Anwar.P.K vs Thrissur Corporation
2021 Latest Caselaw 19807 Ker

         IN THE HIGH COURT OF KERALA AT ERNAKULAM
                            PRESENT
              THE HONOURABLE MR.JUSTICE N.NAGARESH
  THURSDAY,THE 23RD DAY OF SEPTEMBER 2021/1ST ASWINA,1943
                    WP(C) NO. 11996 OF 2021


PETITIONER:

         ANWAR P.K., AGED 60 YEARS,
         S/O.LATE KUNHIBAVA,
         POKKAKKILLATH HOUSE,
         KUTTAMANGALAM, EDATHURUTHY P.O.,
         THRISSUR-680 703.

         BY ADVS.
         P.B.KRISHNAN
         P.B.SUBRAMANYAN
         SABU GEORGE


RESPONDENTS:

    1    THRISSUR CORPORATION,
         MUNICIPAL OFFICE ROAD,
         KURUPPAM, THEKKINKADU MAIDAN,
         THRISSUR-680 001,
         REPRESENTED BY ITS SECRETARY.

    2    THE SECRETARY, THRISSUR CORPORATION,
         MUNICIPAL OFFICE ROAD, KURUPPAM,
         THEKKINKADU MAIDAN, THRISSUR-680 001.

         BY ADV SHRI. SANTHOSH P.PODUVAL, SC

     THIS WRIT PETITION       (CIVIL) HAVING COME UP    FOR
ADMISSION ON 23.09.2021,      THE COURT ON THE SAME     DAY
DELIVERED THE FOLLOWING:
 WP(C) No.11996/2021
                               :2 :




                                                          [CR]



                        JUDGMENT

~~~~~~~~~

Dated this the 23rd day of September, 2021

The petitioner seeks to call for the records relating

to Ext.P10 and to quash the same. The petitioner also seeks

to direct the 2nd respondent to consider and take a decision on

the application submitted by the petitioner for the building

permit after considering Ext.P6 site plan.

2. The petitioner states that he along with his brother,

were owners of 384.5 Cents of property in Survey No.48/1 of

Koorkkenchery Village and Survey No.153P and 154/2 of

Chiyyaram Village. There were certain transactions in respect

of the property between the petitioner and his brother and

finally, by Ext.P1 Partition Deed, the property was divided

among them. By Ext.P1, the petitioner got 31.97 Ares of land

in Survey No.48/1/1, 48/1/2 and 48/1/3 of Koorkkenchery WP(C) No.11996/2021

Village as item No.1, another 5.13 Ares in Survey No.153 of

Chiyyaram Village as item No.2 and 39.39 Ares in Survey

No.154/2 of Chiyyaram Village as item No.3.

3. The predecessor in interest of the property had

surrendered 29.5 Cents which was part of the aforesaid

properties, for a road widening. The balance extent of

property is eligible for the benefit of Chapter XI of the Kerala

Municipal Building Rules, 1999. The petitioner submitted an

application for relaxation of the Rules under Chapter XI. As

the petitioner obtained only half of the 384.5 Cents, the

petitioner claimed benefit only in respect of half of the extent

of property (14.525 Cents) surrendered. However, the Special

Committee rejected the application of the petitioner.

4. The petitioner challenged the rejection order filing

WP(C) No.38078/2016. This Court as per Ext.P4 judgment

dated 28.09.2018, directed the State Government to

reconsider the claim. Consequently, as evidenced by Ext.P5

minutes, the Government held that the petitioner is entitled for

the benefit of 3 FAR while granting a permit for constructing WP(C) No.11996/2021

buildings in his property. The petitioner was required to

submit a revised application in accordance with the exemption

granted.

5. The petitioner proposed to construct a residential

apartment complex in 20.70 Ares of property out of the larger

extent in his possession. The petitioner submitted a revised

plan claiming the benefit for the said area and reserving the

benefit of Ext.P5 decision to be used for the balance land in

future. Thereupon, the 2 nd respondent issued Ext.P8 letter

requiring the petitioner to submit a fresh plan including all the

properties belonging to the petitioner.

6. The petitioner submitted Ext.P9 representation

pointing out that he is entitled to claim the benefit in part and

that if the entire property is shown in the plan, the purchasers

of apartment units may stake claim over the entire property.

The 2nd respondent as per Ext.P10 insisted to submit a fresh

plan including the whole property belonging to the petitioner

and calculating the FAR and coverage on the basis of the

same. The petitioner challenges Ext.P10. WP(C) No.11996/2021

7. The 2nd respondent contested the writ petition. The

2nd respondent stated that the petitioners purchased the

property in 2005 whereas the predecessor in interest

relinquished the property only subsequently. The petitioner

obtained only a small extent of property in Survey No.154/2, a

part of which was surrendered. Only the land owner who

surrendered the land will get the benefit and that too in

respect of the remaining land owned by him as on the date of

surrender. The property which was retained by the

predecessor in interest formed part of the properties which

was set apart to the brother of the petitioner.

8. The Ext.P1 partition Deed has been executed

including some other properties. The petitioner is claiming the

benefit for constructions in such properties also, which were

acquired subsequent to the date of the surrender. Exts.R2(a)

and R2(b) would show that the property set apart for the

petitioner as per Ext.R2(c) was severed from remaining

properties as on 30.02.2003 itself. Hence, the benefit, if any,

on account of the surrender could not have been extended to WP(C) No.11996/2021

the petitioner's property. Though only a small extent in Survey

No.154/2 was set apart for the petitioner, the petitioner is

claiming benefit to the entire property.

9. The 2nd respondent further submitted that as per

Rule 6 of the Kerala Municipal Building Rules, the entire area

belonging to the petitioner should be shown in the site plan

and the same has to be taken into account while calculating

the FAR. Rule 27 also states that while considering the area

of the land, the area if any of contiguous land belonging to the

same owner though not proposed for immediate development,

shall be taken into account. Hence the petitioner has to

submit a revised plan showing the entire extent of property

owned by him for calculating FAR.

10. Heard the learned Counsel for the petitioner and

the learned Standing counsel for the respondents.

11. The predecessor-in-interest of the property

surrendered 29.5 cents out of a larger extent of property, for

road widening. The petitioner and his brother purchased the

adjoining 384.5 cents of property from the predecessor in WP(C) No.11996/2021

2005. The 384.5 cents of property was partitioned among the

petitioner and his brother in 2013 and the petitioner thus

became the exclusive owner of half of the said 384.5 cents of

land.

12. In view of Chapter XI of the Kerala Municipality

Building Rules, 1999, the petitioner claimed proportionate

benefit extendable for construction in plots part of which have

been surrendered free of cost for road development. Though

the respondents initially rejected the claim of the petitioner for

such benefit, finally the Government as per Ext.P5 held that

the petitioner is entitled to benefit up to 3 FAR. The petitioner

was directed to submit a revised application.

13. The petitioner's application has been rejected by

the 1st respondent-Thrissur Corporation as per Ext.P10 for the

reason that in spite of holding larger extent of land, the

petitioner has only shown 20.70 Ares as plot area. By

Ext.P10, the petitioner was required to submit a revised plan

showing the entire extent of land held by the petitioner,

calculating the FAR and Coverage as per KMBR. The WP(C) No.11996/2021

petitioner states that he is entitled to avail a part of the benefit

available under Chapter XI of KMBR, 1999 for a part of the

land owned by him, reserving the balance to be utilised for

future development of the remaining land. The stand of the

respondents is that in view of the provisions of the KMBR,

1999, the petitioner has to show the entire extent of land in the

plan and avail the benefit of Chapter XI accordingly.

14. In defence, the respondents contended that the

actual surrender of 29.5 cents of property for road widening

was made by the predecessor-in-interest, subsequent to the

transfer of the remaining land to the petitioner and his brother.

Therefore, the property owned by the petitioner is not a plot

'left after part of the same plot has been surrendered' as

contemplated by Rule 79 of the KMBR, 1999. The petitioner is

therefore not entitled to the benefit of Chapter XI of the KMBR,

1999. It was further argued that the land surrendered for road

widening was from Survey No.154/2 and the petitioner has

obtained only a small extent of property in Survey No.154/2. It

was also argued that the property which was retained by the WP(C) No.11996/2021

predecessor-in-interest formed part of the properties which

was set apart for the brother of the petitioner as per Ext.R2(c)

Deed of Partition.

15. The respondents cannot urge any of the above said

three grounds for the reason that a Government Committee

which considered the claim of the petitioner on 04.12.2019

pursuant to the orders of this Court, has held as per Ext.P5

proceedings that the petitioner is entitled up to 3 FAR. The

petitioner is claiming the benefit of Ext.P5 decision. Ext.P5

has not been subjected to challenge and it is binding on the

respondents. Therefore, the said arguments advanced by the

respondents cannot be accepted.

16. The respondents have advanced another argument

that Ext.P1 Partition Deed has been executed by the petitioner

including some other property which was obtained subsequent

to the execution of Ext.R2(c) Partition Deed and that Ext.P1

Partition Deed has been executed subsequent to Ext.P5

decision. One fails to understand as to how the inclusion of

other properties in a Partition Deed can affect the statutory WP(C) No.11996/2021

right of the petitioner available under the provisions of the

KMBR, 1999. The petitioner is the present owner of half of the

384.5 cents of land to which the benefit of Chapter XI of the

KMBR, 1999 would be available, as held in Ext.P5. Inclusion

of any properties in a Partition Deed cannot result in

abrogation of the right of the petitioner as owner of the land in

question.

17. The respondents further argued that as per Rule 6

of the KMBR, the entire area belonging to the petitioner has to

be shown in the Site Plan and the same has to be taken into

account while calculating the FAR. It was also argued that

Rule 27 of the KMBR, 1999 also stipulates that while

considering the area of the land, the area of any contiguous

land belonging to the same owner, though not proposed for

immediate development shall be taken into account.

18. Rule 27(iv) of the KMBR, 1999 reads as follows:

"When the area of the land under development work, layout or sub-divison [(exceeding ten plots)] is 50 ares or more, ten percent of the total area shall be provided for recreational open spaces and shall be suitably located to be accessible to the residents of the layout:

WP(C) No.11996/2021

Provided that while considering the area of the land, the area of any contiguous land belonging to the same owner, though not proposed for immediate development shall be taken into account;

Provided further that the provision contained in this clause shall not be applicable in respect of the housing plots allotted by the Government Servants Housing Co-operative Societies, registered under the Kerala Co-operative Societies Act, 1969, which were set up and functioning with the Government share and financial assistance and with the objective of setting up of housing plots, exclusively for the members of the said Societies, for which it purchases land, undertake development work or prepare layout or sub divide it for distribution among its members for bona fide residential purpose, up to a total extent of 1.25 hectares (not exceeding 45 plots)."

It is therefore clear that the requirement to consider any area

of contiguous land belonging to the same owner under Rule

27(iv), is intended for computation of land for the purpose of

10% recreational open spaces and the same is not intended

for the purpose of Chapter XI of the KMBR, 1999. It is a

requirement only when the area of the land under

development work, layout or sub division is 50 Ares or more.

19. Rule 6(1)(a)(i) of the KMBR, 1999 mandates that an

application for Development Permit shall be accompanied by

site plan, service plan, together with details and specifications WP(C) No.11996/2021

as to the boundaries of the plot and any contiguous land

belonging to the owner, including revenue survey particulars in

full. It is clear from Rule 6(1)(a)(i) that a plan envisaged under

the Rule should show boundaries not only of the plot where

construction/development is proposed but also the boundaries

of any contiguous land belonging to the owner.

20. A perusal of Ext.P6 Plan produced by the petitioner

would disclose that though the plan shows the boundaries of

the plot and the boundaries of contiguous land owned by the

petitioner, the revenue survey particulars of the boundaries of

contiguous land, are not shown in the plan. Therefore, if the

petitioner intends to obtain Development Permit from the

respondents, the petitioner will have to submit a plan showing

the revenue survey particulars of the boundaries of the

contiguous land also.

21. However, submission of such a plan showing the

revenue survey particulars of the boundaries of contiguous

land owned by the petitioner will not in any manner affect the

right of the petitioner to avail the benefit of Chapter XI in part WP(C) No.11996/2021

for 20.70 cents of land where the petitioner proposes to

construct an Apartment Complex now and to reserve the

remaining benefit for the remaining land owned by the

petitioner, for future construction / development .

22. The application of rules modified as per Chapter XI

of the KMBR, 1999, though is by way of a concession when

land is surrendered by an owner free of cost for new road

formation or road widening or junction improvement etc., the

said concession acquires the character of a statutory right on

owners of such land, part of which have been surrendered

free of cost, by the incorporation of Chapter XI in the KMBR.

This Court has held in the judgment in Rekha Babu v. State

of Kerala [2013 (2) KLT 695] that the benefit under Chapter

XI has been conferred not personally to the owner but rather

in respect of the remainder properties.

23. When the benefit under Chapter XI is a statutory

right attached to the property, the owner of the property can

claim and enjoy the benefit in part if he so wishes, reserving

his right to claim and enjoy the remainder benefit at a later WP(C) No.11996/2021

date, up to the permissible limits. The respondents cannot

insist that the petitioner shall utilise the benefits under Chapter

XI at one go, as long as there is no such restriction in the

Rules, 1999.

The writ petition therefore is allowed. Ext.P10 is set

aside. The 2nd respondent is directed to consider and take a

decision on the application submitted by the petitioner for the

Building Permit considering Ext.P6 Plan. It is, however, made

clear that if the petitioner requires a Development Permit, the

petitioner will have to submit a plan showing the revenue

survey particulars of the boundaries of the contiguous land

also.

Sd/-

N. NAGARESH, JUDGE

aks/18.09.2021 WP(C) No.11996/2021

APPENDIX OF WP(C) 11996/2021

PETITIONER'S EXHIBITS

Exhibit P1 A TRUE COPY OF THE PARTITION DEED REGISTERED AS DOC. NO.733 OF 2020 IN SRO, THRISSUR DATED 13.05.2020.

Exhibit P2 A TRUE COPY OF THE POSSESSION CERTIFICATE DATED 07.09.2020 ISSUED FROM THE KOORKANCHERY VILLAGE OFFICE.

Exhibit P3 A TRUE COPY OF POSSESSION CERTIFICATE DATED 09.09.2020 ISSUED FROM THE CHIYYARAM VILLAGE OFFICE.

Exhibit P4 A TRUE COPY OF THE JUDGMENT DATED 28.09.2018 IN WPC NO.38078 OF 2016.

Exhibit P5 A TRUE COPY OF THE LETTER DATED 20.12.2019 ISSUED BY THE ADDL. CHIEF SECRETARY, DEPARTMENT OF LOCAL SELF GOVERNMENT ALONG WITH THE MINUTES OF THE MEETING HELD ON 04.12.2019 UNDER THE CHAIRMANSHIP OF THE MINISTER FOR LOCAL SELF GOVERNMENT INSTITUTIONS, Exhibit P6 A TRUE COPY OF THE COVERING LETTER DATED 15.12.2020 ALONG WITH SITE PLAN DATED 18.11.2020 SUBMITTED BY THE PETITIONER. Exhibit P7 A TRUE COPY OF THE REPRESENTATION DATED 15.12.2020 SUBMITTED BY THE PETITIONER BEFORE THE RESPONDENT NO.2.

Exhibit P8            A   TRUE   COPY   OF    THE   NOTICE   DATED
                      23.03.2021 ISSUED BY RESPONDENT NO.2.
Exhibit P9            A TRUE COPY OF THE REPRESENTATION DATED
                      31.03.2021 SUBMITTED BY THE PETITIONER
                      BEFORE THE RESPONDENT NO.2.
Exhibit P10           A TRUE COPY OF NOTICE DATED 20.04.2021
                      ISSUED BY RESPONDENT NO.2.
EXHIBIT P11           A TRUE COPY OF THE ORDER DATED 18-11-
                      2007   WAS   ISSUED     BY   THE   PRINCIPAL
                      SECRETARY TO THE DEPARTMENT OF LOCAL
                      SELF GOVERNMENT INSTITUTIONS
EXHIBIT P12           A TRUE COPY OF THE REPRESENTATION DATED
                      17.10.2018 SUBMITTED BY THE PETITIONER
                      BEFORE THE SECRETARY TO THE DEPARTMENT
                      OF LOCAL SELF GOVERNMENT INSTITUTIONS
 WP(C) No.11996/2021



RESPONDENTS' EXHIBITS

ANNEXURE R2(a)        TRUE   COPY   OF   SALE   DEED    BEARING
                      REGISTRATION NO.2964/2005 OF THRISSUR
                      SRO
ANNEXURE R2(b)        TRUE COPY OF SALE DEED REGISTERED AS
                      64/2005 OF THRISSUR SRO
ANNEXURE R2(c)        TRUE COPY OF PARTITION DEED EXECUTED
                      BETWEEN THE PETITIONER AND HIS BROTHER
ANNEXURE R2(d)        TRUE COPY OF LAND RELINQUISHMENT FORM
                      EXECUTED BY MR.R.N.VISWANATHAN
ncd