Pramacharya K.V. Thampi v. Maradu Municipality & Coastal Regulation Zone Management Authority

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **THE HONOURABLE MR. JUSTICE A.K.JAYASANKARAN NAMBIAR** **TUESDAY, THE 22ND DAY OF MAY 2018 / 1ST JYAISHTA, 1940** ## **PETITIONER(S)** **PRAMACHARYA K.V.THAMPI, S/O.M.KRISHNAN NAIR, SIVA PRASADAM ASHRAMAM, MARADU, RESIDING AT 39/2972, DIWANS ROAD, KOCHI-16.** **BY ADVS.SRI.T.K.VIPINDAS SRI.K.V.SREE VINAYAKAN SRI.K.M.MUHAMMED HUSSAIN** ## **RESPONDENT(S):** **1. MARADU MUNICIPALITY, REP. BY SECRETARY, PO MARADU-682304.** **2. THE SECRETARY, MARADU MUNICIPALITY, PO MARADU, ERNAKULAM DISTRICT-682304.** **Addl.3. COASTAL REGULATION ZONE MANAGEMENT AUTHORITY REP.BY ITS MEMBER SECRETARY, SASTHRA BHAVAN, PATTAM, THIRUVANANTHAPURAM- 695 004.** - **R. BY ADV. SRI.T.R.RAJAN** **R3 ADDL..3 BY ADV. SRI.M.P.PRAKASH, SC, KCZMA** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 22-05-2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C).No. 7863 of 2015 (G)** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS** ## **EXT P1 : THE TRUE COPY OF THE POSSESSION CERTIFICATE ISSUED BY THE VILLAGE OFFICER, MARADU.** **EXT P2 : TRUE COPY OF THE EYE-SKETCH OF THE PETITIONER'S PROPERTY ALONG WITH THE EXISTING BUILDINGS.** **EXT P3 : THE TRUE COPY OF THE BUILDING PERMIT DT 19.07.2012.** **EXT P4 : THE TRUE COPY OF THE APPLICATION DT 07.10.2014 WITH ENGLISH TRANSLATION.** **EXT P5 : THE TRUE COPY OF THE ACKNOWLEDGEMENT ISSUED BY THE MUNICIPALITY EVIDENCING THE RECEIPT OF THE EXT P3 DT 07.10.2014.** **EXT P6 : TRUE COPY OF THE JUDGMENT OF THIS HONOURABLE COURT IN WPC. 28137/2014 DT 11.11.2014.** **EXT P7 : TRUE COPY OF THE COMMUNICATION ISSUED BY THE RESPONDENT DT 11.11.2014 WITH ENGLISH TRANSLATION** **EXT P8 : TRUE COPY OF THE ORDER OF THE RESPONDENT DT 15.12.2014 WITH ENGLISH TRANSLATION.** **EXT P9 : THE TRUE COPY OF THE COASTAL ZONE MANAGEMENT PLAN OF THE MARADU MUNICIPALITY.** **EXT.P10: TRUE COPY OF THE CERTIFICATE ISSUED BY THE VILLAGE OFFICER, MARADU, DATED 05.02.2018.** ## **RESPONDENT'S EXIHIBITS: NIL** **EXT.R1(a) TRUE COPY OF THE COMMUNICATION DATED 11.07.2013 OF THE KERALA COSTAL ZONE MANAGEMENT AUTHORITY ADDRESSED TO THE LOCAL SELF GOVERNMENT DEPARTMENT, GOVERNMENT OF KERALA.** // True copy // PA to Judge das ## **A.K.JAYASANKARAN NAMBIAR, J.** =========================================== **W.P.(C). No. 7863 of 2015(G)** ===================================================== **Dated this the 22[nd] day of May, 2018** ## **JUDGMENT** The petitioner is stated to be in possession of 32.40 Ares of land in Re.Sy.No. 257/14 in Maradu Village. It is stated that there is a Thodu by name “Ayini thodu” running along the northern boundary of the petitioner's property. As the petitioner wanted to construct four dormitories having a total area of 183.13 Sq.Mtrs above structures that were existing in the property, he applied for and obtained Ext.P3 building permit for constructing the said dormitory on the first floor of the existing building. Thereafter, he completed the construction of the said building in strict adherence with the conditions in the building permit. Thereafter, by an application dated 19.08.2014, the petitioner sought for the issuance of an occupancy certificate from the respondent Municipality. The said request was reiterated by the petitioner in Ext.P4 communication to the Municipality. Finding that the Municipality was not acting upon the said application, the petitioner approached this Court through WP(C) No.28137 of 2014, which was disposed by Ext.P6 judgment directing the Municipality to consider and pass orders on the application, expeditiously and at -2- W.P.(C). No. 7863 of 2015(G) any rate within a period of one month from the receipt of the judgment. It would appear that the Municipality thereafter, did not pass any order until 15.12.2014, and by Ext.P8 order, the Municipality informed the petitioner that the occupancy certificate applied for could not be granted without the petitioner first establishing that he had the necessary clearance from the Coastal Zone Management Authority for construction, within an area which was stated to be falling within the Coastal Regulation Zone. In fact, even prior to Ext.P8, by Ext.P7 communication dated 11.11.2014, the respondent Municipality had informed the petitioner of the requirement of getting the necessary clearances from the Coastal Zone Management Authority. In the writ petition, the petitioner impugns Exts.P7 and P8 orders, inter alia, on the contention that, inasmuch as the petitioner had commenced and completed the construction of the building in question based on a valid permit, that was issued to him by the respondent Municipality, the Municipality could not thereafter, at the stage of numbering the building and granting an occupancy certificate, contend that the petitioner had to comply with other provisions, which were not insisted upon at the time of issuance of the building permit. The petitioner places reliance on the Division -3- W.P.(C). No. 7863 of 2015(G) Bench judgment of this Court in Kerala Coastal Zone Management Authority v. Pearls Infrastructure Projects Ltd. **[2017(1) KLT 602]** in support of his contention. In the alternative, it is also the contention of the petitioner that, since the application for occupancy certificate was submitted to the respondent Municipality as early as on 19.08.2014 and thereafter reiterated through Ext.P4 application dated 07.10.2014, the Municipality ought to have taken a decision on the application within fifteen days from the date of receipt thereof, in terms of Rule 22 of the Kerala Municipality Building Rules, 1999. It is contended that, in the absence of any order from the Municipality rejecting the application for occupancy certificate within the period of fifteen days stipulated in the said Rule, the petitioner became automatically entitled to a deemed occupancy certificate as contemplated in the said Rule. 2. A counter affidavit has been filed on behalf of the 1[st] respondent, wherein Exts.P7 and P8 orders are sought to be justified to the reasons contained therein. It is in particular pointed out that the “Ayini Thodu” is a water body that is influenced by tidal action and therefore will come within the -4- W.P.(C). No. 7863 of 2015(G) regulations contemplated under the CRZ notification. The building constructed by the petitioner is stated to be within the prohibited distance from the CRZ area and therefore, it is stated that the occupancy certificate cannot be granted to the petitioner. 3. I have heard the learned counsel appearing for the petitioner, the learned Standing Counsel appearing for the respondent Municipality as also the learned Standing Counsel appearing for the 3[rd] respondent. 4. On a consideration of the facts and circumstances of the case as also the submissions made across the bar, I find that it is not in dispute that the petitioner had applied for and obtained Ext.P3 building permit as early as in 19.07.2012 and had completed the construction of the building in adherence to the said permit. At the time of issuance of the building permit, the petitioner was not put to notice of the possibility that the construction proposed by him would be in an area, which is affected by the CRZ notification. It is also to be borne in mind that the construction that was put by the petitioner pursuant to Ext.P3 building permit was over an existing building that was already -5- W.P.(C). No. 7863 of 2015(G) there in the property. The decision of this Court in Kerala Coastal Zone Management Authority v. Pearls Infrastructure Projects Ltd. **[2017(1) KLT 602]** is authority for the proposition that, once a person is permitted to put up a construction by the issuance of a building permit in his favour, and the person has expended huge amounts of money for the purposes of completing the construction, the local authority cannot thereafter turnaround and refuse consequential certificates such as ownership certificates or occupancy certificates by citing reasons, which were not brought to the notice of the petitioner at the time of issuance of building permit. In the instant case, I also find that, while it was not open to the respondent Municipality to deny the occupancy certificate to the petitioner for the reason that the building was allegedly constructed in an area which was effected by the CRZ notification, the petitioner is also entitled to the benefit of the deeming provision under Rule 22(1) of the Kerala Municipality Building Rules, 1999 and a deemed occupancy certificate on the expiry of fifteen days from the date of his application for occupancy certificate. In the result, I allow the writ petition by quashing Exts.P7 and P8 and directing the respondent Municipality to issue a certificate to the petitioner indicating that he has a deemed -6- W.P.(C). No. 7863 of 2015(G) occupancy certificate for occupying the building in question, within a period of two weeks from the date of receipt of a copy of this judgment. It is made clear that, it will be open to the respondent Municipality to initiate any action for cancellation of the said certificate, in the event of it being noticed that the petitioner has not complied with any of the conditions in the building permit or has violated any of the statutory provisions. Needless to say, any such action shall be preceded by a notice to the petitioner and after following a fair procedure. Sd/- ## **A.K.JAYASANKARAN NAMBIAR JUDGE** das/22.05.2018