Anwar P.K. v. Thrissur Corporation and The Secretary, Thrissur Corporation

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE N.NAGARESH** **THURSDAY,THE 23[RD] 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]** ## **J U D G M E N T** ~ ~ ~ ~ ~ ~ ~ ~ ~ ## _**Dated this the 23[rd] 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 2[nd] 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 : 3 : 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 : 4 : 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 2[nd] 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 : 5 : 7. The 2[nd] 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 : 6 : 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 2[nd] 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 : 7 : 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 1[st] 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 : 8 : 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 : 9 : 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 : 10 : 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 : 11 : 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 : 12 : 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 : 13 : 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 : 14 : 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 2[nd] 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 : 15 : ## **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 18-112007 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 : 16 : ## **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