Occupancy Certificate cannot be denied if building permit was granted prior to amendment of Paddy Land Act: Kerala High Court

The Kerala High Court recently held that an occupancy certificate for a building cannot be denied on the ground that the land on which the building was constructed is a wetland or paddy land provided the building permit was obtained prior to the 2017 amendment to the Kerala Conservation of Paddy Land and Wetland Act (Act) [Usha Rajan v Tripunithura Municipality & Ors and S Umesh Shenoy v Tripunithura Municipality & Ors.].Justice N Nagaresh held that when an application is made for an occupancy certificate for a building constructed according to a building permit issued prior to the coming into force of the Act on December 30, 2017, the authorities cannot rely on Section 14 of the Act to reject the same.“... 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,” the judgment stated..The Court was considering two petitions challenging the rejection of request for occupancy certificate by the corporation authorities. The case of the petitioners was that the residential building in question was constructed 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 28 October 2020.However, when the construction was complete, the Corporation authorities did not issue an occupancy certificate to the petitioners, supposedly for the reason that the building was constructed on a wetland. As per Section 14 of the Act, the corporation cannot issue an occupancy certificate in respect of a building constructed on land which is paddy land/wetland.This prompted them to approach the High Court seeking directions to the Tripunithura Municipality to issue an occupancy certificate in the prescribed format in compliance with Rule 20(3) of the Kerala Municipality Building Rules, 2019.The petitioners relied on the judgment in Leela Santu & Anr. v. Secretary, Kothamangalam Municipality & Ors in which it was held that when building permits were issued prior to December 30, 2017, the local body will be estopped from raising objections for grant of completion certificate, occupancy certificate or permit for additional construction on the ground that the subject property continued to be described as Nilam/ paddy land..Standing counsel of the Tripunithura Municipality contested the writ petition and submitted that the land where the building was constructed is categorised as wetland.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 Act, it was contended. The Municipal Authorities are, therefore, amply justified in refusing to issue Occupancy Certificate, it was submitted.It was also argued that Leena Santu was delivered without noting the exact amplitude of Section 14 of the Act..The Court noted that in the judgement of Leela Santu, it was held that it was illegal on the part of the respondent local bodies to reject the occupancy certificate as they themselves had granted building permits to the respective applicants concerned without raising any objection regarding the nature of the land and the building permits had been secured much prior to the cut-off date of December 30, 2017.The Court also observed that Section 14 of the Act is for the grant of any license or permit under the Kerala Municipality Act, 1994 and not occupancy certificate.“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,” it was held.Since the petitioners were already issued a building permit and the building was constructed strictly according to the same, the occupancy certificate will not authorise the petitioners to make any construction, the Court noted.Therefore, the Court held that the petitioners are entitled to the relief sought and directed the respondent municipality to issue an occupancy certificate.The petitioners were represented by advocates Sreelal N Warrier, Biju Mathew, Shan V Shine, R Lakshmi Narayan, R Ranjanie and Nevi Zacharia Mathew.The respondents were represented by advocates CV Manuvilsan, P Benjamin Paul and A Arunkumar..[Read Order]