Wilson Thomas v. Mathilakam Grama Panchayath and The Secretary, Mathilakam Grama Panchayath

WP(C) No. 41858 of 2022 1 # **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE VIJU ABRAHAM THURSDAY, THE 20[TH] DAY OF APRIL 2023 / 30TH CHAITHRA, 1945 ``` ## **`WP(C) NO. 41858 OF 2022`** ## **`PETITIONER:`** ``` WILSON THOMAS AGED 53 YEARS MANJALY HOUSE, PAPPINIVATTOM, MATHILAKAM P.O.,KODUNGALLUR, THRISSUR, REPRESENTED BY HIS POWER OF ATTORNEY HOLDER, THAMPI, AGED 53 YEARS, SON OF THOMAS, PAREKKATTIL HOUSE, THAMMANIMATTAMKARA, AIKARNAD SOUTH, RAMAMANGALAM P.O., KOLENCHERY, ERNAKULAM, PIN - 680685 BY ADVS. B.ASHOK SHENOY P.S.GIREESH SALIH P.A. ARJUN R NAIK THEJALAKSHMI R.S. ``` ## **`RESPONDENTS:`** ``` 1MATHILAKAM GRAMA PANCHAYATH REPRESENTED BY ITS SECRETARY, MATHILAKAM P.O., THRISSUR, PIN - 680685 2THE SECRETARY MATHILAKAM GRAMA PANCHAYATH, MATHILAKAM P.O., THRISSUR, PIN - 680685 BY ADVS. AMRIN FATHIMA K.A.NOUSHAD(K/003014/1999) GOPIKA T.G.(K/922/2021) REJI R.(K/000674/2021) ``` ``` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 20.04.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` WP(C) No. 41858 of 2022 2 ## **VIJU ABRAHAM , J. =========================== WP(C) No. 41858 of 2022** ## **============================ Dated this the 20[th ] day of April, 2023** ## **J U D G M E N T** Petitioner seeks to file this writ petition being aggrieved by inaction and omission of respondents to number the residential building constructed by the petitioner along with his wife, pursuant to Building Permit issued to them by the 2[nd] respondent, since having completed its construction in terms of Building Permit and submitted completion with certificate to the 2nd respondent on 08.11.2021 in terms of Rule 20(3) of Kerala Panchayat Building Rules 2019 (hereinafter referred to as Rules 2019), acknowledged by the 2nd respondent as per Ext P1 acknowledgement receipt and over which Ext P2 letter in terms of the said proviso issued by the petitioner to 2nd respondent, acknowledged by the 2nd respondent with stamp and date, operate as deemed Occupancy Certificate, as per the aforesaid proviso to aforesaid Rule 20(3). 2. Petitioner submits that though Ext P1 was submitted on 08.11.2021 seeking issuance of Occupancy Certificate and number the building, no decision was taken on the same even after lapse of one year. Ext P2 letter was submitted on 30.11.2022 WP(C) No. 41858 of 2022 3 claiming that he is entitled to get occupancy certificate. Despite the same, the respondent Panchayat is not numbering the building on the premise that occupancy certificate has not so far been issued and due to the same, the petitioner could not occupy the building in spite of having completed the construction almost a year back. Petitioner has submitted Ext P2 in compliance with the proviso to Rule 20(3) of the Rules 2019. 3. A counter affidavit has been filed by the respondents in which it is admitted that the petitioner has undertaken the construction after obtaining a building permit and on 08.11.2021 he has submitted an application for numbering the building and in the site inspection various defects were noted and Ext R1(a) letter was issued on 30.11.2021 to cure the defects. Thereafter, Ext R1(b) letter dated 07.12.2022 was also issued intimating that only on curing the defects noted therein occupancy certificate will be granted. Rule 20(3) of Rules 2019 mandates that the Secretary shall on receipt of a completion certificate issue occupancy certificate in the prescribed form, not later than 15 days from the date of receipt of a completion certificate if he is satisfied that construction or reconstruction or addition or alteration has been carried out in conformity with the permit. The proviso to the said Rules mandates that if no such occupancy certificate is issued within 15 days the owner may proceed as if such occupancy WP(C) No. 41858 of 2022 4 certificate has been duly issued to him. The proviso further mandates that on the expiry of the 15 clear days from the date of valid application for occupancy certificate, the applicant shall submit a letter stating that he is liable to get occupancy certificate and now it is deemed to have been issued by the authority and all Secretaries of Local Self Government Institutions shall acknowledge the receipt of the letter stating the above paragraph with stamp and date on the same day on the duplicate copy of the letter and the same shall be a deemed occupancy certificate and such deemed occupancy certificate shall be accepted by all public authorities as proof of completion of the building in compliance with Rules. 4. Admittedly in the present case, no decision rejecting or accepting the completion certificate was taken by the local authority within 15 days of the receipt of the same, and a reply has been given noting certain defects only on 30.11.2021, which is admittedly beyond 15 days of the receipt of the application for issuance of occupancy certificate. Ext P2 letter given by the petitioner as per the proviso to Rule 20(3) has been accepted and the same has been duly acknowledged and going by the Rules the said letter acknowledged by the Secretary of the local authority shall be a deemed occupancy certificate. WP(C) No. 41858 of 2022 5 5. Petitioner relies on the judgment in _**Prasad N.B. v. Vaikom Municipality and Others [2022 KHC 3495]**_ in support of his contention. Paragraph 4 of the judgment reads as follows: _“The learned Standing Counsel appearing for the respondents submits that the application for occupancy certificate had been received from the petitioner on 28.10.2021 and that site inspection had been conducted pursuant to which a report was generated. It is submitted that a communication was issued to the petitioner to rectify the defects on 06.01.2022. It is submitted that there are defects in the construction carried out by the petitioner and therefore, the occupancy certificate cannot be granted.”_ 6. In view of the facts and circumstances of the case and in the light of the judgment in _**Prasad N.B.’s**_ case cited supra, there will be a declaration that the petitioner is deemed to have been granted Ext P2 occupancy certificate in respect of the building constructed pursuant to building permit no. A4-4760/17 dated 26.09.2017 issued by the 2[nd] respondent. 7. It is also to be noted that as per Rule 20 of the Kerala Panchayat Building Rules 2019, the Secretary is obliged to issue an occupancy certificate only if he is satisfied that the construction has been carried out in conformity with the permit. In the present case going by Ext R1(b) various violations have been noted which is against the terms of the permit. A deemed occupancy certificate is provided as per the Rules only in case where no occupancy certificate has been issued within 15 days of WP(C) No. 41858 of 2022 6 the submission of the application. I am of the opinion that such a stipulation is made in the Rules 2019 only to see that there shall be no delay from the part of the authorities in issuing an occupancy certificate even after the construction of the building has been completed in terms of the permit and that the said proviso to the Rule providing for deemed occupancy certificate is not for validating illegal constructions. The Division Bench of this Court in _**Malik Bin Deenar Islamic Complex v. Kaipamangalam Grama Panchayat [2020 (2) KLT 394],**_ though granted deemed occupancy certificate held that the same will not disable the Secretary of the Grama Panchayat to conduct an enquiry as contemplated in Rules 25 of Kerala Panchayat Building Rules, 2011. The enquiry contemplated as per the said Rules is for the satisfaction of the Secretary to verify whether construction of the building has been carried out in conformity with the requirements of the Rules. Therefore, going by the dictum laid down in _**Malik Bin Deenar’s**_ case supra, even if deemed occupancy certificate has been granted the Secretary can conduct an enquiry to verify whether the construction of the building has been carried out in conformity with the Rules. 8. Section 235H of the Kerala Panchayat Raj Act, 1994, (hereinafter referred to as Act of 1994) mandates that no construction work of a building shall be commenced until WP(C) No. 41858 of 2022 7 Secretary has granted permission for the same and going by Section 235 I and 235 J of the Act of 1994, the Secretary shall take a decision on the application within a period of 30 days. Section 235 K of the Act of 1994 mandates that if the Secretary does not take a decision on the same within 30 days, the applicant could approach the Village Panchayat with a written request and if the Village Panchayat does not take a decision within 1 month thereafter, such approval or permission shall be deemed to have been given and the applicant can proceed to execute the work but the same is with a rider that it shall not be so as to contravene any of the provisions of the Act or any Rules or Bye laws made there under. Section 235 W of the Act of 1994 empowers the Secretary to demolish or require alteration in the work if any contravention of the Rules is noted. Therefore, the deemed occupancy granted cannot be treated as a blanket permission granted to the petitioner. 9. It is made clear that the declaration given by this Court that Ext P2 can be treated as a deemed occupancy certificate is only due to the laches on the part of the respondent Panchayat in not taking a decision on the application seeking occupancy certificate. Various defects have been noted as is evident from Ext R1(a) and R1 (b). The petitioner is bound to cure the said defects and the respondent panchayat is free to conduct an enquiry as WP(C) No. 41858 of 2022 8 permitted as per in _**Malik Bin Deenar’s**_ case supra and to take appropriate action as contemplated in Section 235 W of the Act of 1994 in case the defect noted in Ext R1(a) and Ext R1(b) is not cleared within a reasonable time to be granted by the Respondent Panchayat in writing. With the above said directions and observation, the above writ petition is disposed of. **Sd/JUDGE** **VIJU ABRAHAM** sbk/- WP(C) No. 41858 of 2022 9 ## **`APPENDIX OF WP(C) 41858/2022`** ``` PETITIONER EXHIBITS Exhibit P1TRUE COPY OF ACKNOWLEDGEMENT RECEIPT DATED 08.11.2021 UNDER FILE NO.400734/BABC06/GENERAL/2021/1709 ISSUED BY 1ST RESPONDENT Exhibit P2TRUE COPY OF DUPLICATE COPY OF LETTER DATED 30.11.2022 SUBMITTED BY PETITIONER TO 2ND RESPONDENT, BEARING THE STAMP AND DATE OF ACKNOWLEDGEMENT OF 2ND RESPONDENT ``` ``` RESPONDENT EXHIBITS Exhibit R2(a)A true copy of the letter bearing No. S C 2-1709/2021 dated 30/11/2021 issued to the petitioner Exhibit R2(b)A true copy of the letter bearing No. 400734/BAIN02/General/2022/8864/(1) dated 07/12/2022 issued to the petitioner, along with the postal receipt ```