Jestin and Josna Jestin v. State of Kerala and others

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN FRIDAY, THE 12[TH] DAY OF NOVEMBER 2021 / 21ST KARTHIKA, 1943** **WP(C) NO. 20355 OF 2021** ## **- PETITIONERS :** 1 JESTIN, AGED 46 YEARS S/O. STEPHEN @ ESTHAPPAN, KALAMPARAMBIL HOUSE, MALAYATTOR KARA, MALAYATTOOR VILLAGE, MALAYATTOOR P.O., ALUVA TALUK, ERNAKULAM DISTRICT THROUGH HIS POWER OF ATTORNEY JOY ALPHONSE K., S/O. LATE K.A. JOSEPH, AGED 64 YEARS, KALATHARA HOUSE, KARALINK ROAD, KOZHIKODE, KARAPRAMBA P.O., KOZHIKODE DISTRICT, KERALA STATE, PIN-673 010. 2 JOSNA JESTIN, AGED 39 YEARS W/O. JESTIN, KALAMPARAMBIL HOUSE, MALAYATTOR KARA, MALAYATTOOR VILLAGE, MALAYATTOOR P.O., ALUVA TALUK, ERNAKULAM DISTRICT THROUGH HIS POWER OF ATTORNEY JOY ALPHONSE K., S/O. LATE K.A. JOSEPH, AGED 64 YEARS, KALATHARA HOUSE, KARALINK ROAD, KOZHIKODE, KARAPRAMBA P.O., KOZHIKODE DISTRICT, KERALA STATE, PIN-673 010. BY ADVS. GEORGE SEBASTIAN ARUN LUCKOSE ABRAHAM ## **- RESPONDENTS :** 1 THE STATE OF KERALA REPRESENTED BY THE SECRETARY, LOCAL SELF GOVERNMENT DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM, PIN-695 001. 2 THE REVENUE DIVISIONAL OFFICER FORT KOCHI, PIN-682 001. 3 THE TAHSILDAR (LAND RECORDS) OFFICE OF THE TALUK, MINI CIVIL STATION, ALUVA, PIN-683 101. 4 THE VILLAGE OFFICER THE VILLAGE OFFICE, MALAYATTOOR, PIN-683 587. WP(C) NO.20355 OF 2021 -: 2 :- 5 THE LOCAL LEVEL MONITORING COMMITTEE (CONSTITUTED UNDER ACT 28 OF 2008) OF THE MALAYATTOOR-NEELEESWARAM GRAMA PANCHAYAT, REPRESENTED BY THE CONVENER/AGRICULTURAL OFFICER, KRISHI BHAVAN, MALAYATTOOR-NEELEESWARAM, PIN-683 574. 6 THE MALAYATTOOR-NEELEESWARAM GRAMA PANCHAYAT REPRESENTED BY THE SECRETARY, OFFICE OF THE MALAYATTOOR-NEELEESWARAM GRAMA PANCHAYAT, PIN-683 574. 7 THE SECRETARY OFFICE OF THE MALAYATTOOR-NEELEESWARAM GRAMA PANCHAYAT, PIN-683 574. BY ADVS. K.P.SATHEESAN (SR.) P.MOHANDAS (ERNAKULAM) K.SUDHINKUMAR S.K.ADHITHYAN SABU PULLAN GOKUL D. SUDHAKARAN SRI.APPU.P.S., GP THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 12.11.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C) NO.20355 OF 2021 -: 3 :- ## **JUDGMENT** ## **Dated this the 12th day of November, 2021** This writ petition is filed seeking the following reliefs :- - “(i) To issue a writ of certiorari calling for the records leading to Ext.P10 and to quash the same. - (ii) To direct the 7[th] respondent to number the building mentioned in Ext.P10. - (iii) To declare that the building mentioned in Ext.P10 is having deemed occupancy as per second proviso to Rule 20(3) of the Kerala Panchayat Building Rules 2019. - (iv) To declare that the amendment of Act 28 of 2008 which came into effect on 30.12.2017 will not affect the numbering of the petitioners' residential building since the land in question was utilized for construction of the building much prior to 30.12.2017. - (v) In the alternative, direct the 7[th] respondent to permit the petitioners to move an application for regularizing the residential building constructed by them as per the provisions of Kerala Panchayat Building Rules, 2019 without insisting for orders from the 2[nd] respondent under Section 27A of Act 28 of 2008 and without considering the nature of the land in the revenue records and in the data bank.” 2. Heard the learned counsel for the petitioners and the learned Government Pleader as well as the learned Standing Counsel appearing for the respondent Panchayat. 3. It is submitted by the learned counsel for the petitioners that the petitioners are husband and wife. They had been granted WP(C) NO.20355 OF 2021 -: 4 :- Ext.P3 building permit on 4.5.2010 by the 7[th] respondent for the construction of a residential building. It is submitted that the construction was started in 2010, but on account of various unexpected events, the same could not be completed in time. It is submitted that the construction was ultimately completed in the year 2021 and the petitioners had submitted a request for occupancy certificate and for numbering of the building. It is submitted that the said application has been rejected by Ext.P10 stating that the period of the building permit was only to 3.5.2011 and that there is deviation in the construction from the building permit granted to the petitioners. It is further stated that the property is 'nilam' as per the Basic Tax Register and therefore, the petitioners have to move the RDO for permission for putting the property for other use and thereafter approached the Secretary for regularisation of the construction. 4. The learned counsel for the petitioners submits that the petitioners are ready and willing to make an application for regularisation of the construction, but, since a building permit had been admittedly issued in the year 2010, the further direction that the petitioners should approach the RDO and obtain orders under Section 27A of the Kerala Conservation of Paddy Land and Wetland Act, 2008 (for short, 'the 2008 Act') is completely untenable in view WP(C) NO.20355 OF 2021 -: 5 :- of the statutory provisions as also the judgments of this Court in **Cheranelloor Grama Panchayat** v. **Joe Thattil** [2020 (5) KLT 763] and **Global Education Trust** v. **State of Kerala** [2020 (6) KLT 738]. The learned counsel places reliance on the decisions of this Court in **Issathul Islam Madrassa** v. **Keezhattoor Grama Panchayat** [2015 (3) KLT 344], **Mahin** v. **Keezhmad Grama Panchayat** [2020 (2) KLT 478] and **Leela Santu** v. **Secretary, Kothamangalam Municipality** [2020 (4) KLT 1011] in support of the contention that once building permit has been issued, the respondents cannot contend that the construction could not have been carried out on the basis of the same. 5. A counter affidavit has been placed on record by respondents 6 and 7. It is stated therein that the application for occupancy and building number had been submitted by the petitioners only on 28.6.2021. It is submitted that the property is shown as 'paddy land' in the Basic Tax Register and that a portion of the property is shown as 'paddy land and converted land' in the data bank also. It is further submitted that Ext.P3 building permit was issued on 4.5.2010 and was valid only till 3.5.2011. It is further stated at paragraph 7 as follows :- “7. In the application for building permit submitted on 4.5.2010 the total ground floor area is 214.40 M[2] and in the first floor the area is 83.961 M[2] . But along with the application WP(C) NO.20355 OF 2021 -: 6 :- for allotment of number submitted on 28.6.2021 and as shown in the completion plan the ground floor is having an extent of 219.34 M[2] and first floor 105.47 M[2] . Thus the construction was completed after ten years of expiry of the permit. Even after the expiry of the permit the construction was done in violation of the original building permit granted in the year 2010. Hence the building number cannot be allowed.” It is submitted that it was in the above circumstances that Ext.P10 communication had been issued to the petitioners. 6. The learned Government Pleader would also submit that the entire extent of the property being substantial, what can be saved by the decisions of this Court is only the area immediately appurtenant to the building constructed by the petitioners on the strength of Ext.P3 building permit and in case any further property is being utilised by the petitioners for any other purposes, applications under Form 5 and Form 6 as the case may have to be submitted by the petitioners. 7. I have considered the contentions advanced. A Division Bench of this Court in **Cheranelloor Grama Panchayat** v. **Joe Thattil** [2020 (5) KLT 763] has specifically considered the issue of necessity of an order under Section 27A where the Panchayat had already issued a building permit in respect of the property in question before 30.12.2017. After considering the provisions of the Panchayat Building Rules as well as the provisions of the 2008 WP(C) NO.20355 OF 2021 -: 7 :- Act, it was held that where a building permit had been issued before 30.12.2017, that is, before the date on which Section 27A was incorporated in the 2008 Act by amendment, the contention that an application has to be filed under Section 27A before the request for occupancy or numbering can be considered by the Panchayat is not sustainable. 8. In **Global Education Trust** v. **State of Kerala** [2020 (6) KLT 738], this Court had specifically considered the issue and held as under :- “9. Therefore, I am of the considered view that S.27A of Act 28 of 2008 cannot be insisted in respect of a land already utilised by constructing building prior to incorporation of 27A of Act 28 of 2008 even without obtaining permission under the Kerala land Utilisation Order. However, it has to be verified from such application for building permit whether the proposed construction or reconstruction exceeds the appurtenant land covered by existing construction. If any construction or reconstruction is proposed beyond the utilisation of the land already done, that has to be regularised by submitting application under S.27A of Act 28 of 2008. The rigor of S.27A of Act 28 of 2008 cannot be insisted upon the land which has been utilised by constructing buildings with valid permit or through the process of law before incorporation of S.27A of Act 28 of 2008.” Further, this Court had also considered that where building permits had been issued by the local authority concerned and the building constructed on the strength of such permit, the objection WP(C) NO.20355 OF 2021 -: 8 :- with regard to nature of land cannot be raised at a later stage by the local authority and the numbering cannot be refused only on that sole ground. 9. In **Leela Santu** v. **Secretary, Kothamangalam Municipality** [2020 (4) KLT 1011] this Court had held that where building permits were issued prior to 30.12.2017, the holders of such permits are entitled to the benefit of Government Circular dated 13.8.2018 and the nature of the property cannot stand in the way of consideration of applications for occupancy certificates and numbering in such cases. 10. Having considered the contentions advanced, I am of the opinion that the 5[th] relief sought for in the writ petition is liable to be granted. The contention raised by the local authority in Ext.P10 to the effect that the petitioners have to obtain an order under Section 27A of the 2008 Act before an application for regularisation can be considered by the Panchayat, therefore, is unsustainable. In view of the fact that there is deviation from the building permit granted in 2010, it is clear that the petitioners have to make an application for regularisation. However, the said application, if submitted by the petitioners is liable to be considered without waiting for an order under Section 27A. However, it is made clear that this declaration will apply only to WP(C) NO.20355 OF 2021 -: 9 :- the building put up by the petitioners and the land immediately appurtenant thereto. In case the petitioners wish to utilise any other extent of property in their possession to any other use, then appropriate applications will have to be made under Form 5 or Form 6 under the 2008 Act, as the case may be. In the above view of the matter, in case the petitioners move an application before the 7[th] respondent for regularisation of the residential building constructed by them as per Ext.P3 building permit, the same shall be taken up and considered without insisting on an order under Section 27A of the 2008 Act by the 7[th] respondent. In case an application is submitted within a period of three weeks from the date of receipt of a copy of this judgment, the same shall be considered by the 7[th] respondent within a period of one month thereafter, after putting the petitioners on notice and after hearing them through any appropriate means including video conferencing. This writ petition is ordered accordingly. **Sd/ANU SIVARAMAN JUDGE** Jvt/19.11.2021 WP(C) NO.20355 OF 2021 ## -: 10 :- ## **APPENDIX OF WP(C) 20355/2021** PETITIONER EXHIBITS Exhibit P1 A TRUE COPY OF THE TITLE DEED OF THE PETITIONERS PROPERTY DATED 31.12.2004. Exhibit P2 A TRUE COPY OF THE LAND TAX RECEIPT DATED 28.6.2021. Exhibit P3 A TRUE COPY OF THE BUILDING PERMIT DATED 4.5.2010 ISSUED BY THE 7TH RESPONDENT. Exhibit P4 A TRUE COPY OF THE LOCATION SKETCH OF THE PETITIONER'S PROPERTY. Exhibit P5 A TRUE COPY OF THE CASH MEMORANDUM DATED 10.1.2011 SHOWING PURCHASE OF RIVER SAND. Exhibit P6 A TRUE COPY OF THE CASE MEMORANDUM DATED 31.3.2011 SHOWING PURCHASE OF RIVER SAND. Exhibit P7 A TRUE COPY OF THE DEATH CERTIFICATE DATED 2.7.2019 SHOWING THE DATE OF DEATH OF THE PETITIONER'S FATHER. Exhibit P8 A TRUE COPY OF THE COVERING LETTER DATED 28.6.2021 SUBMITTED ALONG WITH A COMPLETION PLAN (CERTIFICATE). Exhibit P9 A TRUE COPY OF THE RECEIPT DATED 4.8.2021 ISSUED FROM THE OFFICE OF THE 6TH RESPONDENT. Exhibit P10 A TRUE COPY OF THE ORDER DATED 3.9.2021 PASSED BY THE 7TH RESPONDENT. Exhibit P11 A TRUE COPY OF THE RELEVANT EXTRACT OF THE DATA BANK. Exhibit P12 A TRUE COPY OF THE CIRCULAR DATED 13.8.2018 ISSUED BY THE IST RESPONDENT. Exhibit P13 A TRUE COPY OF THE CIRCULAR DATED 24.6.2019 ISSUED BY THE DIRECTOR OF PANCHAYAT.