Back
2022 Supreme(Online)(KER) 16642
HIGH COURT OF KERALA
N. NAGARESH, J
S.UMESH SHENOY – Appellant
Versus
THE TRIPUNITHURA MUNICIPALITY – Respondent
WP(C)/6151/2021
Important Points
Subject
Administrative Law - Land Use Regulation
Act Referred
Headnote
Occupancy - Property Development - Kerala Municipality Building Rules, 2019; Kerala Conservation of Paddy Land and Wetland Act, 2008 - The court determined that an Occupancy Certificate can be issued despite the land's classification as wetland if the Building Permit was granted before statutory restrictions came into effect.
Fact of the Case:
The case involves a property developer and a purchaser of an apartment seeking an Occupancy Certificate for a residential building constructed under a valid Building Permit before the land was designated as wetland under new statutory restrictions.
Finding of the Court:
The court found that since the Building Permit was issued prior to the introduction of new legal restrictions concerning wetlands, the Municipality was obligated to issue the Occupancy Certificate as requested by the petitioners.
Issues: The primary issue was whether the Municipality could deny the issuance of an Occupancy Certificate based on the land's classification as wetland after a Building Permit was issued prior to new legislation restricting development on such lands.
Ratio Decidendi: The court established that a previously granted Building Permit takes precedence over subsequent regulatory changes if the construction complies with the terms of the original permit.
Final Decision: The Municipality is directed to issue an Occupancy Certificate to the petitioner within one month.
R.LAKSHMI NARAYAN, SMT.R.RANJANIE, SHRI.NEVIL ZACHARIA MATHEW
JUDGMENT
Dated this the 11th day of August, 2022 [WP(C) NOS.25545 of 2020 & 6151 of 2021]
The petitioner in WP(C) No.25545/2020 is a Property Developer, who has constructed a multi-storeyed residential apartment complex named 'Padmaraga' in Thripunithura Municipality. The petitioner in WP(C) No.6151/2021 is a purchaser of an apartment unit in the said building.
2. The petitioners state that a multi-storeyed residential building 'Padmaraga' was constructed on the property, on the basis of a Building Permit issued by the Municipality on 03.11.2011. The period of Building Permit was extended from time to time and it was valid upto 28.10.2020. The petitioner in WP(C) No.25545/2020 completed the construction and submitted an application for Occupancy Certificate on 24.04.2018.
3. The grievance of the petitioners is that the Corporation Authorities are not issuing Occupancy Certificate. The petitioners are therefore before this Court seeking to direct the Tripunithura Municipality to issue Occupancy Certificate to the petitioners in the prescribed format in compliance of Rule 20(3) of the Kerala Municipality Building Rules , 2019.
4. Counsel for the petitioners urged that the Occupancy Certificate is being denied to the building for the reason that the land where the building is constructed is a wetland. In view of Section 14 of the Kerala Conservation of Paddy Land and Wetland Act , 2008, the Corporation cannot issue Occupancy Certificate in respect of a building constructed in a paddy land/wetland.
5. Standing Counsel entered appearance on behalf of the Tripunithura Municipality and contested the writ petition.
The Standing Counsel submitted that the land where the building is constructed is admittedly a wetland even according to the respondents. The fact that the Municipality has issued a Building Permit earlier cannot be a reason to issue an Occupancy Certificate at this stage, after the promulgation of the Kerala Conservation of Paddy Land and Wetland Act , 2008. The Municipal Authorities are therefore amply justified in refusing to issue Occupancy Certificate.
6. Counsel for the petitioners, relying on the judgment of this Court inLeela Santu and another v. Secretary, Kothamangalam Municipality and others [ 2020 (4) KLT 1011 ], urged that when Building Permits were issued prior to 30.12.2017, local body will be estopped from raising objections for grant of Completion Certificate, Occupancy Certificate or for grant of permit for additional construction on the ground that the subject property continued to be described as 'Nilam/Paddy land' in BTR. The judgment of the learned Single Judge was held with approval in a subsequent Division Bench judgment reported inCheranalloor Grama Panchayat v. Joe Thattil [ 2020 (5) KLT 763 ]. In view of the law laid down by this Court inLeela Santu and another (supra), the respondents are not justified in refusing Occupancy Certificate to the petitioners.
7. Per contra, the Standing Counsel representing the Municipality submitted that the judgment inLeela Santu and another (supra) will not apply to the facts of the petitioners' case. It is a settled proposition of law that there cannot be a question of estoppel against a statutory provision. Even if this Court remits the matter back to the Secretary for reconsideration, the Secretary of the Municipality will be bound by the provisions contained in Section 14 of the Kerala Conservation of Paddy Land and Wetland Act , 2008. The Standing Counsel for the Municipality relied on the judgment of the Apex Court inSneh Gupta v. Devi Sarup and others [ 2009 (6) SCC 194 ] and urged that there cannot be any estoppel against a statutory provision.
8. The counsel for the petitioners would urge that they are not seeking any estoppel against a statutory provision. What is sought for by them is only to grant Occupancy Certificate in terms of the Building Permit legally and validly issued by the Municipal Authorities. The estoppel urged is against the conduct of the res
