IMPORTANT POINT
Merely because a construction is carried out in a plot other than the one included in the building permit, occupancy cannot be declined, if the said conduct of the permit holder is not in violation of the provisions of Act, 1994 and Rules, 2011. Said so, that cannot be a reason at all for declining deemed occupancy and consequential numbering of the building.

JUDGMENT :

SHAJI P. CHALY, J.

This writ appeal is filed by the petitioners in W.P.(C) No. 22552 of 2019 challenging the judgment dated 09.12.2019, whereby the following reliefs sought for by the appellant was declined:

1. Issue a writ in the nature of mandamus directing the 2nd respondent to consider Ext.P4 and issue occupancy certificate and number the building in accordance with the law.

2. Issue appropriate writ, order or direction declaring that the petitioner is entitled for deemed occupancy as per the proviso to Rule 25(3) of the Kerala Panchayat Building Rules, 2011.

2. Brief material facts for the disposal of the appeal are as follows:

The appellant has secured a building permit from the Kaipamangalam Grama Panchayat, Thrissur District dated 07.05.2010 for construction of a building to conduct an Educational Institution which was renewed twice and valid upto 06.05.2019. Apparently, construction was carried out, partly in a property not included in the building permit. Later, layout approval of the Town Planner was sought and it is evident that on 31.08.2017 as per Ext.P2, approval was granted by the Town Planner. It is also clear that on 15.09.2018, fire NOC was issued and, on 29.09.2018, a completion certificate was submitted by the appellant before the Secretary of the Panchayat in terms of Rule 25 of the Kerala Panchayat Building Rules, 2011 (for short 'Rules, 2011) for securing occupancy certificate. However, no action was initiated, consequent to which the appellant has issued a reminder dated 08.03.2019 and the acknowledgment is dated 11.03.2019. Since no action was initiated, appellant approached this Court by filing the writ petition. However, the relief as sought for by the appellant was declined; but certain directions were issued to the Secretary of the Panchayat to take up Ext.P4 application of the appellant and take a decision after affording an opportunity of being heard and if it is found that the property is not included either in the data bank or in the BTR as a paddy, necessary opportunity shall be given to the appellant to approach the competent authorities under the Kerala Conservation of Paddy and Wetland Act, 2008 for securing necessary orders under the said Act. It was further directed that on production of permission, the Secretary will issue occupancy certificate and number the building in terms of law, without any avoidable delay. At the same time, it was directed that if the property is not included as a paddy field in the data bank or in the BTR, then the Secretary will issue orders on Ext.P4 as expeditiously as possible, but not later than one month from the date of receipt of a copy of the judgment. Certain other directions are also issued.

3. Fact remains, the relief sought for by the appellant in terms of the second proviso to Rule 25(3) of Rules, 2011, in respect of deemed occupancy certificate was declined. According to the appellant, since the appellant has submitted an application seeking issuance of occupancy certificate along with completion certificate as required in Rule 25 of Rules, 2011 on 29.09.2018, on the expiry of 15 days, the appellant is entitled, as of right, to secure the deemed occupancy certificate. It is also pointed out that there was no established case before the learned single Judge that constructions were carried out by the appellant in a paddy field and merely because construction was carried out partly in a property belonging to the appellant, it would not empower the Secretary of the Panchayat not to issue the occupancy and number the building.

4. On the other hand, learned counsel appearing for the Panchayat submitted that the appellant has not made out any case to interfere with the judgment of the learned single Judge, since non-consideration of the application of the appellant for issuance of occupancy was based on the adverse legal circumstances in accordance with the provisions of the Kerala Panchayat Raj Act, 1994 and Rules, 2011.

5. We have heard counsel on ei