Kerala High Court
Kollam Corporation vs A. Kasim Sait on 29 August, 2019
Author: Hrishikesh Roy
Bench: Hrishikesh Roy, A.K.Jayasankaran Nambiar
W.A.69/14 1
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE THE CHIEF JUSTICE MR.HRISHIKESH ROY
&
THE HONOURABLE MR. JUSTICE A.K.JAYASANKARAN NAMBIAR
THURSDAY, THE 29TH DAY OF AUGUST 2019 / 7TH BHADRA, 1941
WA.No.69 OF 2014
AGAINST THE ORDER/JUDGMENT IN WPC 33413/2009 DATED 10-09-2013 OF
HIGH COURT OF KERALA
APPELLANT/S:
1 KOLLAM CORPORATION,
REPRESENTED BY ITS SECREATARY, CORPORATION OFFICE,
KOLLAM-691 001.
2 THE SECRETARY,
KOLLAM CORPORATION,CORPORATION OFFICE,
KOLLAM-691 001.
BY ADV. SRI.M.K.CHANDRA MOHANDAS
RESPONDENT/S:
A. KASIM SAIT,
SAITS TOWER, BEACH ROAD, KOLLAM-691 003.
R1 BY ADV. SRI.K.B.PRADEEP
THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 29-08-2019,
THE COURT ON 29-08-2019 DELIVERED THE FOLLOWING:
W.A.69/14 2
JUDGMENT
Dated this the 29th day of August 2019 Hrishikesh Roy, CJ.
Heard the learned counsel Sri.M.K.Chandra Mohan Das for the Kollam Corporation, who have filed this writ appeal. Also heard Sri.K.B.Pradeep, the learned counsel appearing for the respondent/writ petitioner.
2. Since the petitioner was aggrieved by the denial of the occupancy certificate for the second floor of the building constructed at the Kollam East Village, Division no 43 within the jurisdiction of the Kollam Corporation, the W.P.(C).No.33413 of 2009 was filed. In the impugned order dated 05.10.2009 (Ext.P6), it was stated that road widening was proposed in front of the constructed building as per the DTP Scheme and on this basis, the Corporation had rejected the regularisation application. The non-availability of sufficient set back from the proposed road was the main reason, for the negative decision.
3. In the impugned judgment, the learned Judge referred to the ratio in M/s. Heera Construction (Pvt) Ltd. v. Corporation of Thiruvananthapuram & Another [2008(3) KHC 422] to declare that when there was no violation of the Building Rules at the time of construction, the local authorities cannot deny the occupancy certificate on account of the road widening proposed in the DTP Scheme. The Court also found that there is no material to suggest that a valid DTP Scheme is in force, in the concerned area, with reference to the distance expected to be maintained from the central line of the proposed road. The Corporation authorities were accordingly directed to grant the occupancy certificate to the petitioner, who was already in possession of the provisional occupancy certificate.
4. Before us, the only contention of the appellant is the proposed road widening in front of the constructed building, in the Kollam East Village. It is however seen that the W.A.69/14 3 said road widening project is yet to fructify. The case materials do not also suggest that land acquisition proceedings were initiated by the Corporation, to undertake the road widening exercise.
5. In the afore noted circumstances, following the decision in Thalassery Municipality v. Puthalath Balakrishnan [2019(3) KLT 154] , we feel that interference is not warranted in this appeal, at the instance of the Kollam Corporation. It will therefore be open to the writ petitioner to follow the procedure under Section 67 of the Town Planning Act, 2016 to demand upon the authorities to either acquire the land in furtherance of the DTP Scheme or grant the occupancy certificate, for the 2nd floor of the building. If no land acquisition is undertaken within the time stipulated in Thalassery Municipality (supra) the respondent/writ petitioner shall be entitled to the occupancy certificate, in terms of the impugned judgment. It is ordered accordingly.
6. With the above order this Appeal stands disposed of without any order on cost.
Sd/-
Hrishikesh Roy, Chief Justice Sd/-
A.K.Jayasankaran Nambiar, Judge DG