Kerala High Court
Janakamma vs The Eloor Municipality on 4 June, 2020
Author: Alexander Thomas
Bench: Alexander Thomas
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS
THURSDAY, THE 04TH DAY OF JUNE 2020 / 14TH JYAISHTA, 1942
WP(C).No.10811 OF 2020(B)
PETITIONERS:
1 JANAKAMMA,
AGED 55 YEARS
W/O. N.D.SURESH KUMAR, SREELAKSHMI HOUSE,
KUTTIKATTUKARA, UDHYOGAMANDAL P.O., PIN -683 501.
2 JAYAMMA @ JAYA,
AGED 49 YEARS
W/O. K.S ANIL KUMAR, SREELAKSHMI HOUSE,
KUTTIKATTUKARA, UDHYOGAMANDAL P.O., PIN -683 501.
BY ADVS.
SRI.RINNY STEPHEN CHAMAPARAMPIL
SMT.ASHA ELIZABETH MATHEW
RESPONDENTS:
1 THE ELOOR MUNICIPALITY,
REP BY ITS SECRETARY, UDHYOGAMANDAL P.O.,
KALAMASHERRY, ERNAKULAM DISTRICT-683 501.
2 THE SECRETARY
THE ELOOR MUNICIPALITY, UDHYOGAMANDAL P.O.,
KALAMASHERRY, ERNAKULAM DISTRICT-683 501.
3 ADDL. R3. THE THAHASILDAR (LAND RECORDS),
TALUK OFFICE, PARAVOOR TALUK, MAIN ROAD
NORTH PARAVUR P.O, 683 513
4 ADDL. R4. THE VILLAGE OFFICER,
VILLAGE OFFICE,
KADUNGALLOOR
MUPPATHADAM P.O, KOCHI
ADDITIONAL R3 AND R4 ARE IMPLEADED AS PER ORDER DATED
04.06.2020 IN I.A.NO.1 OF 2020
SRI.K.S.ARUN KUMAR,SC, ELOOR MUNICIPALITY
R3 & R4 BY SRI.K.J.MANU RAJ, GOVT.PLEADER,
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
04.06.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
2
WP(C).No.10811 OF 2020(B)
ALEXANDER THOMAS, J.
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W.P.(C) No.10811 of 2020
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Dated this the 4th day of June, 2020
JUDGMENT
The case set up in this writ petition (c) is as follows:-
The petitioners are aggrieved by the refusal from the part of the respondents in issuing Occupancy Certificate in respect of the reconstruction of a very old building in the petitioner's land by insisting for an order reclassifying the land as Purayidam in revenue records. The petitioners are the title holders of 28.72 Ares of land in Survey Nos.16/5A4, 16/5-B2, 16/5A1, 16/5B1, 16/5A1, & 16/5-3 of Kadungallur Village. As on the date of coming into force of the Paddy Land Act, it was lying as Purayidam wherein there are very old buildings constructed decades back wherein Eloor Tourist Home is functioning. As early in the year 1962, there was a building in the property. Ext.P4 Judgment is W.P.(C) No.35137/2017 gives a detailed description of the existing old buildings in the petitioner's land which was rendered in connection with the change of ownership in the records consequent to death of the petitioner's father. The 3 WP(C).No.10811 OF 2020(B) Municipality was insisting for a KLU order for issuing building permit for reconstruction of one of the old buildings in the petitioner's land numbered as building No.11/25 (Old No.V/902) covered by Ext.P5 Tax Receipt. Therefore, an application dated 03.10.2017 was submitted under Clause 6(2) of the KLU order, seeking consideration of the KLU application, the petitioners filed W.P.(C) No.34577/2017 which was disposed of by Ext.P6 judgment directing consideration of the KLU application and ordered that once permission is granted under the KLU, the petitioners shall be issued building permits or assigned building numbers, as the case may be, by the local authorities concerned. Subsequently, the RDO issued Ext.P7 granting permission under Clause 6(2) of the KLU Order, but imposing conditions under under the Paddy Land Amendment Act to pay the prescribed amount the said conditions were challenged in W.P.(C) No.13473/2018 in which Ext.P8 interim order was passed directing the respondents to consider the application for building permit pursuant to which Ext.P9 Building Permit was issued subject to the final outcome of W.P.(C) No.13473/2018. Subsequently, by Ext.P13 judgment in W.P.(C) No.13473/2018, this Court quashed the impugned conditions in Ext.P7 KLU order. Thereafter the petitioners had completed the reconstruction of the building and submitted Ext.P12 Completion 4 WP(C).No.10811 OF 2020(B) Plan. But, the respondents are not issuing Occupancy Certificate and required the petitioners by Ext.P10 to produce order for reclassification of land as purayidam. Reclassification order is not essential for issuing Occupancy Certificate as it is for fiscal purpose for payment of land tax. It is in the light of these averments and contentions, that the petitioners have filed this Writ Petition (c) seeking the following prayers:
"i) Issue a writ of mandamus, or any other appropriate writ, order or direction commanding the respondents to issue Occupancy Certificate in respect of the building earlier numbered as 11/25 (V/902) and reconstructed by the petitioners in the land covered by Ext.P7 KLU Order and renumber the building expeditiously based on Ext.P7 KLU Order without insisting for reclassification order or order for change of nature of land in the revenue records.
ii) Issue an appropriate writ, order or direction declaring that the respondents are bound to issue Occupancy Certificate in respect of the building earlier numbered as 11/25 (V/902) reconstructed by the petitioners in the land covered by Ext.P7 KLU order and renumber the building based on Ext.P7 KLU Order without insisting for reclassification order or order for change of nature of land in the revenue records.
iii) Issue a writ of certiorari, or any other appropriate writ, order or direction calling for all the records leading to Ext.P10 Notice and quash the original of the same to the extent to which it requires the petitioners to produce Conversion Order as a precondition for issuing Occupancy Certificate.5
WP(C).No.10811 OF 2020(B)
iv) Pass such other appropriate writs, orders or direction as this Hon'ble Court may deem just and proper to issue in the circumstances of the case. "
2. Heard Sri. Rinny Stephen Chamaparampil, learned counsel appearing for the petitioners, Sri. K.S.Arun Kumar, learned counsel appearing for Eloor Municipality and Sri. K.J.Manu Raj, learned Government Pleader appearing for respondent Nos. 3 and 4.
3. In the instant case, it is beyond any dispute that the subject property has been converted as garden land or purayidam long prior to 12.08.2008 (the date of coming into force of the Kerala Conservation of Paddy Land and Wetland Act, 2008). As a matter of fact, the predecessor of the petitioners had constructed a building in the subject property, sometime in the year 1962, which was duly numbered by the local body concerned. The petitioners have demolished the old building and have made a new construction in its place after obtaining building permit from respondent Nos. 1 and 2. The complaint of the petitioners is that now the 2nd respondent Secretary of the Eloor Municipality is taking the stand that, Municipal Authorities can issue the Completion Certificate and the Occupancy Certificate to the construction completed in terms of the building permit already granted to the petitioners, only if the petitioners 6 WP(C).No.10811 OF 2020(B) produce the requisite proceedings of the 3rd respondent Tahsildar regarding reassessment of the subject property in terms of Section 6A of the Kerala Land Tax Act, so as to secure additional entries in the BTR to show the change in nature of the land as garden land or purayidam etc.
4. In this case it is indisputable that petitioners have infact filed the requisite application under Rule 6(2) of the Kerala Land Utilisation Order (KLU Order) 1967 well before the cut off date of 30.12.2017 (date of coming into force of the amended provisions of the 2008 Act which has introduced Section 27(A) thereof). The fact that petitioners have filed the said application under Rule 6(2) of the KLU Order before the said cut off date of 30.12.2017, is all the more evident and manifest from the concluded judgements of this Court as per Exts. P4, P6, P13 and P14. As a matter of fact petitioners have also secured the necessary permission for change of nature of land under Rule 6(2) of the KLU order, 1967 as issued by the RDO/Sub Collector Fort Kochi, as evident from Ext.P7 order dated 09.04.2018. The restrictive conditions imposed therein that petitioners would have to pay the higher amounts in terms of the amended provisions of the 2008 Act has been quashed by this Court as per Ext.P13 judgment as illegal and unenforcible, as the petitioners have filed the requisite Rule 6(2) 7 WP(C).No.10811 OF 2020(B) application before the cut off date of 30.12.2017. Thereafter, the 3 rd respondent Tahsildar rejected the plea of the petitioners for orders of reassessment of the subject property under Section 6A of the Kerala Land Tax Act for securing additional entries in the BTR to show the change in nature of the land as garden land or purayidam and this Court as per Ext.P14 judgement dated 24.02.2020 in W.P.(C) 5068/2020 has categorically and specifically held that the said stand of the 3rd respondent Tahsildar is illegal and ulta vires and goes against the dictum well settled by Division Bench judgements of this Court as in LLMC, Kizhakkambalam Grama Panchayath v. Mariumma & another [2015 (3) KHC 19 (DB)], Tahsildar, Thodupuzha Taluk and another v.Renjith George [2020 (1) KHC 865 (DB)] etc. This Court as per Ext.P14 judgement has directed the 3 rd respondent Tahsildar to pass such orders of reassessment under Section 6A of the Kerala Land Tax Act in respect of subject property so as to secure additional entries in the BTR to show the change in the nature of land as garden land or purayidam instead of the earlier BTR entries as paddy land or Nilam within three weeks from the date of receipt of a certified copy of the judgement and without making the petitioners to pay any higher amounts as conceived as in the amended provisions of the 2008 Act and the amended Rules framed thereunder. 8
WP(C).No.10811 OF 2020(B) It appears that the 3rd respondent Tahsildar has not so far passed formal orders in that regard complying the directions in Ext.P14 judgement rendered on 24.02.2020.
5. This Court, in Mahin vs. Keezhmadu Grama Panchayath & another [2020 (2) KLT 478] dealt with a case, where, though subject property was classified as Nilam as per BTR records, the same was converted much prior to coming into force of the 2008 Act, as garden land or purayidam and building permit was also given by the Local Authority to make construction thereon and building was constructed in the subject property after obtaining building permit issued by the Grama Panchayath concerned and after completion of the construction the Panchayath refused to issue the Occupancy Certificate and the Completion Certificate on the ground that, same could be considered only upon the property holder producing orders for reclassification of the land as garden land or purayidam from the Revenue Authorities concerned. This Court held therein that, after having granted the building permit and after having permitted the property holder to make the construction, it will not be right and proper for the local body concerned to refuse orders of regularisation of the construction as well as grant of Occupancy Certificate without any objection regarding the nature of the land etc. 9 WP(C).No.10811 OF 2020(B) The said judgement of this Court in Mahin's case (supra) has been followed by this Court in a series of other cases as in the judgement dated 26.02.2020 in W.P.(C) 5520/2020, 16.03.2020 in W.P.(C) No.7007/2020 etc. Moreover, in this case the formal orders of permission under Rule 6(2) of the KLU order has also been duly issued in respect of subject property by the RDO concerned as evident from Ext.P7. The delay on the part of the 3 rd respondent to comply with the directions in the already concluded judgements as per Ext.P14, cannot be a ground for the 2 nd respondent Secretary of the Municipality to further prolong the process of issuance of Completion Certificate and Occupancy certificate.
6. Accordingly, the impugned Ext.P10 rejection order dated 12.07.2019 issued by the 2nd respondent Municipality will stand set aside and quashed. The application of the petitioners for grant of Completion Certificate and Occupancy Certificate will stand remitted to the 2nd respondent, Secretary of the Eloor Municipality for consideration and decision afresh .
7. Petitioners will produce attested copy of Ext.P7 order dated 09.04.2018 issued by the RDO, Fort Kochi granting necessary permission under Rule 6(2) of the KLU Order, a copy of Ext.P14 judgement as well as a certified copy of this judgement before the 2 nd 10 WP(C).No.10811 OF 2020(B) respondent Secretary. Thereupon the 2nd respondent will take appropriate decision and pass orders on the plea of the petitioners for grant of Completion Certificate and Occupancy Certificate etc. without any further delay, at any rate within two weeks from the date of production of the certified copy of this judgement and it is made clear that 2nd respondent cannot refuse the said plea for grant of Occupancy Certificate etc. on the ground that the petitioners will have to necessarily produce the common orders from the 3 rd respondent Tahsildar regarding the reassessment of the subject property showing the changed nature of land etc.
8. Further it is ordered that 3rd respondent Tahsildar will immediately pass orders in compliance with the guidelines issued by this Court in Ext.P14 judgement dated 24.02.2020 in W.P.(C) No.5068/2020 without any further delay communicate a copy of the proceedings so issued by him to the learned Government Pleader. The 3rd respondent will thereafter file a report before this Court in this W.P.(C) through the learned Government Pleader about the factum of compliance of the directions issued by this Court in Ext.P14 judgement, within three weeks from today, immediately on receipt of of the said report, the Registry will places at report on the judicial side of this Court in respect of the proceedings.
11WP(C).No.10811 OF 2020(B)
9. Petitioners will produce certified copy of this judgment as well as copies of the memorandum of W.P.(C) along with all the exhibits before the 2nd and 3rd respondents for necessary information.
With these observations and directions the above Writ Petition (Civil) will stand finally disposed of.
Sd/-
ALEXANDER THOMAS JUDGE hmh 12 WP(C).No.10811 OF 2020(B) APPENDIX PETITIONER'S/S EXHIBITS:
EXHIBIT P1 A TRUE COPY OF SALE DEED DATED
07/12/1962 OF SRO,ALUVA
EXHIBIT P2 A TRUE COPY OF THE DEMAND NOTICE DATED
17.08.1990 ISSUED TO THE PETITIONER'S
DATHER
EXHIBIT P3 A TRUE COPY OF THE BUILDING TAX RECEIPT
DATED 20/11/1996 IN THE NAME OF THE
PETITIONER'S FATHER
EXHIBIT P4 A TRUE COPY OF THE JUDGMENT DATED
17/11/2017 OF THIS HON'BLE COURT IN WPC
NO.35137/2017
EXHIBIT P5 A TRUE COPY OF THE BUILDING TAX RECEIPT
DATED 05.03.2019 IN RESPECT OF BUILDING
NO.11/25 (OLD NO.V /902)
EXHIBIT P6 A TRUE COPY OF THE JUDGMENT DATED
31.10/2017 OF THIS HON'BLE COURT IN WPC
NO.34577/2017
EXHIBIT P7 A TRUE COPY OF THE ORDER DATED
09.04.2018 ISSUED BY THE RDO FORT KOCHI
EXHIBIT P8 A TRUE COPY OF THE INTERIM ORDER DATED
31.05.2018 OF THIS HON'BLE COURT IN WPC
NO.13473/2018
EXHIBIT P9 A TRUE COPY OF THE BUILDING PERMIT DATED
30/07/2018 ISSUED BY THE 1ST RESPONDENT
EXHIBIT P10 A TRUE COPY OF THE NOTICE DATED
12/07/2019 ISSUED BY THE 2ND RESPONDENT
EXHIBIT P11 A TRUE COPY OF CERTIFICATE OF APPROVAL
DATED 30/12/2019 ISSUED BY THE DISTRICT
FIRE OFFICER
EXHIBIT P12 A TRUE COPY OF THE RESUBMITTED
COMPLETION PLAN SUBMITTED BY THE
PETITIONERS BEFORE THE RESPONDENTS
13
WP(C).No.10811 OF 2020(B)
EXHIBIT P13 A TRUE COPY OF THE JUDGMENT DATED
16.10.2019 IN W.P(C) NO.13473/2019 OF
THIS HON'BLE COURT
EXHIBIT P14 A TRUE COPY OF THE JUDGMENT DATED
24.02.2020 IN W.P(C) NO.5068/2020 OF
THIS HON'BLE COURT
RESPONDENT'S/S EXHIBITS: NIL