DASAN v. STATE OF KERALA AND KODASSERY GRAMA PANCHAYAT

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR.JUSTICE N.NAGARESH`** ``` MONDAY, THE 26[TH] DAY OF SEPTEMBER 2022 / 4TH ASWINA, 1944 ``` ``` WP(C) NO. 25800 OF 2022 ``` ## **`PETITIONER`** ``` DASAN AGED 55 YEARS S/O.VELAPPAN, ELAVUNGAL HOUSE, NAYARANGADY DESOM, KODASSERY VILLAGE, KODASSERY P.O., THRISSUR DISTRICT, PIN - 680 721. ``` ``` BY ADV N.L.BITTO ``` ## **`RESPONDENTS:`** - **`1 THE STATE OF KERALA REP. BY THE SECRETARY TO THE GOVERNMENT, LOCAL SELF GOVERNMENT DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM P.O., PIN - 695 001.`** - **`2 KODASSERY GRAMA PANCHAYAT REP. BY THE SECRETARY, KODASSERY P.O., THRISSUR DISTRICT, KERALA, PIN - 680 721.`** - **`BY ADV DAISY A.PHILIPOSE (SC)- R2`** ## **`SMT.DEEPA NARAYANAN SR.GP`** ``` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 26.09.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` WP(C) NO.25800 OF 2022 ``` ``` 2 ``` ## **JUDGMENT** Dated this the 26[th] day of September, 2022 The petitioner, who is owner of 2.700 Cents of land, is before this Court aggrieved by the denial of Occupancy Certificate to a building constructed by him after obtaining a Building Permit. The petitioner seeks to command the 2[nd] respondent to issue Building Number to the already constructed building. 2. The petitioner purchased 2.700 Cents of land along with an old house in Survey No.1176/4 of Kodassery Village. The petitioner submitted an application for Building Permit to the 2[nd] respondent-Grama Panchayat. Ext.P5 Building Permit was granted to the petitioner. 3. After construction of the building, the petitioner submitted an application to the Panchayat Secretary to assign Building Number. The application for numbering the building stands rejected as per Ext.P7, on the ground that the land has ``` WP(C) NO.25800 OF 2022 ``` ``` 3 ``` been assigned under the Kerala Land Assignment Act and in view of Rule 9 (2) of the Kerala Land Assignment Rules, 1964. According to the Secretary, since the land has been assigned for the purpose of residence/agriculture, a commercial building is not permissible. 4. The petitioner states that the assignment was for residential purpose as well as agricultural purpose. The petitioner’s residence is within the property. Now, a building is constructed with two shuttered rooms on the ground floor and a residential building on the first floor. The petitioner intends to use two shuttered rooms on the ground floor for storing and dealing with agricultural produces. The petitioner does not propose to use the building for any other commercial purpose. 5. Standing Counsel representing the 2[nd] respondentGrama Panchayat opposes the writ petition. The Standing Counsel submitted that Purchase Certificate issued in respect of the land makes it specifically clear that the land can be used ``` WP(C) NO.25800 OF 2022 ``` ``` 4 ``` only for residential/agricultural purposes. This Court has considered a similar issue in _**Haridas R. v. State of Kerala and others**_ [2016 (4) KLT 707] and has held that when a land is assigned for a particular purpose, it can be used only for that purpose. A pattadar or his successor-in-interest who has purchased the land knowing the conditions in the land assignment cannot take a contrary stand and use the land for any purpose other than the purpose for which the land has been assigned. 6. The Standing Counsel further submitted that the Government has issued Exts.R2(a) and R2(b) Circulars, whereunder it has been mandated that before issuing Building Permit, the Local Self Government Authorities should ensure that the assigned land is not used for purposes other than for which the assignment was made. 7. When the petitioner purchased the land, he was aware of the fact that the land can be used only for residential ``` WP(C) NO.25800 OF 2022 ``` ``` 5 ``` and agricultural purposes. Now, the petitioner has constructed a commercial cum residential building. In view of the above and in view of the Circulars Exts.R2(a) and R2(b), Occupancy Certificate cannot be granted to the petitioner, contended the respondents 8. I have heard the learned counsel for the petitioner, the learned Government Pleader for the 1[st] respondent and the learned Standing Counsel for the 2[nd] respondent. 9. The petitioner purchased 2.700 Cents of land out of a larger extent which was assigned under the Kerala Assignment Rules, 1964. The petitioner applied for a Building Permit to the 2[nd] respondent. The Permit was granted as per Ext.P5. The petitioner has constructed the building as per the Building Permit. In the plan submitted before the 2[nd] respondent, it was made clear that the building proposed is a commercial cum residential building. ``` WP(C) NO.25800 OF 2022 ``` ``` 6 ``` 10. The petitioner would submit that the first floor of the building is for residential purpose and the two shuttered rooms on the ground floor are intended to be used for agricultural purpose only. In view of the above, the respondents cannot reject the application for numbering the building. 11. It is to be noted that the petitioner has constructed the building after obtaining Ext.P5 Building Permit. The 2[nd] respondent has no case that the petitioner has constructed the building in violation of the Building Permit. As long as the petitioner constructs a building for residential purpose, the ground floor being proposed to be used for agricultural related purpose, this Court is of the view that the petitioner cannot be denied the right to get his building numbered in terms of the Building Permit. 12. It may also be noted that the Building Permit was issued to the petitioner on 19.04.2021. Ext.R2(b) Circular was issued on 01.10.2021. It was before the issuance of Ext.R2(b) ``` WP(C) NO.25800 OF 2022 ``` Circular that the 2[nd] respondent had granted Building Permit to the petitioner. In view of the said fact, this Court finds that the 2[nd] respondent is not justified in refusing to number the building. In the circumstances, the writ petition is allowed. Ext.P7 is set aside and the 2[nd] respondent is directed to number the building and issue Occupancy Certificate to the petitioner, if the petitioner is otherwise eligible for the same. sd/- **N.NAGARESH** **JUDGE** hmh ``` WP(C) NO.25800 OF 2022 ``` ``` 8 ``` ## **`APPENDIX OF WP(C) 25800/2022`** ## **`PETITIONER EXHIBITS`** ``` Exhibit P1A TRUE COPY OF THE SETTLEMENT DEED NO.4084 OF 2006 OF THE CHALAKKUDY SRO DATED 5/7/2006. ``` ``` Exhibit P2A TRUE COPY OF THE BASIC TAX RECEIPT ISSUED FROM THE KODASSERY VILLAGE OFFICE DATED 1/7/2020. ``` ``` Exhibit P3A TRUE COPY OF THE PATTA NO.B2- 13/2000/LA ISSUED FROM THE OFFICE OF TAHASILDAR MUKUNDAPURAM DATED 16/02/2001. Exhibit P4A TRUE COPY OF THE APPROVED BUILDING PLAN SUBMITTED BY THE PETITIONER DATED NIL. ``` ``` Exhibit P5A TRUE COPY OF THE BUILDING PERMIT NO.A2-BA (98192)/2021 ISSUED FROM THE KODASSERY GRAMA PANCHAYATH DATED 19/4/2021. ``` ``` Exhibit P6A TRUE COPY OF THE ACKNOWLEDGMENT FOR RECEIPT THE COMPETITION CERTIFICATE DATED 19/5/2022 25/07/2022. ``` ``` Exhibit P7A TRUE COPY OF THE COMMUNICATION ISSUED BY THE 2ND RESPONDENT TO THE PETITIONER DATED 19/07/2022. RESPONDENT’S EXHIBITS EXHIBIT R2(A0A TRUE COPY OF G.O[MS]NO.61/2021 DATED 22.02.2021 ``` ``` EXHIBIT R2(B)A TRUE COPY OF CIRCULAR NO.REV- A2/49/2021-REV DATED 01.10.2021 EXHIBIT R2(CA TRUE COPY OF CIRCULAR NO.REV.A2/49/2021-REV DATED 01.10.2021 ISSUED BY THE DIRECTOR OF PANCHAYAT ```