Anu John v. District Collector Ernakulam District & Others (W.P.(C) No.11306 of 2020)

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **MONDAY, THE 03RD DAY OF AUGUST 2020 / 12TH SRAVANA, 1942** ## **WP(C).No.11306 OF 2020(K)** ## **PETITIONER:** **ANU JOHN AGED 32 YEARS** **W/O.SHINE ANTONY, KOLARIKKAL HOUSE, MANNAMTHURUTHU, VARAPUZHA.P.O, ERNAKULAM DISTRICT.** **BY ADVS. SRI.N.RAGHURAJ SHRI.SREEKUMAR S** ## **RESPONDENTS:** - **1 THE DISTRICT COLLECTOR ERNAKULAM DISTRICT, CIVIL STATION, KAKKANAD-682030, ERNAKULAM DISTRICT.** - **2 THE REVENUE DIVISIONAL OFFICER, PARAVUR, PARAVUR.P.O, 683513, ERNAKULAM DISTRICT** - **3 THE SECRETARY, KOTTUVALLY GRAMA PANCHAYAT, VALLUVALLY, KUNAMMAVU.P.O., 683518, ERNAKULAM DISTRICT** - **4 KOTTUVALLY GRAMA PANCHAYAT, REPRESENTED BY ITS SECRETARY, VALLUVALLY, KUNAMMAVU.P.O, 683518, ERNAKULAM DISTRICT** - **5 THE VILLAGE OFFICER, KOTTUVALLY VILLAGE, KOTTUVALLY.P.O-683519, ERNAKULAM DISTRICT.** **BY ADVS.** **SRI.SAIGI JACOB PALATTY, SR.GOVT.PLEADER SRI.BABU KARUKAPADATH** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 03.08.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 2 W.P(C) No. 11306 of 2020 ALEXANDER THOMAS, J. -----------------------------------W.P(C) No. 11306 of 2020 ------------------------------------ Dated this the 3[rd] day of August, 2020 ## **JUDGMENT** The prayers in the above Writ Petition (C) are as follows: - _"(i) a writ of certiorari or any other appropriate writ order or direction directing calling for the records leading to Exbt-P7 order and quash the same._ - _(ii) a writ of mandamus or any other appropriate writ order or direction directing the respondents 3 and 4 to issue occupancy certificate and allot number to the building constructed by virtue of Exbt-P6 building permit at the earliest._ - (iii) such other reliefs as this Hon’ble Court deems fit to grant in the nature of this case." 2. Heard Sri.N.Raghuraj, learned counsel appearing for the petitioner, Sri.Saigi Jacob Palatty, learned Senior Government Pleader appearing for respondent Nos. 1, 2 & 5 and Sri.Babu Karukapadath, learned counsel appearing for R3 & R4 (Kottuvally Grama Panchayat). 3. The case of the petitioner is that, the subject property though continues to be described as 'nilam/paddy land' in the Basic Tax Register as per the revenue records, has been converted as garden land/purayidam long prior to 12-08-2008. (date of coming 3 W.P(C) No. 11306 of 2020 into force of the Kerala Conservation of Paddy Land and Wetland Act, 2008). Further that the subject property has not been included in the land data bank prepared as per the provisions of the 2008 Act State Act 28 of 2008, as can be seen from Ext.P3 certificate dated 11-03-2015 issued by the 5[th] respondent Village Officer. That the petitioner had submitted application for grant of building permit to the 3[rd] respondent Secretary of the Grama Panchayat and thereafter he has secured Ext.P6 building permit dated 01-08-2017 issued by the 3[rd] respondent Secretary of the Grama Panchayat for effecting construction of the residential building in the abovesaid subject property and the plinth area of the construction permitted thereby is 159.82 sq.mtr. Further that the petitioner has completed the construction and that the total plinth area of the completed construction is in excess of the plinth area permitted by Ext.P6 and according to the 3[rd] respondent the total plinth area after construction comes to 234.04 sq.mtr. 4. The petitioner had submitted application dated 28-01-2019 (referred to as item No.2 in Ext.P7) for completion certificate and for grant of building number to the completed construction. Further that since the 3[rd] respondent has taken the stand that the plinth area 4 W.P(C) No. 11306 of 2020 of the completed construction is in excess of the area permitted by Ext.P6, petitioner by a way of abundant caution has also submitted the application dated 16-03-2020 to the 3[rd] respondent for regularisation of the construction. The application dated 28-01-2019 for completion certificate and door numbering as well as the application dated 16-03-2020 for regularisation of the construction are referred to as item Nos.2 & 3 in Ext.P7. Now the 3[rd] respondent Secretary of the Grama Panchayat has issued Ext.P7 order dated 01-06-2020, without affording opportunity of being heard to the petitioner, ordering that the plea of the petitioner for completion certificate, door numbering and regularisation etc., cannot be considered now as the constructed area is in excess of the permitted area and further that as the subject property is described as 'nilam/paddy land' in the Basic Tax Register maintained in the revenue records and the petitioner will have to necessarily obtain statutory permission from the Revenue Divisional Officer concerned presumably in terms of Sec.27A of the Kerala Conservation of Paddy Land and Wetland Act, 2008. It is this order at Ext.P7, that is under challenge in this W.P(C). 5. It is brought to the notice of this Court that the Government 5 W.P(C) No. 11306 of 2020 in the Local Self Government Department has issued Government Circular bearing No.LSGD-406/RA1/2018-LSGD dated 13-08-2018, wherein it has been ordered that in cases where the party has already obtained building permit to effect construction in the subject property which is shown as 'nilam/paddy land' in the BTR and has been converted etc., and where such building permit has been granted before 30-12-2017 (date of coming into force of the amended provisions of the State Act 28 of 2008, which has introduced Sec.27A thereof), then even if such construction has been completed after the said cut off date 30-12-2017, the local bodies can consider the issues relating to door numbering, completion certificate etc., after ascertaining that the construction has been done in accordance with the provisions of the applicable statutory building rules and without insisting for orders from the competent statutory revenue officers concerned for permission for change of user of the land as envisaged in the amended provisions of the State Act 28 of 2008, which has introduced Sec.27A thereof. The said Government Circular dated 13-08-2018 issued by the Government in the Local Self Government Department reads as follows: 6 W.P(C) No. 11306 of 2020 ## _**"**_ ക�രള സർക�ർ ന� _._ തസ�ഭവ _- 406/_ ആർ _._ എ _1/2018-_ തസ�ഭവ തക�ശ സ�യ�ഭരണ _(_ ആർ _._ എ _)_ വ��പ� ത�ര�വനനപ�ര� _,_ ത�യത� _: 13/08/2018_ **പരരപതതത** വ�ഷയ� _: - 2018_ ല ലനൽവയൽ തക�ശ സ�യ�ഭരണ വ��പ� തണ�ർതട സ�രകണ _(_ കഭദഗത� _)_ ആകട�നല* പപ�ബ - ത�യത�ക� മ�മ� ലപർമ�റ� നൽ��യ ന�ർമ�ത��ള�ൽ ഒക�ലപൻസ� _/_ ല�ട�ട നമർ നൽ��നത�ന ന�ർക�ശങൾ _- ._ പ�*ലപട�വ�ക�നതസ�ബന�ച� സ;ചന _:_ ബഹ� _._ തക�ശ സ�യ�ഭരണ വ��പ� മപന�യ�ലട _06/08/2018_ ല _604/18/ MLSGD_ ന�മർ ��*�പ� _._ _2018_ ല ക�രള ലനൽവയൽ തണ�ർതട സ�രകണ _(_ കഭദഗത� _)_ ആക> _30/12/2017_ ത�യത� പപ�ബ -ത�ൽ വന�ട?ളത�ണ _._ പപസത�ത ആകട�ല വ��പ� _27 (_ എ _)_ �ണ വ�ജ�പന� ലചയലപട�ത ഭ;മ�യ�ല ന�ർമ�ണ�ന�മത�ലയ ��*�ച� പപത�പ�ദ�ക�നത _._ എന�ൽ _30/12/2017_ ന മ�മ� തക�ശ സ�യ�ഭരണ സ�പനങള�ൽ ന�ന� ആകട�നല* പപ�ബ -ത�യത�ക� മ�ൻപ ന�ർമ�ണ�ന�മത� നൽ��യ�ട?ളത�� എന�ൽ ട� ആക> ന� വ�ൽ വനത�ന� കശഷ� ന�ർമ�ണ� പ;ർത�യ�ക�യ�ട?ളത�മ�യ ല�ട�ടങൾക� ഒക�ലപൻസ� _/_ ല�ട�ട നമർ ഭ�ക�നത�ന�യ� ബനലപട തക�ശ സ�യ�ഭരണ സ�പനങലള സമ�പ�ക�കമ�ൾ ആകട�ല വ-വസ�ൾ പപ��ര� ബനലപട *വന-; ഡ�വ�ഷണൽ ഓഫ�സ*�ലട അന�മത� _/_ സമതപപത _o_ ന�ഷ�ർഷ�ച? ല��ണ� _._ അകപക�ൾ ന�രസ�ക�നത�യ� സർക�*�നല* പശദയ�ൽലപട�ട?ണ� സർക�ർ ഇക�ര-� വ�ശദമ�യ� പര�കശ�ധ�ച? _. 2018_ ല ക�രള ലനൽവയൽ തണ�ർതട സ�രകണ _(_ കഭദഗത� _)_ ആക> ന� വ�ൽ വര�നത�ന മ�മ� അന�വദ�ച�ട?ള ന�ർമ�ണ ലപർമ�റ� പപ��ര� പ;ർത��ര�ച�ട?ള ല�ട�ടങൾക� ഒക�ലപൻസ� _/_ ല�ട�ട നമർ അന�വദ�ക�നത�ന�യ� _30/12/2017_ ത�യത�ക� കശഷ� ന� വ�ൽ വന ആകട�ല വ��പ?�ൾ പപ��രമ�ള കരഖ�ൾ ന�ഷ�ർഷ�ക�നത ശര�യ�യ നടപട�യല Pന� ��ണ�ന� _._ അത�ന�ൽ _30/12/2017_ ന മ�മ� അന� ന� വ� �ര�ന ചടങള?� വ-വസ�ള?� പ� �ച� അത� പപ��ര� സമർപ�ച�ട?ള അകപക�ള�ൽ ബനലപട തക�ശ സ�യ�ഭരണ സ�പന� എ P� വ�ധ പര�കശ�ധന�ള?� നടത� ചടവ�കധയമ�ലണന� ഉ*പ? വര�ത�യത�ന� കശഷ� അന�വദ�ച�ട?ള ന�ർമ�ണ പർമ�റ� പപ��ര� പ;ർത��ര�ച ല�ട�ടങൾക� ഒക� ലപൻസ� _/_ ല�ട�ട നമ*�ന�യ� സമർപ�ക�ന _2018_ അകപക�ള�ൽ ല ക�രള ലനൽവയൽ തണ�ർതട സ�രകണ _(_ കഭദഗത� _)_ ആകട�ല _(2018_ ല _29)_ വ-വസ�ൾ ബ�ധ�മല Pന�� പപസത�ത ല�ട�ട ന�ർമ�ണ ലപർമ�റ� നൽ��കമ�ൾ ന� വ� �ണ�യ�ര�ന ന�യമങൾ ആണ ട� ല�ട�ടങൾക� ഒക�ലപൻസ� _/_ ല�ട�ട നമർ നൽക�ന _._ അവസരത�ൽ ബ�ധ�ലമന�� ഇത�ന�ൽ അ*�യ�ക�ന� _._ ല� _._ കR�സ റ� _"_ അഡ�ഷണൽ ച�ഫ ലസപ�ട*� 6. From a reading of the pleadings and materials on record, it is seen that Ext.P6 building permit has been issued in favour of the 7 W.P(C) No. 11306 of 2020 petitioner by the 3[rd] respondent as early as on 01-08-2017 and this aspect has also been referred to as item No.1 in the impugned Ext.P7 proceedings. Thereafter, the petitioner has completed the construction and has submitted application dated 28-01-2019 for completion certificate and for grant of building number etc,. Since there is no dispute that the petitioner has obtained building permit from the 3[rd] respondent prior to 30-12-2017 (date of coming into force of the amended provisions of the 2008 Act) and even though the petitioner has constructed the building in such converted land, which continues to be described as 'garden land or purayidam' in the BTR and notwithstanding the fact that the construction has been completed after the abovesaid cut off date of 30-12-2017, petitioner is entitled to get the benefit of the directions issued by the State Government in the abovesaid Government Circular dated 13-08-2018. This crucial aspect of the matter has not been taken into consideration by the 3[rd] respondent while issuing the impugned Ext.P7 order. Moreover, the impugned Ext.P7 order is liable for interdiction, is only on the ground of the blatant violation of the principles of natural justice and fairness as such an adverse order could have been passed only after prior opportunity of hearing to the 8 W.P(C) No. 11306 of 2020 affected person like the petitioner. 7. In that view of the matter, it is ordered that that the impugned Ext.P7 rejection order will stand set aside. Consequently, the application dated 28-01-2019 submitted by the petitioner for completion certificate and for grant of building number as well as the application dated 16-03-2020 for regularisation of the construction (referred to as item No.2 & 3 in Ext.P7) will stand remitted to the 3[rd] respondent Secretary of the Grama Panchayat for consideration and decision afresh. The 3[rd] respondent Secretary of the Kottuvally Grama Panchayat will afford reasonable opportunity of being heard to the petitioner through authorised representative or counsel if any, and then should take a considered decision on the abovesaid application dated 28-01-2019 for completion certificate and for grant of building number as well as the application dated 16-03-2020 for regularisation, in accordance with the provisions contained in the Kerala Panchayat Building Rules and norms relating to regularisation of such construction and without any reference to the nature of the land and having due regard to the beneficial directions issued by the Government in the abovesaid circular dated 13-08-2018, without much delay preferably within a period of one month from the date of 9 W.P(C) No. 11306 of 2020 production of a certified copy of this judgment. If for the consideration of application for regularisation any inspection is necessary, it will be open to the 3[rd] respondent to ensure the conduct of such inspection by the Building Inspector of the Panchayat or any competent official concerned, but such inspection should be effected with due prior notice to the petitioner, to ascertain the details of the completed construction and also as to ascertain the nature of the violation including the excess construction etc., and as to whether those aspects could be the subject matter of regularisation etc., and a copy of the inspection report should also be given to the petitioner in advance. The process of inspection and submission of the inspection report should be completed by the Inspecting Officer within two weeks from the date of receipt of a copy of this judgment, so that the overall time limit of one month should be strictly adhered to by the 3[rd] respondent Secretary of the Grama Panchayat to pass final orders in the matter as aforedirected. 8. That apart, it has been held by this Court in quite a few cases as in _**Mahin v. Keezhmad Grama Panchayat [2020 (2) KLT 478, Soumini v. nadavannur Grama Panchayat [2017 (1) KLT 168]**_ etc., that in cases like this where the converted land 10 W.P(C) No. 11306 of 2020 continues to be described as 'nilam/paddy land' in the BTR and the local body like the Panchayat/Municipality grants building permit to effect constructions and thereafter the local body like the Panchayat etc, will be estopped from taking the stand that completion certificate or additional construction etc, cannot be permitted in view of the entries in the BTR and in such cases decision will have to be taken by the local body, regarding the completion certificate, additional construction etc, without reference to the nature of the land etc,. Apart from the abovesaid Government circular the petitioner is also entitled to succeed in view of the dictum laid down by this Court in the aforestated judgments, as at this late stage the respondent Pachayat authorities will be estopped to take a stand as the one in Ext.P7 rejection order, after having issued building permit in terms of Ext.P6 etc,. For that reason also the impugned order is liable for interdiction. 9. The learned counsel for the petitioner submits that in view of the provisions contained in the abovesaid Government Circular dated 13-08-2018 as well as the previous circulars issued by the State Government in that regard, in cases like this the party like the petitioner will be entitled to get fresh assessment of the subject 11 W.P(C) No. 11306 of 2020 property in terms of Sec.6A of the Kerala Land Tax Act, so as to secure additional entries in the BTR to show the changed nature of the land as garden land or purayidam instead of the earlier BTR entries as ‘nilam/paddy land’, as the State Government in exercise of its sovereign executive power has issued circulars in the nature of the one as per the circular dated 13-08-2018, giving benefits to the property holders to enjoy the properties as ordered therein and therefore the said decision of the State Government would amount to exercise of the powers of the State Government to recognise the subject property as in the instant one as dry land, which is fit for building construction and since the said Government Circulars exempt the party like the petitioner from going through the rigorous procedure of Sec.27A and even if they have not obtained orders of conversion under Rule 6 (2) of the KLU Order, they are statutorily entitled to get fresh assessment of the subject property for alteration of the BTR etc, and that in view of the abovesaid decision of the State Government as reflected in the abovesaid Government Circular, the existing entries in the BTR would become superfluous and redundant and the exceptional situations in Rule 6(2) of the KLU Order and the provisions of State Act 28 of 2008 including Sec.27A thereof, would 12 W.P(C) No. 11306 of 2020 not be applicable in such case and therefore it should be ordered that the party like the petitioner to be entitled to get the benefit of such alteration in the BTR. 10. After hearing both sides, it is seen that such an issue is not raised by the petitioner in the pleadings and materials in the record. Moreover the statutory Officer in that regard, is the Tahsildar who is not made a party. Hence, issues in that regard are left open and it is for the petitioner to raise such issue before the competent revenue officials like Tahsildar and after securing the completion certificate and building number from the 3[rd] respondent, petitioner may file such representation/application along with a copy of this judgment before the Tahsildar concerned seeking for such benefits and if so, the respondent Tahsildar shall take decision in the said matter taking note of the abovesaid contentions of the petitioner. Therefore issues in that regard, are left open to be raised before the competent authority and thereafter in case, the petitioner has any legally justiciable grievances thereto, including delay on the part of the Tahsildar concerned to take decision etc, it will be open to the petitioner to work out his remedies in the manner known to law. 11. No other directions and orders are called for in this case. 13 W.P(C) No. 11306 of 2020 12. The petitioner will produce certified a copy of the judgment along with a copy of the memorandum of W.P(C) with all the Exhibits before the 3[rd] respondent Secretary of the Grama Panchayat for necessary information and further action. With these observations and directions the above Writ Petition (Civil) will stand disposed of. **Sd/-** ## **ALEXANDER THOMAS** **JUDGE** KAS 14 W.P(C) No. 11306 of 2020 ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** - **EXHIBIT P1 TRUE COPY OF THE ASSIGNMENT DEED NO.2626/2015 OF PARAVUR SUB REGISTRAR OFFICE** - **EXHIBIT P2 TRUE COPY OF THE ASSIGNMENT DEED NO.2006/2015 OF PARAVUR SUB REGISTRAR OFFICE** - **EXHIBIT P3 TRUE COPY OF THE CERTIFICATE ISSUED BY THE VILLAGE OFFICER DATED 11.03.2015** - **EXHIBIT P4 TRUE COPY OF THE POSSESSION CERTIFICATE ISSUED BY THE VILLAGE OFFICER DATED 08.03.2017** - **EXHIBIT P5 TRUE COPY OF THE BASIC TAX RECEIPT DATED 16.03.2020** - **EXHIBIT P6 TRUE COPY OF THE BUILDING PERMIT DATED 01.08.2017** - **EXHIBIT P7 TRUE COPY OF THE ORDER DATED 01.06.2020 ISSUED BY THE 3RD RESPONDENT** - **EXHIBIT P8 TRUE PHOTOCOPY OF THE PHOTOGRAPHS EXHIBIT P9 TRUE PHOTOCOPY OF JUDGMENT DATED 05/11/2018 IN WPC.NO.18136 OF 2017 REPORTED IN 2020(2) KLT 478.** - **EXHIBIT P10 TRUE PHOTOCOPY OF THE JUDGMENT IN SOUMINI vs. NADAVANNUR GRAMA PANCHAYAT REPORTED IN 2017(1) KLT 168.** ## **RESPONDENT'S/S EXHIBITS: NIL**