Kerala High Court
Mohanan K.V vs State Of Kerala on 22 April, 2022
Author: N.Nagaresh
Bench: N.Nagaresh
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE N.NAGARESH
FRIDAY, THE 22ND DAY OF APRIL 2022 / 2ND VAISAKHA, 1944
WP(C) NO. 9646 OF 2021
PETITIONER:
MOHANAN K.V.
AGED 56 YEARS
S/O KUNHIRAMAN, KOTTOLATH VALAPPIL HOUSE,
YOGSALA KANNAPURAM P.O.
KANNUR DISTRICT-670 301.
BY ADV BIJU.P.N.
RESPONDENTS:
1 STATE OF KERALA
REPRESENTED BY ITS SECRETARY, LOCAL SELF
GOVERNMENT DEPARTMENT, GOVERNMENT SECRETARIAT,
THIRUVANANTHAPURAM-690 001.
2 CHEMBILODE GRAMA PANCHAYAT,
REPRESENTED BY ITS SECRETARY, GRAMA PANCHAYAT
OFFICE, CHEMBILODE, MOWANCHERY POST,
KANNUR DISTRICT-670 613.
3 THE SECRETARY CHEMBILODE GRAMA PANCHAYAT,
GRAMA PANCHAYAT OFFICE, CHEMBILODE, MOWANCHERY
POST, KANNUR DISTRICT-670 613.
4 THE VILLAGE OFFICER,
CHEMBILODE VILLAGE OFFICE,
KANNUR DISTRICT-670 613.
BY ADVS.
BRIJESH MOHAN
R.RAJPRADEEP
VIPIN NARAYANAN, GP
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR
ADMISSION ON 22.04.2022, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
W.P.(C) No.9646/2021
:2:
N. NAGARESH, J.
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W.P.(C) No.9646 of 2021
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Dated this the 22nd day of April, 2022
JUDGMENT
~~~~~~~~~ W.P.(C) No.9646/2021 was disposed of by judgment dated 06.09.2021. Finding that there is an error in the judgment apparent on the face of the records of the case, the said judgment dated 06.09.2021 was recalled by this Court by order dated 22.04.2022 in RP No.698 of 2021. Arguments were heard based on which this judgment is being delivered today.
2. The petitioner purchased 19.52 Ares of property along with a Building Permit on 17.04.2015. The Building Permit issued by the Panchayat was for construction of a commercial building having an extent of 1095.78 m². The permit issued in favour of the predecessor-in-interest of the W.P.(C) No.9646/2021 :3: petitioner was transferred by the Panchayat in favour of the petitioner and the Building Permit was extended as per Ext.P3, for the period from 08.03.2019 to 16.05.2021.
3. The petitioner states that he constructed only 488.93 m² of built-up area and submitted an application for Occupancy Certificate. The respondents unilaterally cancelled the Building Permit as per Ext.P5. In Ext.P5, it was stated that the Building Permit is being cancelled for the reason that the permit was granted for construction of building in a land having an extent of 72 Cents, but now 23.76 Cents forming part of the total 72 Cents stand alienated. Subsequently, by Ext.P6 communication, the petitioner was informed that his application can be considered only after effecting change in the nature of the land in revenue records. The said requirement was reiterated in Ext.P9 communication also.
4. In the counter affidavit filed by the respondent- Panchayat, it has been stated that the original permit was granted for construction in a land having area of 72 cents. Certain portion of the land has been alienated and now only W.P.(C) No.9646/2021 :4: 48.23 cents of land is available for construction. There is violation of Rule 19(5) of the Kerala Panchayat Building Rules and consequently, the Building Permit has become invalid. Furthermore, any application by the petitioner in respect of construction of building in the land in question can be considered only after effecting necessary changes in the nature of the land in revenue records.
5. After examining the pleadings and hearing the arguments raised on either side, this Court finds that the stand taken by the Panchayat authorities is not sustainable. Firstly, the respondents are relying on Rule 19(5) of the Kerala Panchayat Building Rules, 2019 to contend that the Building Permit originally issued has become invalid, due to alienation of a portion of the land after the issuance of Building Permit. The defence is not acceptable for two reasons. Firstly, Rule 19(5) invalidating Building Permits issued consequent to alienation of part of land, was introduced for the first time in the Kerala Panchayat Building Rules, 2019. Under the Kerala Panchayat Building Rules, 2011, there was a provision in Rule W.P.(C) No.9646/2021 :5: 24 to the effect that a person holding Building Permit, unless the work is executed in full, informs the Secretary of every transfer of the whole or part of any property involved in the permit together with the name and address of the transferee and his intention to transfer the permit. The KPBR, 2011 did not envisage automatic invalidation of Building Permit on transfer of part of the plot included in the approved plan to any other person. The Building Permit in question in this writ petition was issued before the promulgation of the Rules, 2019. The alienation of land was also prior to the Rules, 2019. Rule 19(5) which was brought into force with effect from 08.11.2019 cannot be made applicable to the Building Permits issued and constructions commenced prior thereto.
6. Secondly, assuming that Rule 19(5) would apply, even then Annexure-R2(a) application has been submitted by the petitioner for regularisation of construction. In Annexure- R2(a), at serial No.13, the petitioner has specifically stated that the application submitted by him is for regularisation of building construction. Even if a portion of the land is alienated W.P.(C) No.9646/2021 :6: by the petitioner or his predecessor-in-interest, that cannot stand in the way of the petitioner applying for regularisation of building construction. It is possible that even after alienation of a portion of the land, the construction made by the petitioner does not violate any provisions contained in the Building Rules and in that event, the petitioner has a right to seek regularisation of building construction in accordance with law.
7. The further defence of the respondents that in view of the provisions contained in the Kerala Conservation of Paddy Land and Wetland Act, 2008, application for Building Permit / Occupancy Certificate / regularisation can be considered only after effecting necessary changes in the nature of the land in revenue records, is also unsustainable. Section 27A of the Act, 2008 mandates that if any owner of an unnotified land desires to utilise such land for residential or commercial or for other purpose, he shall apply to the Revenue Divisional Officer for permission in such manner as may be prescribed. It has to be noted that Section 27A was introduced in the Act, 2008 by Amendment Act 29 of 2018 W.P.(C) No.9646/2021 :7: with effect from 30.12.2017. In the case of the petitioner, the Building Permit was issued prior to 30.12.2017 and therefore the respondents will not be justified in insisting that the petitioner's application for regularisation / Occupancy Certificate can be considered only after making necessary changes in the nature of the land, in revenue records.
8. In the facts and circumstances of the case, Exts.P5, P6 and P9 orders / communications issued by the 3rd respondent are unsustainable. Exts.P5, P6 and P9 are therefore set aside. Respondents 2 and 3 are directed to consider the application for regularisation of construction submitted by the petitioner in accordance with law and to issue Occupancy Certificate to the petitioner, if the petitioner is otherwise eligible. Orders in this regard shall be passed within a period of one month.
Writ petition is disposed of as above.
Sd/-
N. NAGARESH, JUDGE aks/19.04.2022 W.P.(C) No.9646/2021 :8: APPENDIX OF WP(C) 9646/2021 PETITIONER'S EXHIBITS EXHIBIT P1 TRUE COPY OF THE BASIC TAX RECEIPT DATED 28.2.2020 ISSUED BY THE FOURTH RESPONDENT EXHIBIT P2 TRUE COPY OF THE BUILDING PERMIT NO 08/2012 DATED 17.5.2012 ISSUED BY THE THIRD RESPONDENT EXHIBIT P3 TRUE COPY OF THE RENEWED BUILDING PERMIT NO 08/2012 DATED 8.3.2019 ISSUED BY THE THIRD RESPONDENT EXHIBIT P4 TRUE COPY OF THE PHOTOGRAPH OF THE PROPOSED BUILDING EXHIBIT P5 TRUE COPY OF THE LETTER NO A2/4353/20- 20 DATED 13.8.2020 ISSUED BY THE THIRD RESPONDENT EXHIBIT P6 TRUE COPY OF THE LETTER DATED 22.8.20 ISSUED BY THE THIRD RESPONDENT EXHIBIT P7 TRUE COPY OF THE CERTIFICATE NO 51/11 DATED 26.7.2011 ISSUED BY THE FOURTH RESPONDENT EXHIBIT P8 TRUE COPY OF THE JUDGMENT IN WPC NO 19219/2020 DATED 6.11.2020 EXHIBIT P9 TRUE COPY OF THE ORDER NO ASC2-1780/21 DATED 24.3.2021 ISSUED BY THE THIRD RESPONDENT .