GEETA S ADVANI v. THE THODUPUZHA MUNICIPALITY

8. I have heard Sri. Alexander Joseph, the learned counsel for the petitioner, Sri. Unnikrishnan V. Alappat, the learned Standing Counsel for the respondent Municipality and Smt. Amminikutty, the learned Senior Government Pleader.

9. Originally, the petitioner had intended to construct a hospital complex and a service block within the same compound. The hospital complex was constructed upto four floors by 2021 and it was granted a partial occupancy certificate including the service block. The hospital has already started functioning. Later, by 2022, the remaining floors were constructed, and additional parking was provided in an off-street area having an extent of 32.38 ares. Though objections were raised regarding the off-street parking provided for W.P.(C) No.36206/23 -:8:- the hospital block, based on the directions issued in W.P.(C) No.21837 of 2023, the issue was resolved. This Court held that the petitioner is free to provide car parking in an off-street area as per the proviso to Rule 34 of the KMBR. This Court also held that the two blocks of buildings came within the same occupancy, i.e., hospital/medical and hence car parking provided in an off-street area is permissible. On the above basis, the Secretary of the Municipality was directed to reconsider the issue.

10. However, when this Court directed reconsideration of the application on the basis of proviso to Rule 34(2) of KMBR, the Secretary of the Municipality has by Ext.P20 rejected the grant of occupancy certificate once again by Ext.P14, Ext.P16 and Ext.P20 stating that though the parking provided in the off-street will be reckoned by the Municipality for calculating the parking for the hospital, a change of occupancy of the said parking area from commercial occupancy to hospital parking occupancy must be obtained. There were two permits issued to the petitioner; one for the hospital buildings as BA No.682/10-11 and another for a parking building as BA No.113/2021. The area over which the latter permit was issued for constructing a parking building is now intended by the W.P.(C) No.36206/23 -:9:- petitioner to be used as open parking and not as a building for parking.

11. Merely because the petitioner has obtained a permit for constructing a building for parking, she is not bound by the said permit, as long as she is not constructing a building. If the need for parking for the hospital occupancy can be satisfied by the open parking to be provided in the area over which a building permit exists, there is nothing in law that compels a person to construct a building. The principle can be viewed from another perspective. If a building is not constructed after obtaining a permit, after three years, the permit lapses. The choice is then with the property owner to either renew the permit, apply for a new permit or even construct on the property or not. The decision to construct is thus purely that of the owner of the property. However, if, in case, a building is constructed on the property within the validity period of the permit, then the Secretary of the Local Authority can insist on complying with the existing permit. Thus, providing an open car parking in the 32.38 Ares of land as off- street parking for the hospital building of the petitioner, without constructing a building on it as per the permit already issued, is not opposed to law. W.P.(C) No.36206/23 -:10:-

12. As far as the change of occupancy from a building constructed for parking and a building being utilised for a hospital is concerned, the respondents have not been able to show any provision of law which requires the layout approval to be revisited. The Chief Town Planner has already granted the layout approval for the construction of a building for parking. Occupancy of the building remains either as a Hospital or as a parking lot for the Hospital. Therefore there is no change of occupancy. Even if there is a change of occupancy it does not require a further concurrence from the Chief Town Planner. Rule 4(3) of KMBR refers to the change of occupancy for a building and not of the land. Further, the approval of the Chief Town Planner under Rule 5(4) is required only if there is a serious deviation. It is not evident from Ext.P20 that the deviation requires fresh approval. As far as the parking building is concerned, the occupancy continues to remain as a parking area, and the only variation is that no building is going to be constructed on it. Therefore, it cannot be said that there is any serious deviation of the occupancy requiring a fresh approval of the layout.

13. In view of the above discussions, it has to be held that there is no requirement for cancellation of building permit BA W.P.(C) No.36206/23 -:11:- No.113/2021 or to obtain concurrence from the Town Planning Department for the alleged deviation.

14. Hence, Ext.P16 and Ext.P20 orders issued by the second respondent are set aside, and the said respondent is directed to reconsider the application for occupancy certificate submitted by the petitioner as per Ext.P10 completion plan and pass appropriate orders thereon within thirty days from the date of receipt of a copy of this judgment. The writ petition is allowed as above. Sd/- BECHU KURIAN THOMAS JUDGE W.P.(C) No.36206/23 -:12:- APPENDIX OF WP(C) 36206/2023 PETITIONER'S/S' EXHIBITS EXHIBIT P1 EXHIBIT P2 EXHIBIT P3 EXHIBIT P4 EXHIBIT P5 EXHIBIT P6 EXHIBIT P7 EXHIBIT P8 EXHIBIT P9 TRUE COPY OF THE RESOLUTION DATED 01/09/2021 PASSED BY THE DIRECTOR BOARD APPOINTING THE PETITIONER AS SIGNATORY OF THE SMITA MEMORIAL HOSPITAL AND RESEARCH CENTRE THODUPUZHA. TRUE COPY OF THE ORDER NO. D4-4163/2011 DATED 06.06.2011 OF THE 3RD RESPONDENT. TRUE COPY OF THE BUILDING PERMIT, BA NO. 682/10-11 DATED 06/12/2012 ISSUED BY THE 1ST AND 2ND RESPONDENTS TO THE PETITIONER. TRUE COPY OF THE BUILDING PERMIT, BA 682/10-11 DATED 06/12/2013 OF THE 1ST AND 2ND RESPONDENTS. TRUE COPY OF THE SITE APPROVAL AND BUILDING PERMIT, BA NO 113/20-21 DATED 29/09/2020 ISSUED BY THE ASSISTANT EXECUTIVE ENGINEER OF THE 1ST RESPONDENT TRUE COPY OF THE NO OBJECTION CERTIFICATE NO. F2-7188/20-21 DATED 26/07/2021 ISSUED BY THE DIRECTOR, FIRE AND RESCUE SERVICES, GOVERNMENT OF KERALA. TRUE COPY OF THE CONSENT TO OPERATE DATED 16/06/2021 ISSUED BY THE KERALA STATE POLLUTION CONTROL BOARD. TRUE COPY OF THE OCCUPANCY CERTIFICATE / USE CERTIFICATE DATED 30/08/2021 ISSUED BY 1ST AND 2ND RESPONDENTS. TRUE COPY OF THE APPLICATION DATED 31/01/2022 OF THE PETITIONER TO THE 2ND RESPONDENT EXHIBIT P10 TRUE COPY OF THE COMPLETION PLAN W.P.(C) No.36206/23 -:13:- EXHIBIT P11 EXHIBIT P12 EXHIBIT P13 EXHIBIT P14 EXHIBIT P15 EXHIBIT P16 EXHIBIT P17 EXHIBIT P18 EXHIBIT P19 EXHIBIT P20 EXHIBIT P21 TRUE COPY OF THE NOTICE DATED 26/04/2023 OF THE 2ND RESPONDENT TO THE PETITIONER. TRUE COPY OF THE LAWYER NOTICE DATED 08/06/2023 OF THE PETITIONER TO THE CHAIRMAN AND SECRETARY OF THE 1ST RESPONDENT . TRUE COPY OF THE JUDGMENT DATED 25/07/2023 IN WP(C) NO.21837/2023 OF THIS HON'BLE COURT TRUE COPY OF THE ORDER NO PW2/BA/682/10- 11 DATED 19/08/2023 OF THE 1ST RESPONDENT TO THE PETITIONER. TRUE COPY OF THE LAWYER NOTICE DATED 19/09/2023 ISSUED BY THE PETITIONER TO THE RESPONDENTS 1, 2 AND 3. TRUE COPY OF THE ORDER NO PW2/BA/682/10- 11 DATED 21/09/2023 OF THE 1ST RESPONDENT. TRUE COPY OF THE APPLICATION DATED 16/10/2023 OF THE PETITIONER TO THE 1ST AND 2ND RESPONDENTS TRUE COPY OF THE ADDITIONAL PLAN ATTACHED TO EXHIBIT P20 APPLICATION. TRUE COPY OF THE LAWYER NOTICE DATED 19/10/2023 OF THE PETITIONER TO THE RESPONDENTS TRUE COPY OF THE NOTICE NO PW2/BA/682/10-11 DATED 26/10/2023 OF THE 2ND RESPONDENT TO THE PETITIONER TRUE COPY OF THE APPLICATION DATED 28.10.2023 OF THE PETITIONER TO THE 2ND RESPONDENT