GANDHI BAZAR MERCHANT SOCIETY Vs. PERUMBAVOOR MUNICIPALITY

JUDGEMENT

(1.) These writ appeals have been preferred against the common judgment of the Single Bench dtd. 8/2/2019.

(2.) Gandhi Bazar Merchants Society is a registered society under the Travancore-Cochin Literary, Scientific, and Charitable Societies Act formed by the shop owners of the Gandhi Bazar, a shopping complex situated within Perumbavoor Municipality. The property where the Gandhi Bazar is situated was part of a larger extent of property admeasuring 69 cents. The ersthwile owners of the property mutually decided to divide the plots into five, with Plot A having 15 cents, Plot B-15.250 cents, Plot C- 15.250 cents, Plot D - 11.750 cents, and Plot E - 11.50 cents. The Gandhi Bazar building, consisting of about 40 shop rooms, is situated in Plots A, D, and E, whereas Plot C is in the name of Abdul Latheef and Fathima, who had subsequently purchased it from Suja Rajan. Suja Rajan is claiming the ownership of Plots B and C, having extents of 15.250 and 15.250, for a total of 30.5 cents. The shop owners of Gandhi Bazar had entered into an agreement with the property owners for allotment of specified undivided shares in Gandhi Bazar, and after construction of the building with the undivided shares, along with the parking area, purchased under different sale deeds dtd. 31/5/1994, and a total extent of 800 square meters of the area was set apart as parking space for the members of the appellant society. It is pertinent to mention that the Gandhi Nagar building was constructed with the building permit No. BA/281/92-93 issued by the Municipality. Since there was certain litigation between the squatters/encroachers who had set up the stalls in front of the building owned by the Gandhi Bazar, i.e., A, D, and E, a writ petition was filed, wherein the municipality made the statement that they will be removing the construction. However, in the meantime, the erstwhile owners, i.e., Abdul Latheef and Fathima, respondents 3 and 4, started construction of a building on Plot C, purchased under sale deed No. 466/1993, and on inquiry, it was revealed that the building permit was obtained by showing 800 square meters of parking area of the Gandhi Bazar as evident from the building permit dtd. 5/10/2006. Gandhi Bazar Society raised the objection before the Municipality on 19/2/2011. Noticing that the objection was raised, the erstwhile owners, respondents 3 and 4, submitted a revised plan showing the parking area of the Gandhi Bazar building as a common area and shifted their parking area to the basement / cellar portion. On the basis of the revised plan, a new building permit was issued on 24/2/2011 to the erstwhile owners. The permit issued with the cellar parking area was also objected to by the Gandhi Bazar building owners on various grounds. In the meanwhile, the erstwhile respondents 3 and 4 submitted another revised plan showing the parking area of the Gandhi Bazar building as a private road of 4.5 meters of width, leading up to the building constructed by respondents 3 and 4. Another revised plan permit dtd. 30/6/2011 was issued, which was objected to by filing a complaint apprehending that the permit may not be cancelled. Respondents 3 and 4 submitted a completion certificate on 2/11/2011 and requested the Municipality for issuance of an occupancy certificate.

(3.) However, on the receipt of the completion certificate and the application for occupancy certificate, the Secretary of Municipality issued a communication to the erstwhile owner pointing out that in the absence of a document showing access to the building of respondents 3 and 4, their application for issuance of occupancy could not be considered but only after obtaining the survey sketch from the Taluk Surveyor, and in the meantime, ongoing construction was ordered to be stopped. But again, a request at the behest of respondents 3 and 4 for issuance of an occupancy certificate was submitted, as they did not intend to carry out the balance construction, which was duly replied to by the municipality that it could not be done in the absence of access as contemplated under Rule 33 of the Kerala Municipality Building Rules. The aforementioned notice dtd. 17/11/2011 issued by the Municipality was challenged by respondents 3 and 4 before the Tribunal, by allegedly suppressing certain materials/provisions concerning the issuance of the deemed occupancy certificate.