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HIGH COURT OF KERALA
P.V.KUNHIKRISHNAN, J
INDIRA MENON – Appellant
Versus
STATE OF KERALA – Respondent
WP(C)/14316/2022
Deemed - Occupancy Certificate - Kerala Municipality Building Rules - Rule 22(3) - The court interpreted Rule 22(3) of the Kerala Municipality Building Rules which suggests that an occupancy certificate is deemed issued if no response is provided within a specific timeframe, leading to a direction for issuance of the certificate.
Fact of the Case:
The petitioner constructed a multi-story building and submitted completion certificates for different floors. After a lapse of time without response from the authorities for the later floors, the petitioner sought to have occupancy certificates issued and the building numbered.
Finding of the Court:
The court found that according to the Kerala Municipality Building Rules, specifically Rule 22(3), the lack of response to the occupancy certificate application means it is deemed issued, obligating the respondents to issue the necessary documentation.
Issues: Whether the petitioner is entitled to receive a deemed occupancy certificate and have the building numbered despite the lack of direct communication from the authorities.
Ratio Decidendi: The second proviso to Rule 22(3) indicates that failure to respond within fifteen days results in a presumed issuance of the occupancy certificate.
Final Decision: The writ petition was allowed, directing the issuance of a deemed occupancy certificate.
JUDGMENT
This writ petition is filed with following prayers:
i. Declare that the petitioner is entitled for a deemed occupancy as on 17/09/2004 and therefore, the petitioner is entitled to have Occupancy Certificate to be issued physically.
ii. Issue a writ of mandamus or any other appropriate writ, Order or direction commanding the second respondent to number the buildings namely floors 2 to 6 as the building was completed and tax was received in 2005 itself.
iii. Issue a writ of certiorari or any other appropriate writ, calling for the records relating to Exhibit P20 and quash the same.
iv. Issue a writ of mandamus or any other appropriate writ, Order or direction commanding the second respondent to regularize the building in case it is found not completed, as per the law prevailed at the time of granting building permit that too without insisting for any deficiency occurred on account of the land acquisition for the Kochi Metro Rail.
v. Such further and other reliefs which this Hon'ble Court deems fit and proper in the facts and circumstance of the case.
(SIC)
2. Petitioner is the owner of property having an extent of
15.100 cents of land in Survey No.702/5 of Ernakulam Village. She applied for a building permit for the construction of an eight storied building (basement + ground + 6 floors) on 21.5.1997. The permit was issued as per Ext.P1 based on the exemption granted by the Government as per Ext.P3. Subsequently the petitioner was directed to produce NOC from Aviation Department, Department of Telecommunications and also Fire Department. As per Exts.P4, P5 and P6 the authorities granted NOC. The building permit was renewed from time to time up to 2006. The petitioner initially completed basement+ground+1st floor, for which completion certificate was submitted on 16.03.2001, as per Ext.P9. Thereafter, it is the case of the petitioner that the entire construction was completed in September 2004. The completion certificate was submitted in respect of floors 2 to 6 on 02.09.2004, as evident by Ext.P10. Thereafter there was no communication from the Corporation. On completion of the entire building, the petitioner was directed to pay one time building tax as per Ext.P11 assessment order. Ext.P12 demand notice was also issued to the petitioner to pay the building tax in four instalments. The petitioner paid the amount. It is also submitted by the petitioner that the notification of acquisition of land for the construction of Metro Rail was published during that time and a portion of the property was acquired from the petitioner. Though the construction of the entire floors were completed in September 2004, the interior works in the 2 to 6 floors were not completed. After acquisition of a portion of the property including the car parking area, it is submitted that the petitioner lost a major portion of the car parking area provided for the building. In the meanwhile, the respondents collected the property tax as unauthorized construction. The petitioner approached the respondents to number the building and issue occupancy certificate. However, the 3rd respondent directed to submit regularization application as per the present rules. Since the building was completed within the period of building permit, according to the petitioner, he is not liable to submit regularization application as per the present rules. It is the case of the petitioner that the 3rd respondent is duty bound to issue occupancy certificate and number the building. Hence this writ petition.
3. Heard the learned counsel for the petitioner and the learned Standing Counsel appearing for respondents 2 and 3. I also heard the learned Government Pleader.
4. It is an admitted fact that the petitioner constructed the building (basement + ground floor + 6 floors). Exts.P9 and P10 are the completion certificates. Ext.P9 will show that the basement floor, ground floor and first floor are completed. Ext.P10 will show that the 2nd, 3rd, 4th , 5th and 6th floors are completed. As
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