IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN TUESDAY, THE 9TH NOVEMBER 2010 / 18TH KARTHIKA 1932 WP(C).No. 27759 of 2010(T) -------------------------- PETITIONER(S): --------------- T.MOIDEEN KUNHI, AGED 68 YEARS, S/O.P.V.H.IBRAHIM, ANWAR MAZIL, T.B.ROAD, HOSDURG, KANHANGAD. BY ADV. SRI.A.DINESH RAO RESPONDENT(S): --------------- 1. KANHANGAD MUNCIPAL COUNCIL REPRESENTED BY ITS SECRETARY. * DELETED AS PER ORDER DATED 9.9.10 IN IA 12427/10 *KANHANGAD MUNICIPAL COUNCIL REPRESENTED BY ITS SECRETARY, KANHANGAD. THE WORD “KANHANGAD” IS INSERTED AS PER ORDER DATED 9.9.10 IN I.A.NO.12427/10 ** 2. STATE OF KERALA, REPRESENTED BY CHIEF SECRETARY, SECRETARIAT, THIRUVANANTHAPURAM. **STATE OF KERALA REPRESENTED BY THE SECRETARY, “LOCAL SELF GOVERNMENT DEPARTMENT” SECRETARIAT, THIRUVANANTHAPURAM. THE WORD “LOCAL SELF GOVT. DEPT.” IS INSERTED AS PER ORDER DATED 9.9.10 IN IA 12427/10 ADV. SRI.T.K.VIPINDAS, SC FOR R1 GOVERNMENT PLEADER SRI.K.RAMESH FOR R2 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 09/11/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P(C)No.27759/2010 APPENDIX PETITIONER'S EXHIBITS: EXT.P1. TRUE COPY OF THE BUILDING PERMIT ISSUED BY THE 1ST RESPONDENT DATED 13.3.2009. EXT.P2. TRUE COPY OF THE BUILDING PERMIT ISSUED BY THE 1ST RESPONDENT DATED 13.3.2009. EXT.P3. TRUE COPY OF THE RECEIPT ISSUED BY THE FIRST RESPONDENT FOR SUBMITTING COMPLETION CERTIFICATE DATED 29.6.2010. EXT.P4. TRUE COPY OF THE RECEIPT ISSUED BY THE FIRST RESPONDENT FOR SUBMITTING COMPLETION CERTIFICATE DATED 29.6.2010. EXT.P5. TRUE COPY OF THE FILE OBTAINED BY THE PETITIONER UNDER THE PROVISIONS OF THE RIGHT TO INFORMATION ACT CONTAINING THE PROCESSING OF THE COMPLETION REPORTS AND DATED 15.7.2010. EXT.P6. TRUE COPY OF THE FILE OBTAINED BY THE PETITIONER UNDER THE PROVISIONS OF THE RIGHT TO INFORMATION ACT CONTAINING THE PROCESSING OF THE COMPLETION REPORTS DATED 15.7.2010 EXT.P7. TRUE COPY OF THE COMMUNICATION DATED 28.8.2010 ISSUED BY THE ASST. EXECUTIVE ENGINEER ELECTRICAL SUB DIVISION, KANHANGAD. EXT.P8. TRUE COPY OF THE PERMIT DATED 19.10.2006 EXT.P9. TRUE COPY OF THE INTIMATION DATED 28.11.2006 ISSUED BY THE SECRETARY OF THE 1ST RESPONDENT. EXT.P10. TRUE COPY OF ORDER DATED 17.12.2007 EXT.P11. TRUE COPY OF THE NOTICE DATED 7.12.2009 ASSESSING PROPERTY TAX WITH EFFECT FROM 1.10.2009. EXT.P11(a) TRUE COPY OF THE NOTICE DATED 7.12.2009 ASSESSING PROPERTY TAX WITH EFFECT FROM 1.10.2009. EXT.P12. TRUE COPY OF THE NOTE DATED 13.8.2010. EXT.P12(a) TRUE COPY OF THE NOTICE DATED 13.8.2010. EXT.P13 TRUE COPY OF THE AFFIDAVIT DATED 3.5.2008. EXT.P14. TRUE COPY OF THE RESOLUTION AND PLAN INTER ALIA STATING THAT THE COUNCIL HAS DECIDED TO ACQUIRE 160 CENTS OF LAND COMPRISED IN VARIOUS SURVEY NOS. MENTIONED IN THE RESOLUTION. W.P(C)No.27759/2010 : 2 : EXT.P15. TRUE COPY OF THE RESOLUTION AND PLAN DATED 16.7.2009 EXT.P16. TRUE COPY OF THE SUPPLEMENTARY AGENDA DATED 11.9.2010 SIGNED BY THE CHAIRMAN OF THE MUNICIPAL COUNCIL PROPOSING THE NEW SITE. RESPONDENTS' EXHIBITS: EXT.R1(a) TRUE COPY OF THE NOTARIZED AFFIDAVIT SWORN BY THE PETITIONER AND PRODUCED BEFORE THE RESPONDENT DATED 17.10.2008. EXT.R1(b) TRUE COPY OF THE PLAN SUBMITTED BY THE PETITIONER UPON COMPLETION OF THE BUILDING. EXT.R1(c) TRUE COPY OF THE PLAINT FILED BY THE PETITIONER IN OS 270/10 DATED 16.8.2010. EXT.R1(d) TRUE COPY OF THE COUNTER FILED ON BEHALF OF THE 3RD RESPONDENT IN OS 270/10 DATED 3.9.10. / TRUE COPY / P.S.TO JUDGE P.N.RAVINDRAN, J. ----------------------------------------- W.P(C).No.27759 of 2010 ----------------------------------------- Dated this the 9th day of November, 2010 JUDGMENT The petitioner, along with his wife and children, submitted joint applications for construction of two different commercial buildings in the same parcel of land. On those applications, Exts.P1 and P2 building permits were issued by the Kanhangad Municipality. On the strength of the said building permits and the approved plan, the petitioner completed the construction of the buildings and completion certificates were submitted on 29.6.2010. He also applied for an occupancy certificate. This writ petition is filed contending that notwithstanding the decision taken by the Secretary to issue an occupancy certificate and to number the building it has not been translated into action. 2. The first respondent Panchayat has filed a counter affidavit contending that as per the original of Ext.R1(a) affidavit the petitioner had dedicated a strip of land along the northern boundary of his property for use as a public road, that the building permit was issued in view of the said dedication, that the W.P(C).No.27759 of 2010 -:2:- petitioner has filed a suit resiling from the said act and therefore the building cannot be numbered and an occupancy certificate issued so long as the suit is pending. It is contended that the petitioner cannot after having taken advantage of an act of dedication to secure a building permit, resile from the said act and contend that the land which he has dedicated for use as a public road still belongs to him. 3. I heard Sri.Dinesh Rao, learned counsel appearing for the petitioner and Sri.T.K.Vipin Das, learned counsel appearing for the first respondent. I have also gone through the pleadings and the materials on record. It is evident from Ext.R1(b) sketch produced by the first respondent that the buildings put up by the petitioner on the strength of Exts.P1 and P2 building permits have a set back of only 1.5 metres from the southern boundary of the strip of land alleged to have been dedicated by him for use as a public road. The pleadings also disclose that the petitioner has instituted a suit, O.S.No.270 of 2010 in the Court of the Munsiff of Hosdurg for a permanent prohibitory injunction restraining the Kanhangad Municipality and two others from forming a road through any portion of his lands and from interfering with his W.P(C).No.27759 of 2010 -:3:- possession and enjoyment of the suit property which includes the site of the disputed building also. The suit was instituted on 16.8.2010. The pleadings also disclose that the petitioner had executed the originals of Ext.R1(a) and Ext.P13 affidavits whereby he and his wife and children had unequivocally declared their intention to surrender a strip of land along the northern boundary of their property for use as a public road subject to a condition that the said strip of land shall not be treated as a public road for the purpose of the Building Rules. Whether the petitioner had in fact dedicated a strip of land for use as a public road or not is a matter for the civil court to decide after trial. The Kanhangad Municipality and the party defendants in the suit are yet to file their written statements. The trial and disposal of the suit will certainly not be over in the next few months. It is an admitted fact that the construction of the building is over. It is also an admitted fact that it is in view of the pendency of the civil suit that the Municipality has declined to number the building and to issue an occupancy certificate. In my opinion the mere pendency of the suit instituted by the petitioner should not have formed the basis of a decision of the Municipality to decline to number the W.P(C).No.27759 of 2010 -:4:- building at least on a provisional basis. If the building is numbered and an occupancy certificate issued, the Municipality will get monetary benefits by way of property tax. The State will also be benefited by receipt of building tax. Even if the petitioner is non-suited, the building will have to be numbered for the reason that the land dedicated by the petitioner for use as a public road was not taken into account by the Municipality while issuing the building permits. The permits do not contain a stipulation to the effect that the land surrendered for the road will be reckoned for computing the set back or the front open space. In such circumstances I am of the opinion that at least on a provisional basis the Municipality should number the building and issued an occupancy certificate subject to the condition that during the pendency of the suit the petitioner shall not encroach into the disputed lands or put up any construction therein. I accordingly dispose of the writ petition with a direction to the Kanhangad Municipality to provisionally number the buildings constructed by the petitioner on the strength of Exts.P1 and P2 building permits and to issue a provisional occupancy certificate to the petitioner. The petitioner shall be bound to pay property tax W.P(C).No.27759 of 2010 -:5:- and building tax in respect of the said building to the Municipality and to the State Government respectively. Subject to the outcome of the suit, the Municipality shall regularise the numbering of the building and issue an occupancy certificate. The contentions of both sides in the suit are kept open. P.N.RAVINDRAN, Judge. ahg. P.N.RAVINDRAN, J. --------------------------- W.P(C).No.27759 of 2010 ---------------------------- JUDGMENT 9th November, 2010