M.A.ASHRAF Vs. STATE OF KERLA

JUDGEMENT

(1.) Petitioners are the owners of property having an extent of 6.75 Ares in Sy.No.85/18-2 of Aluva village. In the said property, the petitioners are having a commercial building is the submission. On 26/4/2012, petitioners submitted an application to the 2nd respondent seeking building permit for the construction of first floor in the existing building. Consequently, Ext.P1 building permit was issued. Subsequently, after the construction of the building on 5/7/2013, petitioners submitted an application to the 2nd respondent for issuing completion certificate. Since no action was taken by the officer concerned to issue completion certificate, the 1st petitioner submitted a reminder to the 3rd respondent to issue occupancy certificate after issuing number to the building. Ext.P2 is the reminder. In Ext.P2, petitioners stated that, though the building number was not issued, they had remitted an amount of Rs.35,100.00 towards the building tax as assessed by the Tahsildar, Aluva. Exts.P3 to P7 are the tax assessment order, notice of demand and three receipts to prove the same. Matter being so, on 7/9/2014, the 1st petitioner received a registered notice along with enclosure from the 3rd respondent intimating that as per the letter issued by the 5th respondent, NOC was declined to the building of the petitioners and therefore building number cannot be issued. Ext.P8 is the notice. It is submitted that the property in which construction is proposed is situated near to the Naval Armament Depot, Aluva (for short NAD), for which No Objection Certificate is required for issuing building permit. Thus, in pursuance of the application of the petitioners on 29/5/2012 a request for issuing NOC was forwarded by the 3rd respondent to the 5th respondent as provided under the Kerala Panchayath Building Rules, 2011 (for short 'Rules 2011'). Along with that letter it is seen that the 3rd respondent has also forwarded a copy of the NOC issued by the 5th respondent to the adjacent property of the NAD. Ext.P9 is the request forwarded by the 3rd respondent to the 5th respondent and Ext.P10 is the NOC issued to KMJ School. It is submitted that the said request with enclosure is accepted by the 5th respondent on 5/6/2012. According to the petitioner, as per Rule 7 (5) of Rules, 2011, the 4th respondent has to intimate their objection if any within 30 days from the date of receipt of Ext.P9. Since nothing was heard from the 5th respondent for more than 9 months after the submission of application for building permit, Ext.P1 was issued to the petitioners. Ext.P11 is also produced by the petitioners to show that an intimation was sent by the 3rd respondent to the 4th respondent to find out whether there is any objection on the part of the 5th respondent in numbering the building. It is submitted that, in pursuance of Ext.P11 the 5th respondent issued Ext.P12 letter to the 3rd respondent enclosing a letter issued by the 4th respondent to the 5th respondent intimating that the application for NOC for construction of building by the petitioners has been examined and is not approved. It is submitted that the entire actions of the respondents are per se illegal and beyond the scope of their statutory authority. It is submitted that the petitioners have submitted an application for construction of the building on 26/4/2012 and the 3rd respondent had issued Ext.P1 building permit since there was no response from the 5th respondent for about 9 months after the submission of Ext.P9 seeking NOC. Petitioners have invested lakhs of rupees in setting up the building in issue on the bona fide assumption that they are having sanction for construction of the building in pursuance of Ext.P1. Petitioners cannot be made liable for delay and laches on the part of the officials concerned is the submission. Moreover, the petitioners also relied on Rules 7(5) and 7(9) of Rules 2011 and submitted that there is a presumption that there is no objection from the 5th respondent in the facts and circumstances of this case. Therefore, this Writ petition is filed with the following prayers:

(2.) Heard the learned Senior counsel Adv. G. Sreekumar as instructed by his retaining counsel appearing for the petitioners, the learned Standing Counsel appearing for the Panchayath and the learned DSGI.

(3.) The learned Senior counsel reiterated the contentions raised in this Writ petition. The learned DSGI based on the counter affidavit filed by the 4th respondent submitted that the construction is in the prohibited area and that is why the NOC was not issued. The DSGI took me through the counter filed and submitted that the NOC cannot be issued in the facts and circumstances of this case.