Kerala High Court
V.K.Sreejith vs The State Of Kerala on 8 September, 2025
2025:KER:66326
WP(C) Nos.33681 & 2168 of 2019
1
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.M.MANOJ
MONDAY, THE 8TH DAY OF SEPTEMBER 2025 / 17TH BHADRA, 1947
WP(C) NO. 33681 OF 2019
PETITIONERS:
1 NAVAS KACHEERY
AGED 44 YEARS
S/O.HASSAN, KACHERY HOUSE, KURUVA, KADALAI.P.O., KANNUR-
670003.
2 SANTHAKUMAR.K.
S/O.BALAGOPALAN, 'SARIKA', KURUVA, KADALAI.P.O., KANNUR-
670003.
3 C.RATHEESHAN
S/O.ACHUTHAN, CHATTA HOUSE, KURUVA, KADALAI.P.O.,
KANNUR-670003.
4 RUBEES KACHERY
HASSAN, KACHERY HOUSE, KURUVA, KADALAI.P.O., KANNUR-
670003.
5 CHATTA ASHOKAN
S/O.ACHUTHAN, CHATTA HOUSE, KURUVA, KADALAI.P.O.,
KANNUR-670003.
BY ADVS. SRI.K.C.SANTHOSHKUMAR
SMT.K.K.CHANDRALEKHA
SMT.ANUPAMA JOHNY
SMT.K.S.SUDHA
SRI.SREE GOVIND
RESPONDENTS:
1 STATE OF KERALA,
REPRESENTED BY SECRETARY TO THE GOVERNMENT, LOCAL SELF
GOVERNMENT (RB) DEPARTMENT, GOVERNMENT OF KERALA,
THIRUVANANTHAPURAM-695001.
2025:KER:66326
WP(C) Nos.33681 & 2168 of 2019
2
2 KANNUR MUNICIPAL CORPORATION,
KANNUR-670001, REPRESENTED BY THE SECRETARY.
3 THE SECRETARY,
KANNUR MUNICIPAL CORPORATION, KANNUR-670001.
4 THE DISTRICT CHIEF TOWN PLANNER,
KANNUR-670001.
5 THE ASSISTANT ENGINEER,
EDAKKAD ZONAL OFFICE, KANNUR MUNICIPAL CORPORATION,
THOTTADA.P.O., KANNUR-670007.
6 B.PRASANNAN,
AGED 57, S/O.KARUNAKARAN, APARNA NIVAS, KANHIRA,
THOTTADA.P.O., KANNUR-670007.
7 V.K.SREEJITH,
S/O.SREEDHARAN, AYILYAM, VATTAKKULAM, EDAKKAD,
KADALAI.P.O., KANNUR-670007.
BY ADVS. SRI.K.K.CHANDRAN PILLAI (SR.)
SRI.MAHESH V RAMAKRISHNAN
SMT.S.AMBILY
SMT.NAMITHA NAMBIAR
SRI.SAJI THOMAS
SHRI.MICKY THOMAS
R2 BY SMT.M.MEENA JOHN, SC, KANNUR MUNICIPAL CORPORATION
R1 BY SRI.E.G. GORDEN, SR. GOVT. PLEADER.
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
20.08.2025, ALONG WITH WP(C).2168/2019, THE COURT ON 08.09.2025
DELIVERED THE FOLLOWING:
2025:KER:66326
WP(C) Nos.33681 & 2168 of 2019
3
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.M.MANOJ
MONDAY, THE 8TH DAY OF SEPTEMBER 2025 / 17TH BHADRA, 1947
WP(C) NO. 2168 OF 2019
PETITIONER:
V.K.SREEJITH,
AGED 46 YEARS
S/O. SREEDHARAN, AYILYAM, VATTAKKULAM, EDAKKAD, KADALAYI
P.O., KANNUR - 670007.
BY ADV SRI.MAHESH V RAMAKRISHNAN
RESPONDENTS:
1 THE STATE OF KERALA,
REPRESENTED BY ITS SECRETARY TO GOVERNMENT, LOCAL SELF
GOVERNMENT (RB) DEPARTMENT, SECRETARIAT,
THIRUVANANTHAPURAM-695001.
2 THE KANNUR MUNICIPAL CORPORATION,
REPRESENTED BY ITS SECRETARY, KANNUR - 670001.
3 THE EXECUTIVE ENGINEER,
PWD ROAD SECTION, KANNUR - 670002.
4 K. SANTHAKUMAR,
S/O. BALAGOPALAN, SARIKA, KURUVA, EDAKKAD, KANNUR -
670007.
5 NAVAS KACHERY,
S/O. HASSAN, KACHERY HOUSE, P.O. KADALAYI, KANNUR -
670007.
6 RUBEES KACHERY,
S/O. HASSAN, KACHERY HOUSE, P.O. KADALAYI, KANNUR -
670007.
2025:KER:66326
WP(C) Nos.33681 & 2168 of 2019
4
7 CHATTA ASHOKAN,
S/O. ACHUTHAN, NANDANAM, P.O. KOTTALI, KANNUR- 670005.
8 CHATTA RATHEESHAN,
S/O. ACHUTHAN, NANDANAM, P.O. KOTTALI, KANNUR - 670005.
9 CHIEF TOWN PLANNER,
SWARAJ BHAVAN, THIRUVANANTHAPURAM - 695001.
10 DISTRICT TOWN PLANNER,
KANNUR - 670001.
BY ADVS. SRI.E.G. GORDEN, SR.GOVERNMENT PLEADER
SMT.S.AMBILY
SRI.K.C.SANTHOSHKUMAR
SMT.NAMITHA NAMBIAR
SMT.K.K.CHANDRALEKHA
SRI.SAJI THOMAS
SMT.VANIAH MARIA DOMINIC
SMT.M.MEENA JOHN, SC, KANNUR MUNICIPAL CORPORATION
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
20.08.2025, ALONG WITH WP(C).33681/2019, THE COURT ON 08.09.2025
DELIVERED THE FOLLOWING:
2025:KER:66326
WP(C) Nos.33681 & 2168 of 2019
5
P.M. MANOJ, J
------------------
WP(C) No. 33681 & 2168 of 2019
----------------------
Dated this the 8th day of September, 2025
JUDGMENT
Originally, three writ petitions came up for consideration today, i.e., WP(C) No. 237/19, 2168/2019 and 33681 of 2019. The first writ petition among these was preferred, challenging an order of exemption granted under Rule 3C of the Kerala Building Rules, 1999 as per GO(Rt) No.1617/2018/LSGD dated 14.06.2018. Whereas the second writ petition challenges the same order and also the consequential building permit issued by the Kannur Municipal Corporation, and the report submitted by the Kannur Municipal Corporation before the Chief Town Planner for consideration of the exemption to be granted. On the other hand, the beneficiary of the above orders has preferred the third writ petition challenging the order of cancellation of occupancy certificate which was issued on completion of the construction pursuant to the exemption order and the building permit so issued.
2025:KER:66326 WP(C) Nos.33681 & 2168 of 2019 6
2. Since the counsel appearing for the petitioner in W.P.(C) No.237/2019 had relinquished the vakalath, and despite repeated postings there was no representation for the petitioner, the said writ petition was dismissed for non-prosecution. Accordingly, only the remaining two writ petitions are required to be adjudicated.
3. It is the case of the petitioner in WP(C) No. 2168 of 2019 that the exemption granted under Rule 3C of the Kerala Municipality Building Rules, 1999 (for short 'KMBR,1999') to respondents 4 to 8 as per Ext.P11 and the Building permit issued as per Ext.P12 on the basis of Ext.P10 recommendation by the Municipal Corporation to the Chief Town Planner are in violation of the relevant provisions KMBR, 1999.
4. The case projected by the petitioner is that an extent of 0.70 Ares (70 Mt. Squares) of property in Re-survey 66/4 of Edakkad Village and Kannur karar Desom along with a two-storied tiled building having building Nos.EP 10/238-243 was purchased by respondents 4 to 8 as per Ext.P1 sale deed from Kachayi Puthiya Purayil Beepathu. While the said property was in possession of the aforementioned Beepathu, a small extent was taken by the Government for widening of the road. The remaining property alone 2025:KER:66326 WP(C) Nos.33681 & 2168 of 2019 7 was sold to respondents 4 to 8. Thereafter, no portion was taken from respondents 4 to 8 for the purpose of widening of the road. It is further contended that the said building collapsed due to heavy rain while it was in their possession. Due to the specific nature of the property, it was not possible to reconstruct the building in compliance with the provisions of KMBR, 1999. However, without obtaining any permit from the 2nd respondent Municipality, they started constructing the building on 18.06.2017. The petitioner challenged the same by instituting O.S. No.277/2017 before the Munsiff's Court, Kannur, seeking a decree of permanent prohibitory injunction. An application for temporary injunction was also filed as I.A. No.1439/2017, which was allowed, restraining the respondents from proceeding with the construction.
5. The Corporation also filed a written statement admitting that the construction had been carried out by respondents 4 to 8 without any permit, and that upon noticing the same, a stop memo was issued. It was further stated that the Corporation could not grant a permit for the proposed construction with the existing specifications. Respondents 4 to 8 herein also preferred written statement 2025:KER:66326 WP(C) Nos.33681 & 2168 of 2019 8 contending that the property was taken over from them for widening of the road.
6. It is further contended that the said building was a commercial building. However, respondents 4 to 8 preferred an application before the Government through the 2nd respondent Corporation for a special permit for reconstruction. The said application was placed before the council of the 2nd respondent on 26.09.2017, which resolved to forward the same to the Government as per Ext.P7 Resolution. It was thereafter forwarded to the 1 st respondent through the 10th respondent, as evident from Ext.P8. In the light of said recommendations, the 9th respondent called for a report from the 2nd respondent. Accordingly, a recommendation was forwarded by the Corporation along with the report obtained from the Assistant Engineer, PWD (Roads Section).
7. However, it is contended by the petitioner that the recommendations and details provided by the 2nd respondent Corporation were without sufficient material, especially with respect to the alleged relinquishment of land and the pendency of the Civil suit. However, the Government as per GO(Rt) No.1617/2018/LSGD dated 14.06.2018, granted a special permit under Rule 3C of the 2025:KER:66326 WP(C) Nos.33681 & 2168 of 2019 9 KMBR, 1999. According to the petitioner, such an order could not have been passed by the Government invoking the powers under Rule 3C. On the strength of the said exemption, a building permit was also granted to respondents 4 to 8 on 09.08.2018, which the petitioner alleges was the result of fraud played by respondents 4 to 8 in collusion with the authorities.
8. It is further contended that the total plinth area as per the permit is 72.12 Sq.Meters whereas as per Ext.P1 it is less than 70 Sq. Meters. It is further contended that the special permit granted by the Government, as well as the building permit, are unsustainable since the land in question does not fall within the ambit of Rule 3C of the KMBR, 1999. The petitioner asserts that they had never relinquished any portion of their land for the purpose of road widening at the relevant time, which is evident from the extent of land specified in the title deed when compared with the extent of land mentioned in the building permit
9. In response to the contentions, the learned counsel appearing for the contesting respondents submitted that the petitioner has no locus standi to challenge the exemption granted by the Government or the building permit issued by the Corporation. It 2025:KER:66326 WP(C) Nos.33681 & 2168 of 2019 10 was further contended that the petitioner, being involved in several criminal cases, is only a troublemaker seeking to wreak vengeance on the respondents due to personal and political animosity. The earlier attempt of the petitioner to obtain favourable orders by filing O.S. No.277/2017 before the Munsiff's Court, Kannur was unsuccessful, and therefore, the present writ petition is only a further attempt to cause hardship to the respondents, amounting to an abuse of process of law.
10. It is further contended that the respondents had acquired an extent of 70 sq. meters land along with an old building as per Ext.P1. The property abutted JTS-Thayyal Road on its northern boundary. When the PWD proposed the construction of a mini bye pass, it required widening of the existing JTS-Thayyal Road. For that purpose, a substantial portion of the property having a width of 1.27 meters on the eastern end and 1.564 meters on the western end of the property, was relinquished by them. The contention of the petitioner that such relinquishment had taken place even prior to their acquisition is specifically disputed in the light of Ext.P10 certificate issued by the Assistant Engineer, PWD (Roads Division). It is stated that the building situated therein collapsed during the 2025:KER:66326 WP(C) Nos.33681 & 2168 of 2019 11 demolition carried out for the road widening works by the PWD. It is further contended that several other buildings were also reconstructed following total or partial demolition for the said widening. The special sanction was granted on the basis of Ext.P10 recommendation, taking note of the certificate issued by the Roads Engineer, as evident from Ext.P10. Hence, it is contended that the impugned orders suffer from no illegality.
11. The 9th respondent, the Chief Town Planner, preferred a counter affidavit justifying the exemption granted by the Government under Rule 3C of the KMBR, 1999, which provides for exemption from the building rules on the ground of surrendering land for public purpose. It is further stated that as per Rule 82(3) of the KMBR, 1999, in cases where buildings have been partially demolished for the purpose of road widening, the construction or reconstruction of a wall with or without doors or shutters shall be permitted on the side abutting the road without any structural alteration, provided that such shutters shall not open outward.
12. The District Town Planner reported the pendency of the civil suit before the Munsiff's Court, Kannur, including the subsistence of an interim order, and further noted that the final judgment had not 2025:KER:66326 WP(C) Nos.33681 & 2168 of 2019 12 yet been delivered. These facts were also communicated by the Chief Town Planner to the Government. Accordingly, the Government, vide letter dated 01.02.2018, sought clarification regarding the legal impediments in granting permission for construction to the respondents. In turn, the Chief Town Planner obtained clarification from the Secretary of the Kannur Corporation with respect to the surrender of land free of cost and the pendency of the suit before the Munsiff's Court, Kannur.
13. In response, the Secretary, Kannur Municipal Corporation, reported that the land had been surrendered free of cost for the purpose of road widening and further stated that, if a permit would be granted for the construction, the civil suit pending before the Munsiff's Court would become irrelevant. These factors were communicated to the Government vide letter dated 18.04.2018, and after detailed examination, Ext.P11 order was issued by the Government granting exemption under Rule 3C of the KMBR, 1999.
14. On the other hand, the 2nd respondent, filed a counter affidavit whereby it is contended that the application submitted by respondents 4 to 8 on 14.11.2016 for a building permit was initially rejected on 20.04.2017 on account of the lack of front set back as 2025:KER:66326 WP(C) Nos.33681 & 2168 of 2019 13 contemplated under Rule 62(1) of the KMBR, 1999. However, ignoring the said rejection, respondents 4 to 8 commenced construction of the building in the property. In these circumstances, the petitioner preferred a complaint before the Zonal Office, Edakkad, alleging that the construction was being carried out in violation of the Building Rules and without obtaining a building permit from the Corporation. On receipt of the said complaint, an inspection was conducted on the property, and it was revealed that an illegal construction was in progress. Accordingly, provisional order dated 19.05.2017 was issued under Sections 406(1) & (2) and 395(1) & (2) of the Kerala Municipality Act, 1994, directing demolition of the illegal construction, as per Ext.R2(d).
15. In the meanwhile, another complaint dated 19.06.2017 was received by the 2nd respondent from the petitioner, pointing out that respondents 4 to 8 had commenced illegal construction on 10.06.2017 despite Ext.R2(b) notice and that he had also instituted O.S. No.277/2017 before the Munsiff's Court, Thalassery, and obtained an ad interim injunction.
16. Then the Assistant Engineer, Kannur Corporation, issued a stop memo and sought an explanation from respondents 4 to 8. The 2025:KER:66326 WP(C) Nos.33681 & 2168 of 2019 14 5th respondent submitted a reply requesting that the matter be placed before the Adalath, contending that they were not making any new construction but only reconstructing the remaining portion of the old building that had been partly demolished for road widening. Then the Assistant Enginner Kannur Corpriation vide letter dated 13.07.2017 informed that, if an application is submitted by the 5 th respondent for permit, as per Rules 82 and 85 KMBR, sanction would be granted subject to the rules. Despite this, the 5th respondent submitted an application for exemption for the construction of the new building on the ground they have surrendered half cents and a portion of the building for road development.
17. The council of the 2nd respondent Corporation considered the said request after obtaining report from the Assistant Executive Engineer PWD. Subsequently as per Ext.P7 Resolution, they decided to forward the said application to the Government for exemption through District Town Planner as per Ext.P8 wherein the pendency of suit for injunction as per OS No.277/17 before the Munsiff Court, Kannur is mentioned. In response to that, the Chief Town Planner, after obtaining further clarification from the Secretary of the Corporation, forwarded the recommendation to the Government.
2025:KER:66326 WP(C) Nos.33681 & 2168 of 2019 15 Thereafter, vide Ext.P11, government granted exemption for the building permit under Rule 3C of the KMBR, 1999, on the grounds of surrender of land for road widening and the construction being intended for a cultural centre.
18. On obtaining the special permission, respondents 4 to 8 approached the Corporation with a separate application for building permit along with the plan. Accordingly, Ext.P12 building permit was sanctioned by the Assistant Engineer of the Corporation on 09.08.2018, without the approval of council, in the light of the exemption granted by the Government. In view of the exemption granted by the government, the interim injunction granted was vacated and the suit was dismissed. This is the background in which the writ petition has been preferred challenging Exts.P11 and P12.
19. It is further stated that during the pendency of the writ petition respondents 4 to 8 submitted a completion plan of the building, which was approved by the Assistant Engineer subject to the Building Rules and the decision in the writ petition. Accordingly, an occupancy certificate was issued by the Assistant Engineer of the Corporation on 22.05.2019, subject to the decision in the writ petition.
2025:KER:66326 WP(C) Nos.33681 & 2168 of 2019 16
20. Thereafter on obtaining documents under the Right to Information Act, the petitioner preferred another complaint on 21.10.2019, alleging that respondents 4 to 8 obtained the building permit by misrepresenting the facts before the Corporation and the Government, and sought for further detailed investigation and necessary action. In the light of the said complaint, the Assistant Engineer in charge of the area inspected the site and found that no cultural centre was functioning in the said building for which the exemption had been granted, but only commercial shops are in existence. Therefore, Ext.P16 order cancelling the occupancy certificate was issued by the Assistant Engineer with concurrence of the Secretary vide note in the file. The council, in its meeting held on 04.12.2019, approved Ext.P16 order of the Assistant Engineer. By that time, respondents 4 to 8 had filed an appeal before the Secretary, which was referred for the government's decision, in view of the approval of cancellation of occupancy certificate by the council.
21. On further verification of the files, it came to the notice of the authorities that though the Government, vide Ext.P11 order, had granted exemption, the said exemption order was never placed 2025:KER:66326 WP(C) Nos.33681 & 2168 of 2019 17 before the council of the Corporation for approval. Accordingly, the Mayor directed to submit the concerned file before the council.
22. Under such circumstance, after extracting Rule 62 regarding the set back, Rule 82 regarding reconstruction and Rule 85 regarding constitution of the special committee, it was contended by the counsel for the 2nd respondent that there shall be a minimum of 1.5 meters distance from the abutting new road boundary, even where land is surrendered for a road scheme, subject to the approval of special committee constituted by the Government as per Rule 85. However, as per Ext.R2(j) completion plan, the front set back in the east is only 15 cm and only 13 cm in the west, as against the required 150 cm as per the Rules. It was further contended that the approval of the construction was beyond the scope of consideration and approval by the special committee formed under Rule 85. Thereby, there is non-compliance of the mandatory provisions before granting exemption for the subject matter building.
23. Accordingly, the council, in its meeting, came to the concussion that Ext.P11 exemption order from the Government and consequent building permit as per Ext.P12had been obtained by misrepresenting the purpose of construction as being for a cultural 2025:KER:66326 WP(C) Nos.33681 & 2168 of 2019 18 centre, that the exemption order was not placed before the Council for approval, that the mandatory procedures under Rules 82 and 85 had not been complied with, and that the exemption was disproportionate to the land surrendered as stipulated under Rule 3C. Therefore, the entire construction was held to be in violation of the Building Rules.
24. Accordingly, the Council decided to dispense with Ext.P11 exemption order of the Government vide Decision No.15 and directed the Secretary to forward a detailed report to the Government. In compliance, the Secretary submitted a report to the Government vide letter dated 28.02.2020.
25. It is further pointed out that, as per the sale deed, the property purchased by respondents 4 to 8 measures 0.70 ares (70 m²). However, in the application for building permit, as well as in the building plan and completion plan, the area of land is also shown as 0.70 ares (70 m²). Therefore, the 2nd respondent tries to establish that there was no surrender of land as claimed by respondents 4 to
8. It is also stated that the reply offered by the then Secretary to the clarification sought by the Chief Town Planner was submitted without properly applying his mind to the sketch issued by the Assistant 2025:KER:66326 WP(C) Nos.33681 & 2168 of 2019 19 Engineer, PWD, which did not disclose the name of the person who had actually surrendered land. The construction effected by respondents 4 to 8 is alleged to have completely covered the entire extent purchased by them, without providing any set back as mandated under the Rules. It is further contended that the benefit of exemption under Rule 3C can be granted only to the person who has actually surrendered the land and not to subsequent purchasers. But due to an inadvertent omission on the part of the then official, this fact was not noticed, and the application for exemption happened to be forwarded to the Government. The exemption in favour of respondents 4 to 8 was thus obtained by misrepresentation of facts. In these circumstances, the 2nd respondent seeks dismissal of the writ petition.
26. The reply affidavit filed by the petitioner to the counter of the 2nd respondent, reiterated the contentions of the 2nd respondent. On the other hand, the connected writ petition, W.P.(C) No.33681/2019, was preferred by respondents 4 to 8 challenging the order dated 26.11.2019 of the Assistant Engineer, Kannur Municipal Corporation, i.e., Ext.P5 therein, corresponding to Ext.P16 in the other writ petition.
2025:KER:66326 WP(C) Nos.33681 & 2168 of 2019 20
27. Primarily, the petitioners herein challenge Ext.P5 on the ground that, under Rule 22 of the KMBR, 1999, the Assistant Engineer is not authorised to cancel an occupancy certificate issued by the Secretary. Such cancellation was not preceded by any enquiry, nor was it in conformity with statutory procedure or the principles of natural justice. It is further contended that respondents 3 and 5 have no authority to enter into a finding or adjudicate the question of violation of conditions imposed in the Government Order, as it is a prerogative of the Government. Hence, the cancellation of the occupancy certificate is tainted with mala fides.
28. In response to the contentions the learned Standing Counsel for the 2nd respondent adopted the counter affidavit filed in the other writ petition.
29. I have heard Sri.Mahesh V. Ramakrishnan for the petitioner in WP(C) No.2168/2019, Sri.K.C. Santhoshkumar for the petitioners in WP(C) No.33681/2019, Smt. Meena John Standing Counsel to the Kannur Municipality and Sri.T.Jayan, learned Government Pleader.
30. Going by the issue involved in this case, it appears that the matter have the nature of a public interest litigation, as the petitioner in W.P.(C) No.2168/2019 has challenged the order of the 2025:KER:66326 WP(C) Nos.33681 & 2168 of 2019 21 Government granting exemption under Rule 3C of the KMBR, 1999 in favour of respondents 4 to 8, who are the petitioners in W.P.(C) No.33681/2019. However, there are no specific pleadings with respect to violation of fundamental rights of the petitioner or any direct injury suffered by him. The only ground raised is that he had earlier, though unsuccessfully, preferred a suit against the alleged unauthorised construction of building in Re-survey No.66/4 of Edakkad Village, having an extent of 0.70 Ares owned by respondents 4 to 8. As rightly contended by the respondents, an alternative remedy was available under civil proceedings, as has been held in Mariyamma v. Thomas [2003 (1) KLJ 133]. The petitioner has not pleaded that he is acting as a whistleblower in order to prevent an illegality for which jurisdiction under Article 226 could be invoked. Reliance was placed on Deepak Kumar Mukherjee v. Kolkata Municipal Corporation and Others [AIR 2013 SC 927], where the Hon'ble Apex Court dealt with the issue of illegal construction. However, I am afraid that decision is not directly applicable to the present case, since the issue involved in this case is that respondents 4 to 8 had purchased 0.70 Ares of property in Re-survey No.66/4 of Edakkad Village, Kannur Taluk, under Ext.P1 2025:KER:66326 WP(C) Nos.33681 & 2168 of 2019 22 sale deed from Kachayi Puthiya Purayil Beepathu. The said property abuts a Panchayat road on its northern boundary. It is classified as a small plot, the extent being only 1.728 cents. According to the petitioner, a small portion of the land was taken for road widening while it was in the hands of the erstwhile owner, and thereafter, the remaining land together with the building was conveyed to respondents 4 to 8. No portion of land, according to him, was taken from them for road widening after their purchase.
31. It is further contended by the petitioner that the two- storied building later collapsed due to heavy rains. This is disputed by respondents 4 to 8, who contend that the building was completely demolished while attempting to remove a portion for the purpose of road widening. This is a matter of dispute that cannot be decided in a writ petition under Article 226 of the Constitution of India.
32. As discernible from the pleadings, especially from the counter affidavit filed by the 2nd respondent, the respondents 4 to 8 had originally approached the Municipality for a building permit. That was initially rejected for want of set back as contemplated under Rule 62(1) of KMBR, 1999. Despite such rejection, they commenced construction of the building, whereupon the petitioner herein 2025:KER:66326 WP(C) Nos.33681 & 2168 of 2019 23 preferred a complaint before the authorities stating violation of the Building Rules. Considering the same, an inspection was conducted and provisional orders were issued under Sections 406(1) & (2) and 395(1) & (2) of the Kerala Municipality Act, 1994. Since construction continued even thereafter, the petitioner again approached the 2 nd respondent and also filed O.S. No.277/2017 before the Munsiff's Court, Kannur and obtained an order of injunction. In the light of these developments, the Assistant Engineer of Kannur Corporation issued a stop memo and directed respondents 4 to 8 to appear and offer their explanation. One among the contesting respondents then placed an application before the Adalath, contending that they were not making any new construction but were only reconstructing the remaining portion after demolition of part of the structure for road widening. Then the Assistant Engineer directed them to submit an application for permit under Rules 82 and 85 of the KMBR, 1999, so that sanction could be accorded subject to the Rules. Instead, respondents 4 to 8 preferred an application to get exemption from the Building Rules on the ground that they had surrendered around half a cent of land and part of the building for the purpose of road widening.
2025:KER:66326 WP(C) Nos.33681 & 2168 of 2019 24
33. This application was considered by the Council of the Corporation, and the request of the respondents, along with the report of the Assistant Engineer, PWD Roads Section, certifying the surrender of land for the Panchayat road, was forwarded through the District Town Planner to the Government for exemption under Rule 3(c) of the KMBR. The pendency of the civil suit was also mentioned. In light of it, the Chief Town Planner sought clarification from the Secretary, and the Secretary, while providing the necessary details, stated that if the building permit were to be granted, the pending suit before the Munsiff Court would lose its relevance. It was in this background that the Government granted exemption as per Ext.P11. In these circumstances, since the Government has taken a conscious decision after re-verifying the facts through the Chief Town Planner, the said order cannot be said to be illegal or arbitrary, the same being within the prerogative of the State Government. Hence, the aforementioned decision cannot have much relevance in this case.
34. It is further contended in the counter affidavit filed by the Standing Counsel for the Corporation that, on receiving exemption from the Government, the building permit and plan were granted to respondents 4 to 8 by the Assistant Engineer of the Corporation. Only 2025:KER:66326 WP(C) Nos.33681 & 2168 of 2019 25 at this point, it is taking a complete contrary view that the building permit was issued without the approval of the Council. It is also admitted by the 2nd respondent in the counter affidavit that the suit filed by the petitioner was dismissed and the interim order was vacated.
35. It is also admitted that, during the pendency of this writ petition, respondents 4 to 8 completed the construction. It is not specifically stated that whether there was any interdiction by this Court continuing the construction. Going by the proceedings, it appears that stay was not granted by this Court. Later, an occupancy certificate was also issued by the Assistant Engineer of the Corporation on submission of the completion plan with a rider subject to the decision in this writ petition.
36. On the other hand, the counter affidavit appears to speak for the petitioner. It is stated that the petitioner herein had submitted another complaint, after obtaining necessary documents obtained under the Right to Information Act, contending that respondents 4 to 8 had obtained the building permit by misrepresenting facts before the Corporation and the Government and sought further investigation into the matter. In the light of said complaint, the 2025:KER:66326 WP(C) Nos.33681 & 2168 of 2019 26 Assistant Engineer inspected the site and found that no cultural centre, for which exemption was originally granted, was functioning in the building; instead, commercial shops were being run therein. Therefore, the Assistant Engineer cancelled the occupancy certificate of the building which was concurred by the Secretary in the note file, and the Council, at its meeting on 04.12.2019, approved the cancellation of the occupancy certificate.
37. This is a matter to be examined, since Rule 22 does not empower the Secretary, the authority to issue occupancy certificate to cancel the same. Therefore, it cannot be said that the steps taken by the Assistant Engineer for cancelling the occupancy certificate without affording an opportunity for hearing to the affected persons or adopting a procedure contemplated under the provisions can stand the test of law. Here, the principle of promissory estoppel comes into play. As it was held by the Hon'ble Apex Court in UP Power Corporation Ltd v. Santh steels and alloy pvt. Ltd. [(2008) 2 SCC 777] Paragraph 27 reads as follows :
"27. In this background, in view of various decisions noticed above, it will appear that the Court's approach in the matter of invoking the principle of promissory estoppel depends on the facts of each case. But the general principle that emerges is that once a representation has been made by one 2025:KER:66326 WP(C) Nos.33681 & 2168 of 2019 27 party and the other party acts on that representation and makes investment and thereafter the other party resiles, such act cannot be stated to be fair and reasonable. When the State Government makes a representation and invites the entrepreneurs by showing various benefits for encouraging to make investment by way of industrial development of the backward areas or the hill areas, and thereafter the entrepreneurs on the representations so made bona fide make investment and thereafter if the State Government resiles from such benefits, then it certainly is an act of unfairness and arbitrariness. Consideration of public interest and the fact that there cannot be any estoppel against a statute are exceptions."
The above judgment was followed in Kusumam Hotels Private Limited v Karala State Electricity Board and Others [(2008) 13 SCC 213] also.
38. Going by the procedure adopted by the Corporation and the Government, the exemption as per Ext.P11 and the building permit as per Ext.P12 were issued to respondents 4 to 8. On the basis of such an exemption and building permit, the construction was completed. Thereafter, on being satisfied with the requirements contemplated under Rule 22 of the KMBR, the occupancy certificate was also issued with rider, subject to the result of the pending writ petition. Then on a fine morning, the Assistant Engineer took an opposite view and cancelled the occupancy certificate without waiting 2025:KER:66326 WP(C) Nos.33681 & 2168 of 2019 28 for the result in the writ petition, which is stated to be ratified by the Secretary in the Note File and approved by the Council. This cannot be accepted, since this Court did not take any decision in the writ petition at the time of cancelling the occupancy certificate.
39. In the aforementioned circumstances, and in the absence of any specific pleadings regarding the locus standi of the petitioner, I do not find any reason to interfere with the impugned orders in W.P.(C) No.2168/2019. Moreover, the factual disputes as to who had actually relinquished the land and the nature of the collapse of the building are matters that cannot be adjudicated in a writ petition.
40. On the other hand, the cancellation of the occupancy certificate by the Assistant Engineer, the 5th respondent in W.P.(C) No.33681/2019, appears to be wholly arbitrary, having been passed without following any procedure contemplated under law and in violation of the principles of natural justice, as is evident from a reading of Ext.P16. Moreover, the counter affidavit filed by the Corporation is against the principles laid down by the Hon'ble Apex Court in Mohinder Sing Gill and another v. Chief Election Commission and others [1978 KHC 478].
2025:KER:66326 WP(C) Nos.33681 & 2168 of 2019 29 Accordingly, Ext.P16 order of the Assistant Engineer is quashed, and W.P.(C) No.33681/2019 is allowed. WP(C) No.2168/2019 stands dismissed for the reason stated afore.
Sd/-
P.M.MANOJ JUDGE ttb 2025:KER:66326 WP(C) Nos.33681 & 2168 of 2019 30 APPENDIX OF WP(C) 2168/2019 PETITIONER'S EXHIBITS :
EXHIBIT P1 TRUE COPY OF THE REGD. SALE DEED NO.155/2014, S.R.O., KANNUR DATED 13/01/2014 EXECUTED BY KACHAYI PUTHIYA PURAYIL BEEPATHU IN FAVOUR OF THE RESPONDENTS 4 TO 8.
EXHIBIT P2 TRUE COPY OF THE PLAINT DATED THE 21/06/2017 IN O.S. NO.277/2017 OF THE MUNSIFF COURT, KANNUR.
EXHIBIT P3 TRUE COPY OF THE WRITTEN STATEMENT DATED 23/10/2017 FILED BY THE 2ND RESPONDENT HERE IN O.S. NO.277/2017.
EXHIBIT P4 TRUE COPY OF THE WRITTEN STATEMENT DATED NIL/12/17 FILED BY THE RESPONDENTS 4 TO 8 HERE IN O.S. NO.277/2017.
EXHIBIT P5 TRUE COPY OF THE RELEVANT PAGE OF THE BUILDING TAX ASSESSMENT REGISTER OF THE 2ND RESPONDENT CORPORATION.
EXHIBIT P6 TRUE COPY OF THE PETITION DATED NIL SUBMITTED BY THE RESPONDENTS 4 TO 8 BEFORE THE 1ST RESPONDENT.
EXHIBIT P7 TRUE COPY OF THE RESOLUTION DATED 26/09/2017 OF THE COUNCIL MEETING OF THE 2ND RESPONDENT CORPORATION.
EXHIBIT P8 TRUE COPY OF THE FORWARDING LETTER DATED 10/10/2017 BY THE 2ND RESPONDENT CORPORATION TO THE 1ST RESPONDENT.
EXHIBIT P9 TRUE COPY OF THE LETTER DATED 14/03/2018 ISSUED BY THE CHIEF TOWN PLANNER, THIRUVANANTHAPURAM TO THE 2ND RESPONDENT.
EXHIBIT P10 TRUE COPY OF THE REPLY DATED 12/04/2018 ISSUED BY THE 2ND RESPONDENT TO THE CHIEF TOWN PLANNER, THIRUVANANTHAPURAM.
EXHIBIT P11 TRUE COPY OF G.O.(MS) NO.1617/2018/LSGD DATED 14/06/2018 ISSUED BY THE 1ST RESPONDENT. EXHIBIT P12 TRUE COPY OF THE BUILDING PERMIT DATED 09/08/2018 ISSUED BY THE 2ND RESPONDENT.
EXHIBIT P13 TRUE COPY OF THE PHOTOGRAPH.
EXHIBIT P14 TRUE COPY OF THE PHOTOGRAPH.
EXHIBIT P15 TRUE COPY OF THE NOTICE PUBLISHED BY THE
RESPONDENTS 4 TO 8.
EXHIBIT P16 TRUE COPY OF THE ORDER DATED 26.11.2019 ISSUED
BY THE 2ND RESPONDENT TO THE RESPONDENTS 5TH
RESPONDENT.
2025:KER:66326
WP(C) Nos.33681 & 2168 of 2019
31
APPENDIX OF WP(C) 33681/2019
PETITIONERS' EXHIBITS
EXHIBIT P1 TRUE COPY OF THE CERTIFICATE DATED 9.6.2017
ISSUED BY THE ASSISTANT ENGINEER, PWD ROADS
SECTION, KANNUR.
EXHIBIT P2 TRUE COPY OF THE ORDER DATED 14.6.2018 ISSUED
BY THE 1ST RESPONDENT.
EXHIBIT P3 TRUE COPY OF THE BUILDING PERMIT DATED 9.8.2018
ISSUED BY THE 3RD RESPONDENT.
EXHIBIT P4 TRUE COPY OF THE OCCUPANCY CERTIFICATE DATED
22.5.2019 ISSUED BY THE 5TH RESPONDENT.
EXHIBIT P5 TRUE COPY OF THE ORDER DATED 26.11.2019 ISSUED
BY THE 5TH RESPONDENT PRODUCED BEFORE THIS
HONOURABLE COURT ALONG WITH I.A.NO.3/2019 IN WPC.NO.2168/2019.
EXHIBIT P6 TRUE COPY OF THE PUBLIC POSTER CIRCULATED BY THE 6TH AND 7TH RESPONDENTS.