Can't Deny Occupancy Certificate For Constructions Granted Building Permit Prior To S.27A Kerala Conservation Of Paddy & Wet Land Act: High Court

The Kerala High Court recently, while disposing of two Writ Petitions, held that an Occupancy Certificate cannot be denied on the ground that the land where the building is constructed is a paddy land or wetland in respect of a building which was constructed as per a valid building permit issued prior to the coming into force of the amended provisions of the Kerala Conservation of Paddy Land and Wetland 2008 Act (30.12.2017).  

Justice N. Nagaresh observed that when an application for an Occupancy Certificate in respect of a building which was constructed as per a valid building permit issued prior to 30.12.2017 is made, the Authorities cannot take umbrage under Section 14 to deny an Occupancy Certificate to the building on the ground that the land where the construction was made is a paddy land or wetland.

...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.

A multi-storeyed residential building was constructed on the basis of 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 up to October 2020. It is submitted by the petitioner that the construction was completed, and an application for an Occupancy Certificate was submitted; however, the Corporation Authorities refused to issue the Certificate. The Petitions are preferred by the Property Developer, who constructed a multi-storeyed residential apartment complex and the purchaser of an apartment unit in the said building.

Therefore, the Petitioners in the Writ Petitions sought direction from the Court to the Tripunithura Municipality to issue an Occupancy Certificate to the petitioners in compliance with Rule 20(3) of Kerala Municipality Building Rules, 2019. 

The Counsel appearing for the petitioners, Advocates Sreelal N. Warrier and R. Lakshmi Narayan, contended that the Occupancy Certificate is being denied to the building for the reason that the land where the building is constructed is a wetland. 

The Standing Counsel appearing for Tripunithura Municipality Advocate C.V. Manuvilasan contended that the land where the building is constructed is admittedly a wetland, even according to the respondents. Further contended that 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 and therefore, the Municipal Authorities are therefore amply justified in refusing to issue Occupancy Certificate. 

Counsel appearing for the petitioner, heavily relying on the Kerala High Court decision in the Leela Santa Case, in which the Court had held that when Building Permits were issued prior to 30.12.2017, 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 the subject property continued to be described as 'Nilam/Paddy land' in BTR, contended that respondents are not justified in refusing Occupancy Certificate to the petitioners. 

The Standing Counsel submitted that this decision is not applicable to the petitioner's case as it is a settled proposition of law that there cannot be a question of estoppel against a statutory provision. Relying on an Apex Court decision, the Standing Counsel for the Municipality contended that 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 Court observed that it is evident that the Building Permit was issued to the petitioners prior to the introduction of Section 27A in the Kerala Conservation of Paddy Land and Wetland Act, 2008 and the application for Occupancy Certificate was filed while the Building Permit was still valid. 

The Court relied on the Leela Santa decision and rejected the contention raised by the respondents and observed that this judgment would squarely apply in the petitioner's case. 

...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.

The Government of Kerala had amended the Conservation of Paddy Land and Wetland Act, 2008, by introducing Section 27A, whereby applications for the user of unnotified land for other purposes were permitted. The Government issued a Circular whereby a cut-off date was fixed for applications seeking permissions for users of unnotified lands for other purposes. However, since the Building Permit was granted prior to the introduction of the amendment, the petitioners to the benefit of the Government Circular. 

Regarding the contention of the respondent that judgment was delivered without noting the exact amplitude of Section 14 of the Kerala Conservation of Paddy Land and Wetland Act, 2008, the Court observed that 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 by the petitioners in the writ petitions is not a licence or permit. In fact, the petitioners were already issued a Building Permit for the construction of the building. The building was constructed strictly adhering to the said Building Permit. What is sought 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.

Thereby the Court observed that Occupancy Certificate cannot be rejected on the ground that the land where the construction is made is a paddy land or wetland when the building was constructed as per a valid building permit issued prior to 30.12.2017. 

Thereby, the Court disposed of the Writ Petitions holding that the petitioners are entitled to the relief sought. 

Case Title: Usha Rajan v. Tripunithura Municipality & Ors. and S. Umesh Shenoy v. Tripunithura Municipality & Ors.

Citation: 2022 LiveLaw(Ker) 458

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