The Kerala High Court, while ruling on two petitions in brief, said that a certificate of occupancy cannot be refused on the grounds that the land on which the building is constructed is a paddy field or a wetland in respect of a building that was constructed under a valid contract. planning permission issued before the entry into force of the amended provisions of the Kerala Rice Paddies and Wetlands Conservation Act 2008 (30.12.2017).
Judge N. Nagaresh observed that when an application for a certificate of occupancy concerning a building which was constructed in accordance with a valid building permit issued before 30.12.2017 is made, the authorities cannot take offense under Article 14 for refuse a certificate of occupancy to the building on the grounds that the land where the construction was made is a rice field or a wetland.
…this Court is firmly of the view that when a citizen submits an application for a certificate of occupancy concerning a building which was constructed in accordance with a valid building permit issued before 30.12.2017, the defendants cannot take umbrage in under section 14 to deny the certificate of occupancy to the building on the grounds that the land where the construction is made is a paddy field or a wetland.
A multi-storey residential building was built based on a building permit issued by the municipality in November 2011. The period of the building permit was extended from time to time and it was valid until October 2020. It is submitted by the petitioner that the construction was completed and an application for a certificate of occupancy has been submitted; however, the company’s authorities refused to issue the certificate. Petitions are preferred by the real estate developer, who has built a multi-storey residential apartment complex and the buyer of an apartment in said building.
Therefore, the petitioners in the petitions in brief requested the court to order Tripunithura Municipality to issue a certificate of occupancy to the petitioners under Rule 20(3) of the Kerala Municipal Building Rules, 2019 .
Counsel for the applicants, Lawyers Sreelal N. Warrier and R. Lakshmi Narayan, argued that the certificate of occupancy is refused to the building on the grounds that the land on which the building is built is a wetland.
The permanent lawyer appearing for the Municipality of Tripunithura Lawyer CV Manuvilasan argued that the land on which the building is erected is certainly a wetland, even according to the respondents. Also, the fact that the municipality issued a building permit earlier cannot be a reason to issue a certificate of occupancy at this stage, after the enactment of the Rice Fields and Wetlands Conservation Act 2008. of Kerala and therefore the municipal authorities are therefore amply justified in refusing to issue an occupancy certificate.
The lawyer representing the petitioner, relying heavily on the decision of the Kerala High Court in the Leela Santa case, in which the Court had ruled that where building permits were issued before 30.12.2017, the local body will be prevented from raising objections to the granting of the Certificate of Completion, Certificate of Occupancy or the granting of a permit for further construction on the grounds that the property in question continued to be described as ‘ Nilam/Paddy land’ in BTR, argued that the defendants were not justified in denying the certificate of occupancy to the claimants.
The permanent lawyer argued that this decision is not applicable to the petitioner’s case because it is an established proposition of law that there can be no question of estoppel against a statutory provision. Relying on a decision of the Apex Court, the permanent counsel for the municipality argued that even if this Court remanded the matter to the clerk for reconsideration, the clerk of the municipality would be bound by the provisions contained in article 14. from the Kerala Conservation of Paddy. Lands and Wetlands Act, 2008.
The Court observed that it is evident that the planning permission was issued to the applicants prior to the introduction of Section 27A in the Kerala Rice Paddies and Wetlands Conservation Act 2008 and that the application for the certificate of occupancy was filed while the building permit was still valid. .
The Court relied on the Leela Santa decision and rejected the argument raised by the respondents and observed that this judgment would fully apply in the applicant’s case.
… that in cases where the property in question was converted before the 2008 law and the building permit was 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 precluded from raising objections to the granting of a certificate of completion, certificate of occupancy or to the granting of a permit for additional construction on the grounds that the property in question continued to exist. be described as ‘nilam/paddy land’ in the BTR.
The government of Kerala had amended the Rice Paddies and Wetlands Conservation Act 2008 by introducing Section 27A, which allowed unnotified land use applications for other purposes. The government issued a circular in which a deadline was set for applications for permissions for non-notified land users for other purposes. However, since the building permit was granted before the introduction of the amendment, the petitioners benefit from the government circular.
With regard to the Respondent’s contention that the judgment was given without noting the exact scope of Section 14 of the Kerala Paddy Fields and Wetlands Conservation Act 2008, the Court observed that it is apparent from Section 14 of the Act that the restriction extended by the provision relates to the granting of any license or permit under the Kerala Municipality Act 1994. What is requested by the petitioners in the Petitions in Brief is not a license or permit. In fact, the petitioners have already received planning permission for the construction of the building. The building was built in strict compliance with said Building Permit. What is requested 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 certificate of occupancy will not authorize the applicants to make constructions.
Thus, the Court observed that the certificate of occupancy cannot be rejected on the grounds that the land where the construction is made is a rice field or a wetland when the building has been constructed in accordance with a valid building permit issued before 30.12 .2017.
Thus, the Court ruled on the written petitions by concluding that the petitioners are entitled to the remedy sought.
Case Title: Usha Rajan v. Municipality of Tripunithura & Ors. and S. Umesh Shenoy v. Municipality of Tripunithura & Ors.
Citation: 2022 LiveLaw(Ker) 461
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