IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.T.RAVIKUMAR MONDAY, THE 13TH JUNE 2011 / 23RD JYAISHTA 1933 WP(C).No. 15837 of 2011(D) ---------------------------------- PETITIONER(S): ------------------- TOMY KURIAN, S/O. LATE KURUVILA KURIAN, MANAKULATHIL HOUSE, ATHIRAMPUZHA, KOTTAYAM - 686 562. BY ADVS. SRI.DEVAN RAMACHANDRAN SRI.K.M.ANEESH RESPONDENT(S): -------------------- 1. THE KOTTAYAM MUNICIPALITY, KOTTAYAM REPRESENTED BYITS SECRETARY, PIN - 686 001. 2. THE SECRETARY, KOTTAYAM MUNICIPALITY, KOTTAYAM - 686 001. 3. THE DISTRICT COLLECTOR, KOTTAYAM - 686 001. 4. THE ASSISTANT EXECUTIVE ENGINEER, K.S.E.B., KOTTAYAM - 686 001. R1-2 BY ADV. SRI.SIBY MATHEW R3 BY GOVT.PLEADER SRI.K.REMESH R4 BY ADV. SRI.P.P. THAJUDHEEN, SC. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 13/06/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: svs W.P.(C) No. 15837 /2011 APPENDIX PETITIONER'S EXHIBITS: EXT.P1 - TRUE COPY OF THE BUILDING PERMIT ISSUED BY THE 2ND RESPONDENT. EXT.P2 - TRUE COPY OF THE BUILDING PLAN ISSUED BY THE 2ND RESPONDENT EXT.P3- TRUE COPY OF THE NO OBJECTION CERTIFICATE ISSUED FROM FIRE AND RESCRUE HEAD QUARTERS, TRIVANDRUM. EXT.P4 – TRUE COPY OF THE REPORT OF THE TOWN PLANNER, KOTTYAM MUNICIPALITY. EXT.P5- TRUE COPY OF THE RECEIPT ISSUED BY THE 2ND RESPONDENT ACKNOWLEDGING THE COMPLETION CERTIFICATE SUBMITTED BY THE PETITIONER. EXT.P6- TRUE COPY OF THE CONDITIONAL ORDER U/S 133 (a) ((i) OF THE CR.P.C. TO BE ISSUED BY THE 3RD RESPONDENT. EXT.P7- TRUE COPY OF THE FINAL ORDER U/S 133 OF THE CR.P.C. TO BE ISSUED BY THE 3RD RESPONDENT DTED 31.1.2008. EXT.P8- TRUE COPY OF THE JUDGMENT DATED 4.9.2008 ISSUED BY THE COURT OF SESSION IN CR.R.P. NO. 014/2008. EXT.P9- TRUE COPY OF THE ORDER DATED 16. 1.2011 ISSUED BY THE 3RD RESPONDENT. EXT.P10- TRUE COPY OF THE REQUEST MADE BY THE PETITIONER FOR ISSUANCE OF THE OCCUPANCY CERTIFICATE AND TO ALLOT DOORNUMBERS TO THE BUILDING. EXT.P11- TRUE COPY OF THE LETTER DATED 10.6.2011 ISSUED BY THE 4TH RESPONDENT. TRUE COPY P.A. TO JUDGE C.T.RAVIKUMAR, J. --------------------------------------- W.P.(C) No. 15837 OF 2011 --------------------------------------- Dated this the 13th day of June 2011. J U D G M E N T Petitioner who is the owner in possession of 20 cents of land comprised in survey No. 67/1A/3 in Muttambalam village in Kottayam District filed this Writ Petition on being aggrieved by the inaction on the part of the 2nd respondent to allot door numbers to the building constructed thereon and to issue the necessary occupancy certificate despite the receipt of application for the said purposes. 2. Petitioner along with his brothers applied for building permit to construct a multi-storied building with six floors, in the year 2006. On the strength of Ext.P1 building permit issued pursuant to the said W.P.(C) No.15837 of 2011 2 application and in terms of Ext.P2 approved plan, the petitioner effected construction after obtaining no objection certificate from the Fire and Rescue Head Quarters, Trivandrum. Ext.P4 would reveal that the said construction was effected strictly in terms of the approved plan and building permit. On its competition the petitioner has submitted Completion Certificate and also submitted application for the purpose of allotment of door numbers to the building and for issuance of occupancy certificate. While the said building was nearing completion the Superintendent of Police, Kottayam district filed a report to the 3rd respondent District collector that carried an apprehension regarding the obstruction that the construction on its completion may pose for the free landing of Helicopters in the Police Parade Ground Kottayam. It, ultimately, culminated in initiation of proceedings under 133 (a) (i) of the W.P.(C) No.15837 of 2011 3 Criminal Procedure Code. Thereupon, Ext.P6 show cause notice was served on the petitioner and his brothers carrying a conditional order under section 133 (a) (i) of the Criminal Procedure Code directing them to show cause why the construction of the building should not be stopped. The petitioner submitted a reply to the same on their behalf. Thereafter, Ext.P7 final oder was passed by the 3rd respondent District Collector under section 133 of the Criminal Procedure Code. Holding that the constructions effected on the roof top of the 6th floor would cause hindrance to the free landing of Helicopters in the police parade ground the 3rd respondent issued a direction to remove the structures above the sixth floor in the terrace viz; the lift room, staircase cabin, swimming pool and all other elevations. It also carried a further direction not to install water tank on the terrace of the 6th W.P.(C) No.15837 of 2011 4 floor at a height exceeding one metre. Ext.P7 was challenged by the petitioner before the Sessions Court, Kottayam in Crl. R.P . No. 14/08. The said Crl. R.P. was allowed as per Ext.P8. As per Ext.P8, Ext.P7 order was set aside and the 3rd respondent was directed to consider the whole issue afresh from the stage of Ext.P6 conditional order. Thereafter, the 3rd respondent took up the matter for fresh consideration in compliance with Ext.P8. Before the 3rd respondent the petitioner raised the question of maintainability of proceedings under section 133 of Criminal Procedure Code and that question was virtually considered as a preliminary issue. Ext.P9 order was then passed holding that the proceedings initiated under section 133 of the Criminal Procedure Code as per Ext.P6 is maintainable. Aggrieved by Ext.P5 petitioner approached this court by filing Criminal M.C. No. 406/ 2011 and it is still pending. Further grievance W.P.(C) No.15837 of 2011 5 of the petitioner is that on account of pendency of the said proceedings, the second respondent is not considering the application submitted by the petitioner for allotting door numbers to the building and also for issuing occupancy certificate. Though the petitioner has submitted Ext.P10 petition reiterating the said requests no decision was taken in the matter. Later, petitioner has received Ext.P11 communication from the 4th respondent. Before the 4th respondent, the petitioner has submitted an application for electric connection on 10.6.2010 and has also remitted an amount of Rs. 3 lakhs. As per Ext.P11 the petitioner was informed that on account of his failure to produce ownership certificate the 4th respondent is not in a position to process the application and to forward the same for execution of HT agreement. Further it was informed that the application for electric connection would elapse since an application for W.P.(C) No.15837 of 2011 6 such purposes could remain in force only for a period of one year, it is contended. It is in the said circumstances, this writ petition has been filed by the petitioner with the aforesaid prayers. 3. I have heard the learned counsel appearing for the petitioner, the learned Standing Counsel appearing for the respondents 1 and 2 and also the learned Govt. Pleader. The contentions raised in this Writ petition would reveal that as against the proceedings initiated under section 133 of the Criminal Procedure Code the petitioner has approached this court by filing Crl. M.C. No. 406/2011 and it is still pending. Ext.P6 is the provisional order passed by the 3rd respondent under section 133 (a) (i) of the Criminal Procedure Code. As per the same the petitioner and his brothers were required to show cause why the construction of the building in question should not be stopped. Subsequently, final order was W.P.(C) No.15837 of 2011 7 passed under section 133 of the Criminal Procedure Code as per Ext.P7. Evidently, Ext.P7 was later set aside by the Sessions Court, Kottayam as per Ext.P8. However, Ext.P7 would reveal the real objections and reasons that persuaded the 3rd respondent to initiate proceedings under section 133 of the Criminal Procedure Code. The relevant portion of Ext.P7 reads as follows: “ Therefore considering the need to keep public interest in mind, I am inclined to direct that the following alternations are made to the building. The structures above the sixth floor i.e. in the terrace floor including the lift room, staircase cabin, swimming pool and all other elevations are to be removed. The lift and the staircase should stop at the sixth floor level. The only structure allowed on the terrace will be the water tank, which should not exceed a height of one metre. This is being allowed only to ensure that water can be supplied to the sixth floor. To provide access to the water tank and to the terrace floor, a service ladder may be provided from the sixth floor. Other deviations in the construction from the approved plan should be removed. The Secretary Kottayam Municipality and the District Town Planner will ensure that these conditions are followed by the counter petitioners.” W.P.(C) No.15837 of 2011 8 4. The learned counsel appearing for the petitioner drew my attention to the above extracted portion of Ext.P7 and contended that even if the petitioner fails to successfully challenge the proceedings initiated under Section 133 of the Criminal Procedure Code it would only result in a situation compelling the petitioner to remove all the structures constructed by him above the 6th floor as mentioned in Ext.P7. In other words, even in such eventuality it would only result in demolition of those structures put up on the top of the 6th floor i.e. lift room, staircase cabin, swimming pool and all other elevations besides making him to reduce the height of water tank within 1 metre from the terrace. In the said circumstances, the learned counsel for the petitioner submits that the pendency of the proceedings already initiated against the petitioner under Section 133 of Criminal Procedure Code cannot W.P.(C) No.15837 of 2011 9 be a reason to defer decision on the application submitted by the petitioner for allotting door numbers to the building and also for issuance of Occupancy certificate. As already noticed herein before, the final order passed by the 3rd respondent initiated under section 133 of the Criminal Procedure Code as per Ext.P7 was set aside by the Sessions Court, Kottayam as per Ext.P8 order. However, Ext.P7 would reveal that the objections of the respondents is only with respect to those structures put up on the roof top of the 6th floor. True that it also required the petitioner to limit the height of the water tank to one metre from the terrace. In view of the facts obtained in this case there is no reason to envisage a different situation than the one perceived by the petitioner. Even as per Ext.P7 the petitioner was asked only to remove the structures above the sixth floor, i.e. in the terrace floor W.P.(C) No.15837 of 2011 10 including the lift room, staircase cabin, swimming pool and all other elevations are to be removed. The petitioner was also required to limit the height of the water tank as one metre. Though Ext.P7 was set aside it revealed the objection with respect to the building constructed in the property in question. Considering the fact that the building was constructed on the strength of a valid permit the inevitable consequence of an unsuccessful challenge against the procedures initiated under Section 133 of Criminal Procedure Code could only be demolition of the aforesaid structures besides limiting the height of the water tank as one metre. Evidently, application has been submitted by the petitioner only for the purposes of allotting door number to the building up to and inclusive of sixth floor and for issuing the occupancy certificate in respect of the said building. The learned counsel for the petitioner further W.P.(C) No.15837 of 2011 11 submitted that the petitioner would unconditionally remove all the aforesaid structure in case the final outcome of the challenge against the proceedings initiated under section 133 of the Criminal Procedure Code is adverse to him. This is recorded. 5. In the circumstances, considering the fact that proceedings initiated under section 133 of Criminal Procedure Code, are yet to be finalised, and in the light of Ext.P11, I am of the considered view that allotting the door numbers to the building and issuing occupancy certificate subject to the final outcome of the proceedings already initiated under Section 133 of the Criminal Procedure Code as per Ext.p6 will not cause prejudice to both the sides. In that view of the matter, I am inclined to dispose of the Writ petition with a direction to the 2nd respondent to allot door number to the building constructed on the strength of Ext.P1 building permit and also to issue W.P.(C) No.15837 of 2011 12 occupancy certificate, up to and inclusive its 6th floor subject to the final outcome of the proceedings already initiated under Section 133 of the Criminal Procedure Code, expeditiously, at any rate, within a period of 3months from the date of receipt of a copy of this judgment. In case the petitioner produces the occupancy certificate issued by the 2nd respondent before the 4th respondent, the 4th respondent shall take appropriate action on the application submitted by the petitioner and referred to in Ext.P3, for service connection to the building in question. C.T.RAVIKUMAR JUDGE al