IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN
FRIDAY, THE 26TH DAY OF AUGUST 2022 / 4TH BHADRA, 1944
WP(C) NO. 6099 OF 2022
PETITIONER/S:
MARY STEPHEN
AGED 45 YEARS
W/O M, G THOMAS AND DAUGHTER OF T.P.STEPHEN, RESIDING
AT THENAMPARAMBIL HOUSE, GEO MARINA TOWERS, KARITHALA
ROAD, PANAMPILLY NAGAR, KOCHI-682016.
BY ADVS.
B.ASHOK SHENOY
P.S.GIREESH
ARJUN R NAIK
RESPONDENT/S:
1 TRIPUNITHURA MUNCIPALITY
REPRESENTED BY MUNICIPAL SECRETARY,
MUNICIPAL OFFICE, TRIPUNITHURA-682301.
2 THE SECRETARY
TRIPUNITHURA MUNICIPALITY,
MUNICIPAL OFFICE, TRIPUNITHURA-682301.
3 ADDL.R3. STATE OF KERALA
REPRESENTED BY THE SECRETARY,
LOCAL SELF GOVERNMENT DEPARTMENT,
GOVERNMENT SECRETARIAT,
THIRUVANANTHAPURAM-695001.
4 ADDL.R4. THE REVENUE DIVISIONAL OFFICER,
OFFICE OF THE REVENUE DIVISIONAL OFFICER, KB JACOB
ROAD, FORT KOCHI, KOCHI-682001.
(ADDITIONAL RESPONDENTS 3 & 4 IMPLEADED AS PER ORDER
DATED 15-03-2022 IN IA 1 OF 2022).
BY ADVS.
K.S.ARUN KUMAR
GOVERNMENT PLEADER
SMT. VIDYA KURIAKOSE, GP
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
26.08.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C) NO. 6099 OF 2022
2
P.V.KUNHIKRISHNAN, J.
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WP(C) No. 6099 OF 2022
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Dated this the 26th day of August 2022
JUDGMENT
The above writ petition is filed with the following prayers:
" (a) Call for the records and files leading to Exhibit P4 issued by 2nd respondent and quash Exhibit P4 to the extent it insists for production of permission from Revenue Divisional Officer, for consideration of petitioner's application for building permit referred to in Exhibit P4;
(b) Issue a writ in the nature of mandamus or any other appropriate writ, order or direction commanding the 2nd respondent to consider petitioner's application for building permit referred to in Exhibit P4 in accordance with law, without insisting for permission from Revenue Divisional Officer, on receipt of CRZ No Objection Certificate pursuant to Exhibit P6, and pass appropriate orders on it as per law, within a reasonable time limit as this Hon'ble Court may deem fit to fix in the facts and circumstances of the case." SIC)
2. Petitioner is the owner in possession of 7.06 Ares of land comprised in Survey Number 473 (Re-survey Number 57/3) of Nadama Village in Kanayannur Taluk of WP(C) NO. 6099 OF 2022 3 Ernakulam District which situated within the territorial limit of 1st respondent Municipality. The writ petition is filed challenging Ext.P4 notice issued by the 2 nd respondent to the extent it insists for production of permission for construction in the subject land from the Revenue Divisional Officer, for consideration of petitioner's application for building permit for constructing a residential house in her aforesaid land which is included in the residential zone in the Town Planning Scheme as per Ext.P3 though shown as 'nilam' in the village records.
3. According to the petitioner, Ext.P4 which insists for permission from the Revenue Divisional Officer for construction of building in the subject land, for consideration of petitioner's application for building permit is illegal, especially on the ground that the subject land is admittedly in a residential zone. The learned counsel also relied the judgment in Division Bench of this Court in State of Kerala and Others v. Binu Mathew Chacko and Others (2020 (6) KHC 717).
4. Heard the learned counsel for the petitioner and WP(C) NO. 6099 OF 2022 4 the learned Government Pleader.
5. Ext.P4 is the order impugned in this writ petition.
Two defects are mentioned in Ext.P4 for considering the building permit application. The first one is regarding the receipt of Coastal Regulation Zone NOC. The learned counsel for the petitioner submitted that, the petitioner has already taken steps to get NOC and he is not aggrieved by that part of Ext.P4. He is aggrieved by the 2nd part of the defect noted in Ext.P4 which says that, since 'nilam' is mentioned in the possession certificate, permission from the Revenue Divisional Office. This Court considered similar point in detail in Binu Mathew Chacko's Case (Supra) is as follows;
" 23. In our view these later provisions introduced into Act, 2008 will not in any manner interfere with the building site sold to the purchasers much before the introduction of the said provisions. Moreover, as we have said earlier, rule 3A of Kerala Municipality Building Rules, 1999 have an overriding effect on the building rules and therefore, the Kochi Corporation was not competent enough to insist the permit holder to secure necessary orders as per the provisions of Act, 2008 since the plot was allotted in the Elamkulam West Town Planning Scheme.
24. The issue is also no more res integra since it was considered by a learned Single Judge of this Court in WP(C) NO. 6099 OF 2022 5 Reliance Industries Ltd. and Others v. The Commissioner of Land Revenue and Others [2007(2)KHC 346=2007(2)KLT 850] wherein it was held that no permission under the Kerala Land Utilization Order is necessary for any activity of construction or use of any land in the residential use zone or any other zone in the town planning scheme constituted as per the Town Planning Act, 1108. Also, recently in Shaji Chacko v State of Kerala and Others [2020 (6) KHC 420] a learned single judge of this court has held in unequivocal terms that if any Town Planning Scheme does not save the land and area for cultivation of any crops mentioned under the Land Utilisation Order 1967, it has to be assumed that, through the process of law, power of Collector to command the holder of land to cultivate crops has been taken away. Anyhow while the judgment in Reliance Industries was holding the field the Apex Court in Revenue Divisional Officer, Fort Kochi and others v. Jalaja Dileep and another (supra) taking into account the provisions of the Kerala Conservation of Paddy land and Wetland Act, 2008 and the Kerala Land Utilization Order, 1967 held that the entries made in the BTR cannot be defaced, overruling the Division Bench of this Court in Revenue Divisional Officer, Fort Kochi and others v. Jalaja Dileep and another [2014 (1) KHC 96= 2014 (1) KLT 161]. Anyhow later a Division Bench of this Court in LLMC Kizhakkambalam v. Mariyumma [2015(2) KLT 516] held that without defacing the original entry in the Basic Tax Register additional entry can be made with respect to the present tenure of the land in appropriate cases and in accordance with law, which is governing the field now. We are in respectful agreement with the proposition so laid down in Mariyumma, supra, in the facts and circumstances of the case at hand." (SIC)
6. From the above, it is clear that when the WP(C) NO. 6099 OF 2022 6 authorities had acquired land for the development of town/cities, other areas and sold/allotted to purchases as building sites, it can only be presume under law and fact that whatever inhibitions and prohibitions remain to the property was rectified by the government/statutory authorities to make it as a building sites.
7. Admittedly, it is a residential zone. If that is the case the ground in Ext.P4 regarding the mentioning of 'nilam' in possession certificate will not stand, and no permission from the Revenue Divisional Officer is necessary in such cases. Therefore, this writ petition is allowed in the following manner;
Ext.P4 is quashed to the extent it insist for production of permission from the Revenue Divisional Officer, for consideration of petitioner's application for building permit referred to in Ext.P4.
Sd/-
P.V.KUNHIKRISHNAN JUDGE LU WP(C) NO. 6099 OF 2022 7 APPENDIX OF WP(C) 6099/2022 PETITIONER EXHIBITS EXHIBIT P1 TRUE COPY OF REGISTRATION SALE DEED NO.1452 OF 2019 DATED 11.07.2019 OF TRIPUNITHURA SUB REGISTRY EXECUTED BY P K PRAKASH IN FAVOUR OF PETITIONER. EXHIBIT P2 TRUE COPY OF LAND TAX RECEIPT NO.KL 07020510665/2019 DATED 8.8.2019 ISSUED BY NADAMA VILLAGE OFFICE TO PETITIONER.
EXHIBIT P3 TRUE COPY OF NOTICE NO.PIO-PW2-2118/21 DATED 12.2.2021 ISSUED BY 1ST RESPONDENT TO PETITIONER'S HUSBAND, THOMAS JOSEPH.
EXHIBIT P4 TRUE COPY OF NOTICE NO.PW2/BA 201/21-
22/11722/21 DATED 5.10.2021 ISSUED BY 2ND RESPONDENT TO PETITIONER.
EXHIBIT P5 TRUE COPY OF NOTICE NO.PW2/BA 201/21-
22/11722/21 DATED 5.10.2021 ISSUED BY 2ND RESPONDENT TO PETITIONER.
EXHIBIT P6 TRUE COPY OF LETTER NO.PW2-5129/18 DATED 22.11.2021 ISSUED BY 2ND RESPONDENT TO THE JOINT SECRETARY OF KERALA COASTAL ZONE REGULATION AUTHORITY.
RESPONDENT EXHIBITS EXHIBIT R2(A) POSSESSION CERTIFICATE ISSUED BY THE VILLAGE OFFICER.
EXHIBIT R2(B) NOTICE SEND TO THE PETITIONER DATED ON 05.10.2021.
EXHIBIT R2(C) THE TRUE COPY OF THE REQUEST LETTER SEND TO THE CRZ.
// True Copy // PA To Judge