Kerala High Court
Perinthalmanna Muncipality vs Haneefa on 10 March, 2020
Author: Shaji P. Chaly
Bench: S.Manikumar, Shaji P.Chaly
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR
&
THE HONOURABLE MR. JUSTICE SHAJI P.CHALY
TUESDAY, THE 10TH DAY OF MARCH 2020 / 20TH PHALGUNA, 1941
WA.No.414 OF 2020
AGAINST THE JUDGMENT DATED 10.12.2019 IN WP(C) 26322/2018(M) OF HIGH
COURT OF KERALA
APPELLANTS/RESPONDENTS 1 &2:
1 PERINTHALMANNA MUNCIPALITY,
REPRESENTED BY ITS SECRETARY, MUNICIPAL OFFICE,
PERINTHALMANNA, MALAPPURM DISTRICT-679 322.
2 SECRETARY,
PERINTHALMANNA MUNICIPALITY, MUNICIPAL OFFICE,
PERINTHALMANNA, MALAPPURAM DISTRICT-679 322.
BY ADV. SRI.P.C.SASIDHARAN, SC, PERINTHALMANNA
MUNICIPALITY
RESPONDENT/PETITIONER:
HANEEFA,
AGED 53 YEARS
S/O.ABU HAJI, KUNDOTTU PARAKKAL HOUSE, MANNARMALA.P.O,
PERINTHALMANNA, MALAPPURAM DISTRICT-679 325.
SRI.S.SREEKUMAR(SR)
SRI.P.MARTIN JOSE
THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 10.03.2020,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
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Dated this the 10th day of March, 2020.
JUDGMENT
SHAJI P. CHALY, J This writ appeal appeal is filed by respondent Nos. 1 and 2 in W.P.(C) No. 26322 of 2018 challenging the judgment of the learned single Judge dated 10.12.2019, whereby learned single Judge disposed of the writ petition directing the Municipality to take action if a notice in contemplation of Section 67 of the of the Kerala Town and Country Planning Act, 2016 ('Act, 2016' for brevity) is issued by the writ petitioner to acquire the land in accordance with the procedure prescribed thereunder.
2. The writ petition was filed challenging Exhibit P4 notice dated 25.04.2017 issued by the Secretary of the Perinthalmanna Municipality i.e., the second appellant herein, notifying defects in the application submitted by the writ petitioner i.e., the respondent herein, seeking permit to construct a commercial building in Survey No. 38/6 in Perinthalmanna Village that as per the plan submitted the width of the road is 12 meters; however, as per the master plan the W.A. No. 414 OF 2020 -3- width of the road is fixed at 32 meters at the particular place and since the permit can be granted only in terms of the draft master plan, the permit for the construction of the proposed commercial building cannot be considered since it is not in accordance with the master plan. In fact, the writ petitioner has secured a building permit from the Municipality to construct a commercial building having ground plus 1 floor with built up area of 946 square meters. While the construction was going on, the writ petitioner wanted to enlarge the building and it was thereupon he filed an application before the Secretary for construction of additional 3 more floors on the existing building, having a total plinth area of 2593 square meters. It was for the said purpose the writ petitioner filed another building permit application with revised plan. However, the Secretary of the Municipality, as per letter dated 25.04.2017, informed the writ petitioner that since in the draft master plan of Perinthalmanna Municipality, there is a proposal for widening the existing 12 meter wide road to 32 meters wide road, the building permit can be granted only in accordance with the proposal in the draft master plan.
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3. Thereupon, the writ petitioner filed a representation dated 04.05.2017 stating that on the date of application for building permit, there was no draft master plan for Perinthalmanna Municipality. It was also pointed out that even if as per the proposal, the road is widened to 32 meters, there is no adverse legal consequences to construct the building. The Secretary of the Municipality, in turn, forwarded the writ petitioner's request to the Regional Town Planner, Malappuram. But, as per letter dated 23.11.2017, the Regional Town Planner informed the Secretary that the building permit can be granted only in accordance with the draft master plan.
4. The municipality has filed a detailed counter affidavit contending that the draft master plan for the municipality was published on 27.09.2016 as per G.O (MS) No. 84/2016 dated 13.07.2016 and the same was approved on 24.04.2018 as per G.O.(MS) No. 45/2018. It is also pointed out therein that the said master plan is not challenged in the writ petition. The writ petitioner has not provided sufficient set back as per Rule 24(8) of the Kerala Municipality Building Rules, 1999 ('Rules, 1999' for brevity) and in terms of the approved master plan. W.A. No. 414 OF 2020 -5- Therefore, the grant of the building permit can only be subject to Rule 6(4) of Act, 2016 and the rule that will be applicable is the rule that existed on the date of grant of permit. In fact, it was clarified by the Chief Town Planner on 06.12.2017. Anyhow, the writ petitioner approached the Secretary of the Municipality for occupancy certificate based on the initial building permit No. 174/15-16 dated 26.09.2015 for two floors. However, on inspection, it was noticed that the writ petitioner had completed the structural work of three more floors without a permit. So also, it is contended that no application with supporting documents for occupancy certificate, for the completed two floors has been received from the writ petitioner.
5. The paramount contention advanced by the Municipality in the appeal is that the writ petitioner is not entitled to get the occupancy certificate, since the construction carried out by the writ petitioner is an unauthorised one and he did not secure permit for construction of additional 3 floors. That apart, it is submitted that the construction is violative of Rules, 1999. It is also submitted that as per Rule 20 of Rules, 1999, every owner W.A. No. 414 OF 2020 -6- shall, on completion of the development or re-development of land or construction or reconstruction or addition or alteration of building as per the permit issued to him, submit a completion certificate, certified and signed by him, to the Secretary in the statutory format with sufficient copies of plans and drawings of completed building. It is also pointed out that the writ petitioner has not submitted any such completion plan and therefore, the occupancy certificate could not be granted without verifying the construction carried out by the writ petitioner, and whether the unauthorised construction carried out is entitled to be regularised in accordance with Rules, 1999. It is further pointed out that the learned single Judge was not right in invoking Section 67 of Act, 2016 since already the construction of the building is carried out by the writ petitioner unauthorisedly.
6. We have heard learned counsel for the appellants, Sri. P.C. Sasidharan, learned Senior counsel for the respondent, Sri. S. Sreekumar, assisted by Adv. P. Martin Jose, and perused the pleadings and documents on record.
7. Apparently, the application submitted by the writ W.A. No. 414 OF 2020 -7- petitioner seeking issuance of occupancy certificate is still pending consideration before the Secretary of the Municipality. It is an admitted fact that eventhough the writ petitioner has secured building permit for construction of ground plus 1 floor alone, additional 3 floors were constructed without securing permit from the Municipality. It was the specific case of the Municipality that while the building permit application for construction of additional floor were submitted by the writ petitioner, it was clearly pointed out to the writ petitioner as per Exhibit P4 notice that the plan submitted by the writ petitioner was defective consequent to the master plan wherein the width of the road is shown as 32 meters and sufficient set back in contemplation of law is not provided in terms of the master plan.
8. The question now emerges for consideration is whether the direction issued by the learned single Judge in the judgment granting liberty to the writ petitioner to move a purchase notice before the competent authority under Section 67 of Act, 2016 within a period of two weeks from the date of receipt of a copy of the judgment is correct or not. W.A. No. 414 OF 2020 -8-
9. In our considered opinion, Section 67 of Act, 2016 deals with the acquisition of the property, in case a notice is issued by the owner of the property in terms of the provisions of Section 67 of Act, 2016. Here is a case where irrespective of the pendency of the draft master plan and its approval later during 2018, the writ petitioner has carried out construction of additional 3 floors to the existing ground plus 1 building without securing permit from the Secretary of the Municipality. Therefore, after the completion of the construction, what is requisited under law is a completion certificate authenticated appropriately in terms of Rules, 1999 and to submit an application seeking occupancy certificate. True, the writ petitioner has submitted an application for the occupancy. However, the same has not been considered, since no completion plan and other documents required under law is submitted by the writ petitioner, and he has carried out construction of the additional 3 floors without a permit.
10. In that view of the matter, the writ petitioner has to submit an application seeking regularisation of the unauthorised construction and if it is found to be in terms of W.A. No. 414 OF 2020 -9- Rules, 1999 alone, the application for occupancy certificate can be considered. Therefore, the facts and circumstances being so, we do not think that the direction issued by the learned single Judge directing the municipality to consider purchase notice, if any submitted by the writ petitioner under Section 67 of Act, 2016, is not in accordance with law. Therefore, we vacate the findings rendered by the learned single Judge with regard to Section 67 of Act, 2016 in the judgment and direct the Municipality to consider the application submitted by the writ petitioner for occupancy and any application hereafter submitted seeking regularisation of the unauthorised construction carried out in accordance with law.
Accordingly, the writ appeal is allowed.
sd/-
S. MANIKUMAR, CHIEF JUSTICE.
sd/-
SHAJI P. CHALY, JUDGE.
Rv W.A. No. 414 OF 2020 -10-