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2017 Supreme(Online)(KER) 15783
HIGH COURT OF KERALA
K VINOD CHANDRAN, J
MCP PROPERTIES PVT LTD , IRINJALAKUDA – Appellant
Versus
IRINJALAKUDA MUNICIPALITY Advocate - K K CHANDRAN PILLAI (SR ), ,K K CHANDRAN PILLAI (SR ),N M MADHU,SMT S AMBILY, SC, IRINJALAKUDA MUNICIPALITY – Respondent
WRIT PETITION (CIVIL) 7622/2017
Construction exceeding permitted limits cannot be regularized and can result in tax assessments as unauthorized under municipal laws.
Headnote:
Property - Unauthorized Construction - Kerala Municipality Act 1994 - Section 242
Fact of the Case:
Writ petitions were filed against the Municipality's assessment of a Convention Centre as unauthorized, challenging property tax and D&O license denial. The petitioner claimed compliance with building permits while the Municipality cited illegalities due to excessive construction.
Finding of the Court:
The court found that the Convention Centre was operated without full occupancy approval, validating the Municipality's tax assessment under Section 242 of the Kerala Municipality Act. It noted the construction exceeded the permitted limits and that regularization claims under the 2014 Rules were invalid.
Issues: The cases revolved around the legality of the construction, tax assessments for unauthorized construction, and the refusal of license renewal due to alleged illegalities.
Ratio Decidendi: Construction was deemed unauthorized because it exceeded permitted limits and was utilized without correct approvals, affirming the Municipality's actions under Section 242.
Final Decision: Writ petitions disposed with directions for regularization application and tax payments.
J U D G M E N T
Both the writ petitions are with respect to a Convention Centre constructed in Irinjalakuda Municipality; filed by the owner against the assessment of the construction as unauthorized and the denial of renewal of D & O License.
2. W.P.(C) No.387/2017 challenges the order of assessment by the Municipality produced as Ext.P11 dated 16.12.2016, in which the Municipality has demanded a total amount of Rs.23,51,810/- as property tax for the unauthorized construction, numbered as UA219(C)/2013-2014 and for a direction to consider Ext.P12 objections so as to enable collection of tax of the petitioner only from 10.11.2016, the date of alleged completion. W.P.(C) No.7622/2017 is filed challenging Ext.P10 order issued by the Municipality refusing renewal of D&O license for the year 2017-2018.
3. The Irinjalakuda Municipality is the respondent in both the writ petitions and so is Sri.K.M. Shyju, who is impleaded as additional R3 in W.P.(C) No.387/2017 and additional R4 in W.P.(C) No.7622/2017 and Sri.Joseph Martin who is impleaded in W.P.(C) No.7622/2017 as additional R5. For convenience, W.P.(C) No.7622/2017 is first referred to. The additional respondents allege that the entire construction is illegal and the owner in collusion with the officers of the Municipality had carried out the same when he was the Chairman of the elected Council.
4. The petitioner obtained a building permit for construction of a Convention Centre having total plinth area of 6512.37 meter square, by Ext.P1 building permit dated 31.08.2010. The petitioner also was issued with partial occupancy certificate for a plinth area of 5071 meter square. A D&O license was issued by Ext.P3 for the year 2013-2014. For the subsequent years 2014-2015 and 2015-2016, the petitioner had filed applications for renewal of D&O license, as evidenced from Exts.P4 and P4(a), as also paid the necessary fees, evidenced by copy of the receipts produced as Exts.P4(b) and P4(c). The building permit was extended for a further period of three years from 30.08.2013 to 29.08.2016 by Ext.P5, and then again up to 28.08.2019 by Ext.P6. Ext.P7 is the assessment made, treating the entire construction as unauthorized, which is challenged in W.P.(C) No. 387/2017. Ext.P8 is the application for renewal of D&O license for the current year, being 2017-2018, which was rejected as per Ext.P10 challenged in W.P.
(C) No. 7622/2017 .
5. This Court had passed interim orders in the writ petition permitting the petitioner to use the premises which had been granted provisional occupancy but on condition of payment of the assessed property tax; under Section 242 of the Kerala Municipality Act , 1994, especially since the petitioner admitted the construction having far exceeded that permitted. Even when the matter was taken up for final hearing the petitioners Counsel only prayed for permitting the petitioner for regularisation. The respondent Municipality and the additional respondents, who got themselves impleaded opposed regularization; the latter specifically on the ground that the entire exercise of granting building permit and partial occupancy, is vitiated by non compliance of the Rules. It was also asserted that the Municipality had been negligent and lethargic insofar as consideration of the various applications made by the petitioner and also ignoring the palpable illegalities committed by the petitioner, only for reason of the petitioner being the Chairman of the Municipality, at the time of issuance of the building permit. Further action was also not taken by the Municipality only considering the earlier status of the petitioner.
6. The learned Counsel appearing for the petitioner submits that the petitioner would make an application under the Kerala Municipality Building (Regularisation of Unauthorised Construction) Rules 2014 ('Rules of 2014' for short). Admittedly, the construction permitted was of 6512.37 meter square, while actually the petitioner has constructed a total area of 10298.02
