IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC FRIDAY, THE 15TH JANUARY 2010 / 25TH POUSHA 1931 WP(C).No. 34976 of 2009(N) -------------------------- PETITIONER(S): --------------- 1. THE OTTAPPALAM MUNICIPALITY, REPRESENTED BY ITS SECRETARY MUNICIPAL OFFICE, OTTAPPALAM. 2. THE SECRETARY, OTTAPPALAM MUNICIPALITY MUNICIPAL OFFICE, OTTAPPALAM. BY ADV. SRI.K.K.CHANDRAN PILLAI SRI.A.S.SAJUSH PAUL SRI.THOMAS JAMES MUNDACKAL SMT.K.U.BINI RESPONDENT(S): --------------- 1. SRI.P.V.SREEDHARAN, S/O.RAMA WARRIER, `SUKRUTHAM', THOTTAKKARA P.O., OTTAPPALAM-679 102. 2. SRI.VEERANKUTTY, S/O.MOIDEENKUTTY RESIDING AT 25/17, SHAJI GARDEN, T.V.S.NAGAR, COIMBATORE-640 025. 3. SRI.V.HAMZA, S/O.MOIDU, PALATHUNKAL HOUSE, THOTTAKKARA P.O.-679 102. 4. THE TRIBUNAL FOR LOCAL SELF GOVERNMENT INSTITUTIONS, THIRUVANANTHAPURAM REPRESENTED BY ITS SECRETARY, THIRUVANANTHAPURAM. 5. STATE OF KERALA, REPRESENTED BY THE CHIEF SECRETARY, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-1. ADV. SRI.PHILIP T.VARGHESE FOR R1-3 SRI.THOMAS T.VARGHESE FOR R1-3 GOVERNMENT PLEADER SRI.V.MANU THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 15/01/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 34976 of 2009 APPENDIX EXHIBITS EXT.P1- TRUE COPY OF THE APPLICATION SUBMITTED BY RESPONDENTS 1 TO 3 DATED 18.6.07 EXT.P2- TRUE COPY OF THE SITE PLAN SUBMITTED BY RESPONDENTS 1 TO 3 EXT.P2(a)- TRUE COPY OF THE PERMIT ISSUED TO RESPONDENTS 1 TO 3 EXT.P3- TRUE COPY OF APPLICATION SUBMITTED BY RESPONDENTS 1 TO 3 FOR ISSUE OF OCCUPANCY CERTIFICATE, RECEIVED IN THE MUNICIPALITY ON 20.11.08 EXT.P4- TRUE COPY OF THE COMPLETION PLAN SUBMITTED BY RESPNDENTS 1 TO 3 EXT.P5- TRUE COPY OF ORDER REJECTING COMPLETION CERTIFICATE DATED 30.6.09 EXT.P6- TRUE COPY OF AFFIDAVIT DATED 3.3.09 SUBMITTED BY RESPONDENTS 1 TO 3 EXT.P7- TRUE COPY OF ORDER DATED 6.8.09 PASSED BY THE 4TH RESPONDENT EXT.P8- TRUE COPY OF PETITION DATED 23.9.09 FILED BY THE MUNICIPALITY BEFORE THE 4TH RESPONDENT EXT.P9- TRUE COPY OF ORDER REJECTING THE PREPARATION FILED BY PETITIONERS DATED 30.9.09 PASSED BY THE 4TH RESPNDENT EXT.P10- TRUE COPY OF JUDGMENT DATED 6.11.09 OF THIS HONOURABLE COURT IN W.P.(C).31734/09 (TRUE COPY) P.A.To Judge ANTONY DOMINIC, J. ------------------ WP(C) No. 34976 of 2009 -------------------------- Dated, this the 15th day of January, 2010 JUDGMENT 1. This writ petition is filed by the Ottappalam Municipality and its Secretary challenging Exts.P7 and P9 orders passed by the 4th respondent, the Tribunal for Local Self Government Institutions, Thiruvananthapuram. 2. It is stated that respondents 1 to 3 jointly own 13.5 cents of land in Survey Nos.454/3 and 45/4 of the Ottappalam-2 Village in Ottappalam Taluk. They applied for a building permit and approval of plan of a three storied commercial building. Ext.P1 is the application for building permit and Ext.P2 is the plan. the plan was approved and Ext.P2(a) building permit was issued. Accordingly, respondents 1 to 3 started construction and completed the ground floor of the building. Thereupon, they submitted Ext.P3 application dated 20.11.2008, for the issuance of an occupancy certificate as contemplated in Rule 22 of the Kerala Municipality Building Rules. Ext.P4 is the site plan enclosed with Ext.P3. W.P.(C).34976/09 2 3. Learned counsel appearing for the Municipality submits that on receipt of Exts.P3 and P4, they conducted an enquiry in which it was found that the clearance provided in the southern and western side of the building was less than what was provided in the plan approved by him. Accordingly, Municipality issued Ext.P5 order dated 30.6.2009 rejecting Ext.P3 application. 4. Challenging Ext.P5, respondents 1 to 3 filed appeal No.559/09 before the 4th respondent Tribunal. Tribunal posted the case on 28.7.2009 and 5.8.2009. On both these occasions, there was no appearance on behalf of the petitioners and therefore, the Tribunal passed Ext.P7 order. In Ext.P7, Tribunal took the view that having regard to the fact that Ext.P3 application was made on 20.11.2008 and it was rejected by Ext.P5 order only on 30.6.2009, respondents 1 to 3 were entitled to the benefit of the proviso to Rule 22(3) of the Kerala Municipality Building Rules. On this basis, the Tribunal held that respondents 1 to 3 became entitled to proceed as if such occupancy certificate has been duly issued to them and accordingly, Ext.P5 order was set aside. Petitioners thereupon W.P.(C).34976/09 3 submitted Ext.P8 application to set aside Ext.P7 and to re-hear the appeal. That was considered and by Ext.P9, Ext.P8 request was rejected on the ground that sufficient grounds were not made out. Thereupon, the 1st respondent filed W.P.(C). 31734/2009 praying for directing the Municipality to act upon Ext.P7. The writ petition was disposed of by Ext.P10 judgment directing implementation of Ext.P7. It was at that stage this writ petition was filed. 5. The contention raised by the learned counsel for the petitioners is that there was no willful latches on their part when the appeal was posted for hearing and that it had made out sufficient reasons justifying setting aside of Ext.P7. It is pointed out that at any rate, Municipality being a statutory authority ought to be given one more opportunity to urge its contention in the matter on merits. It is also informed that this is all the more so for the reason that, according to the Municipality, the construction undertaken by the petitioners pursuant to Ext.P2(a) building permit and Ext.P2 approved plan, was at the variance with the specification of the approved plan. W.P.(C).34976/09 4 6. On the other hand, the learned counsel for respondents 1 to 3 relied on Ext.P7 and contended that there is no reason to interfere with Exts.P7 and P9. 7. Ordinarily in a case where ex parte order is passed, and that too against a statutory authority, this Court would have been liberal in its approach and this case would not have been an exception. However, having regard to the reasons stated by the Tribunal in Ext.P7 order, I am of the opinion that no useful purpose will be served by remanding the matter for a fresh consideration. This is for the reason that admittedly Ext.P3 application filed by the petitioner is dated 20.11.2008 and its rejection by Ext.P5 order is only on 30.6.2009. 8. Rule 22(3) of the Kerala Municipality Building Rules provides that Secretary shall, on receipt of the completion certificate and on being satisfied that the construction is in conformity with the permit, issue occupancy certificate in form H not later than 15 days from the date of receipt of completion certificate. Proviso is to the effect that if no such occupancy certificate is issued within the said 15 days, the owner may W.P.(C).34976/09 5 proceed as if such occupancy certificate has been duly issued. Therefore, in this case although the application made by the petitioners enclosing completion certificate was submitted on 20.11.2008, its rejection was only on 20.6.2009 which is much beyond 15 days provided in Rule 22(3) of the Rules. This entitles respondents 1 to 3 to the benefit of the proviso and they are entitled to proceed as if occupancy certificate has been duly issued to them. This precisely is the reason assigned by the Tribunal in Ext.P7 order to allow the appeal and no fault can be found with the said approach. Therefore, I consider that although this Court would have been liberal in its approach, in this particular case no useful purpose will be served by adopting such course. In view of the above, Exts.P7 and P8 are liable to be sustained and the Municipality has to take necessary action, based on Ext.P7. Accordingly, there will be a direction to that effect. 9. However, that is not the end of the mater. It is the case of the Municipality that in completing the construction, respondents have departed from the specifications in the approved building plan. If there has been such a departure, W.P.(C).34976/09 6 Municipality is entitled to proceed against the said irregular or illegal action of respondents 1 to 3, in accordance with the provisions of the Kerala Municipalities Act and the Rules framed thereunder. The direction to act upon Ext.P7 or the consequential action thereunder will not be to the prejudice of such right of the Municipality and it is so clarified. 10. Needless to say, this judgment or Ext.P7 will not entitle respondents 1 to 3 to undertake further construction otherwise than in compliance with the building permit and the approved plan. 12. It is also clarified that in respect of the work already done, if there is any departure from the approved plan, it will be open to respondents 1 to 3 also to move appropriate authorities for regularization of the construction, if it is otherwise permissible in law. Writ petition is disposed of as above. ANTONY DOMINIC, Judge mrcs