George Joseph vs The Pala Municipality

A.V. Ramakrishna Pillai, J.—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.

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.

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.

When the writ petition came up for admission on 09.07.2014, this Court, considering the history of the case, gave an interim direction to the 2nd respondent to provisionally number the building of the petitioners and to issue occupancy certificate. It was also made clear that the issuance of occupancy certificate shall be subject to the result of the writ petition.

The respondent municipality did not comply with the interim order, which prompted the petitioners to file IA No. 11623/2014 to initiate proceedings for contempt against the 2nd respondent for violation of the directions of this Court. Thereafter, the respondent municipality entered appearance and sought a review of the interim order by filing RP No. 630/2014. When the review petition came up for consideration before this Court on 29.08.2014, the learned counsel for the petitioners submitted that the interim order can be recalled and the writ petition itself can be heard and disposed of. As it was agreed by both sides that the writ petition itself can be heard and disposed of, the review petition was allowed and the interim order was recalled.

In the counter affidavit filed by the respondent municipality, they have admitted that Ext. P1 building permit dated 20.12.2010 was granted for construction of a commercial building in Sy. No. 54/84 in Ward No. 23 of the municipality. According to them, Ext. P1 was issued to Sri. George Joseph, Joseph Mathew, Lissamma, Sinta, Santo Cherian and Clement Cherian, who were the co-owners, to construct the building. They would also admit that Ext. P6 application was filed by the petitioners, claiming transfer of Ext. P1 permit in favour of the petitioners as per Settlement Deed No. 110/2011 dated 14.01.2011 and Settlement Deed No. 685/2012 dated 07.03.2012, deleting the names of all, except the 1st petitioner in Ext. P1 permit. The respondents point out that Ext. P6 application was filed on 27.06.2012, i.e., more than one year after the first settlement deed. They would state that the building permit was not made mention of in the settlement deeds and the right to construct as per the permit, was not transferred; and only the undivided right in the property was transferred. The respondent municipality relies on Rule 21 of the Kerala Municipality Building Rules, 1999, which mandates that every person, in whose favour any property is transferred along with a development or building permit by the transferor, shall obtain permit of the Secretary in writing before commencing or continuing the work. They would contend that in this case, the transferors did not give notice under Rule 21 and the transferee continued the construction without obtaining permit, which is clear violation of the Rules. Therefore, according to the respondents, the relief is not liable to be granted. It is also contended that since the building is constructed violating Rule 21, the petitioners are not entitled to occupancy certificate. They would further contend that as of now, the link road having 6 meter width along the boundary of the property of the petitioner has been completed and the construction is made on the boundary of the property without leaving sufficient set back. They would further contend that the municipality has resolved to construct a public comfort station in the property in their absolute possession situated on the southern side of the petitioners'' property. They would further contend that OS No. 49/2013 filed by the petitioners was dismissed by the Sub Court, Pala, on 22.07.2014. They would also state that the petitioners have submitted a site plan along with the completion plan showing the construction of a ramp from their building into and through the property of the municipality to provide access to the River View Road. This site plan varies from Ext. R3(a) site plan and the ramp is an unauthorized construction; according to them. Thus, they prayed for a dismissal of the writ petition.

I have heard the learned counsel for the petitioners and the learned Standing Counsel for the respondent municipality quite in extenso.

Admittedly, Ext. P1 building permit was issued in the name of the joint co-owners of the property, where the construction was undertaken. It is further admitted that, as per Exts. R3(b) and R3(c) settlement deeds, the petitioners have become absolute owners of the property as other co-owners relinquished their right in the name of the petitioners. The definite stand taken by the respondent municipality is that the factum of transfer is not intimated to the respondent municipality and the petitioners, who are transferees, have not obtained permission of the municipality for continuing with the construction. When a specific query regarding this was put to the learned counsel for the petitioners, it was fairly conceded by the learned counsel for the petitioners that before proceeding with the construction, the petitioners have not obtained permission form the respondent municipality for continuing the construction after obtaining the transfer of right of other co-owners in their name. To that extent, the respondent municipality can justify their stand. However, the series of communications between the petitioners and the respondent municipality would reveal that the respondent municipality was trying to postpone the issue of occupancy certificate for one reason or other. When Ext. P1 permit was issued, the municipality has not raised any objection, which they have raised in Exts. P2, P4, P7, P10, P17 and P18 notices. A perusal of these notices would reveal that the respondent municipality was inventing additional reasons to deny the request of the petitioners.

The matters now placed on board would indicate that on the strength of Ext. P1 permit issued by the 2nd respondent, the petitioners have completed the construction of a multi-storied complex expending crores of rupees, out of which, one crore was borrowed from the Pala Branch of State Bank of Travancore, as evidenced by Ext. P15. The co-owners, in whose name Ext. P1 was issued, transferred the right in favour of the petitioners. On the strength of the said transfer, the petitioners, vide Ext. P6 application, have applied for transfer of Ext. P1 building permit in their favour on 27.06.2012.

The petitioners have complied with the directions in Ext. P7 notice issued by the 3rd respondent as evidenced by Ext. P8. Still, the respondents have not chosen to pass final orders on Ext. P6 application. Therefore, the petitioners are fully justified in requesting this Court to command the respondents to pass final orders granting transfer of Ext. P1 building permit in favour of the petitioners. It is in this background, this Court granted an interim order directing the respondents to number the building provisionally, which was not agreeable to the respondent municipality. The petitioners have submitted Ext. P16 application on 12.12.2013 for issuance of occupancy certificate and also to assign number to the building in question. In response, the 3rd respondent required the petitioners to comply with four directions in Ext. P18; and the petitioners promptly complied with all the directions in Ext. P18 as evidenced by Ext. P19. As there was no response, the petitioners submitted Ext. P20 application dated 07.05.2014, specifically claiming the benefit of proviso to Rule 22(3) of the K.M.B.R. Though additional reasons are pointed out in the notices issued by the respondent municipality, the reasons pointed out in the said notices for not issuing occupancy certificate and numbering the building, do not inspire confidence.

In the last notice, it is stated that the petitioner has constructed a ramp, which, according to the petitioners, was made only to facilitate an easy entry from the petitioners'' compound, which is lying at a low level to the adjoining road. It is settled law that the owner of a property lying on the side of a public road can enter the road through any portion, which he chooses. Therefore, the construction of ramp cannot be objected by the respondent municipality unless it hinders the flow of traffic along the road, to which the entry is sought for.

It is crucial to note that in Ext. P12, the Assistant Executive Engineer, PWD, had opined that the construction undertaken by the petitioner in no way adversely affects the formation of the road in question. Therefore, it can be seen that the objection raised by the respondent municipality for not issuing occupancy certificate and assigning number to the building is without any justification.

It is true that for continuing with the construction after the transfer of the rights by the other co-owners, the petitioners have not obtained sanction from the respondent municipality. However, this Court is of the definite view that it is only an irregular exercise, which can be regularized by the respondent municipality on an application made by the petitioners. Therefore, the petitioners can be permitted to make a formal application for regularization of the construction on the basis of which, the respondent municipality can issue occupancy certificate and assigning building number to the building of the petitioners.

Therefore, this writ petition is disposed of permitting the petitioners to submit an application for regularization of the construction already made, before the respondent municipality within a period of two weeks from the date of receipt of a copy of this judgment. In the event of receiving such an application, the construction shall be regularized by the respondent municipality within a period of 15 days thereafter, in accordance with law, without imposing further restrictions. After regularisation, the building shall be numbered and occupancy certificate shall be issued to the petitioners without any further delay.