Mohanan K.V vs State Of Kerala
2022 Latest Caselaw 4592 Ker

        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

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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

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

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

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

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

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

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 .