IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC THURSDAY, THE 25TH MARCH 2010 / 4TH CHAITHRA 1932 WP(C).No. 7778 of 2010(V) ------------------------- PETITIONER(S): --------------- 1. N.J.ALEXANDER, THEKKETHALAKKAL HOUSE, PUTHANANGADI POST, KOTTAYAM. 2. BINOY.T.M., A2,OLIVEYARD APARTMENTS, WEXCO HOMES, PUTHENANGADI P.O., KOTTAYAM. 3. AUGUSTINE JOSEPH, H5, OLIVEYARD APARTMENTS, WEXCO HOMES, PUTHENANGADI P.O., KOTTAYAM. BY ADV. SRI.V.V.ASOKAN SRI.P.P.RAMACHANDRAN RESPONDENT(S): --------------- 1. KOTTAYAM MUNICIPALITY, REPRESENTED BY THE SECRETARY, MUNICIPAL OFFICE, KOTTAYAM. 2. THE SECRETARY, KOTTAYAM MUNICIPALITY, MUNICIPAL OFFICE, KOTTAYAM. ADV. SRI.SIBY MATHEW, SC FOR R1 & 2 SRI.PHILIP J.VETTICKATTU FOR R1 & 2 SRI.B.PREMNATH (E) FOR R1 & 2 THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 25/03/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ANTONY DOMINIC, J. ------------------------- W.P.(C.) No.7778 of 2010 (V) --------------------------------- Dated, this the 25th day of March, 2010 J U D G M E N T Heard both sides. 2. On the basis of Ext.P1 building permit, the 1st petitioner construction a six storeyed apartment complex, photograph of which is Ext.P7. Petitioners 2 & 3 are its occupants. After completion of the construction, Ext.P2 occupancy certificate was issued by the Municipality. It is stated that based on certain comments made by the Town Planning Department, occupancy certificate was cancelled. 3. The matter was considered by the Tribunal in Appeal No.618/2009. The Tribunal disposed of the appeal by Ext.P3 order setting aside the impugned proceedings, but however giving liberty to the Municipality to take fresh action. Accordingly, Ext.P5 order was issued, reiterating its earlier stand and stating that out of the 7 violations pointed out, only two were rectified and that on rectifying the remaining 5 alone occupancy certificate can be issued. WP(C) No.7778/2010 -2- 4. Ext.P5 order was again challenged before the Tribunal in Appeal No.985/2009. By Ext.P6 order dated 18/02/2010 the Tribunal again set aside Ext.P5 again giving liberty to the Municipality to take fresh action and a time frame of two months from the date of the order also has been fixed for the said purpose. 5. Fresh proceedings in pursuance thereof have not been initiated, and it is at that stage, the petitioners have approached this Court praying that the Municipality should be directed to issue occupancy certificate as sought for by them. The learned counsel also invited my attention to Ext.P5 and according to him, violations found are only trivial and therefore, even if there is violations, the same could be rectified and that there is no reason not to issue occupancy certificate. 6. On the other hand, the learned standing counsel appearing for the Municipality submits that there is no finding by the Tribunal that the violations are trivial. According to him, the time frame prescribed by the Tribunal for initiating fresh action is yet to expire, and therefore, it is premature for the petitioners to accuse the Municipality of delaying and to seek orders for issuing WP(C) No.7778/2010 -3- occupancy certificate. 7. Admittedly, the construction of the building in question has been completed. A reading of Ext.P5 also gives an impression that there are violations of Kerala Municipality Building Rules committed by the petitioners while completing construction of the apartment complex. But however, a reading of Ext.P5 also shows that these are rectifiable defects and therefore, the petitioners will have to certainly rectify the same, as and when the Municipality calls upon them to do so. However, having regard to the fact that construction has already been completed and purchasers have occupied the building, there is no justification to deny issuance of occupancy certificate, otherwise it will result in depriving the occupants from enjoying the amenities that are to be availed of to them. Therefore, while preserving the liberty given by the Tribunal to the Municipality to initiate fresh action, I feel it is only reasonable that the Municipality should issue occupancy certificate on a provisional basis to the petitioners. Therefore, I dispose of the writ petition directing that the Municipality will number the building and issue occupancy WP(C) No.7778/2010 -4- certificate purely on a provisional basis. It is made clear that numbering of the building and the issuance of occupancy certificate will be subject to the outcome of any fresh proceedings, which the Municipality may initiate in pursuance to Ext.P6 order of the Tribunal as above. This writ petition is disposed of as above. (ANTONY DOMINIC, JUDGE) jg