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HIGH COURT OF KERALA
Murali Purushothaman, J
KALYAN JEWELLERS INDIA LTD., – Appellant
Versus
THE KOLLAM CORPORATION – Respondent
WP(C)/10076/2021
Building - Construction and Occupancy - Kerala Municipality Building Rules - Sections on Occupancy Certificate and Permit Compliance - The court directed the issuance of an occupancy certificate as the construction complied with the approved permit and zoning regulations, emphasizing the municipality's estoppel in denying the certificate post-approval.
Fact of the Case:
The petitioner sought an occupancy certificate for a commercial building constructed under a valid permit. After rectifications, the municipality delayed the issuance citing zoning issues despite no violations of the permit or plan.
Issues: Whether the municipality can deny an occupancy certificate based on zoning after having issued a building permit and allowing construction.
Ratio Decidendi: The municipality is estopped from denying the occupancy certificate because the construction was in conformity with the building permit, despite later concerns regarding zoning classification.
Final Decision: The court ordered the provisional numbering and issuance of an occupancy certificate within one month.
JUDGMENT
The petitioner has filed this writ petition for a direction to the 2nd respondent to issue occupancy certificate and to assign number to the petitioner's building covered by Ext.P4 permit.
2. On 25.06.2021, this Court has passed an interim order as hereunder:-
Admit.
2. On the strength of Ext P4 building permit the petitioner constructed a commercial building, having a plinth area of 1501.91 sq. mtr., in 7.07 Ares of property situated in old Survey No.7951, 7953 and 7956 of Kollam East village. On completion of construction, the petitioner submitted application for occupancy certificate. The Corporation noticed certain defects and directed rectification of the same. On rectification, the petitioner re-submitted the completion plan. It is not disputed by the Corporation that the necessary rectifications were done and that the construction is presently in accordance with the approved plan and permit. In the statement dated 03.06.2021, filed on behalf of the Corporation, it is stated thus:
“The Completion Plan was resubmitted by the applicant after removing the shortcomings on
03.04.2021.”
3. However, occupancy certificate was not issued stating that, it was noticed thereafter that one of the Survey numbers of the property in which the building has been constructed is earmarked as residential zone in the DTP Scheme.
4. On the facts as noticed above, I am of the opinion that the Corporation could be directed to provisionally number the building. Accordingly, there will be an interim order directing the second respondent to provisionally number the building and issue occupancy certificate which shall be subject to the result of the writ petition.
3. Heard the learned Counsel for the petitioner and the learned Standing Counsel for the respondents.
4. The learned counsel for the petitioner submits that as per Rule 22 of the Kerala Municipality Building Rules ( KMBR , for short), the Secretary cannot deny occupancy certificate if the construction is in conformity with the building permit.
5. The Municipality has no case that the construction is in violation of Ext.P4 permit, the approved plan or the provisions of KMBR . If the construction of the building violates the zonal classification, the Municipality could have denied the building permit. Having issued the building permit and allowed the petitioner to carry out the construction, the Municipality is estopped from denying building number and occupancy certificate on the ground that the construction of the building violates zonal classification. If the construction is carried out in conformity with the building permit, the Municipality cannot deny occupancy certificate.
6. It is submitted that pursuant to interim order dated 25.06.2021, the building has been provisionally numbered and provisional occupancy certificate has been issued.
7. In the circumstances, the interim order passed by this Court on 25.06.2021 is made absolute and the petitioner shall be assigned building number in respect of building covered by Ext.P4. The 2nd respondent shall issue occupancy certificate to the petitioner within a period of one month from the date of receipt of a copy of this judgment.
The writ petition is disposed of with the above directions.
Sd/-
MURALI PURUSHOTHAMAN JUDGE
APPENDIX OF WP(C) 10076/2021 PETITIONER EXHIBITS EXHIBIT P1 TRUE COPY OF DOCUMENT NO. 1680/2017 OF S.R.O KOLLAM.
EXHIBIT P2 TRUE COPY OF THE POSSESSION CERTIFICATE NO.
1056/19 DATED 03.07.2019 ISSUED BY THE VILLAGE OFFICER, KOLLAM EAST VILLAGE.
EXHIBIT P3 TRUE COPY OF THE LATEST LAND TAX RECEIPT DATED 21.09.2020 ISSUED BY THE VILLAGE OFFICER, KOLLAM EAST VILLAGE.
EXHIBIT P4 TRUE COPY OF THE BUILDING PERMIT NO.
PW2/BA/164/16-17 DATED 17.06.2017 ISSUED ON BEHALF OF THE 2ND RESPONDENT.
EXHIBIT P5 TRUE COPY OF THE COMPLETION CERTIFICATE SUBMITTED BY THE OWNER OF THE BUILDING ON
2.02.2021 IN APPENDIX E1.
EXHIBIT P6 TRUE COPY OF THE BROCHURE PREPARED WITH RESPECT TOTHE INAUGURATION OF THE SHOW ROOM SCHEDULED ON 24.04.2021.
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