannot be issued under the 1999 Rules.

Cited Precedents (2)

Case Name	Citation	Treatment	Explanation
CCE v. Ratan Melting and Wire Industries	(2008) 13 SCC 1	Positive	Cited to support the proposition that clarifications/circulars issued by the State Government are not binding on the Court and cannot govern statutory interpretation.
M.K. Baby v. District Collector	2021 SCC OnLine Ker 4049	Mentioned Only	Cited by counsel to support the proposition; the court does not rely on it as a controlling basis for its decision.

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Extracted Judgment Text

Exact text extracted from official judgment records.

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE N.NAGARESH** **FRIDAY, THE 12[TH] DAY OF AUGUST 2022 / 21ST SRAVANA, 1944 WP(C) NO. 19370 OF 2022** ## **PETITIONER:** **M/S.ARTECH REALTORS (P) LTD THYCAUD, T.C. 24/2040(1), THYCAUD P.O, THIRUVANANTHAPURAM, KERALA - 695014, REPRESENTED BY ITS MANAGING DIRECTOR, T.S. ASOK.** **BY ADVS. B.G.HARINDRANATH AMITH KRISHNAN H. M.GOPIKRISHNAN MATHEWS K. NELLUVELY ASHIN DINESH** ## **RESPONDENTS:** **1 STATE OF KERALA, REPRESENTED BY THE SECRETARY, DEPARTMENT OF LOCAL SELF GOVERNMENT INSTITUTIONS, SECRETARIAT, THIRUVANANTHAPURAM - 695001. 2 THE KOLLAM CORPORATION, REPRESENTED BY ITS SECRETARY, CORPORATION OFFICE, KOLLAM, PIN – 691001.** **BY ADVS. SRI.M.K.CHANDRA MOHAN DAS,SC,R2 SHI.S.SREEKUMAR (KOLLAM), SC, R2 SRI.SYAMANTHAK B.S, GOVERNMENT PLEADER** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 12.08.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** WP(C) No.19370/2022 : 2 : ## **N. NAGARESH, J.** ````````````````````````````````````````````````````````````` ## W.P.(C) No.19370 of 2022 ````````````````````````````````````````````````````````````` _Dated this the 12[th] day of August, 2022_ ## **J U D G M E N T** _~ ~ ~ ~ ~ ~ ~ ~ ~_ The petitioner, an incorporated Private Limited Company, seeks to direct the respondents to consider their application for Occupancy Certificate under the Kerala Municipality Building Rules, 1999. 2. The petitioner states that the Company obtained a Building Permit on 03.03.2017, to construct an apartment complex, of a built up area of 18166.5 square metres. Due to certain technical difficulties, the total built up area had to be increased to 19613.75 square metres. The petitioner completed the structural work of the building in the year 2019. The Kerala Municipality Building Rules, 2019 came into force subsequently on 08.11.2019. WP(C) No.19370/2022 : 3 : 3. The Building Permit of the petitioner was valid till 02.03.2023. The petitioner therefore submitted application for Occupancy Certificate under the Kerala Municipality Building Rules, 1999. In their Circulars dated 20.11.2019 (Ext.P4) and 10.01.2022 (Ext.P5), the 1[st] respondent-State of Kerala gave direction that in cases of applications for Building Permit in deviation from approved building plan where total built up area is more than that specified in the original sanctioned plan, the Kerala Municipality Building Rules, 2019 would apply. Based on those Circulars, the application submitted by the petitioner for Completion Certificate was rejected alleging that the plan is in violation of the Kerala Municipality Building Rules, 2019. 4. The counsel for the petitioner urged that the petitioner had obtained Building Permit under the Kerala Municipality Building Rules, 1999. The building has been constructed during the validity of the Building Plan issued under the Kerala Municipality Building Rules, 1999. Introduction of new Kerala Municipality Building Rules in the year 2019 cannot affect the right of the petitioner to get WP(C) No.19370/2022 : 4 : Occupancy Certificate under the Kerala Municipality Building Rules, 1999. 5. The Circulars issued by the 1[st] respondent clarifying that even if revised building plan is submitted prior to introduction of the Kerala Municipality Building Rules, 2019, where total built up area exceeds the approved plan the Kerala Municipality Building Rules, 2019 should be applied, cannot stand the scrutiny of law. Circulars issued by the 1[st] respondent cannot interpret the applicability of rules dehors the textual content of the rules, urged the counsel for the petitioner. 6. The counsel for the petitioner relied on the judgment of the Apex Court in _**CCE v. Ratan Melting and Wire Industries** [(2008) 13 SCC 1]_ to underline that clarifications/Circulars issued by the State Government merely represent their understanding of the statutory provisions and are not binding upon the Court. The Counsel also relied on the judgment in _**M.K. Baby v. District Collector** [2021 SCC OnLine Ker 4049]_ in support of the said legal proposition. WP(C) No.19370/2022 : 5 : 7. The 2[nd] respondent resisted the writ petition filing a Statement dated 12.08.2022. On behalf of the 2[nd] respondent, it is submitted that in the petitioner’s construction, not only the built up area, but the height of the building also has increased in deviation of the Building Permit. The petitioner has not filed a revised plan yet. The petitioner has to file application for regularisation of the construction. Therefore, the Corporation is not in a position to give Completion Certificate without fulfilling the mandatory provisions of the Kerala Municipality Building Rules, 1999. 8. I have heard the learned counsel for the petitioner, the learned Government Pleader representing the 1[st] respondent and the learned Standing Counsel for the 2[nd] respondent-Corporation. 9. The submission on behalf of the petitioner is that since the petitioner held a valid Building Permit issued under the Kerala Municipality Building Rules, 1999 and since the construction of the building is completed during the currency of the said Building Permit, even if there is deviation from the WP(C) No.19370/2022 : 6 : approved Building Plan/Permit, application for Completion Certificate / Occupancy Certificate should be considered based on the applicable rules, namely the Kerala Municipality Building Rules, 1999. 10. There cannot be any dispute over the legal proposition that Clarificatory letters or Circulars issued by the Executive authorities cannot govern interpretation of statutory provisions, which will have to be dealt with under the well accepted principles of statutory interpretations. But, in the petitioner’s case, the question would arise whether dehors the Circulars issued by the 1[st] respondent, the petitioner is entitled to the reliefs prayed for. 11. This Court do not intend to decide the issue at this stage because the Secretary to the Corporation can consider the application in the light of the issue raised by the petitioner in accordance with law, at the first instance. The writ petition is therefore disposed of permitting the petitioner to submit appropriate representation on its application for issuance of Occupancy Certificate before the WP(C) No.19370/2022 : 7 : Secretary to the 2[nd] respondent-Corporation within a period of two weeks. If the petitioner makes such representation, the Secretary to the 2[nd] respondent shall consider the same and take appropriate decision thereon in accordance with law within a further period of two months, after giving an opportunity of hearing to the petitioner. If the petitioner submits representation within two weeks as permitted above, the 2[nd] respondent shall defer any coercive action pursuant to Ext.P7, till a decision is taken as directed above. Sd/- **N. NAGARESH, JUDGE** aks/16.08.2022 WP(C) No.19370/2022 : 8 : ## **APPENDIX OF WP(C) 19370/2022** ## **PETITIONER'S EXHIBITS** |**Exhibit P1**|**TRUE COPY OF THE BUILDING PERMIT DATED**| |---|---| ||**03.03.2017 ISSUED TO THE PETITIONER.**| |**Exhibit P2**|**TRUE COPY OF THE SITE PLAN OF THE**| ||**PETITIONER'S BUILDING.**| |**Exhibit P3**|**TRUE COPY OF THE LETTER DATED**| ||**13.09.2010 ISSUED BY THE PRICIPAL**| ||**SECRETARY TO THE GOVERNMENT.**| |**Exhibit P4**|**TRUE COPY OF THE CIRCULAR DATED**| ||**20.11.2019** **ISSUED** **BY** **THE** **1ST**| ||**RESPONDENT.**| |**Exhibit P5**|**TRUE COPY OF THE CIRCULAR DATED**| ||**10.01.2022** **ISSUED** **BY** **THE** **1ST**| ||**RESPONDENT.**| |**Exhibit P6**|**TRUE COPY OF THE RECEIPT OF AN**| ||**APPLICATION FOR GRANT OF OCCUPANCY**| ||**CERTIFICATE ISSUED BY THE 2ND**| ||**RESPONDENT.**| |**Exhibit P7**|**TRUE COPY OF THE ORDER DATED**| ||**03.06.2022 OF THE 2ND RESPONDENT.**| |**Exhibit P8**|**COPY OF THE PHOTOGRAPHS OF THE**| ||**PETITIONERS APARTMENT COMPLEX TAKEN ON**| ||**08.04.2019.**| |**Exhibit P9**|**TRUE COPY OF THE EMAIL ADDRESSED BY**| ||**THE PETITIONER TO ITS CLIENT DATED**| ||**08.04.2019.**| ## **RESPONDENT'S/S EXHIBITS : NIL**