REKHA BABU JACOB Vs. STATE OF KERALA

JUDGEMENT

(1.) THE grievance of the petitioners who are engaged in the business in real estate, building construction etc. in various parts of the State including the Corporation Kochi is that the Corporation of Kochi, the third respondent is not issuing the development and occupancy certificate as prescribed under the Kerala Municipality Building Rules, 1999 in respect of a building constructed by them at the Vyttila Junction on the strength of Ext. P1 building permit. According to the petitioners they applied for a permit for construction of a building in a plot admeasuring roughly 8. 38 cents belonging to them by virtue of two separate sale deeds dated 14/08/2003. This plot is situated along the side of Sahodaran Ayyappan Road and the plot is the balance extent after surrender of a portion of the original plot free of cost for the purpose of widening the Sahodaran Ayyappan Road. THE third respondent Corporation of Kochi considered the above application which was made in the form in Appendix A (2) of the Kerala Municipality Building Rules and after making due enquiries issued building permit dated 02/07/2004 in terms of R. 11 (3) of the Municipality Building Rules to the petitioners. Ext. P1 is copy of the above building permit. Petitioners completed the construction of the building strictly in terms of Ext. P1 permit and the plan and sketch which were approved by the third respondent. Upon completion of the construction of the building which is of commercial nature the building was named BCG City Gate. After the construction of the building was completed, the petitioners applied to the third respondent for the development and occupancy certificates as prescribed under the Kerala Municipality Building Rules on 24/01/2007 by submitting the requisite forms along with the necessary documents. In the meanwhile the third respondent issued Ext. P2 notice dated 18/12/2006 to the petitioner alleging that the petitioners have constructed the building in violation of the building rules stating that the free surrender benefits will not be available to the petitioners since it was not the petitioners who had surrendered land for widening the road. Petitioners submit that the third respondent was prompted by Ext. P3 Government letter dated 24/11/2006 wherein it is mentioned that free surrender benefits are to be confined to only owners who actually surrendered the lands and not to persons who purchased land from them. On receipt of Ext. P2 the petitioners submitted Ext. P4 reply pointing out through Exts. P2 and P3 that respondents are misinterpreting a Government Order GO (Rt) 2631/97 LAD dated 31/10/2007 for the purpose of withdrawing the benefits which had already been granted in respect of the property of the petitioners. Copy of the above Government Order is produced by the petitioners as Ext. P6. In the meanwhile the first respondent Government in the Local Self Department gave in its official website in the internet a photo of the building constructed by the petitioners named as BCG Gate alleging that the above building is constructed in violation of the Kerala Municipality Building R. 24 (3), R. 24 (4), R. 24 (5), R. 24 (8), R. 24 (11) and R. 39 (2 ). Ext. P5 is copy of the announcement so made by the first respondent obtained by downloading the same from the website in the internet. THE petitioners submit that the allegations in Ext. P5 are untrue and that the details given in the website of the first respondent through Ext. P5 in relation to the building are also absolutely incorrect. On account of the publication of such incorrect facts through the official website of the first respondent regarding their building the petitioners are even subjected to deep embarrassment and heavy damages against the public at large. THEre is no justification at all for the third respondent in refusing to issue development and occupancy certificate to the petitioners. On the above submissions the petitioners have raised various grounds and filed the writ petition seeking the following reliefs: 1. To issue a writ, order or direction in the nature of certiorari quashing Exts. P3 and P2 issued by respondents 1 and 3 respectively, after declaring that Ext. P6 GO is not applicable to the building constructed by the petitioners pursuant to Ext. P1 permit.

(2.) TO issue a writ, order or direction in the nature of mandamus commanding the 1st respondent to withdraw from its official website any reference, pronouncement or publication in relation to the building constructed by the petitioners pursuant to Ext. P1 permit.

(3.) IT was pointed out by Mr. Mathews that with effect from 05/01/2006 Government has replaced Chapter XI of the KMB Rules and that under the new provisions, any person seeking benefits under the said Chapter shall make an application for permit for construction in the form prescribed as per the proviso to R. 79 (1 ). The new form seeks details of both the persons surrendering the plot and applying for building permit. Such requirement was absent in the replaced chapter. Argument therefore was that this is a circumstance which would indicate that in the replaced Chapter the rule maker was not concerned whether it is the person who surrendered the plot who is applying for the benefits. In my opinion, even on first principle and in the absence of any specific provision in the rule that the benefit will be given only to the person who actually surrendered the land the benefit has to be given not only to the person who surrendered the land but also whose successors in interest.