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:

WP(C) NO. 14126 OF 2022

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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

WP(C) NO. 14126 OF 2022

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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.

WP(C) NO. 14126 OF 2022

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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.

WP(C) NO. 14126 OF 2022

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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