IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE N.NAGARESH
WEDNESDAY, THE 6TH DAY OF JULY 2022 / 15TH ASHADHA, 1944
WP(C) NO. 20019 OF 2022
PETITIONER
NIRMALA OOMMEN
AGED 60 YEARS
W/O A.J OOMMEN, ANARY (H), CHERUTHANA P.O,
CHERUTHANA, ALAPUZHA
PIN - 690563
BY ADVS.
MANU RAMACHANDRAN
M.KIRANLAL
R.RAJESH (VARKALA)
T.S.SARATH
SAMEER M NAIR
HARSHA SUSAN SAM
GEETHU KRISHNAN
RESPONDENTS:
1 THE REVENUE DIVISIONAL OFFICER
OFFICE OF RDO, FORT-KOCHI,
ERNAKULAM DISTRICT, PIN - 682001
2 THE AGRICULTURE OFFICER
KRISHI BHAVAN,
KAKKANAD, ERNAKULAM, PIN - 682030
3 THE VILLAGE OFFICER
VILLAGE OFFICE, KAKKANAD,
ERNAKULAM DISTRICT, PIN - 682031
4 THE SECRETARY
THRIKKAKARA MUNICIPALITY,
ERNAKULAM DISTRICT - 683 031
, PIN - 683031
5 THE MUNICIPAL ENGINEER
THRIKKAKARA MUNICIPALITY,
ERNAKULAM DISTRICT
, PIN - 683031
WP(C) NO.20019 OF 2022
2
BY ADVS.
SMT. SURYA BINOY B- SR. GP
S.JAMAL, SC, THRIKKAKARA MUNICIPALITY
LEGY ABRAHAM
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR
ADMISSION ON 06.07.2022, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
WP(C) NO.20019 OF 2022
3
JUDGMENT
Dated this the 6th day of July, 2022 The petitioner, who has constructed a building in Thrikkakkara Municipality, is aggrieved by Ext.P5 communication of the Secretary to the Municipality, which states that the petitioner's application for occupancy can be considered only after the petitioner gets the land details removed from the Data Bank of paddy land and wetland.
2. The petitioner states that the petitioner purchased a property in Thrikkakkara Municipality and obtained a Building Permit for construction of a residential building. Building Permit was issued on 23.09.2009. It was revised on 18.11.2010. Unfortunately, the petitioner could not complete the building construction within the time stipulated in the Revised Building Permit.
WP(C) NO.20019 OF 2022 4
3. The petitioner submitted an application on 19.11.2021 requesting to issue Occupancy Certificate to the building. The application of the petitioner for Occupancy Certificate has been declined by the Secretary to the Municipality holding that unless the petitioner's land is removed from the Data Bank, the application cannot be positively considered.
4. The petitioner would contend that by way of abundant caution the petitioner has submitted Form-5 application, as evidenced by Ext.P8, before the Revenue Divisional Officer concerned, requesting to remove the land from Data Bank. However, pending disposal of Form-5 application, if Occupancy Certificate is not issued atleast provisionally, the petitioner will be put to untold hardship and loss.
5. Standing Counsel entered appearance on behalf of respondents 4 and 5 and opposed the writ petition. The Standing Counsel submitted that the Building Permit originally WP(C) NO.20019 OF 2022 5 issued to the petitioner, had lapsed much earlier. The petitioner did not take any steps for renewal of the Building Permit. In the meanwhile, in view of the provisions contained in the Kerala Conservation of Paddy Land and Wetland Act, 2008 and the Rules made thereunder, the Municipality cannot issue a Building Permit or Occupancy Certificate in respect of a building, which is described as paddy land or wetland in Revenue records and included in Data Bank. It is in such circumstances that the Municipal authorities have issued Ext.P5. Admittedly, the petitioner's land is included in Data Bank of paddy land and wetland. Therefore, Ext.P5 is not liable to be interfered with by this Court.
6. Government Pleader on behalf of respondents 1 to 3 submitted that if the petitioner has submitted Form-5 application and it is supported by all requisite documents and payment of prescribed fee, the same being a statutory application, the Revenue Divisional Officer can consider that application in accordance with law.
WP(C) NO.20019 OF 2022 6
7. I have heard the learned counsel for the petitioner, the learned Government Pleader representing respondents 1 to 3 and the learned Standing Counsel representing respondents 4 and 5.
8. The ownership of the petitioner in respect of the property in question is not disputed. The petitioner had submitted Building Permit application, which was granted to the petitioner as per Ext.P3 on 23.09.2009. The Building Permit seems to have been revised on 18.11.2010. It is based on the Building Permit that the petitioner has constructed the building. Admittedly, the construction of the building spread beyond the period of Building Permit. The petitioner, therefore necessarily has to file an application for regularisation of the building construction.
9. As the petitioner has started the construction as per the Building Permit issued by the Municipality, as long as the petitioner has constructed the building in accordance with the WP(C) NO.20019 OF 2022 7 Building Permit and approved Building Plan, it will be harsh and unjust if the petitioner is denied Occupancy Certificate in the meanwhile.
In the facts and circumstances of the case, the writ petition is disposed of permitting the petitioner to submit an application for regularisation of the building construction. If the petitioner submits an application, respondents 4 and 5 will consider the Building Regularisation application, in accordance with law, but without insisting for removal of the land from Data Bank. If the petitioner is otherwise eligible for regularisation of the building construction, respondents 4 and 5 shall issue provisional number to the building. The 1st respondent is directed to consider Ext.P8 Form-5 application if it is received, supported by all necessary documents and to pass appropriate orders thereon, within a period of four months. The numbering of the building will be provisional and subject to removal of the land from Data Bank. As and when the petitioner produces orders on Form-5 application, WP(C) NO.20019 OF 2022 8 respondents 4 and 5 shall consider grant of regular building number to the petitioner.
sd/-
N.NAGARESH JUDGE hmh WP(C) NO.20019 OF 2022 9 APPENDIX OF WP(C) 20019/2022 PETITIONER EXHIBITS Exhibit P1 THE TRUE COPY OF THE SALE DEED NO.
1609/2001 OF SRO, THRIKKAKARA.
Exhibit P2 THE TRUE COPY OF THE LAND TAX RECEIPT VIDE NO. KL07021710631/2021 DATED 10.09.2021 .
Exhibit P3 THE TRUE COPY OF THE REVISED BUILDING PERMIT NO. 344/09-10 DATED 18.11.2010 FROM THE THRIKKAKARA GRAMA PANCHAYAT. Exhibit P4 THE TRUE COPY OF THE PHOTOGRAPHS SHOWING THE COMPLETED BUILDING OF PETITIONER AND SURROUNDING.
Exhibit P5 THE TRUE COPY OF THE INTIMATION VIDE NO.T.P1-17794/21 DATED 24.02.2022 OF THE 5TH RESPONDENT .
Exhibit P6 THE TRUE COPY OF THE RELEVANT PAGE OF THE DRAFT DATA BANK ISSUED BY THE VILLAGE OFFICER, KAKKANAD .
Exhibit P7 THE TRUE COPY OF THE NOTIFICATION OF FINAL DATA BANK DATED 03.02.2021 ALONG WITH RELEVANT PAGE .
Exhibit P8 THE TRUE COPY OF THE FORM NO.5 APPLICATION FILED BY THE PETITIONER BEFORE RDO ON 08.02.2022.