IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR.JUSTICE VIJU ABRAHAM TUESDAY, THE 19^TH DAY OF APRIL 2022 / 29TH CHAITHRA, 1944 WP(C) NO. 14126 OF 2022 PETITIONER/S:

CANDON RESIDENCY PRIVATE LIMITED, DOOR NO.44/3495C, ST.GOERGE ENCLAVE, KALOOR, KOCHI-682 016, REPRESENTED BY ITS MANAGING DIRECTOR MUHAMMED YOUSAF, AGED 44 YEARS, S/O.MUHAMMED, RESIDING AT KADUKKAPILLIL HOUSE, KAVALANGAD, NELLIMATTOM P.O., PIN-686 693.

BY ADV PEEYUS A.KOTTAM RESPONDENT/S:

1 KALAMASSERY MUNICIPALITY, REPRESENTED BY ITS SECRETARY, KALAMASSERY MUNICIPAL OFFICE, CHANGAMAPUZHA NAGAR P.O., PIN-

682 033.

2 SENIOR TOWN PLANNER, LSGD PLANNING, OFFICE OF DISTRICT TOWN PLANNER, 4TH FLOOR, CIVIL STATION, ERNAKULAM, KAKKANAD, PIN-682 030.

OTHER PRESENT:

SRI.M.K.ABOOBACKER, SC SMT.SURYA BINOY, GP THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 19.04.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

JUDGMENT

The petitioner has approached this Court seeking a direction to the 1^st respondent (the Secretary, Kalamassery Municipality) to issue duly signed Completion Plan for the building, for which Ext.P6 Occupancy Certificate has already been issued, without insisting on compliance of the undertaking in Ext.P5 affidavit that the petitioner will get the revised layout approval from the 2^nd respondent in compliance with the provisions of Kerala Municipality Building Rules, 2019 (for short, “the KMBR”).

2. The petitioner is the owner in possession of

12.85 ares of property comprised in Sy.No.475/1/12 and 9.49 ares of property comprised in Sy.No.474/15 in Re.Sy.Block No.5 of Thrikkakara North Village in Kanayannur Taluk. As per Ext.P1 building permit issued by the 1^st respondent on 11.08.2016, permission was granted to the petitioner to construct a commercial cum special residential building having basement floor, ground floor and 1^st floor to 7^th floor with terrace floor having a total plinth area of 6829.28 sq.mtr. The grievance raised by the petitioner in this writ petition is that when the petitioner approached the 1^st respondent for issuance of duly signed Completion Plan, after completing the construction in compliance with Ext.P1 building permit, the 1^st respondent is insisting on compliance of the provisions of the subsequently enacted KMBR, 2019.

3. I have heard the learned counsel for the petitioner, the learned Standing Counsel for the 1^st respondent and the learned Government Pleader for the 2^nd respondent.

4. According to the learned counsel for the petitioner, the construction is made strictly in accordance with Ext.P1 building permit. It is also pointed out that Ext.P6 Occupancy Certificate has already been issued by the 1^st respondent. According to the petitioner, as per the Completion Plan, the plinth area of the constructed building has increased by 516.95 sq.mtr and the permissible Floor Area Ratio (FAR) as per the KMBR is 2.5 sq.mtr. and the increased plinth area after completion is within the permissible FAR of 2.5 sq.mtr. It is contended that except the change in the plinth area, the construction is carried out strictly in accordance with Ext.P1 building permit and the approved plan issued by the 1^st respondent. Therefore, according to the petitioner, the construction is not in violation of the KMBR, 1999 or the KMBR, 1994.

It is also pointed out that as per the KMBR, 1999, when there is a deviation from the building permit and such deviation is strictly in accordance with the requirements in the KMBR, power is conferred on the Secretary to regularize the same. It is the contention of the petitioner that it is settled proposition of law that the law governing a building under construction is the law prevailing as on the date of issuance of building permit. According to the petitioner, Ext.P1 building permit was issued in the year 2016 as per the provisions of the KMBR, 1994 and therefore, the construction is to be governed as per the provisions contained therein. To substantiate this position of law, the petitioner relies o