Kerala High Court
Nirmala Oommen vs The Revenue Divisional Officer on 6 July, 2022
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
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
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
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
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
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
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.
