IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 12437 of 2008(E)
1. E.V.M.FUELS (P) LTD, REGISTERED OFFICE,
... Petitioner
Vs
1. GURUVAYOOR MUNICIPALITY, REP.BY ITS
... Respondent
For Petitioner :SRI.RENJITH THAMPAN
For Respondent :SRI.K.K.CHANDRAN PILLAI
The Hon'ble MR. Justice ANTONY DOMINIC
Dated :02/07/2008
O R D E R
ANTONY DOMINIC, J.
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W.P.(C) 12437 of 2008
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Dated: JULY 2, 2008
JUDGMENT
The prayer sought for in this writ petition is to direct the
respondent to accept the completion report as regards the
building constructed pursuant to Exts.P2 and P3 and to number
the same.
2. It is stated that on the strength of Ext.R1(a) exemption
order passed by the Government of Kerala exercising its powers
under the Kerala Building Rules, 1994, on 23.10.1997 Ext.P2
building permit was granted to the predecessor-in-interest of the
petitioner. Petitioner submits that on the strength of Ext.P2
permit, a special residential building consisting of apartments,
having a total plinth area of 28000 square feet was to be
constructed and completed by 22.10.2000. It is stated that his
predecessor could not complete the construction in all respects
within the time allowed and therefore had sought extension of
the time specified in the permit twice. The extensions sought for
were granted and the extended period was upto 22.10.2006.
Ext.P3 is the last order of extension and endorsements on
WP(C) 12437/08 2
Ext.P2 also show the extensions granted to the predecessor-in-
interest of the petitioner.
3. According to the petitioner, on the strength of Ext.P2
and within the extended period, the entire civil work including
plastering of the building was completed, and what remained to
be done is fixing of Belgium glass on the front portion of the
building. Petitioner submits that in the meanwhile, on account
of financial crisis, his predecessor-in-interest had sold the
property to the petitioner, in as is where is condition, with effect
from 21.7.2006. According to the petitioner, on completion of
the work as above, he applied to the Municipality for numbering
the building and the Municipality replied stating that only if the
permit is current, the building in question could be numbered.
4. Thereupon, the petitioner had applied to the
Municipality for extension of period of the building permit. In
the meanwhile, Kerala Municipality Building Rules 1984 were
replaced by the Kerala Municipality Building Rules 1999. The
application made by the petitioner for extension was forwarded
by the Municipality to the Government under the cover of Ext.P4
dated 10.4.2007. In this communication of the Municipality
also it is mentioned that most the work in terms of the permit
WP(C) 12437/08 3
was already completed. However, on receipt of Ext.P4, the
Government replied by Ext.P5 stating that in terms of the 1999
Rules, it was not practical to extend the period of the permit.
On that basis the Municipality was directed to treat the
petitioner’s application as one filed under the 1999 Rules and
take action as if it is a fresh application. Accordingly, the
Municipality considered the application of the petitioner as a
fresh one in the light of the 1999 Rules, ignoring Ext.R1(a)
exemption. On such examination the Municipality found several
violations of the 1999 Rules and on that basis, by Ext.P6
informed the petitioner that his application cannot be
considered. It is on receipt of Ext.P6 that this writ petition was
filed by the petitioner seeking a direction to the Municipality to
accept the completion report and number the building.
5. Learned counsel for the petitioner mainly contends that
since even according to the Municipality, a substantial portion of
the work was completed, the petitioner should be allowed to
make use of the building as otherwise the building having 28000
sq. ft. of plinth area cannot be made use of at all and will be a
total waste of money and effort. It is also his contention that
Ext.P2 having been granted under the 1984 Rules, the extension
WP(C) 12437/08 4
sought for by him, should also be considered in the light of the
said rule and not the 1999 Rules.
6. The Municipality on its part had filed a counter affidavit.
According to the Municipality, on every respect the construction
is in violation of the Rules. They would say that the very permit
was granted on the strength of an order of exemption and that
now as the petitioner’s application is to be considered in the light
of the 1999 Rules, compliance with those Rules is an essential
pre-requisite. The Municipality, therefore, would submit that
its stand that the application cannot be considered is legal and
correct.
7. The contention of the petitioner that the entire civil
works including plastering was completed before the expiry of
the extended period of the permit is also denied by the
Municipality. The Municipality submits that the transfer in
favour of the petitioner was not intimated to it either by the
petitioner’s predecessor-in-interest or by the petitioner himself
and that without any permit petitioner continued the work
leading to the issue of stop memo and, on its disobedience, a
police complaint as well.
8. From the facts noticed above it is evident that as at
WP(C) 12437/08 5
present, the building having a plinth area of 2800 sq. ft. has been
completed either by the predecessor-in-interest or the petitioner
himself on the strength of Ext.P2 building permit. The fact that
the construction was undertaken on the basis of Ext.P2 and was
allowed to continue until 22.10.2006 on which date the extended
period of the permit expired is also not disputed. It is also to be
noticed that the Municipality has not initiated any coercive
action against the structure constructed by the petitioner. As
already noticed, even according to the Municipality, a substantial
portion of the work was completed as is mentioned by it in
Ext.P4 letter issued on 10.4.2007. Now, therefore, a workable
solution will have to be found out to make use of the building,
permitting the petitioner to complete the remaining part of the
work and make use of the same. I feel, the only option is to
permit the petitioner to complete the work and accept the
completion certificate and issue occupancy certificate on that
basis after completing necessary formalities.
9. Since, according to the petitioner, the building in
question has been completed and what remains is only fixing of
Belgium glasses, I feel the ends of justice require that the writ
petition shall be disposed of with the following directions:-
WP(C) 12437/08 6
i. The Respondent Municipality shall inspect the building
in question and ascertain as to whether the construction
undertaken is in compliance with Ext.P2 permit.
ii. If the construction undertaken by the petitioner thus
far is found to be in compliance with Ext.P2 permit, the
petitioner will be permitted to complete the remaining
works without in any manner departing from Ext.P2 or
increasing the built up area of the building in question.
iii. Once the remaining work is completed as above,
petitioner will submit the completion certificate to the
Municipality.
iv. On receipt of the completion certificate as above, the
Municipality shall again inspect the building and after
completing necessary formalities, issue occupancy
certificate to the petitioner.
Writ petition is disposed of as above.
ANTONY DOMINIC
JUDGE
mt/-