Kerala High Court
J.Jayan vs State Of Kerala on 23 January, 2009
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE
WEDNESDAY, THE 6TH DAY OF FEBRUARY 2013/17TH MAGHA 1934
WP(C).No. 14055 of 2012 (F)
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PETITIONER(S):
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1. J.JAYAN,
AGED 60 YEARS,
S/O JANARDHANAN, RESIDING AT KUNNIL HOUSE,
PARIPPALLAY P.O, KOLLAM 691 574.
2. SUNANDA BAI C.K,
AGED 48 YEARS,
W/O JAYAN RESIDING AT KUNNIL HOUSE,
PARIPPALLY P.O,
KOLLAM 691 574.
BY ADVS.SRI.P.B.SURESHKUMAR SR.
SRI.LEO GEORGE
SRI.T.T.RAKESH
RESPONDENT(S):
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1. STATE OF KERALA,
REPRESENTED BY THE CHIEF SECRETARY TO GOVERNMENT,
GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM - 695 001.
2. THE DISTIRCT SINGLE WONDOW CLEARANCE BOARD,
KOLLAM,
REPRESENTED BY ITS CONVERNOR,
DISTRICT SINGLE WINDOW CLEARANCE BAORD,
KOLLAM- 691 001.
3. THE GENERAL MANAGER,
DISTRICT INDUSTRIES CENTRE, KOLLAM 691 001.
4. THE DEPUTY DIRECTOR OF PANCGHAYATS,
KOLLAM - 691 001.
5. THE DISTRICT TOWN PLANNER,
KOLLAM - 691 001.
6. THE ENVIRONMENTAL ENGINEER,
KERALA STATE POLLUTION CONTROL BOARD,
DISTRICT OFFICE,
KOLLAM - 691 008.
WP(C).No. 14055 of 2012 (F)
7. KALLUVATHUKKAL GRAMA PANCHAYAT,
REPRESENTED BY ITS SECRETARY,
KALLUVATHUKKAL GRAMA PANCHAYAT, KOLLAM - 691 578.
8. THE SECRETARY,
KALLUVATHUKKAL GRAMA PANCHAYAT, KOLLAM 691 578.
R1, R4 & R5 BY GOVERNMENT PLEADER, SRI.NOUSHAD THOTTATHIL
R6 BY ADV. SRI.M.R.ARUNKUMAR, SC, POLLUTION CONTROL BOARD
R7 & R8 BY ADV. SRI.PIRAPPANCODE V.S.SUDHIR
BY SRI.K.RAVIKUMAR, SC
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
06-02-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
DG
WP(C).No. 14055 of 2012 (F)
APPENDIX
PETITIONER(S) EXHIBITS:
EXT. P1: TRUE COPY OF THE APPLICATION SUBMITTED BY THE FIRST
PETITIONER TO THE PANCHAYAT DATED 23-01-2009
EXT. P2: TRUE COPY OF THE BUILDING PERMIT ISSUED BY THE PANCHAYAT
DATED 18-02-2010.
EXT. P3: TRUE COPY OF THE PLAN OF THE BUILDING COVERED BY THE EXHIBIT
P2 PERMIT AS APPROVED BY THE PANCHAYAT DATED NIL.
EXT. P4: TRUE COPY OF THE NO OBJECTION CERTIFICATE ISSUED BY THE
DISTRICT MEDICAL OFFICER, KOLLAM DATED 22-08-2011.
EXT. P5: TRUE COPY OF THE NO OBJECTION CERTIFICATE ISSUED BY THE
ASSISTANT DIVISIONAL OFFICER, FIRE AND RESCUE
DEPARTMENT,KOLLAM DATED 24-05-2011.
EXT.P6: TRUE COPY OF THE CONSENT ISSUED BY THE POLLUTION CONTROL
BOARD DATED 24-05-2011.
EXT. P7: TRUE COPY OF THE MINUTES OF THE MEETING OF THE DISTRICT
SINGLE WINDOW CLEARANCE BOARD, KOLLAM DATED 19-08-2011.
EXT. P8: TRUE COPY OF THE COMMUNICATION ISSUED BY THE GENERAL
MANAGER OF THE DISTRICT INDSTRIES CENTRE, KOLLAM TO THE
DEPUTY DIRECTOR OF PANCHAYATS, KOLLAM DATED 11-10-2011.
EXT. P9: TRUE COPY OF COMMUNICATION ISSUED BY THE PANCHAYAT TO THE
FIRST PETITIONER DATED 07-10-2011.
EXT. P10: TRUE COPY OF THE MUNUTES OF THE DISTRICT SINGLE WINDOW
CLEARANCE BOARD, KOLLAM DATED 24002-2012.
EXT. P11: TRUE COPY OF THE ORDER ISSUED BY THE HON'BLE OMBUDSMAN FOR
LOCAL SELF GOVERNMENT INSTITUTIONS DATED 04-04-2012.
EXT. P12: TRUE COPY OF THE REPORT SUBMITTED BY DEPUTY DIRECTOR OF
PANCHAYATS, KOLLAM BEFORE THE HONBLE OMBUDSMAN FOR LOCAL
SELF GOVERNMENT, INSTITUTIONS DATED 27-2-2012.
EXT. P13: TRUE COPY OF THE COMMUNICATION ISSUED TO THE PETITIONERS BY
THE CANARA BANK IN CONNECTION WITH SANCTION OF LOAN DATED
NIL.
RESPONDENTS' EXHIBITS:
EXT.R7(a): TRUE COPY OF THE LETTER DATED 28.09.2011 OF THE DISTRICT TOWN
PLANNER, KOLLAM.
WP(C).No. 14055 of 2012 (F)
EXT.R7(b): TRUE COPY OF THE REPORT FILED BY THE DEPUTY DIRECTOR OF
PANCHAYATS BEFORE THE HON'BLE OMBUDSMAN.
EXT.R7(c): TRUE COPY OF THE COMPLAINT PREFERRED BY ONE OF THE LOCAL
PEOPLE.
//TRUE COPY//
P.A TO JUDGE
DG
A.M.SHAFFIQUE, J.
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W.P.(C) No. 14055 of 2012 - F
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Dated this the 6th February, 2013
J U D G M E N T
The petitioner has constructed a building on the basis of Ext.P2 building permit. In fact, his intention was to put up a steel manufacturing unit in the said premises, however, when Ext.P2 building permit was granted, it was issued as if it is for commercial purpose.
2. The complaint of the petitioner is that after construction of the building when he approached the local authority, they failed to number the building on the ground that the building cannot be permitted to be used as industrial unit. The petitioner approached the Single Window Clearance Board who had initially directed the Panchayat to issue necessary licence. Paragraph 7 of Ext.P7 relates to the petitioner.
3. But it seems that by Ext.P9, the Panchayat had informed the petitioner that as per Rule 59 of the Kerala Municipality Building Rules (KMB Rules), the specification of the building does not permit granting of Occupancy Certificate to conduct an industrial unit, as a report had already been submitted by the District Town Planner stating that the building does not satisfy the W.P.(C) No. 14055 of 2012 - F 2 requirement in terms of Rule 59 of the KMB Rules. Ext.P12 is the said report.
4. The complaint of the petitioner is that he applied for constructing an industrial unit, which was permitted as per Ext.P2 permit. Though it is stated that the building permit is granted for commercial use, being a layman, who was not aware of the complications that would arise in respect of such building permit and once the building permit had been granted, the local authority cannot contend that the building cannot be utilized for the intended purpose. According to him, he had suffered huge loss for constructing the building and he had availed financial assistance from Canara Bank for the purpose of constructing the building which is now rendered useless.
5. Counter affidavit is filed by the 5th respondent inter alia contending that the building cannot be utilized for running an industrial unit.
6. Respondents 7 and 8 had also filed counter affidavit pointing out that as per Ext.R7(a), the District Town Planner had indicated that the building cannot be granted occupancy certificate for an industrial unit.
7. Heard learned counsel for the petitioner, the learned Government Pleader and the learned counsel appearing for the W.P.(C) No. 14055 of 2012 - F 3 local authority.
8. It is a very hard case where a person has invested huge amount for putting up an industrial unit. Ext.P1 application would show that his intention was to put up a building for manufacture of steel furniture. But the fact remains that along with the application, petitioner had submitted a plan as well, which was approved by the local authority. If his intention was to construct an industrial unit, definitely the petitioner should have furnished a plan in compliance with Rule 59 of KMB Rules. Apparently, it was on account of the said fact that the building permit was issued stating the occupancy as commercial. In the normal circumstances, if the application is under Rule 59, approval of District Town Planner is required before issuing the building permit which is not done in this case. The fact remains that, the petitioner had not satisfied the said requirement or that there is a mistake on the part of the Panchayat in issuing the proper licence which this Court cannot adjudicate at this point of time and is not called upon to adjudicate the same.
9. Though the petitioner has a grievance that he had invested huge amount to construct the building, since it is not a disputed fact that the building does not satisfy the requirement of Rule 59, I do not think that it would be possible for this Court to exercise the W.P.(C) No. 14055 of 2012 - F 4 jurisdiction under Article 226 of the Constitution of India to direct the Panchayat to issue occupancy certificate in order to enable the petitioner to conduct an industrial unit in the building. In the result, I do not think that this Court can interfere in the aforesaid matter.
Accordingly, the writ petition is dismissed..
A.M.SHAFFIQUE, JUDGE.
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