High Court of KeralaSingle Judge2015-02-02Petition allowed; Ext.P9 quashed; direction to ...

W.P.(C). No. 1323 of 2015 (M)

Case / Petition Number:WP(C).No. 1323 of 2015 (M)

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: Dama Seshadri Naidu
Judgment Date: 2015-02-02
Court Decision / Holding: The writ petition is allowed; Ext.P9 is set aside. The respondent Municipality is directed to regularise the petitioners’ constructions and to issue an occupancy certificate, provided the petitioners comply with all other statutory parameters, if any, as expeditiously as possible, at any rate within one month from receipt of a copy of this judgment.
Final Disposition: Petition allowed; Ext.P9 quashed; direction to regularise and issue occupancy certificate within one month, subject to statutory compliance.

Parties to the Case

Appellants / Petitioners

Saju P
Smitha

Respondents

The North Paravur Municipality, represented by its Secretary, North Paravur, Ernakulam District
The Secretary, The North Paravur Municipality, North Paravur, Ernakulam District
The Regional Town Planner, Kakkanad, Ernakulam

Legal Representation & Advocates

Counsels for Petitioners

• T. R. Rajan

Counsels for Respondents

• C. S. Ajith Prakash, S.C.

Case Synopsis & Summary

This writ petition challenges Ext.P9 issued by the North Paravur Municipality rejecting the petitioners’ application for regularisation and also the issuance of an occupancy certificate for a five-storied residential-cum-commercial building at Paravur. The petitioners obtained a building permit on 10 September 2009 and completed construction, submitting the completion report on 22 August 2012. After discovering irregularities, they sought regularisation on 25 January 2014. Instead of regularising, the Municipality issued a notice under Section 406(1) of the Kerala Municipality Act proposing demolition of the allegedly illegal structures. The petition traced its course through a prior directive in WP(C) No. 12117 of 2012 (Ext.P2) directing disposal of the regularisation application within four weeks after a personal hearing. The Tribunal for Local Self Government Institutions (Ext.P3) dismissed the appeal but left liberty to file a proper application for regularisation before the Municipality. The petitioners contended that the Master Plan published on 27 May 2013, after completion, does not automatically negate the rights of the owners and that road-widening implications should be addressed by the municipality through land acquisition, relying on Nassar v. Malappuram Municipality. The respondents argued the project is not in conformity with the Master Plan and that regularisation is linked to master planning. The court ultimately held that the applicable rules are those in force on the date of completion, allowed the writ petition, set aside Ext.P9, and directed regularisation with occupancy certificate subject to statutory compliance within a month.

Provisions of Law Cited

Section 406(1) of the Kerala Municipality Act

Legal Doctrines & Maxims

Rules or statutory regulations existing as on the date of completion of construction shall apply for regularisation, not those in force at the time of filing the application.
Master Plan effects may require land acquisition by the Municipality; ownership rights cannot be automatically defeated by mere notification of the Master Plan.

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioners argue that Ext.P9 was unjustified since the Master Plan—published after completion of construction—cannot bar regularisation. They rely on the principle in Nassar v. Malappuram Municipality that the law governing regularisation is the standard of the date of completion, and not the date of application. They contend that if road widening is necessary, the Municipality must acquire land, not demolish or deny occupancy, and that the rules in force at completion should apply. They urge timely disposition of the matter and a direction to regularise and issue occupancy certificate if statutory conditions are satisfied.

Contentions of Respondents

The respondent Municipality contends that the five-storey building is not in conformity with the Master Plan; the proposed road width under the Master Plan is 27 meters while the current width is only 12 meters. They argue that regularisation is intricately tied to Master Plan compliance and that the Town Planning department should participate in proper adjudication. They rely on the Master Plan to stress that rights cannot be unilaterally curtailed without compliance or land acquisition where necessary.

Cited Precedents (2)

Case Name	Citation	Treatment	Explanation
Nassar v. Malappuram Municipality	—	Positive	The Court relies on the Nassar decision to hold that regulatory changes arising from a Master Plan must be dealt with by acquisition or compliance, and not by depriving the owner's rights, setting the precedent that master plan considerations do not automatically override established rights.
	2009 (3) KLT 92	Positive	Referenced as a settled principle that the rules existing on the date of completion apply for regularisation, not those in force at the date of application.

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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 DAMA SESHADRI NAIDU** **MONDAY, THE 2ND DAY OF FEBRUARY 2015/13TH MAGHA, 1936** ## **WP(C).No. 1323 of 2015 (M)** ## **----------------------------------------** ## **PETITIONER(S) :** - **------------------------** ## **1. MR.SAJU.P, AGED 37 YEARS,** - **S/O.THANKAPPAN, PUTHUVAL HOUSE, AMBALAPUZHA.P.O, PIN-688 005, REPRESENTED BY THE POWER OF ATTORNEY HOLDER THILAKAN.** **2. MRS.SMITHA, AGED 34 YEARS,** - **W/O.MR.SAJU.P, PUTHUVAL HOUSE, AMBALAPUZHA.P.O, PIN-688 005, REPRESENTED BY THE POWER OF ATTORNEY HOLDER THILAKAN.** **BY ADV. SRI.T.R.RAJAN** **RESPONDENT(S) : ---------------------------** **1. THE NORTH PARAVUR MUNICIPALITY, REPRESENTED BY ITS SECRETARY, NORTH PARAVUR, ERNAKULAM DISTRICT, PIN-683 513.** **2. THE SECRETARY,** - **THE NORTH PARAVUR MUNICIPALITY, NORTH PARAVUR, ERNAKULAM DISTRICT, PIN-683 513.** **3. THE REGIONAL TOWN PLANNER, KAKKANAD, ERNAKULAM, PIN-682 030.** ## **R1 & R2 BY ADV. SRI.C.S.AJITH PRAKASH, S.C** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 02-02-2015, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** Msd. **WP(C).No. 1323 of 2015 (M)** ## **---------------------------------------** ## **APPENDIX** **PETITIONER(S)' EXHIBITS -------------------------------------** **EXHIBIT P1: TRUE COPY OF THE POWER OF ATTORNEY DATED 10.07.2009 EXECUTED BY THE PETITIONERS.** **EXHIBIT P2: TRUE COPY OF THE JUDGMENT DATED 28.05.2012 OF THIS HONOURABLE COURT IN WRIT PETITION(C)NO.12117 OF 2012.** **EXHIBIT P3: TRUE COPY OF THE ORDER DATED 27.09.2013 OF THE TRIBUNAL FOR LOCAL SELF GOVERNMENT INSTITUTIONS, THIRUVANANTHAPURAM IN APPEAL NO.566/2013.** **EXHIBIT P4: TRUE COPY OF THE FIR NOC DATED 16.09.2014 ISSUED BY THE DIVISIONAL OFFICER, FIRE AND RESCUE SERVICES, ERNAKULAM.** **EXHIBIT P5: TRUE COPY OF THE REPORT DATED 26.09.2014 OF THE 1ST GRADE OVERSEER OF THE FIRST RESPONDENT.** **EXHIBIT P6: TRUE COPY OF THE COMMUNICATION DATED 07.10.2014 OF THE 2ND RESPONDENT TO THE DISTRICT TOWN PLANNER, ERNAKULAM.** **EXHIBIT P7: TRUE COPY OF THE COMMUNICATION DATED 06.11.2014 OF THE SENIOR TOWN PLANNER, ERNAKULAM TO THE SECOND RESPONDENT.** **EXHIBIT P8: TRUE COPY OF THE COMMUNICATION DATED 17.12.2014 OF THE POWER OF ATTORNEY HOLDER OF THE WRIT PETITIONERS TO THE SECOND RESPONDENT AND ENCLOSURE.** **EXHIBIT P9: TRUE COPY OF THE ORDER NO.BA-179/09 DATED 01.01.2015 ISSUED BY THE 2ND RESPONDENT.** **RESPONDENT(S)' EXHIBITS -----------------------------------------** **EXHIBIT R2(A): TRUE COPY OF THE LETTER DATED 25.11.2014.** **//TRUE COPY//** **P.A.TO JUDGE.** Msd. DAMA SESHADRI NAIDU, J. ---------------------------------W.P. (C) No. 1323 of 2015 ---------------------------------Dated this the 2[nd] day of February, 2015. ## JUDGMENT The petitioners have filed this writ petition aggrieved by Ext.P9 issued by the respondent Municipality rejecting the petitioners' application for regularisation and also issuance of occupancy certificate to the five storied residential-cumcommercial building constructed by the petitioners. 2. The facts in brief are that, having obtained building permit on 10.09.2009, the petitioner, after completing the construction, submitted building completion report on 22.08.2012. When the respondent Municipality found certain irregularities in the construction, the petitioners submitted an application for regularisation on 25.01.2014. When the respondent Municipality, instead of regularising the petitioner's construction, issued a notice under Section 406(1) of the Kerala Municipality Act, proposing to demolish what is said to be the illegal structures raised by the petitioners, they W.P.(C). No. 1323/2015 -2- filed W.P.(C) No. 12117 of 2012 inviting Ext.P2 judgment, through which this Court directed the respondent Municipality to dispose of the petitioners' application for regularisation within four weeks, after affording an opportunity of personal hearing. 3. When the respondent Municipality passed final orders pursuant to Ext.P2 judgment of this Court, aggrieved thereby, the petitioners filed an appeal before the Tribunal for Local Self Government Institutions, which, in turn, rendered Ext.P3 order. Though the appeal was dismissed, the Tribunal, however, has reserved the liberty for the petitioners to file a proper application for regularisation before the respondent Municipality. The petitioners, in turn, submitted a revised application on 25.09.2014, which, in fact, was rejected by the respondent Municipality through Ext.P9. Eventually, assailing Ext.P9, the petitioners have filed the present writ petition. 4. The respondent Municipality filed its counter affidavit opposing the claims and contentions of the petitioners. W.P.(C). No. 1323/2015 -3- 5. The learned counsel for the petitioners has submitted that the petitioners' application for regularisation was rejected solely on the ground that subsequent to the completion of the construction by the petitioners, Master Plan for North Paravur Municipality was published on 27.05.2013, and that the construction that was made by the petitioners in violation of the initial building permit granted on 10.09.2009 was not in conformity with the said Master Plan. 6. Placing reliance on Nassar v. Malappuram Municipality[1] , the learned counsel for the petitioners has submitted that in terms of the Master Plan, the road leading to the petitioners' construction should have been wider than what it is presently i.e., 12 meters. According to him, it is for the respondent Municipality to acquire any land, if it desires to have the road widened in terms of the ratio laid down in Nassar (supra). He has further contended that for regularisation of any construction, what is required to be looked at is the statutory 12009(3) KLT 92 W.P.(C). No. 1323/2015 -4- position as on the date of completion of the construction, rather than on the date of making the application, which according to whom, is the settled principle of law. 7. The learned Standing Counsel for the respondent Municipality has submitted that the five storied building constructed by the petitioners in Sy. No. 197/9A of Kottuvally Village, Ward No. XVIII of the Paravur Municipality is at present not in tune with the Master Plan as the proposed road in front of the building is 27 meters, but at present the width is only 12 meter. He has further submitted that the entire issue relating to regularisation is integrally connected with the master plan published and hence the Town Planning Department is a necessary party for a proper adjudication of the above case. 8. Heard the learned counsel for the petitioners and the learned Standing Counsel for the respondent Municipality, apart from perusing the record. 9. There are two issues to be considered; namely, whether the construction effected in violation of the initial building plan W.P.(C). No. 1323/2015 -5- issued by the petitioners on 10.09.2009 should be in conformity with the Rules or regulations existing at that point of time, in other words, at a time when the structures were completed, or subsequently when an application was made for regularisation. Second is the impact of Master Plan which came to be notified on 25.09.2013 on the construction which admittedly was completed prior to the said date. 10. Indeed, insofar as the impact of the Master Plan is concerned, this Court in Nassar (supra) has held that if there is any statutory requirement to be fulfilled such as widening of the roads, or earmarking any area for public utility, it is for the Municipality or the local authority to acquire the land in conformity with the Master Plan. Merely because the master plan is notified, the owner of the property cannot be deprived of his rights. 11. Insofar as the regularisation is concerned, it is, however, well established that the Rules or the statutory regulations existing as on the date of completion of the W.P.(C). No. 1323/2015 -6- construction shall apply, rather than those in force at the time of the filing of the application for regularisation. In the facts and circumstances, this writ petition is allowed setting aside Ext.P9, apart from directing the respondent Municipality to regularise the petitioners' constructions, apart from issuing occupancy certificate, provided the petitioners comply with all other statutory parameters, if any, as expeditiously as possible, at any rate within one month from the date of receipt of a copy of this judgment. sd/- DAMA SESHADRI NAIDU, JUDGE. rv W.P.(C). No. 1323/2015 -7-