Flexibility in occupancy certificate issuance when construction follows a valid permit, despite non-compliance with specific building rules.

JUDGMENT

Heard Sri.C.P.Peethambaran, learned counsel for the petitioner, Sri.I.V. Pramod, learned Standing Counsel for respondents 4 and 5 as well as Sri.N.B.Sunil Nath, learned Government Pleader, for respondents 1 to 3.

2. The petitioner constructed an apartment complex with 36 apartments consisting of basement floor, ground floor plus nine floors, pursuant to Ext.P2 building permit dated 28.03.2015. The petitioner states that he has also obtained Ext.P3 consent dated 31.08.2018, from the Kerala State Pollution Control Board, and approval at Ext.P4 dated 13.08.2018 from the Fire and Rescue Service Department. However, when the petitioner sought for issuance of an occupancy certificate, he has been informed pursuant to Ext.P7 communication dated 21.12.2019, that the petitioner had only provided an open space of 4.60/4.50 meters as regards the “Mechanical Parking”, which is in violation of the mandate under Rule 117 of the Kerala Municipal Building Rules , 1999 (hereinafter referred to as the ‘Building Rules’). The petitioner has filed the captioned writ petition, in such circumstances, seeking a direction to the respondents to issue occupancy certificate for the building in question, since the same is one constructed in terms of Ext.P2 building permit.

3. The learned counsel for the petitioner would point out that the petitioner was not aware about the provisions of Rule 117 of the Building Rules, and it is on that basis that the building permit was applied for, providing the clearance which was accepted while issuing Ext.P2. In such circumstances, he requests this Court to direct the respondent Municipality to act in accordance with the Government Order dated 27.09.2014, produced as Ext.P15, pursuant to which the Government has issued appropriate directions to the local authorities to issue occupancy certificate, in a situation where a construction though not in tune with provisions of the Building Rules, has been carried out on the basis of a building permit issued by the local authority in question.

4. The learned counsel for the respondent Municipality, on the other hand, would point out that insofar as there is no dispute with respect to the mandate under Rule 117 of the Building Rules, the occupancy certificate could not be issued.

5. I have considered the rival submissions as well as the connected records.

6. Even from a perusal of Ext.P7 notice dated

02.12.2019, it is clear that the building permit came to be issued as per which the petitioner was only expected to provide the clearance of 4.04 meters. As against that, admittedly, the petitioner has provided 4.60/4.50 meters, as clearance. True, the afore is not in tune with Rule 117 of the Building Rules. But Ext.P15 Government Order 27.09.2014, has directed the issuance of occupancy certificates, in such cases also, when the construction has been carried out on the basis of a building permit issued, with certain conditions. In such circumstances, I am of the opinion that it is for the 4^th respondent-Municipality, to take note of the contents of Ext.P15 Government Order dated 27.09.2014 and to issue occupancy certificate to the petitioner, as laid down therein, at the earliest.

Therefore, this writ petition would stand disposed of, directing respondents 4 and 5 to issue occupancy certificates, as provided under Ext.P15 Government Order, within a period of eight weeks from the date of receipt of a copy of this judgment.