Kallayil Saidu vs Ponnani Municipality
2022 Latest Caselaw 8460 Ker

            IN THE HIGH COURT OF KERALA AT ERNAKULAM
                               PRESENT
        THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN
  WEDNESDAY, THE 6TH DAY OF JULY 2022 / 15TH ASHADHA, 1944
                     WP(C) NO. 16434 OF 2022
PETITIONERS:
    1     KALLAYIL SAIDU, AGED 67 YEARS
          S/O LATE AVULAMU, ANAPPADY,
          PONNANI SOUTH P O, MALAPPURAM, PIN-679586.
    2     SUHARA, AGED 55 YEARS
          W/O KALLAYIL SAIDU, ANAPPADY,
          PONNANI SOUTH P O, MALAPPURAM, PIN-679586.
          BY ADVS.BABU KARUKAPADATH
          M.A.VAHEEDA BABU
          P.U.VINOD KUMAR
          ARYA RAGHUNATH
          VAISAKHI V.
          T.M.MUHAMMED MUSTHAQ
          AJWIN P LALSON
          KARUKAPADATH WAZIM BABU
          P.LAKSHMI
          AISWARYA ANN JACOB

RESPONDENTS:
    1     PONNANI MUNICIPALITY,
          NH 17, PONNANI, MALAPPURAM, PIN- 679577,
          REPRESENTED BY ITS SECRETARY.
    2     THE SECRETARY, PONNANI MUNICIPALITY,
          NH 17, PONNANI, MALAPPURAM, PIN-679577.
    3     THE REVENUE DIVISIONAL OFFICER/SUB COLLECTOR,
          TIRUR - THRIKANDIYOOR ROAD,
          TIRUR KERALA, PIN-676101.
    4     THE VILLAGE OFFICER,
          EZHUVATHIRUTHI VILLAGE OFFICE,
          SUGAPURAM, MALAPPURAM, KERALA, PIN- 679576.
    5     THE TAHASILDAR, TALUK OFFICE,
          PONNANI,PONNANI NAGARAM MALAPURAM DISTRICT,
          KERALA, PIN-679583.
          SRI. C..V. MANUVILSAN SC


     THIS    WRIT   PETITION    (CIVIL)     HAVING    COME    UP    FOR
ADMISSION    ON   06.07.2022,    THE     COURT   ON   THE    SAME   DAY
DELIVERED THE FOLLOWING:
 W.P.(C).No.16434/2022

                                  2




                   P.V.KUNHIKRISHNAN, J.
                    --------------------------------
                   W.P.(C).No.16434 of 2022
             ----------------------------------------------
            Dated this the 06th day of July, 2022


                           JUDGMENT

This writ petition is filed with following prayers:

i. Issue a writ of mandamus, other appropriate writ, order or direction commanding the 3 rd respondent to pass orders by considering Exhibit P10 application in Form 6 allowing change of nature of land having an extent of 12.21 Ares (30.17 cents), belonging to the 1 st petitioner situated in Survey No.182/4-6 of Ezhuvathiruthi Village of Ponnani Taluk and further direct the respondents 4 and 5 to make appropriate consequential correction/addition in the BTR Register as Garden Land, on assessing the land afresh and continue to accept the Land tax treating as Purayidom.

ii. Grant such other reliefs, as this Hon'ble Court shall deem just.

(SIC) W.P.(C).No.16434/2022

2. The petitioners, who are husband and wife, are the

owners of an extent of 12.21 Ares (30.17 cents) and 6.43 Ares

(15.88 cents) of land respectively situated in Survey No.182/4-

6 and 181/9-1 of Ezhuvathiruthi Village of Ponnani Taluk,

within the jurisdiction of the 1st respondent Municipality,

which were purchased by them along with residential

buildings therein as per Exts.P1 and P2. It is the case of the

petitioners that in the year 2015, the petitioners decided to

demolish the residential buildings in the properties for

constructing a commercial building thereon and accordingly,

they submitted an application for building permit for

construction of a commercial building in the said properties

before the 1st respondent Municipality and Ext.P5 building

permit was issued to the petitioners for construction of a

commercial building. Since the construction could not be

completed within the validity period of three years mentioned

in Ext.P5, the petitioners submitted application for renewal,

limiting the proposal for construction as a two storied

building. The 1st respondent Municipality accordingly issued

Ext.P6 building permit and completion certificate was W.P.(C).No.16434/2022

submitted before the 1st respondent in February 2022

evidenced by Ext.P7. On completion of construction, the

petitioners requested for building number and occupancy

certificate after assessing property tax so that the building can

be rented out to third parties. It is the case of the petitioners

that now respondents 1 and 2 are taking a stand that building

number and occupancy certificate can be granted to the

constructed building of the petitioners only after change of

nature of the land of the 1st petitioner which is included as

Nanja in the BTR. It is submitted that the stand of

respondents 1 and 2 in not granting building number and

occupancy certificate to the building constructed by the

petitioners based on Exts.P3 and P4 building permits by

assessing property tax is illegal and hence this writ petition is

filed. The petitioners relied on the judgment of this Court

reported in Mahin v. Keezhmad Grama Panchayat [2020

(2) KLT 478] and also Ext.P9 circular.

3. Heard the learned counsel for the petitioners and

the learned Standing Counsel for respondents 1 and 2. I also

heard the learned Government Pleader. W.P.(C).No.16434/2022

4. It is an admitted fact that the petitioners

constructed the building based on the building permit issued

by the Municipality. It is also an admitted fact that the

petitioners completed the construction and submitted

completion report. The only objection raised by the

Municipality now is that in BTR the properties are mentioned

as Nilam. But this point is considered by this Court in

Mahin's case (supra). It will be better to extract that

judgment:

"The petitioners, who are husband and wife, are stated to be in ownership and possession of a total extent of 20.500 cents of land in Sy.No.27/11-5 of Aluva East village. With a view to constructing two residential buildings on the said land, the petitioners applied for and obtained a building permit in the year 2010 for construction of two units, referred to here as Unit -A and Unit -B respectively. It is stated that the construction of Unit -A was completed, and the respondent Panchayat allotted a building number to the said unit as well. As regards Unit -

B, after completion of construction, when the petitioners preferred an application for occupancy certificate and allotment of a building W.P.(C).No.16434/2022

number, the same was rejected by the respondent Panchayat by Ext.P6 order, which cites two reasons for the rejection of the application, namely, (1) that the building permit was granted for constructing a building of plinth area of 80.12 sq.metres with one floor, whereas the construction put up by the petitioners was of a two storied building with a total plinth area of 133.84 sq.metres. (2) The land on which the construction was put up was shown as 'Nilam' in the revenue records. The learned counsel for the petitioners would submit that, inasmuch as the construction was permitted by the respondent Panchayat by granting a building permit, and thereafter, granting a building number to Unit - A that was put up by the petitioners acting on the building permit, the Panchayat could not object to the nature of the land at this distance of time. As regards the other objection with regard to the construction being in violation of the building permit, it is the submission of the learned counsel for the petitioners that a revised building plan can be submitted before the respondent Panchayat for its consideration in the matter of regularisation of the construction of Unit -B. The learned counsel for the respondent Panchayat would submit that, the building permit originally W.P.(C).No.16434/2022

granted to the petitioners was in 2010, and two renewals have already been granted to the said building permit, and if the petitioners want to now submit a revised plan for consideration of the Panchayat, then they would also have to make an application for renewal of the building permit for the last term in order to support the application for consideration of the revised building plan. Taking note of the rival submissions, and finding that the issue as regards the nature of the land on which the construction was put up cannot be raised at this distance of time by the Panchayath and, at any rate, that the lands cannot now be used for cultivation of any paddy or other food crop, I dispose the writ petition by directing the petitioners to submit an application for renewal of the building permit, along with a revised plan to support the construction actually made in respect of Unit-B, before the respondent Panchayat within a period of two weeks from the date of receipt of a copy of the judgment. On receipt of the said application from the petitioners, the respondent Panchayat shall consider the same in accordance with the provisions of the Panchayat Raj Act and Rules but without reference to any objection as to the W.P.(C).No.16434/2022

nature of the land. The respondent Panchayat shall pass orders in the matter within six weeks from the date of receipt of the application /revised plan from the petitioners. The fate of the provisional number already allotted in respect of Unit -B pursuant to the interim order of this Court, shall be determined by the order to be passed by the respondent Panchayat pursuant to the directions in this judgment."

5. In the light of the above judgment, according to me,

the stand of the Municipality cannot be accepted. There was

an existing building in the place and the building was

constructed in that place. Moreover, the building was

constructed based on the valid building permit issued by the

Municipality. Therefore, according to me, the petitioners are

entitled occupancy certificate and number to the building.

Therefore, this writ petition is allowed in the following

manner:

1. Respondents 1 and 2 are directed to issue

building number and occupancy certificate to

the building constructed by the petitioners in

their properties situated in Ezhuvathiruthi

Village of Ponnani Taluk.

W.P.(C).No.16434/2022

2. The above exercise should be completed by

respondents 1 and 2, as expeditiously as

possible, at any rate, within three weeks from

the date of receipt of a copy of this judgment.

sd/-

                                        P.V.KUNHIKRISHNAN
JV                                             JUDGE
 W.P.(C).No.16434/2022





                 APPENDIX OF WP(C) 16434/2022

PETITIONER EXHIBITS
Exhibit P1        TRUE COPY OF THE SALE DEED DATED.

28/07/1999 BY WHICH THE 1ST PETITIONER PURCHASED 12.21 ARES ALONG WITH A RESIDENTIAL BUILDING THEREIN HAVING BUILDING NO. 7/383 OF EZHUVATHIRUTHI PANCHAYAT.

Exhibit P2 A TRUE COPY OF THE SALE DEED DATED 26/06/2004 BY WHICH THE 2ND PETITIONER PURCHASED 6.43 ARES ALONG WITH A RESIDENTIAL BUILDING THEREIN HAVING BUILDING NO. EP VII/122 OF EZHUVATHIRUTHI PANCHAYAT.

Exhibit P3 A TRUE COPY OF THE LAND TAX RECEIPT DATED 09/08/2021 WITH RESPECT TO 12.21 ARES BELONGING TO THE 1ST PETITIONER. Exhibit P4 A TRUE COPY OF THE LAND TAX RECEIPT DATED 28/04/2021 WITH RESPECT TO 6.43 ARES BELONGING TO THE 2ND PETITIONER. Exhibit P5 A TRUE COPY OF THE BUILDING PERMIT DATED 02/07/2015 ISSUED BY THE 1ST RESPONDENT MUNICIPALITY FOR CONSTRUCTION OF A COMMERCIAL BUILDING IN THE PROPERTY OF THE PETITIONERS.

Exhibit P6 A TRUE COPY OF THE BUILDING PERMIT DATED 19/11/2019 ISSUED BY THE 1ST RESPONDENT BASED ON THE APPLICATION DATED 19/11/2019 SUBMITTED BY THE PETITIONERS FOR RENEWAL OF EXHIBIT P5, AS PER RULE 15 (4) OF THE KMBR 2019.

Exhibit P7 A TRUE COPY OF RECEIPT DATED 24/02/2022 ISSUED BY THE 1ST RESPONDENT EVIDENCING SUBMISSION OF COMPLETION PLAN OF THE BUILDING.

Exhibit P8 A TRUE COPY OF THE CIRCULAR NO. LSGD-

406/RA1/2018-LSGD DATED 13/08/2018. Exhibit P 10 A TRUE COPY OF THE APPLICATION UNDER FORM 6 DATED 06/05/2022 SUBMITTED BY THE 1ST PETITIONER BEFORE THE 3RD RESPONDENT ALONG WITH ITS RECEIPT.

W.P.(C).No.16434/2022

Exhibit P11 A TRUE COPY OF THE REPORT DATED 07.06.2022 OF THE AGRICULTURAL OFFICER, KRISHI BHAVAN, EZHUVATHIRUTHY, PONNANI.

Exhibit P12 A TRUE COPY OF THE ORDER DATED 07.06.2022 OF THE 3RD RESPONDENT IN FORM 5 APPLICATION.