C. M. Johney v. State of Kerala and Others (W.P(C) No.5687 of 2020)

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **WEDNESDAY, THE 11TH DAY OF MARCH 2020 / 21ST PHALGUNA, 1941** ## **WP(C).No.5687 OF 2020(I)** ## **PETITIONER:** ## **C.M.JOHNEY** **AGED 63 YEARS** **S/O.LATE MATHAI, CHELAKKAMATTATHIL HOUSE, KOOTHATTUKULAM, MUVATTUPUZHA TALUK, ERNAKULAM DISTRICT-686661** **BY ADVS.** **SRI.GEORGE SEBASTIAN SMT.PHILIA KOSHY** ## **RESPONDENTS:** - **1 THE STATE OF KERALA REPRESENTED BY SECRETARY TO THE DEPARTMENT OF LOCAL SELF GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM PIN695001** - **2 THE REVENUE DIVISIONAL OFFICER MUVATTUPUZHA, PIN-686661** - **3 THE LOCAL LEVEL MONITORING COMMITTEE (CONSTITUTED UNDER ACT 28 OF 2008) OF KOOTHATTUKULAM MUNICIPALITY,. REPRESENTED BY ITS CONVENOR, THE AGRICULTURAL OFFICER, KRISHI BHAVAN, KOOTHATTUKULAM, PIN-686662** - **4 THE KOOTHATTUKULAM MUNICIPALITY REPRESENTED BY SECRETARY, MUNICIPAL OFFICE, KOOTHATTUKULAM PIN-686662** - **5 THE SECRETARY THE KOOTHATTUKULAM MUNICIPALITY, MUNICIPAL OFFICE, KOTTATTUKULAM, PIN-686662** - **R4-5 BY SRI.JAMES ABRAHAM, SC, KOOTHATTUKULAM MUNICIPALITY** ## **SMT.K.AMMINIKUTTY, GOVT.PLEADER** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 11.03.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** W.P(C) No.5687 of 2020 2 ## **ALEXANDER THOMAS, J.** # **=========================== W.P(C) No.5687 of 2020** **===========================** Dated this the 11[th] day of March, 2020 ## **JUDGMENT** The prayers in the above Writ Petition (Civil) are as follows: - _“(i) To issue a Writ of mandamus, order or direction to the 5gth respondent to grant occupancy certificate to the buildings constructed in pursuant of Exts.P2 and P3 building permits and to assign numbers to those buildings._ - _(ii) To declare that the building constructed in pursuance of Exhibits P2 and P3 building permits cannot be treated as unauthorized._ - _(iii) To declare that the building constructed in pursuance of Exhibits P2 and P3 building permits need not require any orders from the 2[nd] respondent for issuance of occupancy certificate and for getting numbers._ - _(iv) To issue a writ of certiorari for the originals of Exhibits P6 to P8 and to quash the same._ - _(v) To declare that the buildings constructed in pursuance of Exhibits P2 and P3 building permits are entitled to get the benefit of deemed occupancy as per the second proviso to Rule 22 (3) of the Kerala Municipality Building Rules, 1999, and to direct the 5[th] respondent to issue occupancy certificate in the physical form, to the petitioner in respect of those buildings.”_ 2. Heard Sri.George Sebastian, learned counsel appearing for the petitioner, Sri.James Abraham Vilayakkattil, learned counsel appearing for R-4 & R-5 (Koothattukulam Municipality) and Smt.K.Amminikutty, learned Government Pleader appearing for respondents 1 to 3. W.P(C) No.5687 of 2020 3 3. In this case, the petitioner was granted Ext.P-2 building permit dated 01.12.2007 issued by the Secretary of the Koothattukulam Grama Panchayat for construction of a two storied building consisting of a ground floor and first floor. The petitioner had duly completed the said construction pursuant to Ext.P-1 building permit and had also submitted completion certificate on 20.11.2008 before the said local body and it is beyond any dispute that the ground floor and the first floor of the said building so constructed in pursuance of Ext.P-2 building permit was also duly numbered by the Koothattukulam Panchayat. Later, the petitioner has also secured Ext.P-3 building permit dated 06.09.2008 issued by the Koothattukulam Panchayat for making additional construction, so as to form part of the second floor of the abovesaid building. The construction in that regard was duly completed on 04.02.2010 and Ext.P-4 completion certificate was duly submitted by the petitioner on 04.02.2010 before the Koothattukulam Panchayat, as evident from Ext.P-5 receipt dated 04.02.2010. However, the said local body did not grant a building number to the said second floor component of the abovesaid building. According to the petitioner, no decision whatsoever has been taken by the respondentlocal body on Ext.P-4 completion certificate submitted by the petitioner on 04.02.2010 for issuance of occupancy certificate and for duly numbering of the second floor of the said building and therefore, by virtue of the W.P(C) No.5687 of 2020 4 mandatory clause contained in Rule 22(3) of the Kerala Municipality Rules (which by then was made applicable to all panchayats, including the abovesaid panchayat), the petitioner is deemed to have secured the occupancy certificate, on expiry of 15 days from the submission of Ext.P-4 request. 4. Further, in the year 2015, the abovesaid panchayat was upgraded as Municipality. It so happened that all other buildings except the abovesaid building of the petitioner were duly given the respective building numbers by the said local body, after its up-gradation as the 4[th] respondent-Koothattukulam Municipality. Though the ground floor and the first floor of the said building was duly numbered by the Koothattukulam Panchayat, for reasons not known to the petitioner, even the existing and duly numbered ground floor and first floor as well as the second floor of the building was not numbered by the 4[th] respondentKoothattukulam Municipality. 5. Now the stand of the 4[th] respondent-Municipality as evident from Ext.P-6 communication dated 19.10.2019 and Ext.P-7 communication dated 16.01.2020 issued by the 5[th] respondent-Secretary of the said Municipality is to the effect that the subject property is classified as Nilam in the Basic Tax Register and that therefore, the petitioner has necessarily produced the permission from the competent Revenue Divisional Officer W.P(C) No.5687 of 2020 5 concerned under Sec.27A(1) of the amended provisions of the Kerala Conservation of Paddy Land and Wetland Act, 2008 and it is only after that, can the respondent-Municipal authorities grant building number not only to the second floor, but also in respect of the ground floor and the first floor of the said building. 6. The petitioner has challenged Exts.P-6 & P-7 on various grounds. One of the prime contentions raised by the petitioner is to the effect that none other than the 1[st] respondent State Government has issued Ext.P-10 circular dated 13.08.2018 clearly stipulating that in respect of buildings/constructions which have been duly completed before 30.12.2017, which is the date of coming into force of the amended provisions of the Kerala Conservation of Paddy Land and Wetland Act, 2008, which has introduced Sec.27A thereof, such permission from the revenue officials under Sec.27A(1) is not required and the building could be duly numbered by the local body concerned, even if the subject property is shown as Nilam in the BTR. By Ext.P-11 circular dated 27.06.2019, the Director of Urban Affairs, Government of Kerala has also issued strict directives to all the local bodies, including Municipalities that the directions of the Government in Ext.P-10 circular dated 13.08.2018 should be strictly followed by all the local bodies concerned. W.P(C) No.5687 of 2020 6 7. In the instant case, the petitioner has got a case that though the property has been shown as Nilam as per the Basic Tax Register, subject property has been converted as garden land or purayidam, much long prior to 12.08.2008, which is the date of coming into force of the Kerala Conservation of Paddy Land and Wetland Act, 2008. Further that, the subject property cannot fulfil the definition of either paddy land, as per Sec.2(xii) or as wetland in terms of Sec.2(xviii). Further it is seen that it is beyond any dispute that the subject property was converted much prior to 12.08.2008 (date of coming into force of the 2008 Act) for the simple reason that after due inspection of the property, the respondent-local body concerned has granted Ext.P-2 building permit on 01.12.2007 (which is prior to coming into force of the 2008 Act) for constructing building in the said property and completion certificate was also submitted on 20.11.2008 and consequently, the ground floor and the first floor of the said building were also duly numbered. Thereafter, Ext.P-3 building permit was also issued by the local body on 06.09.2008 for constructing the second floor of the said building and completion certificate has also been duly submitted as per Ext.P-4 on 04.02.2010, as evident from Ext.P-5 receipt dated 04.02.2010. Thereby, it is evidently clear that the subject buildings have already been constructed in the subject property, much prior to 30.12.2017, which is the date of coming into force of the amended provisions of the W.P(C) No.5687 of 2020 7 abovesaid 2008 Act, which has introduced Sec.27A thereof. When none other than the 1[st] respondent-State Government has directed all the local bodies concerned including the respondent-Municipality as per Ext.P-10 circular dated 13.08.2018, as aforementioned, then the action on the part of respondents 4 & 5 in issuing the impugned proceedings as per Exts.P-7 & P-8 is in blatant violation of the directives issued by the 1[st] respondentState Government in Ext.P-10 circular, as reiterated in Ext.P-11 circular dated 27.06.2019 issued by the Director of Urban Affairs, Government of Kerala. 8. That apart, this Court has held in the judgment in the case in _**Soumini and others v. Naduvannur Grama Panchayat, Kozhikode**_ [2017 (1) KLT 168 = 2016(5) KHC 872] in a case where the petitioner therein had sought permission for construction of first floor in the existing building, though the description of land in occupancy certificate was Nilam. That the description of land in the BTR is immaterial and that the respondent-Panchayat therein was directed to consider the application for permit of the first floor to the existing building _de hors_ the fact that in the possession certificate and title deed, the property is described as Nilam, etc. 9. This Court has held in the judgment in the case in _**Issathul**_ ## _**Islam Madrassa v. Keezhattoor Grama Panchayath**_ W.P(C) No.5687 of 2020 8 [2015 (3) KLT 344] in paragraph No.134.4 thereof that if any landholder has raised any structures or has been raising any structures under any valid building permit, either on the basis of any judicial directive issued prior to the rendering of _**Revenue Divisional Officer v. Jalaja Dileep**_ [2015 (1) KLT 984 (SC)] by the Apex Court, based on the building permit issued by the authorities essentially going by the judgments of this Court holding the field prior to **Jalaja Dileep’s case** (supra), those building structures shall not be disturbed, etc. 10. In the instant case, there cannot be any doubt that the act of the 4[th] respondent-Koothattukulam Municipality in not even granting new building number to the ground floor and the first floor, which was duly numbered by the Panchayat, is not justifiable or proper in any view of the matter. The petitioner is certainly entitled for the benefit of the directions issued by the 1[st] respondent-State Government in Ext.P-10 circular as reiterated in Ext.P-11 circular, for getting the buildings numbered by the respondent-Koothattukulam Municipality, without recourse to the procedure under Sec.27A(1) of the Kerala Conservation of Paddy Land and Wetland Act, 2008, as amended. 11. In that view of the matter, it is ordered that the impugned Exts.P-6 to P-8 issued by the respondent-Koothattukulam Municipality will stand set aside and quashed. Correspondingly, it is ordered that the W.P(C) No.5687 of 2020 9 5[th] respondent-Secretary of the Koothattukulam Municipality will immediately take steps to grant building numbers to the ground floor, first floor and second floor of the buildings of the petitioner, as covered by Exts.P-2 & P-3 building permits, without any further delay, at any rate within a period of one month from the date of production of a certified copy of this judgment. With these observations and directions, the above Writ Petition (Civil) stands finally disposed of. **Sd/ALEXANDER THOMAS JUDGE** vgd W.P(C) No.5687 of 2020 10 ## **APPENDIX** **PETITIONER'S/S EXHIBITS:** - **EXHIBIT P1 A TRUE COPY OF THE LOCATION SKETCH DATED 17.04.2019 ISSUED BY THE VILLAGE OFFICER, KOOTHATTUKULAM** - **EXHIBIT P2 A TRUE COPY OF THE BUILDING PERMIT DATED 01.12.2007 ISSUED BY THE SECRETARY, KOOTHATTUKULAM GRAMA PANCHAYATH** - **EXHIBIT P3 A TRUE COPY OF THE BUILDING PERMIT DATED 06.09.2008** - **EXHIBIT P4 A TRUE COPY OF THE COMPLETION CERTIFICATE DATED 04.02.2010** - **EXHIBIT P5 A TRUE COPY OF THE RECEIPT DATED 04.02.2010 ISSUED BY THE KOOTHATTUKULAM GRAMA PANCHAYATH** - **EXHIBIT P6 A TRUE COPY OF THE COMMUNICATION DATED 19.10.2019 ISSUED BY THE 5TH RESPONDENT** - **EXHIBIT P7 A TRUE COPY OF THE COMMUNICATION DATED 16.01.2020 ISSUED BY THE 5TH RESPONDENT** - **EXHIBIT P8 A TRUE COPY OF THE NOTICE DATED 06.01.2020 ISSUED BY THE 5TH RESPONDENT** **EXHIBIT P9 A TRUE COPY OF THE REPLY DATED 03.02.2020 ISSUED BY THE PETITIONER TO THE 5TH RESPONDENT** **EXHIBIT P10 A TRUE COPY OF THE CIRCULAR DATED 13.08.2018 ISSUED BY THE 1ST RESPONDENT EXHIBIT P11 A TRUE COPY OF THE CIRCULAR DATED 27.06.2019 ISSUED BY THE DIRECTOR OF URBAN AFFAIRS, THIRUVANANTHAPURAM**