IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR WEDNESDAY, THE 28TH JULY 2010 / 6TH SRAVANA 1932 WP(C).No. 37863 of 2008(G) ------------------------------------------ PETITIONER(S): ------------------------- 1. M.K. BASHEER, MEKKATH HOUSE, CESZ.P.O, CHITTETHUKARA, KAKKANAD. 2. N.S. ABOOBACKER, NARANGATH MOOLAYIL, CESZ.P.O, -DO- BY ADVS. SMT.SHAHNA KARTHIKEYAN, SRI.ARUN VISWANATH.A. RESPONDENT(S): ---------------------------- 1. THTIKKAKARA GRAMA PANCHAYATH, REPRESENTED BY ITS SECRETARY, KAKKANAD, COCHIN-30. 2. SENIOR TOWN PLANNER, REGIONAL TOWN PLANNING OFFICE, ERNAKULAM. 3. M/S.B.C.G ESTATES BUILDERS, REPRESENTED BY ITS MANAGING DIRECTOR, BABU C. GEORGE, 5TH FLOOR, BCG ESTATE, OPPOSITE ERNAKULAM MEDICAL CENTRE, PALARIVATTOM, COCHIN-25. R1 BY ADV. SRI.S.SHANAVAS KHAN, SC R3 BY ADV. SRI.K.M.SATHYANATHA MENON THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 28/07/2010 ALONG WITH WPC NO. 20041 OF 2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss WPC.NO.37863/2008 G APPENDIX PETITIONER'S EXHIBITS: P1: COPY OF COMMUNICATION DTD. 26/06/08 ISSUED BY 2ND RESPONDENT TO 1ST RESPONDENT. P2: COPY OF REPRESENTATION DTD. 10/12/08 BY PETITIONERS TO 1ST RESPONDENT. RESPONDENT'S EXHIBITS: N I L /TRUE COPY/ P.A.TO JUDGE Kss T.R. RAMACHANDRAN NAIR, J. ~~~~~~~~~~~~~~~~~~~~~~~~~~~ W.P.(C). Nos.37863/2008-G & 20041/2009-A ~~~~~~~~~~~~~~~~~~~~~~~~~~~ Dated this the 28th day of July, 2010 J U D G M E N T In W.P.(C).No.37863/2008 the petitioners are aggrieved by the construction of flats by the third respondent therein. The third respondent is the first petitioner in W.P.(C).No.20041/2009. 2. In W.P.(C).No.20041/2009, the petitioners complain about the non issuance of the occupancy certificate and the numbering of the building constructed by them as per the approved plan. The facts stated therein show the following: 3. The petitioners are the owners of 60.40 cents of land in Survey No.497/2 in Kanayannur Taluk, Kakkanad Village. The petitioners, for developing the land, submitted a detailed plan with respect to the proposed project to the Secretary of the Panchayat. At that point of time, Kerala Building Rules, 1984 were not made applicable to the Panchayat. 4. No Objection Certificate was issued as per Ext.P1 by the Panchayat and, Ext.P2 is the copy of the plan. The petitioners thereafter started construction of the residential flats and completed a 13 storied residential building. W.P.(C). Nos.37863/2008-G & 20041/2009-A -:2:- 5. The proposal submitted by the petitioners include construction of villas and 2 separate multi storied flats as a single project. Of the total projects thus submitted by the petitioners, the entire villa project and one multi- storied residential flat were completed. 6. After the building rules were extended to the Panchayat, i.e. by G.O.(MS).No.250/2000/LSG dated 06/11/2006, it appears that certain proceedings were initiated by the Panchayat. Ext.P4 is the notice issued by the Panchayat stating that the petitioners have commenced construction without permission under the Kerala Municipality Building Rules. The petitioners have submitted Ext.P5 reply stating that the entire construction of the flats are over and there is no unauthorised construction. A further communication was served on the petitioners as per Ext.P6 which was also duly replied as per Ext.P7. The petitioners were further informed by Ext.P8 that they cannot proceed with the construction, as for any new constructions, the provisions of the Kerala Municipality Building Rules are applicable. The petitioners thereafter informed the Panchayat that construction in respect of one of the flats is over and accordingly, they offered to submit the application for regularisation along with permit fee. Even though the W.P.(C). Nos.37863/2008-G & 20041/2009-A -:3:- application was submitted, no further action was taken by the Panchayat which compelled the petitioners to file W.P. (C).No.32941/2008, wherein this Court directed the Panchayat to pass orders on Ext.P7 application produced therein (Ext.P9 herein). The issue was placed in a meeting of the Panchayat, where they took a resolution as Ext.P11, to seek legal opinion. Thereafter, the Panchayat collected the regularisation fees of the permit and it was also informed that the numbering of the building will be done in accordance with the relevant rules. It appears that an objection was taken by the Senior Town Planner that the area is included in the Structural plan of the town planning scheme. Ext.P14 is the said communication issued by the Senior Town Planner. Ext.P15 is the copy of the reply given by the Secretary of the Panchayat to the Senior Town Planner. Ext.P16 is the order passed by the Secretary of the Panchayat wherein it is informed that the numbering can be done only after the clearance by the Senior Town Planner. 7. It is in these circumstances, the petitioner has filed this writ petition seeking for appropriate directions. 8. As far as W.P.(C).No.37863/2008 is concerned, the petitioners therein are residing in the same village and own small pieces of land and have constructed residential W.P.(C). Nos.37863/2008-G & 20041/2009-A -:4:- houses therein. They had opposed the construction of the multi storied building by the third respondent. It is submitted that there was a puramboke canal which started from Chithrapuzha and the third respondent reclaimed the same and has made certain constructions. According to them, the construction will affect the life of the persons living in that area. They approached the second respondent for redressal of their grievance on their complaints. Ext.P1 is the communication issued by the Senior Town Planner to the Secretary of the Panchayat seeking various details of the constructions made by the third respondent herein. Ext.P2 is the copy of the complaint submitted by the petitioners and others before the Panchayat. 9. The learned counsel for the petitioners in W.P. (C).No.20041/2009 submitted that the construction of the flat which is completed, was done in terms of the No objection Certificate granted by the Panchayat and, therefore, at this later point of time, no objection could be raised on the plea that it violates the structural plan. It is pointed out that at no point of time even after the construction started or before it was completed, the petitioners were informed of any structural zonal restriction in that area. It is further pointed out that as far as the construction of the 2 phase of the multi- W.P.(C). Nos.37863/2008-G & 20041/2009-A -:5:- storied residential flats is concerned, no further constructions have been made. Relying upon the Judgment of this Court, namely, W.P.(C).No.38047/2007 produced as Ext.P17, which was confirmed in Ext.P18 Writ Appeal by the Division Bench, the learned counsel submitted that no objection could be taken either by the Town Planning authorities or by the Panchayat at this distance of time relying upon the structural plan. 10. The learned Single Judge in Ext.P17 Judgment considered a similar objection by the Corporation of Thiruvananthapuram wherein, the construction was completed on the basis of the building permit issued by the Corporation. At a later point of time, an objection was raised on the plea that the area falls within the heritage zone and, therefore, building permit could not have been issued. The violation of zonal regulation was also pointed out. The matter was considered elaborately by this Court and it was held in paragraphs (14) & (15) that after the constructions have been completed in terms of the permit issued, an objection that the same violates the zonal regulations or the fact that an exemption order from the Arts and Heritage Commission is required, could not have been proceeded with by the authorities concerned and the cancellation of the building permit, proposed cannot be W.P.(C). Nos.37863/2008-G & 20041/2009-A -:6:- justified. The view taken obviously is that the party could not be found fault for the inaction or the mistake committed by the local authority concerned. Accordingly, the writ petition was allowed directing to issue the occupancy certificate. In Writ Appeal, the Division Bench affirmed the said view. It was noticed by the Division Bench that the building was not an unauthorised construction at all, as it was constructed with a permit and there was no misrepresentation of fact or law. 11. The learned Government Pleader submitted that the structure plan for the area was notified way back in 1991 as per G.O.(MS).No.103/91/LAD dated 20/03/1991. The said plan was sanctioned after following the provisions of the Town Planning Act and therefore, N.O.C issued itself is incorrect. 12. Heard the learned counsel for the Panchayat also. Evidently, the Panchayat had issued the no-objection as per Ext.P1 and the building has been completed in accordance with the approved plan produced also. No violation of rules have been pointed except the structural plan. In this case, as the petitioners took steps to complete the building bona fide, the present stand taken cannot be appreciated as the petitioners cannot be asked to pull down the building at this distance of time. True that the W.P.(C). Nos.37863/2008-G & 20041/2009-A -:7:- Panchayat at that point of time could have verified about any zonal regulations. But, for the fault of the authorities of the Panchayat, the petitioners cannot be put to hardship also. The inaction, if any, of the authorities of the Panchayat at that point of time cannot be a ground to recall N.O.C granted and the petitioners cannot therefore be directed to pull down the building. In that view of the matter, the objection taken by the Senior Town Planner cannot be sustained. The petitioners are therefore, entitled to succeed in the writ petition. 13. The learned counsel for the petitioners submitted that the petitioners have already remitted the permit fee and is prepared to remit any other amount which the Panchayat is legally entitled to collect. The learned counsel for the Panchayat submitted that the Panchayat is entitled to receive the compounding fee before the issuance of the occupancy certificate and steps are taken to number the building. It is upto the Panchayat to inform the petitioners about the relevant details with regard to the payment of the compounding fee. 14. As far as the writ petition, W.P(C).No.37863/2008 is concerned, their objections appear to be that the petitioner has filled up a canal. The petitioners are also relying upon the communication issued by the Senior Town W.P.(C). Nos.37863/2008-G & 20041/2009-A -:8:- Planner produced as Ext.P1 based on the structural plan. In the light of the findings rendered by him earlier, the petitioners cannot bank upon Ext.P1 obviously. 15. If the petitioners in W.P.(C).No.20014/2009 proceeds to make any construction of the remaining flat, the Panchayat will consider the objections of the petitioners W.P.(C).No.37863/2008 also, before any building permit is issued. 16. Therefore, W.P.(C).No.20041/2009 is allowed. There will be a direction to the Panchayat to issue occupancy certificate and number the building after collecting the required fees if any, and appropriate action will be finalised within a period of one month from the date of receipt of a copy of this Judgment. W.P.(C). No.37863/2008 is also disposed of in the light of the above findings. No costs. (T.R. Ramachandran Nair, Judge.) ms