Beevi and Abboobacker Keyi Foundation v State of Kerala, Thalassery Municipality and Revenue Divisional Officer, Thalassery

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE N.NAGARESH** **WEDNESDAY, THE 28[TH] DAY OF SEPTEMBER 2022/6TH ASWINA, 1944 WP(C) NO. 21511 OF 2022** **PETITIONER:** **BEEVI AND ABOOBACKER KEYI FOUNDATION , 45/2343-44, 1ST FLOOR, KEYIS BUILDING, NARANGAPURAM, MANAVATTY JUNCTION, THALASSERY- 670101, KANNUR DISTRICT, REPRESENTED BY ITS SECRETARY MUNEEZ ARAILAKATH, AGED 50 YEARS, S/O. UMMER USMAN.** **BY ADV C.P.PEETHAMBARAN** ## **RESPONDENTS:** **1 STATE OF KERALA REPRESENTED BY THE SECRETARY, LOCAL SELF GOVERNMENT DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695001. 2 THALASSERY MUNICIPALITY, REPRESENTED BY ITS SECRETARY, THALASSERY P.O., KANNUR DISTRICT - 670101. 3 THE REVENUE DIVISIONAL OFFICER, THALASSERY OFFICE OF THE REVENUE DIVISIONAL OFFICER, PALISSERY, THALASSERY, KANNUR DISTRICT-670101.** **BY SMT.SURYA BINOY, SR.GOVERNMENT PLEADER SRI.I.V. PRAMOD, SC** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 28.09.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** W.P.(C) No.21511/2022 : 2 : ## **N. NAGARESH, J.** ````````````````````````````````````````````````````````````` W.P.(C) No.21511 of 2022 ````````````````````````````````````````````````````````````` _Dated this the 28[th] day of September, 2022_ ## **J U D G M E N T** ~ ~ ~ ~ ~ ~ ~ ~ ~ The petitioner, a charitable Trust, is aggrieved by the refusal by the Thalassery Municipality to issue Building Permit to the petitioner for construction of a Medical Centre. 2. The petitioner states that the Trust owns 4.05 Ares of land in Thiruvangad Desom in the 2[nd] respondentMunicipality. The land is a garden land but in the Revenue records, the land is shown as paddy land. The land was converted long ago, before the enactment of the Kerala Conservation of Paddy Land and Wetland Act, 2008. In Ext.P1 title document dated 30.03.2015, the land is described as ‘Thottam’. W.P.(C) No.21511/2022 : 3 : 3. The Agricultural Officer, as per Ext.P2, has certified that the land is not included in the Data Bank of paddy land and wetland. On an application for Building Permit made by the petitioner to construct a building in the land, the 2[nd] respondent issued Ext.P3 Building Permit dated 13.03.2017. The petitioner constructed the structure of Ground Floor, First Floor and Second Floor on the basis of the Building Permit. The Local Level Monitoring Committee (LLMC), as per Ext.P7 proceedings dated 24.12.2018, had decided to remove the land from Data Bank. 4. On the basis of a letter issued by the Agricultural Officer, the Municipal authorities cancelled the Building Permit on 28.05.2018. In W.P.(C) No.32284 of 2019 filed by the petitioner, this Court set aside the said order and directed reconsideration of the issue after hearing the petitioner. But, the Municipality after hearing the petitioner again revoked the Building Permit on 18.02.2020. 5. In the petitioner’s appeal, the Tribunal for Local Self Government Institutions directed the Municipal W.P.(C) No.21511/2022 : 4 : authorities to renew the Building Permit of the petitioner, as per Ext.P9 order dated 26.04.2022. The 2[nd] respondent, however, directed the petitioner to produce a land conversion order from the RDO, as per Ext.P10 order dated 01.06.2022. The petitioner seeks to quash Ext.P10 and to direct the 2[nd] respondent to renew Ext.P3 permit. 6. The petitioner states that after Ext.P9 order of the Tribunal, the Municipal authorities cannot insist on production of a conversion order for renewing the Building Permit. In view of the judgment in _**Global Education Trust v. State of Kerala** [2020 (6) KLT 738]_ , the petitioner need not apply for land conversion order under Section 27A of the Act, 2008. 7. The Senior Government Pleader and the Standing Counsel for the Municipality opposed the writ petition and argued that since the land is described as paddy land in the Revenue records, in view of Section 27A of the Kerala Conservation of Paddy Land and Wetland Act, 2008, the Municipality can issue or renew a Building Permit only if the W.P.(C) No.21511/2022 : 5 : land description in Revenue records is changed suitably. The judgment of this Court in _**Global Education Trust**_ (supra) will not apply to the facts of the case, it was asserted on behalf of the respondents. 8. I have heard the learned counsel for the petitioner, the Senior Government Pleader representing respondents 1 and 3 and the learned Standing Counsel for the 2[nd] respondent. 9. The petitioner’s land has been described as paddy land in Revenue records, though it is a converted land. The land has been described as garden land in the title document of the year 2015. The Agricultural Officer issued Ext.P2 Certificate stating that the land is not included in the Data Bank. On an application submitted by the petitioner, a Building Permit was issued to the petitioner on 13.03.2017 as per Ext.P3. The petitioner constructed the structure of the building up to and inclusive of the 2[nd] floor. 10. While so, the Agricultural Officer required the Municipal Authorities to cancel the licence issued to the W.P.(C) No.21511/2022 : 6 : petitioner. The Municipal authorities cancelled the Building Permit. As the period of the Building Permit is expiring, the petitioner has applied for renewal of the Building Permit. The cancellation of the Building Permit was challenged by the petitioner in the Tribunal for Local Self Government Institutions. 11. The Tribunal noted that the Local Level Monitoring Committee has decided on 24.12.2018 to remove the land from the Data Bank and found that there is no justification for denial of renewal of Building Permit to the petitioner. The Tribunal allowed the appeal filed by the petitioner as per Ext.P9 order dated 26.04.2022. The operative portion of the judgment of the Tribunal reads as follows: (1) Annexure-P1 impugned order bearing No.E3/BA/381/15-16 dated 18.02.2020 is hereby set aside. (2) Since the Annexure-P2 building permit, the validity of the same has been expired on 06.10.2020 and the appellant submitted an application for renewal of the said permit. It is evident from the file produced by the side of the appellant. In such circumstances, the period of litigation can be exempted and the respondent is hereby directed to consider the renewal application and shall grant the building permit in favour of the W.P.(C) No.21511/2022 : 7 : appellant. The process shall be completed within 60 days from the date of this order. Ext.P9 order of the Tribunal would show that there is mandatory direction given by the Tribunal to grant Building Permit in favour of the petitioner. 12. The 2[nd] respondent has not challenged Ext.P9 order of the Tribunal. Therefore, the matter has become final intra-party. 13. In this regard, it is to be noted that the petitioner was granted a Building Permit by the Municipality on 13.03.2017 as per Ext.P3, relying on Ext.P2 Certificate issued by the Agricultural Officer to the effect that the land in question is not included in the Data Bank. The Agricultural Officer later took a stand on 18.05.2018 that Ext.P2 was issued under a mistake. It was based thereon that the Municipality cancelled the Building Permit issued to the petitioner. But, it is to be noted that the LLMC on 24.12.2018 decided to remove the petitioner’s land from the Data Bank. W.P.(C) No.21511/2022 : 8 : 14. The petitioner has constructed the structure of the building up to and including the 2[nd] Floor based on the basis of the Building Permit issued by the Municipality. The Building Permit issued was cancelled by the Municipality on the basis of a letter issued by the Agricultural Officer stating that the land is included in the Data Bank. It is now clear that the LLMC has subsequently decided to remove the land from Data Bank. 15. In the facts and circumstances of the case, taking into account the fact that Ext.P9 order of the Tribunal directing the Municipality to issue Building Permit to the petitioner has become final and conclusive, that the petitioner has already constructed the structure of the building up to and including the 2[nd] Floor based on a Building Permit validly issued by the Municipality and that the LLMC has decided to remove the land from Data Bank, the petitioner should be permitted to construct the building as per Ext.P3 Building Permit. W.P.(C) No.21511/2022 : 9 : The writ petition is therefore allowed. Ext.P10 is set aside. The 2[nd] respondent is directed to renew Ext.P3 Building Permit without insisting for any further requirements. Orders in this regard shall be passed within a period of one month. Sd/- **N. NAGARESH, JUDGE** aks/27.09.2022 W.P.(C) No.21511/2022 : 10 : ## **APPENDIX OF WP(C) 21511/2022** ## **PETITIONER'S EXHIBITS** **Exhibit P1 TRUE COPY OF THE DOCUMENT NO. 571/2015 OF SUB REGISTRAR'S OFFICE, THALASSERY. Exhibit P2 TRUE COPY OF THE CERTIFICATE DATED 28.2.2017 ISSUED BY THE AGRICULTURAL FIELD OFFICER, KRISHI BHAVAN, T HALASSERY. Exhibit P3 TRUE COPY OF THE BUILDING PERMIT NO. E3/BA/381/15-16 DATED 13.3.2017 ISSUED BY THE 2ND RESPONDENT. Exhibit P4 TRUE PHOTOGRAPHS SHOWING THE CONSTRUCTION COMPLETED BY THE PETITIONER. Exhibit P5 TRUE COPY OF THE JUDGMENT DATED 28/11/2019 IN WPO NO. 32284/2019 OF THIS HON'BLE COURT. Exhibit P6 TRUE COPY OF THE ORDER NO.E3/BA/381/15-16 DATED 18/2/2020 ISSUED BY THE 2ND RESPONDENT. Exhibit P7 TRUE COPY OF THE ORDER DATED 24.12.2018 OF THE AGRICULTURAL FIELD OFFICER, KRISHI BHAVAN, THALASSERY. Exhibit P8 TRUE COPY OF THE JUDGMENT DATED 22/3/2022 IN WP (C) NO. 9159/2022 OF THIS HON'BLE COURT. Exhibit P9 TRUE COPY OF THE ORDER DATED 26.4.2022 OF THE TRIBUNAL FOR LOCAL SELF GOVERNMENT INSTITUTIONS, THIRUVANANTHAPURAM. Exhibit P10 TRUE COPY OF THE ORDER DATED 1/6/2022 OF THE 2ND RESPONDENT. Exhibit P11 TRUE COPY OF THE JUDGMENT DATED 16/12/2020 WP(C) NO. 34216/2019 OF THIS HON'BLE COURT** W.P.(C) No.21511/2022 : 11 : |**Exhibit P12**|**TRUE COPY OF THE NOTICE DATED**| |---|---| ||**13/6/2020 ISSUED BY THE EXECUTIVE**| ||**ENGINEER OF THE 2ND RESPONDENT.**| |**Exhibit P13**|**TRUE COPY OF THE ORDER DATED 28.5.2018**| ||**ISSUED BY THE EXECUTIVE ENGINEER OF**| ||**THE 2ND RESPONDENT.**|