High Court of KeralaSingle JudgeWrit petition disposed of with directions to re...

Jayalakshmi and Sabhapathi v. The Chittur-Thathamangalam Municipality and The Secretary, Chittur-Thathamangalam Municipality, and The Revenue Divisional Officer, Palakkad

Case / Petition Number:WP(C) No. 35041 of 2019

Case Details & Bench

Court
High Court of Kerala
Hon'ble Judges
  • N. Nagareesh
Judgment Date
2022-06-02
Court Decision / Holding
Writ petition disposed of directing the 2nd respondent to re-consider the application for revised Building Permit, treating Ext. P9 as a notice. The petitioners may submit the relevant orders under the Kerala Land Utilisation Order and any other supporting documents, including a plan signed by the competent authority. The 2nd respondent must re-consider the application and pass a final order after granting an opportunity of hearing, within two months.
Final Disposition
Writ petition disposed of with directions to reconsider the Building Permit application after treating Ext. P9 as a notice and providing hearing; final decision within two months.

Parties to the Case

Appellants / Petitioners

  • Jayalakshmi
  • Sabhapathi

Respondents

  • The Chittur- Thathamangalam Municipality represented by its Secretary, Municipal Office, Chittur, Palakkad District
  • The Secretary, Chittur-Thathamangalam Municipality, Municipal Office, Chittur, Palakkad District
  • The Revenue Divisional Officer, Office of the RDO, Palakkad

Legal Representation & Advocates

Counsels for Petitioners

  • • Adv. Binoy Vasudevan

Counsels for Respondents

  • • Sri. V.N. Haridas
  • • Smti. Surya Binoy B, Sr. Government Pleader

Case Synopsis & Summary

The petitioners, Jayalakshmi and Sabhapathi, are absolute landowners in Thathamangalam Village, Palakkad District, who sought a revised Building Permit after initiating construction on their property. Their land, initially cleared for non-agricultural use under Clause 6(2) of the Kerala Land Utilisation Order, had prior building permits (Exts. P6 and P8). They applied for a larger, revised permit, but Ext. P9 – issued by the Municipal Secretary – rejected the application on two grounds: first, the land lies within an area regulated by the Kerala Conservation of Paddy Land and Wetland Act, 2008; second, the projected plan would require submission by a Supervisor-A for construction over 750 square metres. The respondents argued the petitioners had, in fact, constructed more area than approved and that the submission norms under Rule 151 Appendix L of the KMBR constrained such activities. The petitioners contended that after obtaining permission under Clause 6(2), they should be free to use the land for non-agricultural purposes and that they were denied an opportunity of hearing. The court observed that Exts. P5 and P7 show prior permissions under the Land Utilisation Order and that Ext. P9, treated as a notice, was procedurally debatable. It directed the 2nd respondent to re-consider the application, provide an opportunity of hearing, and pass a lawful order within two months, treating Ext. P9 as a notice.

Provisions of Law Cited

Clause 6(2) of the Kerala Land Utilisation OrderKerala Conservation of Paddy Land and Wetland Act, 2008Rule 151 Appendix L of the KMBR

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioners argue that once permission is granted under Clause 6(2) of the Kerala Land Utilisation Order, the land holder may use the land for any non-agricultural purpose. They contend Ext. P9 is unsustainable, especially since they were not given an opportunity of hearing before Ext. P9 was issued, and rely on the principle laid down in Shahul Hameed v. Principal Secretary, Local Self Government and others to support their entitlement to proceed with construction.

Contentions of Respondents

The respondents submit that the revised Building Permit was rightly refused because the petitioners exceeded the approved plinth and built 876 square metres, in excess of what was permitted for the two plots. They argue that the plan submission was defective since Rule 151 Appendix L of the KMBR requires a Supervisor-A to sign plans for construction over 750 square metres, making Ext. P9 a valid notice that justified the denial.

Cited Precedents (1)

Case NameCitationTreatmentExplanation
Shahul Hameed v. Principal Secretary, Local Self Government and others(2018) 2 KHC 48Mentioned OnlyCited by petitioners to support the proposition that Clause 6(2) permission enables non-agricultural use; court does not adopt or distinguish this precedent in its reasons, but references it without applying it directly.

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Extracted Judgment Text

Exact text extracted from official judgment records.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE N.NAGARESH** **THURSDAY, THE 2[ND] DAY OF JUNE 2022 / 12TH JYAISHTA, 1944** ## **WP(C) NO. 35041 OF 2019** ## **PETITIONERS:** - **1 JAYALAKSHMI, AGED 50 YEARS, D/O. SUBHAYAN, AYYAPPANKULAMPU, THATHAMANGALAM P. O., PALAKKAD DISTRICT - 678 102.** - **2 SABHAPATHI, AGED 55 YEARS, S/O. SHANMUGHASUNDARAM, AYYAPPANKULAMPU, THATHAMANGALAM P. O., PALAKKAD DISTRICT - 678 102.** ## **BY ADV BINOY VASUDEVAN** ## **RESPONDENTS:** **1 THE CHITTUR-THATHAMANGALAM MUNICIPALITY, REPRESENTED BY ITS SECRETARY, MUNICIPAL OFFICE, CHITTUR, PALAKKAD DISTRICT - 678 102. 2 THE SECRETARY, CHITTUR -THATHAMANGALAM MUNICIPALITY, MUNICIPAL OFFICE, CHITTUR, PALAKKAD DISTRICT - 678 102.** **WP(C) NO. 35041 OF 2019** **2** **3** **THE REVENUE DIVISIONAL OFFICER, OFFICE OF THE RDO, PALAKKAD - 678 001.** **BY ADV SRI.V.N.HARIDAS** **SMT.SURYA BINOY B, SR.GOVERNMENT PLEADER** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 02.06.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C) NO. 35041 OF 2019** **3** ## **J U D G M E N T** ## **Dated this the 2[nd] day of June, 2022** The petitioners, who are owners of property in Thathamangalam Village in Palakkad District and who have resorted to a building construction, have approached this Court seeking to quash Ext.P9 and to direct the 2[nd] respondent to grant revised Building Permit to the petitioners as applied for. 2. The petitioners state that they are absolute owners of 0.0506 hectares of dry land situated in Re-survey No.3/4 of Thathamangalam Village in Chittur Taluk of Palakkad District. The properties of the petitioners were not included in the Data Bank. The petitioners obtained permission under Clause 6(2) of the Kerala Land Utilisation Order to use the property for other purposes. Thereafter, the petitioners submitted applications for Building Permits, which were granted as per Exts.P6 and P8. 3. The petitioners submit that they wanted to enlarge the construction and submitted an application for revised Building **WP(C) NO. 35041 OF 2019** **4** Permit. The application has been rejected as per Ext.P9 on the ground that the land, where the construction is carried out, will fall under the provisions of the Kerala Conservation of Paddy Land and Wetland Act, 2008. Ext.P9 further states that only a Supervisor-A can submit plan for construction in excess of 750 Square Metres. 4. The learned counsel for the petitioners urged that this Court has already held in the judgment in **Shahul Hameed v. Principal Secretary, Local Self Government and others** [(2018) 2 KHC 48] that once permission under Clause 6(2) of the Kerala Land Utilisation Order is obtained, the holder of the land can use the same for any non-agricultural purposes. If the petitioners had been given an opportunity of hearing before taking Ext.P9 decision, the relevant facts and materials could have been brought to the notice of the respondents. Ext.P9 is unsustainable, contended the learned counsel for the petitioners. 5. Respondents 1 and 2 entered appearance and contested the writ petition. Respondents 1 and 2 submitted that **WP(C) NO. 35041 OF 2019** **5** the petitioners had submitted application for Building Permit having plinth area of 133.49 Square Metres and 188.13 Square Metres (total 321.62 Square Metres) to construct in 0.0202 and 0.0201 hectares of land respectively. The permission was accordingly granted. But the petitioners have deviated from the approved plan and utilised 0.0506 and 0.0581 of land and constructed a building having plinth area of 876 Square Metres. 6. Respondents 1 and 2 further pointed out that as per Rule 151 Appendix L of the KMBR, a licensed Supervisor is authorised to prepare and sign Building Plan with a total built up area upto 750 Square Metres only. For this reason also, the application submitted by the petitioners is defective. It was in such circumstances that the application for revised Building Permit was rejected. Ext.P9 is absolutely legal and is not liable to be set aside for any of the reasons put forth by the petitioners. 7. I have heard the learned counsel for the petitioners and the learned Standing Counsel representing respondents 1 and 2. I have also heard the learned Government Pleader **WP(C) NO. 35041 OF 2019** **6** representing the 3[rd] respondent. 8. A perusal of Ext.P9 would show that it is described as a notice. The reasons extended for not entertaining the application for revised Building Permit in Ext.P9, are that the construction is in a land governed by the provisions of the Kerala Conservation of Paddy Land and Wetland Act, 2008 and there are violations of the provisions of that Act. The second reason advanced is that only a Supervisor-A can submit a plan for construction exceeding 750 Square Metres area. 9. It is to be noted that the petitioners obtained orders invoking the provisions of the Kerala Land Utilisation Order as is evident from Exts.P5 and P7. When the 3[rd] respondent has issued Ext.P5 permitting the petitioners to use the land for other purposes, the petitioners can indeed resort to building construction. A perusal of Ext.P9 would show that respondents 1 and 2 did not advert to Exts.P5 and P7. 10. As regards the defect in submission of the plan pointed out by respondents 1 and 2, it is a curable defect and the petitioners can very well submit a revised plan signed by a **WP(C) NO. 35041 OF 2019** **7** competent person. In view of the above, this Court is of the opinion that Ext.P9 order passed by the Municipal Secretary is liable to be re-considered in the light of the facts as stated above, treating Ext.P9 as a notice as indicated therein. In the circumstances, the writ petition is disposed of directing the 2[nd] respondent to re-consider the application for revised Building Permit submitted by the petitioners, treating Ext.P9 as a notice. The petitioners may produce the relevant orders issued under Kerala Land Utilisation Order and any other supporting documents before the 2[nd] respondent. The petitioners will also be at liberty to produce the plan signed by the competent authority. The 2[nd] respondent shall re-consider the application and take a final decision after granting an opportunity of hearing to the petitioners. The 2[nd] respondent shall pass orders in accordance with law within a period of two months. Sd/- ## **N. NAGARESH, JUDGE** DSV/03.06.2022 **WP(C) NO. 35041 OF 2019** **8** ## **APPENDIX OF WP(C) 35041/2019** **PETITIONERS' EXHIBITS:** - **EXHIBIT P1** - **TRUE COPY OF THE POSSESSION CERTIFICATE IN RESPECT OF RE.SY.NO.3/4 THATHAMANGALAM VILLAGE IN CHITTUR TALUK OF PALAKKAD DISTRICT.** - **EXHIBIT P2 TRUE COPY OF THE LAND TAX RECEIPT IN RESPECT OF THE 1ST PETITIONER'S PROPERTY.** - **EXHIBIT P3 TRUE COPY OF THE POSSESSION CERTIFICATE IN RESPECT OF THE PROPERTIES RE.SY.NO.3/5, 3/4 AND 3/2 OF THATHAMANGALAM VILLAGE IN CHITTUR TALUK OF PALAKKAD DISTRICT.** - **EXHIBIT P4 TRUE COPY OF THE LAND TAX RECEIPT IN RESPECT OF THE 2ND PETITIONER'S PROPERTY.** - **EXHIBIT P5 TRUE COPY OF THE PROCEEDINGS NO.J3972/17 DATED 21.11.2017 ISSUED BY THE 3RD RESPONDENT.** - **EXHIBIT P6 TRUE COPY OF THE BUILDING PERMIT NO.E2(TBA) 49122/2018 DATED 2.3.2018 ISSUED BY THE 2ND RESPONDENT.** - **EXHIBIT P7 TRUE COPY OF THE ORDER NO.J-3969/17 DATED 20.11.2017 ISSUED BY THE 3RD RESPONDENT.** - **EXHIBIT P8 TRUE COPY OF THE BUILDING PERMIT NO.E2(TBA) 49118-2018 DATED 2.3.2018 ISSUED BY THE 2ND RESPONDENT.** - **EXHIBIT P9 TRUE COPY OF THE NOTICE DATED 28.2.2019 ISSUED BY THE 2ND RESPONDENT.** ## **RESPONDENTS' EXHIBITS: NIL**