IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC WEDNESDAY, THE 2ND JULY 2008 / 11TH ASHADHA 1930 WP(C).No. 12437 of 2008(E) --------------------------------------- PETITIONER: ------------------- E.V.M.FUELS (P) LTD, REGISTERED OFFICE, CC.NO.31/696ABC, HONDA BUILDING SA ROAD, ERNAKULAM REPRESENTED BY E.M.PAUL, S/O.MATHAI, EXECUTIVE DIRECTOR. BY ADV. SRI.RENJITH THAMPAN. RESPONDENT: ---------------------- GURUVAYOOR MUNICIPALITY, REP.BY ITS SECRETARY, MUNICIPAL OFFICE, GURUVAYOOR. BY ADV. SRI.K.K.CHANDRAN PILLAI. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 02/07/2008,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C). NO.12437/2008-E: APPENDIX PETITIONERS' EXHIBITS: EXT.P.1: COPY OF THE BASIC TAX RECEIPT ISSUED BY THE VILLAGE OFFICE DT. 05/10/06. EXT.P.2: COPY OF THE BUILDING PERMIT ISSUED TO SIDHARTHAN. EXT.P.3: COPY OF THE ORDER DTD. 30/10/03 OF MUNICIPALITY REGARDING EXTENSION BUILDING PERMIT. EXT.P.4: COPY OF THE LETTER DTD. 10/04/07 OF GURUVAYOOR MUNICIPALITY. EXT.P.5: COPY OF THE LETTER DTD. 17/07/07 OF GOVERNMENT. EXT.P.6: COPY OF THE LETTER DTD. 11/09/07 OF THE RESPONDENT. RESPONDENTS' EXHIBIT: EXT.R1.A: COPY OF THE EXEMPTION ORDERS ISSUED BY THE GOVERNMENT DTD. 09/07/1996. //TRUE COPY// prv. ANTONY DOMINIC, J. -------------------------------------------------------- W.P.(C) 12437 of 2008 -------------------------------------------------------- Dated: JULY 2, 2008 JUDGMENT The prayer sought for in this writ petition is to direct the respondent to accept the completion report as regards the building constructed pursuant to Exts.P2 and P3 and to number the same. 2. It is stated that on the strength of Ext.R1(a) exemption order passed by the Government of Kerala exercising its powers under the Kerala Building Rules, 1994, on 23.10.1997 Ext.P2 building permit was granted to the predecessor-in-interest of the petitioner. Petitioner submits that on the strength of Ext.P2 permit, a special residential building consisting of apartments, having a total plinth area of 28000 square feet was to be constructed and completed by 22.10.2000. It is stated that his predecessor could not complete the construction in all respects within the time allowed and therefore had sought extension of the time specified in the permit twice. The extensions sought for were granted and the extended period was upto 22.10.2006. Ext.P3 is the last order of extension and endorsements on WP(C) 12437/08 2 Ext.P2 also show the extensions granted to the predecessor-in- interest of the petitioner. 3. According to the petitioner, on the strength of Ext.P2 and within the extended period, the entire civil work including plastering of the building was completed, and what remained to be done is fixing of Belgium glass on the front portion of the building. Petitioner submits that in the meanwhile, on account of financial crisis, his predecessor-in-interest had sold the property to the petitioner, in as is where is condition, with effect from 21.7.2006. According to the petitioner, on completion of the work as above, he applied to the Municipality for numbering the building and the Municipality replied stating that only if the permit is current, the building in question could be numbered. 4. Thereupon, the petitioner had applied to the Municipality for extension of period of the building permit. In the meanwhile, Kerala Municipality Building Rules 1984 were replaced by the Kerala Municipality Building Rules 1999. The application made by the petitioner for extension was forwarded by the Municipality to the Government under the cover of Ext.P4 dated 10.4.2007. In this communication of the Municipality also it is mentioned that most the work in terms of the permit WP(C) 12437/08 3 was already completed. However, on receipt of Ext.P4, the Government replied by Ext.P5 stating that in terms of the 1999 Rules, it was not practical to extend the period of the permit. On that basis the Municipality was directed to treat the petitioner's application as one filed under the 1999 Rules and take action as if it is a fresh application. Accordingly, the Municipality considered the application of the petitioner as a fresh one in the light of the 1999 Rules, ignoring Ext.R1(a) exemption. On such examination the Municipality found several violations of the 1999 Rules and on that basis, by Ext.P6 informed the petitioner that his application cannot be considered. It is on receipt of Ext.P6 that this writ petition was filed by the petitioner seeking a direction to the Municipality to accept the completion report and number the building. 5. Learned counsel for the petitioner mainly contends that since even according to the Municipality, a substantial portion of the work was completed, the petitioner should be allowed to make use of the building as otherwise the building having 28000 sq. ft. of plinth area cannot be made use of at all and will be a total waste of money and effort. It is also his contention that Ext.P2 having been granted under the 1984 Rules, the extension WP(C) 12437/08 4 sought for by him, should also be considered in the light of the said rule and not the 1999 Rules. 6. The Municipality on its part had filed a counter affidavit. According to the Municipality, on every respect the construction is in violation of the Rules. They would say that the very permit was granted on the strength of an order of exemption and that now as the petitioner's application is to be considered in the light of the 1999 Rules, compliance with those Rules is an essential pre-requisite. The Municipality, therefore, would submit that its stand that the application cannot be considered is legal and correct. 7. The contention of the petitioner that the entire civil works including plastering was completed before the expiry of the extended period of the permit is also denied by the Municipality. The Municipality submits that the transfer in favour of the petitioner was not intimated to it either by the petitioner's predecessor-in-interest or by the petitioner himself and that without any permit petitioner continued the work leading to the issue of stop memo and, on its disobedience, a police complaint as well. 8. From the facts noticed above it is evident that as at WP(C) 12437/08 5 present, the building having a plinth area of 2800 sq. ft. has been completed either by the predecessor-in-interest or the petitioner himself on the strength of Ext.P2 building permit. The fact that the construction was undertaken on the basis of Ext.P2 and was allowed to continue until 22.10.2006 on which date the extended period of the permit expired is also not disputed. It is also to be noticed that the Municipality has not initiated any coercive action against the structure constructed by the petitioner. As already noticed, even according to the Municipality, a substantial portion of the work was completed as is mentioned by it in Ext.P4 letter issued on 10.4.2007. Now, therefore, a workable solution will have to be found out to make use of the building, permitting the petitioner to complete the remaining part of the work and make use of the same. I feel, the only option is to permit the petitioner to complete the work and accept the completion certificate and issue occupancy certificate on that basis after completing necessary formalities. 9. Since, according to the petitioner, the building in question has been completed and what remains is only fixing of Belgium glasses, I feel the ends of justice require that the writ petition shall be disposed of with the following directions:- WP(C) 12437/08 6 i. The Respondent Municipality shall inspect the building in question and ascertain as to whether the construction undertaken is in compliance with Ext.P2 permit. ii. If the construction undertaken by the petitioner thus far is found to be in compliance with Ext.P2 permit, the petitioner will be permitted to complete the remaining works without in any manner departing from Ext.P2 or increasing the built up area of the building in question. iii. Once the remaining work is completed as above, petitioner will submit the completion certificate to the Municipality. iv. On receipt of the completion certificate as above, the Municipality shall again inspect the building and after completing necessary formalities, issue occupancy certificate to the petitioner. Writ petition is disposed of as above. ANTONY DOMINIC JUDGE mt/-