P.C. VARGHESE Vs. KOTTAYAM MUNICIPALITY AND OTHERS

JUDGEMENT

(1.) The petitioner, who had applied for and obtained Ext.P3 building permit for the construction of a commercial building having a total plinth area of 535.24 square meters, is aggrieved by the inaction on the part of the respondent Municipality in issuing an occupancy certificate in respect of the said building, notwithstanding the fact that the application for occupancy certificate was submitted as early as on 15.02.2017 as indicated in Ext.P4 communication of the respondent Municipality dated 13.03.2017. In the writ petition, the prayer is for a direction to the 2nd respondent to issue an occupancy certificate to the petitioner's building, covered by Ext.P3 building permit, after declaring that the petitioner is entitled to the benefit of the proviso to Rule 22(3) of the Kerala Municipality Building Rules, 1999.

(2.) A counter affidavit has been filed on behalf of the respondent Municipality, wherein it is stated that on the petitioner submitting an application for issuance of occupancy certificate, he was served with Exts.P4 and P5 notices, which indicated that the building constructed was not in conformity with the approved plan, and there was a difference between the height of the building as constructed, and the height of the building as approved in the plan submitted before the respondent Municipality. It is also stated that, inasmuch as there was a proposal for widening of a road passing in front of the building of the petitioner, the petitioner had to maintain the required set back from the proposed widened road, and as the petitioner had not done so during the construction, the application for occupancy certificate could not be considered.

(3.) I have heard the learned counsel appearing for the petitioner and also the learned Standing counsel appearing for the respondent Municipality. On a consideration of the facts and circumstances of the case as also the submissions made across the Bar, I find that it is not in dispute that the petitioner had submitted an application for occupancy certificate on 15.02.2017 as referred to in Ext.P4 notice issued by the respondent Municipality, and there was no communication from the Municipality, within the statutory period indicated in the deeming provision, indicating that the application of the petitioner had been rejected. Without anything more, the petitioner was entitled to the benefit of the proviso to Rule 22(3) of the Kerala Municipality Building Rules, 1999 and consequently a liberty to proceed as if the occupancy certificate had been issued to him. The counter affidavit of the respondent Municipality indicates that they have certain objections with regard to the construction of the building put up by the petitioner, in that it is their case that the building does not conform to the specifications that were approved in the plan submitted before the Municipality. The second objection with regard to a proposed widening of a road will not survive judicial scrutiny since it is settled law that the mere proposal for widening of a road cannot be a reason to deny an occupancy certificate to a building constructed pursuant to a building permit in which the said set back requirements were not specified as conditions. Accordingly, I do not find merit in the said objection raised by the respondent Municipality. Having regard to the specific provisions of proviso to Rule 22(3) of the Kerala Municipality Building Rules,1999, I am of the view that the writ petition must succeed. Accordingly, I allow the writ petition by directing the 2nd respondent to issue an occupancy certificate to the petitioner's building covered by Ext.P3 building permit. I make it clear that it will be open to the respondent Municipality thereafter to initiate any action in accordance with law against the petitioner if they establish that the construction of the building is not in conformity with the permit that was issued to the petitioner. The Occupancy certificate shall be issued to the petitioner, as directed, within a period of two weeks from the date of receipt of a copy of this judgment.