Can Municipality refuse to issue an occupancy certificate if the building was constructed after obtaining construction permission?

 In the circumstances, this Court is of the firm view

that when a citizen makes an application for Occupancy

Certificate in respect of a building which was constructed as

per a valid Building Permit issued prior to 30.12.2017, the

respondents cannot take umbrage under Section 14 to deny

Occupancy Certificate to the building on the ground that the

land where the construction is made is a paddy land or

wetland. {Para 14}

15. In view of the above, the petitioners are entitled to

relief. The respondent-Municipality is therefore directed to

issue Occupancy Certificate to the building constructed by the

petitioner in WP(C) No.25545/2020, if the petitioner is

otherwise eligible, within a period of one month.

 IN THE HIGH COURT OF KERALA AT ERNAKULAM

WP(C) NO. 25545 OF 2020

USHA RAJAN Vs  TRIPUNITHURA MUNICIPALITY

PRESENT

 MR.JUSTICE N.NAGARESH

Dated this the 11th day of August, 2022

The petitioner in WP(C) No.25545/2020 is a Property

Developer, who has constructed a multi-storeyed residential

apartment complex named 'Padmaraga' in Thripunithura

Municipality. The petitioner in WP(C) No.6151/2021 is a

purchaser of an apartment unit in the said building.

2. The petitioners state that a multi-storeyed

residential building 'Padmaraga' was constructed on the

property, on the basis of a Building Permit issued by the

Municipality on 03.11.2011. The period of Building Permit was

extended from time to time and it was valid upto 28.10.2020.

The petitioner in WP(C) No.25545/2020 completed the

construction and submitted an application for Occupancy

Certificate on 24.04.2018.

3. The grievance of the petitioners is that the

Corporation Authorities are not issuing Occupancy Certificate.

The petitioners are therefore before this Court seeking to

direct the Tripunithura Municipality to issue Occupancy

Certificate to the petitioners in the prescribed format in

compliance of Rule 20(3) of the Kerala Municipality Building

Rules, 2019.

4. Counsel for the petitioners urged that the

Occupancy Certificate is being denied to the building for the

reason that the land where the building is constructed is a

wetland. In view of Section 14 of the Kerala Conservation of

Paddy Land and Wetland Act, 2008, the Corporation cannot

issue Occupancy Certificate in respect of a building

constructed in a paddy land/wetland.

5. Standing Counsel entered appearance on behalf of

the Tripunithura Municipality and contested the writ petition.

The Standing Counsel submitted that the land where the

building is constructed is admittedly a wetland even according

to the respondents. The fact that the Municipality has issued

a Building Permit earlier cannot be a reason to issue an

Occupancy Certificate at this stage, after the promulgation of

the Kerala Conservation of Paddy Land and Wetland Act,

2008. The Municipal Authorities are therefore amply justified

in refusing to issue Occupancy Certificate.

6. Counsel for the petitioners, relying on the judgment

of this Court in Leela Santu and another v. Secretary,

Kothamangalam Municipality and others [2020 (4) KLT

1011], urged that when Building Permits were issued prior to

30.12.2017, local body will be estopped from raising

objections for grant of Completion Certificate, Occupancy

Certificate or for grant of permit for additional construction on

the ground that the subject property continued to be described

as 'Nilam/Paddy land' in BTR. The judgment of the learned

Single Judge was held with approval in a subsequent Division

Bench judgment reported in Cheranalloor Grama Panchayat

v. Joe Thattil [2020 (5) KLT 763]. In view of the law laid down

by this Court in Leela Santu and another (supra), the

respondents are not justified in refusing Occupancy Certificate

to the petitioners.

7. Per contra, the Standing Counsel representing the

Municipality submitted that the judgment in Leela Santu and

another (supra) will not apply to the facts of the petitioners'

case. It is a settled proposition of law that there cannot be a

question of estoppel against a statutory provision. Even if this

Court remits the matter back to the Secretary for

reconsideration, the Secretary of the Municipality will be

bound by the provisions contained in Section 14 of the Kerala

Conservation of Paddy Land and Wetland Act, 2008. The

Standing Counsel for the Municipality relied on the judgment

of the Apex Court in Sneh Gupta v. Devi Sarup and others

[2009 (6) SCC 194] and urged that there cannot be any

estoppel against a statutory provision.

8. The counsel for the petitioners would urge that they

are not seeking any estoppel against a statutory provision.

What is sought for by them is only to grant Occupancy

Certificate in terms of the Building Permit legally and validly

issued by the Municipal Authorities. The estoppel urged is

against the conduct of the respondents, rather than against

any statutory provision.

9. I have heard the learned counsel for the petitioners

and the learned Standing Counsel representing the Municipal

Authorities.

10. In the case of the petitioners, it is evident that a

Building Permit was issued on 03.11.2021, before the

introduction of Section 27A in the Kerala Conservation of

Paddy Land and Wetland Act, 2008. The Building Permit so

issued was valid upto 28.10.2020. The petitioner in WP(C)

No.25545/2020 completed the construction in the year 2018

and submitted application for Occupancy Certificate.

11. Defence of the respondents is that after

30.12.2017, the Secretary to the Municipality or for that matter

the Municipal Council, is not competent to issue a Building

Permit or Occupancy Certificate in respect of a construction

carried out in a paddy land or wetland. This Court finds that

the specific issue was considered by the learned Single

Bench of this Court in Leela Santu and another (Supra).

Relying on the Circular dated 30.08.2018 issued by the

Department of Local Self Government, this Court held as

follows:

9. In the instant case, it is beyond any dispute

that building permits covered in both these Writ Petitions

have been issued long prior to 30/12/2017 (the date of

coming into force of the amended provisions of the State

Act 28 of 2008 Act). Hence petitioners are fully entitled

to get the benefit of the said Government Circular dated

13/08/2018. That apart, this Court has already held in

various decisions as in Mahin v. Keezhmad Grama

Panchayat (2020 KHC 243:2020 (2) KLT 478:2020 (2)

KLJ 598) that in cases where the subject property has

been converted prior to 2008 Act and building permit

has been issued by the local body concerned without

reference to the nature of the land and after the

construction of the building the local body will be

estopped from raising objections for grant of completion

certificate, occupancy certificate or for grant of permit for

additional construction on the ground that subject

property continued to be descried as 'nilam/paddy land'

in the BTR. Those aspects are also reiterated in

judgments as in the one rendered on 26/02/2020 in W.P.

(C).No.5520/2020 [Ext.P-6 in W.P.(C).No.14707/2020].

In both these cases, the respondent-local bodies have

granted building permit to the respective applicants

concerned without raising any objection regarding the

nature of the land and construction has been completed

and they have sought for grant of occupancy certificate

and the building permits have been secured much prior

to the cut off date of 30/12/2017. In the light of these

aspects, the petitioners are also entitled to succeed on

the basis of the aspects already dealt with by this Court

in Mahin v. Keezhmad Grama Panchayat (2020 KHC

243:2020 (2) KLT 478:2020 (2) KLJ 598), etc. In that

view of the matter, it is ordered that the impugned stand

of the respondent-local body concerned rejecting the

plea of the petitioners for grant of occupancy certificate,

etc., is declared to be illegal and ultra vires and the

same will stand set aside and quashed and

consequential respective applications submitted by the

respective petitioners for grant of occupancy certificate

will stand remitted to the respective Secretary of the

respondent-local body concerned in these cases for

consideration and decision afresh.

This judgment would squarely apply to the petitioners'

case.

12. The Standing Counsel for the Municipality pointed

out that the judgment was delivered without noting the exact

amplitude of Section 14 of the Kerala Conservation of Paddy

Land and Wetland Act, 2008. Section 14 of the Kerala

Conservation of Paddy Land and Wetland Act, 2008 reads as

follows:

14. Refusal of licence by the Local Authority-

Notwithstanding anything contained in the Kerala

Panchayat Raj Act, 1994 (13 of 1994) or in the Kerala

Municipality Act, 1994 (20 of 1994) no Local Authority

shall grant any licence or permit under the said Act for

carrying out any activity or construction in a paddy land

or a wetland converted or reclaimed in contravention of

the provisions of this Act.

13. It is evident from Section 14 of the Act that the

restraint extended by the provision is for grant of any licence

or permit under the Kerala Municipality Act, 1994. What is

sought for by the petitioners in the writ petitions is not a

licence or permit. In fact, the petitioners were already issued

Building Permit for construction of the building. The building

was constructed strictly adhering to the said Building Permit.

What is sought for by the petitioners is only a permission to

occupy the building legally constructed by the petitioners on

the basis of a valid Building Permit. The Occupancy

Certificate will not authorise the petitioners to make any

construction.

14. In the circumstances, this Court is of the firm view

that when a citizen makes an application for Occupancy

Certificate in respect of a building which was constructed as

per a valid Building Permit issued prior to 30.12.2017, the

respondents cannot take umbrage under Section 14 to deny

Occupancy Certificate to the building on the ground that the

land where the construction is made is a paddy land or

wetland.

15. In view of the above, the petitioners are entitled to

relief. The respondent-Municipality is therefore directed to

issue Occupancy Certificate to the building constructed by the

petitioner in WP(C) No.25545/2020, if the petitioner is

otherwise eligible, within a period of one month. After taking a

decision on the issuance of Occupancy Certificate, the

respondent-Municipality shall consider numbering of the

apartment unit of the petitioner in WP(C) No.6151/2021 and

assess the apartment unit for property tax.

The writ petitions are disposed of as above.

Sd/-

N.NAGARESH

JUDGE

Print Page