Kerala High Court
Ranjitha J vs Kothamangalam Municipality on 18 March, 2020
Author: Alexander Thomas
Bench: Alexander Thomas
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS
WEDNESDAY, THE 18TH DAY OF MARCH 2020 / 28TH PHALGUNA, 1941
WP(C).No.7340 OF 2020(N)
PETITIONER:
1 RANJITHA J.
W/O BINU.D NAIR, AGED 39 YEARS,
'SARASWATHY VILAS', THRIKKARIYOOR P.O.,
KOTHAMANGALAM, ERNAKULAM DISTRICT, PIN-686 692.
2 BINU D NAIR,
S/O DIVAKARAN NAIR, AGED 45 YEARS,
'SARASWATHY VILAS', THRIKKARIYOOR P.O.,
KOTHAMANGALAM, ERNAKULAM DISTRICT, PIN-686 692.
3 BEENA RADHAKRISHANAN,
W/O RADHAKRISHNAN, AGED 52 YEARS,
INCHANI PUTHENPURA HOUSE, KUTHUKUZHI P.O.,
KOTHAMANGALAM
BY ADV. SRI.C.DILIP
RESPONDENTS:
1 KOTHAMANGALAM MUNICIPALITY
KOTHAMANGALAM, ERNAKULAM DISTRICT, PIN-686 691,
REPRESENTED BY ITS SECRETARY.
2 THE SECRETARY,
KOTHAMANGALAM MUNICIPALITY, KOTHAMANGALAM,
ERNAKULAM DISTRICT, PIN-686 691
BY ADVS.
SRI.SAIGI JACOB PALATTY, SR.GOVT.PLEADER
SRI.PEEYUS A. KOTTAM, SC,
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
18.03.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C).No.7340 OF 2020(N) 2
ALEXANDER THOMAS, J.
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W.P.(C)No.7340 of 2020
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Dated this the 18th day of March, 2020
JUDGMENT
The case set up in this Writ Petition (Civil) is as follows:-
As per Exhibit PI petitioners 1 & 2 became joint owners of land where construction of a double storied building has been completed in 2018. They have purchased land along with the partly constructed building from 3rd petitioner. Exhibit P4 building permit issued in favour of the previous owner of 3rd petitioner has been renewed periodically by the subsequent purchasers and the construction has been completed well within the validity period of the permit. Petitioners I & 2 have submitted completion plan along with Exhibit P7 application for regularisation of additional construction of 27.01 sq mts. Exhibit P8 order received under Right to information Act declining regularisation is not legally sustainable and hence this writ petition is filed for various reliefs. Petitioners would contend that the restriction that construction of building having a plinth area of above 120 Sq. meter is not possible in paddy land or wetlands is not applicable in the instant case as the building permit was issued as early as in WP(C).No.7340 OF 2020(N) 3 the year 2012 and the subject property has not been included in the land Data Bank and that the subject property has been sub- merged as garden land/purayidom much prior to the coming into force of the Kerala Conservation of Paddy Land and Wetland Act, 2008.
2. It is in the light of the above factual averments and contentions that the petitioner has filed instant Writ Petition (Civil) with the following prayers:-
a) Call for the records of the case leading to Exhibit-P8 and quash the same by issuing a writ of certiorari or any other writ, order or direction.
b) Issue a writ of mandamus or any other writ, order or direction, directing respondent No.2 to re-consider Exhibit P7 application for regularisation and pass orders thereon, ignoring the stand taken in Exhibibt-P8 orders, within a time as may be specified by this Hon'ble Court.
c) Issue any other appropriate writ, order or direction which this Hon'ble court may deem fit to issue and the petitioner may pray from time to time."
3. Heard Sri.C. Dilip, learned counsel appearing for the petitioner and Sri. Peeyus A. Kottam, learned Standing Counsel for the respondents (Kothamangalam Municipality).
4. In the instant case, it is beyond any dispute that Ext.P4 building permit was issued by the respondent (Kothamangalam Municipality) as early as on 10.10.2012 to previous owner of the subject property and that the said building permit has been renewed periodically by the subsequent purchasers and WP(C).No.7340 OF 2020(N) 4 construction has been completed in the year 2018, well within the validity period of the building permit. Petitioners have now submitted the completion plan for the grant of occupancy certificate along with Exhibit-P7 application for regularisation of additional construction coming to an extent of 27.01 Sq. meters. The said request of the petitioner is now seen rejected by the respondent Municipality on the ground that the issue of regularisation is not permissible as the total plinth area of the construction exceeds the maximum limit of 120 Sq. meters, presumably, on account of the provisions contained in Section 27A(6) of the Kerala Conservation of Paddy Land and Wetland Act, 2008.
5. This Court, in the judgment dated 05.11.2018 (W.P.(C) No.18130/2017) in Mahin Vs. Keezhmadu Grama Panchayath & Another [2020(2) KLT 478] dealt with the case where the petitioners therein had constructed two residential buildings in the subject property after having applied and obtained building permit from the Local Grama Panchayath concerned in the year 2010. The construction of the first unit was completed and the respondent Panchayath had, thereafter, allotted building number to the said unit and as regard to the WP(C).No.7340 OF 2020(N) 5 second unit, after conducting inspection, when the petitioners preferred application for occupancy certificate for allotment of building number, the same was rejected by the respondent Grama Panchayath on the ground that the total plinth area of the building covered by building permit was 133.84 Sq. meters and that the construction has been made in the subject property which is shown as 'Nilam' as per the revenue records. It was contended by the petitioner therein that after the respondent Grama Panchayath had granted building permit and had thus permitted the construction, it was not open to the respondent Grama Panchayath, thereafter, to object the grant of occupancy certificate on the ground that the subject property is shown as 'Nilam' in the survey records, at that instance of time, after making the petitioners being given the building permit and after acting upon the said building permit in completing the construction, etc. As regards the other objections with regard to the violation of building permit, the petitioners therein contended that revised building plan would be remitted before the respondent Grama Panchayath for fresh consideration in the matter of utilisation of the construction in the second unit.
6. This Court noted the factual aspects that after granting WP(C).No.7340 OF 2020(N) 6 building permit originally in the year 2010, the respondent Grama Panchayath had even granted two renewals of the said building permit. Taking note of the rival submissions, this Court held that the objection based on the fact that the subject property, which has been converted, though was continued to be shown as 'Nilam' and noted that the subject property was converted prior to 2008 Act and construction was permitted by the respondent Grama Panchayath and that, therefore, the respondent Grama Panchayath cannot, at that distance of time, raised the contention that the nature of the land is still shown as 'Nilam' as per the revenue records. This Court noted that, indisputably, the land cannot be used for cultivation of paddy or food crop. Accordingly, this Court directed that the petitioners may submit application for renewal of the building permit along with the revised plan to support the construction already made in respect of the second unit and that on receipt of the said application the respondent Grama Panchayath was directed to consider the same in accordance with the provisions contained in the Kerala Panchayath Raj Act and the Building Rules, but without preference to any objections as to the nature of the land. The respondent Grama Panchayath was directed to pass orders in the WP(C).No.7340 OF 2020(N) 7 matter, within six weeks, etc. The above said judgment of this Court in Mahin's case (supra) has been followed by this Court in subsequent cases as in the judgment dated 26.02.2020 rendered by this Court in W.P.(C) No.5520 of 2020 and judgment dated 16.03.2020 in W.P.(C) No.8057 of 2020. In the instant case also, the building permit has been granted in favour of the party concerned by the respondent Grama Panchayath on 10.10.2012 as per Exhibit P4. The respondent Grama Panchayath has thus, permitted the party concerned to make the construction and subsequent renewals are also been given to the subsequent purchasers of the subject property. The party concerned has acted upon the stand of the respondent Grama Panchayath and on the basis of the said stand of the respondent Grama Panchayath in issuing Exhibit P4 building permit they have altered the position and has made construction. Therefore, at this point of time, the respondent Municipality cannot raise the objection that the occupancy certificate and regularisation of the building construction would be considered only if the plinth area of the building is within the limit of 120 Sq. meter presumably, in view of the provisions contained in Section 27 A (6) of the Kerala Conservation of Paddy Land and Wetland Act, 2008 as introduced WP(C).No.7340 OF 2020(N) 8 by the amendment made effective from 30.12.2017. In this case, Exhibit P4 building permit dated 10.10.2012 has been issued much prior to coming into force of the amended provisions of the 2008 Act, introduced in Section 27A thereof, which came into force on 30.10.2017. In the light of these aspects this Court is of the considered view that the prayers made by the petitioner in this writ petition could be substantially allowed in the light of the judgments already rendered by this Court in afore stated cases.
In that view of the matter it is ordered that the impugned decision of the respondent Kothamangalam Municipality rejecting the plea of the petitioner for occupancy certificate and for regularisation of the construction, as reflected in Exhibit P8 letter will stand quashed and rescinded. The plea made by the petitioner for grant of occupancy certificate as accompanied by completion certificate along with Exhibit-P7 application for regularisation of the construction will stand remitted to the 2 nd respondent Secretary of the Kothamangalam Municipality, who will consider the same, in accordance with the provisions contained in the Kerala Panchayath Raj Act, 1994, and the provisions of the Kerala Municipality Building Rules, 2019, as it stood at the time of the grant of Exhibit P4 building permit dated WP(C).No.7340 OF 2020(N) 9 10.10.2012 and then take appropriate decision in the matter, after affording reasonable opportunity of hearing to the petitioner, pass appropriate orders thereon, without much delay, preferably, within a period of six weeks from the date of receipt of a certified copy of this judgment.
With these observations and directions, the above Writ Petition (Civil) will stand finally disposed of.
Sd/-
ALEXANDER THOMAS, JUDGE Skk//17032020 WP(C).No.7340 OF 2020(N) 10 APPENDIX PETITIONER'S EXHIBITS:
EXHIBIT P1 TRUE PHOTOCOPY OF SALE DEED NO 1215/2018 DATED 22.3.2018 OF KOTHAMANGALAM SRO EXHIBIT P2 TRUE PHOTOCOPY OF SALE DEED NO 4344/2017 DATED 24.11.2017 OF SRO, KOTHAMANGALAM EXHIBIT P3 TRUE PHOTOCOPY OF POSSESSION CERTIFICATE DATED 8.2.2019 ISSUED BY THE VILLAGE OFFICER, KOTHAMANGALAM EXHIBIT P4 TRUE PHOTOCOPY OF BUILDING PERMIT DATED 10.10.12 ISSUED BY THE SECOND RESPONDENT IN FAVOUR OF THE PREVIOUS OWNER MR.RAJESH SOMASEKHARAN EXHIBIT P5 TRUE PHOTOCOPY OF ORDER OF SECOND RESPONDENT DATED 9.3.2018 TRANSFERRING THE BUILDING PERMIT IN FAVOUR OF THE 3RD PETITIONER EXHIBIT P6 TRUE PHOTOCOPY OF LETTER DATED 6.1.2020 ISSUED BY THE SECOND RESPONDENT SHOWING TRANSFER OF BUILDING PERMIT IN FAVOUR OF PETITIONERS 1 AND 2 EXHIBIT P7 TRUE PHOTOCOPY OF APPLICATION DATED 20.12.2018 SUBMITTED BY PETITIONERS 1 & 2 BEFORE THE SECOND RESPONDENT FOR THE REGULARIZATION OF THE CONSTRUCTION EXHIBIT P8 TRUE PHOTO COPY OF ORDER/LETTER DATED 8.11.2019 ISSUED BY THE PUBLIC INFORMATION OFFICE UNDER THE FIRST RESPONDENT RESPONDENTS' EXHIBITS: NIL