GEORGE JOSEPH Vs. PALA MUNICIPALITY

JUDGEMENT

(1.) Alleging inaction on the part of the respondent municipality in the matter of granting a transfer of the building permit, issuing occupancy certificate and assigning building number to a commercial complex, which, according to the petitioners, was constructed by them strictly in accordance with the terms of Ext. P1 building permit, the petitioners have come up before this Court.

(2.) The petitioners, along with one Joseph Mathew, Lizzamma, Sinta, Santo Cherian and Clement Cherian, were co-owners in respect of 7.62 acres of land comprised in Sy. No. 54/84 within the local limits of the 1st respondent municipality. The co-owners applied to the respondent municipality for the grant of a building permit for the construction of a commercial complex with four floors including the ground floor and stair cabin. The 1st respondent issued Ext. P1 building permit dated 20.12.2010. Thereafter, the permit holders commenced the construction in accordance with Ext. P1 building permit and sanctioned plan. The petitioners allege that while so, the 3rd respondent issued Ext. P2 dated 15.11.2011 referring to an application dated 01.11.2010 submitted by the permit holders for issuance of building permit in question. In Ext. P2, the 3rd respondent stated that for finalizing the application dated 01.11.2010, which led to the issue of Ext. P1 permit after due process, certain defects pointed out by the notice have to be cured. The petitioners were also intimated that in the event of failure to rectify the defects, the application would be rejected. The defect pointed out in Ext. P2 was that a small portion of the property, wherein the construction was progressing, has been acquired under the provisions of the Land Acquisition Act, 1894, and the petitioners were required to submit a revised plan after excluding the land acquired under the provisions of the Land Acquisition Act. The 1st petitioner submitted Ext. P3 reply dated 30.12.2011 pointing out that the portion of the property sought to be acquired was not included in the plan originally submitted. The petitioners allege that no further action was taken after Ext. P3 reply. However, still later, the 3rd respondent issued Ext. P4 notice dated 31.01.2012 referring to Ext. P2 notice and asking the petitioners to submit a revised plan. The petitioners were also intimated that unless they produce the revised plan, Ext. P1 building permit would be cancelled. This was replied by Ext. P5 dated 02.03.2012 and no further action was taken by the respondents in the matter. The petitioners allege that the construction was going on in an important locality in Pala Municipality and the officers subordinate to the respondents were making periodical inspections during the period of construction; and till date, no orders interdicting the construction has been passed; and obviously for the same reason, they proceeded with the construction in tune with the terms of Ext. P1 building permit.

(3.) The petitioners further allege that subsequently, there was an exchange of rights by the other co-owners in respect of the plot, where the construction was undertaken, as a result of which, the property became vested with the petitioners. Therefore, the petitioners submitted Ext. P6 application dated 27.06.2012 for transferring Ext. P1 building permit in the name of the petitioners. They have surrendered the original of Ext. P1 building permit and plan. The petitioners allege that the 2nd respondent, who is statutorily bound to grant the request made by the petitioners in Ext. P6, kept silent for more than one year. Later, the 3rd respondent issued Ext. P7 notice dated 21.07.2012 referring to Ext. P6 application, asking the petitioners to produce the possession certificate from the Village Officer for the purpose of transferring the building permit in the name of the petitioners. The petitioners obtained Ext. P8 possession certificate on 26.07.2012 and the produced the same before the 3rd respondent along with Ext. P9 letter dated 27.07.2012. However, the respondent did not take any step to transfer the building permit in favour of the petitioners. However, the 3rd respondent issued Ext. P10 notice dated 17.10.2012, requiring the petitioners to intimate him the effect of the development of the PWD Road passing along the side of the plot, where the construction was undertaken. Therefore, the 1st petitioner, as per Ext. P11 dated 29.10.2012, addressed the Executive Engineer, PWD, Pala, requesting to furnish details with respect to the acquisition for the purpose of development of the road and other allied details. The Executive Engineer conducted a local inspection; and later, addressed Ext. P12 letter to the 3rd respondent, wherein he has opined that the construction undertaken by the petitioners would in no way adversely affect the formation of the road in question. However, the respondents did not choose to pass orders transferring the building permit in the name of the petitioners. Therefore, the 1st petitioner sent Ext. P13 reminder dated 02.11.2012 explaining the entire facts and pointing out that the construction undertaken by the petitioners would not in any way affect the formation of the proposed road along the side of the petitioners' property, which also did not evoke any positive response. The petitioners further allege that they were given to understand that the municipal council of the 1st respondent has passed a resolution to set up a public comfort station in a plot of land quite adjacent to the petitioners' property, where the construction was undertaken. As the proposal detrimentally affected the petitioners as well as the entire property owners, they filed Ext. P14 petition dated 22.01.2013, ventilating their grievances. The petitioners pointed out that the original proposal of the municipal council of the 1st respondent municipality was to set up a public comfort station in a plot of land near the municipal stadium, which was ideal for locating the public comfort station. The petitioners moved the Subordinate Judge's Court, Pala in OS No. 49/2013, praying for decree of injunction. The petitioners would allege that they have undertaken the construction after obtaining a loan from the State Bank of Travancore as evidenced by Ext. P15 certificate. The petitioners allege that though they submitted Ext. P16 application for occupancy certificate, the same was not granted by the respondent municipality. On the other hand, in response to Ext. P16, the 3rd respondent issued Ext. P17 dated 10.01.2014, putting forward an excuse for not issuing the completion certificate stating that the related files are pending before the Sub Court, Pala in OS No. 49/2013. Still later, the 3rd respondent issued Ext. P18 notice dated 10.02.2014, requiring the petitioner to comply with four enumerated directions referred to therein. Though the petitioners complied with the directions and submitted Ext. P19 reply dated 11.03.2014, there was no response. Left with no alternative, the petitioners again addressed the 1st respondent vide Ext. P20 letter dated 07.05.2014, claiming the benefit of a deemed occupancy certificate in terms of the proviso to rule 22(3) of the K.M.B.R. It also did not evoke any positive response. It is with this background, the petitioners have come up before this Court.