Joe Thattil v. Cheranalloor Grama Panchayath

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **MONDAY, THE 16TH DAY OF MARCH 2020 / 26TH PHALGUNA, 1941** ## **WP(C).No.7007 OF 2020(A)** ## **PETITIONER:** **JOE THATTIL, AGED 43, S/O.ANTONY THATTIL, THATTIL HOUSE, 8TH CROSS, DIVINE NAGAR, SOUTH CHITTOOR P.O., ERNAKULAM DISTRICT, KOCHI-682017.** **BY ADVS. SRI.P.K.SOYUZ SRI.E.V.BABYCHAN** ## **RESPONDENTS:** **1 CHERANALLOOR GRAMA PANCHAYATH REPRESENTED BY ITS SECRETARY, SOUTH CHITTOOR P.O., ERNAKULAM, PIN-682027. 2 THE SECRETARY, CHERANALLOOR GRAMA PANCHAYATH, SOUTH CHITTOOR P.O., ERNAKULAM, PIN-682027. ADV. SRI.T.K.AJITHKUMAR (VALATH)** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 16.03.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## ALEXANDER THOMAS, J. --------------------------------------W.P. (C) No. 7007 of 2020 --------------------------------------Dated this the 16[th] day of March, 2020 ## J U D G M E N T The case set up in this Writ Petition (Civil) is as follows: The petitioner is the owner in possession of 5.66 Ares (13.985 cents) of developed residential plot in 'Divine Nagar' housing colony, South Chittoor, Ernakulam. The land is classified as Nilam in BTR. The abovesaid land was excluded from the Data Bank vide Ext.P2 proceedings. Petitioner had obtained Ext.P3 building permit dated 26.10.2015 from the respondent Panchayath. The construction was commenced immediately but some additional constructions were also made deviating from the approved plan and permit. The construction was completed within the validity period of permit and before December 2017 which is evident from Ext P4 satellite image. Respondent had sent Ext.P6 notice directing the petitioner to obtain permission from the RDO as per Sec.27A of the Act 28 of 2008 and to submit a proper application for regularization of additional construction. The petitioner is highly aggrieved by the direction in Ext.P6 notice to obtain permission under Sec.27A of Act 28 of 2008. It is in the light of the abovesaid facts and W.P. (C) No. 7007 of 2020 ..3.. circumstances that the petitioner has filed the instant Writ Petition (Civil) with the following prayers: - “ - _i. Issue a writ of certiorari or any appropriate writ, order or direction and quash Ext.P6 and direct the respondents to consider Ext.P7 in accordance with Law._ - _ii. Issue a writ of mandamus any appropriate writ, order or direction directing the respondents consider and dispose application for occupancy and regularization which was received by the respondent vide Ext P8 receipt, without insisting any permission or order as per the provisions of Act 28 of 2008 and Act 29 of 2018._ - _iii. Grant such other reliefs as this Hon'ble Court deems fit and proper in the circumstances of this case including the cost of this Writ Petition.”_ 2. Heard Sri.P.K.Soyuz, learned counsel appearing for the petitioner and Sri.T.K.Ajithkumar (Valath), learned counsel appearing for the respondents. 3. After hearing both sides this Court is of the considered view that the matter raised in this petition is covered by various judgments of this Court as in Ext.P-9 judgment dated 5.11.2018 in WP©.No.18136/2017 reported in 2020(2) KLT 478, _**Soumini & Others v. Naduvannur Grama Panchayath, Kozhikode [2017 (1) KLT 168 = 2016 (5) KHC 872]**_ and judgment dated 26.2.2020 in WP©.No.5520/2020 relying on the aforecited decisions. 4. In the instant case, the petitioner has already W.P. (C) No. 7007 of 2020 ..4.. constructed a residential building in the subject property which is shown as _“Nilam”_ as per the BTR entries, in pursuance of Ext.P-3 building permit which has exceeded the limits. It is beyond any dispute that the subject property was converted as garden land/purayidam long prior to the coming into force of the Kerala Conservation of Paddy Land and Wet Land Act, 2008. By Ext.P2 proceedings the statutory Local Level Monitoring Committee attached to the Cheranalloor Grama Panchayat has already taken the decision to delete the subject property from the Land Data Bank prepared as per the provisions of the 2008 Act. Even in the said Land Data Bank, the subject property was earlier shown as a converted land. Ext.P-4 satellite pictures would also show that the building was constructed in the subject property even before 28.12.2017. Now it appears that the construction of the building made by the petitioner in pursuance of Ext.P-3 building permit is not in full compliance of the terms of the Building Permit and Building Rules and the petitioner has now submitted Ext.P-7 application for regularisation of the construction and also for grant of occupancy certificate which is pending before the Cheranalloor Grama Panchayath. The complaint of the petitioner is that, by the W.P. (C) No. 7007 of 2020 ..5.. impugned Ext.P-6 notice the respondent Grama Panchayat has directed that the petitioner should obtain necessary permission under Sec.27A of the amended provisions of the 2008 Act before his plea for occupancy certificate is to be considered etc. ## 5. In Ext.P-9 judgment dated 5.11.2018 in ## WP©.No.18136/2017 this Court has held as follows: _“The petitioners, who are husband and wife, are stated to be in ownership and possession of a total extent of 20.500 cents of land in Sy.No.27/11-5 of Aluva East village. With a view to constructing two residential buildings on the said land, the petitioners applied for and obtained a building permit in the year 2010 for construction of two units, referred to here as Unit -A and Unit -B respectively. It is stated that the construction of Unit -A was completed, and the respondent Panchayat allotted a building number to the said unit as well. As regards Unit -B, after completion of construction, when the petitioners preferred an application for occupancy certificate and allotment of a building number, the same was rejected by the respondent Panchayat by Ext.P6 order, which cites two reasons for the rejection of the application, namely, (1) that the building permit was granted for constructing a building of plinth area of 80.12 sq.metres with one floor, whereas the construction put up by the petitioners was of a two storied building with a total plinth area of 133.84 sq.metres. (2) The land on which the construction was put up was shown as 'Nilam' in the revenue records. The learned counsel for the petitioners would submit that, inasmuch as the construction was permitted by the respondent Panchayat by granting a building permit, and thereafter, granting a building number to Unit – A that was put up by the petitioners acting on the building permit, the Panchayat could not object to the nature of the land at this distance of time. As regards the other objection with regard to the construction being in violation of the building permit, it is the submission of the learned counsel for the petitioners that a revised building plan can be submitted before the respondent Panchayat for its consideration in the matter of regularisation of the construction of Unit -B. The learned counsel for the respondent Panchayat would submit that, the building permit originally granted to the petitioners was in 2010, and two renewals have already been granted to the said building permit, and if the petitioners want to now submit a revised plan for consideration of the Panchayat, then they would also have to make an application for renewal of the building permit for the last term in order to support the application for consideration of the revised building plan. Taking note of the rival submissions, and finding that the_ W.P. (C) No. 7007 of 2020 ..6.. _issue as regards the nature of the land on which the construction was put up cannot be raised at this distance of time by the Panchayath and, at any rate, that the lands cannot now be used for cultivation of any paddy or other food crop, I dispose the writ petition by directing the petitioners to submit an application for renewal of the building permit, along with a revised plan to support the construction actually made in respect of Unit-B, before the respondent Panchayat within a period of two weeks from the date of receipt of a copy of the judgment. On receipt of the said application from the petitioners, the respondent Panchayat shall consider the same in accordance with the provisions of the Panchayat Raj Act and Rules but without reference to any objection as to the nature of the land. The respondent Panchayat shall pass orders in the matter within six weeks from the date of receipt of the application /revised plan from the petitioners. The fate of the provisional number already allotted in respect of Unit -B pursuant to the interim order of this Court, shall be determined by the order to be passed by the respondent Panchayat pursuant to the directions in this judgment. ”_ 6. The petitioner would place reliance on the judgment rendered by this Court in the case in _**Soumini & Others v. Naduvannur Grama Panchayath, Kozhikode [2017 (1) KLT**_ _**168 = 2016 (5) KHC 872]**_ wherein this Court dealt with a case where the petitioner therein had sought permission for construction of first floor in the existing building, though description of land in Basic Tax Register was Nilam. This Court held that description of land in Basic Tax Register is not relevant, and that respondent Panchayat therein was directed to consider the application for permit _de hors_ the fact that in the possession certificate and title deed the property is described as nilam, etc. In Ext.P-9 this Court has held that in respect of the building already constructed by the petitioner, the respondent Panchayath should consider the grant of W.P. (C) No. 7007 of 2020 ..7.. occupancy certificate without reference to any objection as to the nature of the land as nilam, etc. This Court has taken a similar view in the judgment dated 26.2.2020 in WP© No.5520/2020 wherein this Court has held that the respondent Municipality will take up the plea for regularization of construction already done without any reference to the nature of land as shown in the BTR entries and other revenue records. 7. Accordingly following the abovesaid directions, it is ordered that the impugned Ext.P-6 notice will stand set aside and the application of the petitioner for regularization of construction already effected and for grant of occupancy certificate etc should be considered by the 2[nd] respondent Secretary of the Cheranelloor Grama Panchayath afresh and without any reference to the nature of land in revenue records as Nilam, etc in accordance with the provisions of the Building Rules which was in force at the time of grant of Ext.P-3 building permit dated 26.10.2015 and not on the basis of subsequent Building Rules that has come into force. Necessary orders in this regard should be passed by the 2[nd] respondent Secretary of Cheranalloor Grama Panchayath after affording reasonable opportunity of being heard to the petitioner, W.P. (C) No. 7007 of 2020 ..8.. within one month from the date of production of a certified copy of this judgment. With these observations and directions, the above Writ Petition (Civil) will stand finally disposed of. Sd/- ALEXANDER THOMAS, JUDGE MMG W.P. (C) No. 7007 of 2020 ..9.. ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF LAND TAX RECEIPT DATED 27.02.2020.** **EXHIBIT P2 TRUE COPY OF MINUTES OF LLMC CHERANALLOOR GRAMA PANCHAYATH DATED 16.10.2019.** **EXHIBIT P3 TRUE COPY OF THE BUILDING PERMIT DATED 26.10.2015.** **EXHIBIT P4 TRUE COPY OF THE SATELLITE IMAGE OF GOOGLE EARTH TAKEN ON 28.12.2017.** **EXHIBIT P5 TRUE COPY OF THE JUDGMENT IN WRIT PETITION (C) NO.31405 OF 2018 DATED 13.11.2018.** **EXHIBIT P6 TRUE COPY OF THE NOTICE NO.C4/4106/15 ISSUED BY THE 2ND RESPONDENT DATED 15.12.2018.** **EXHIBIT P7 TRUE COPY OF THE APPLICATION DATED 28.02.2020 WITHOUT ANNEXURES.** **EXHIBIT P8 TRUE COPY OF THE RECEIPT ISSUED BY THE 2ND RESPONDENT DATED 29.02.2020. EXHIBIT P9 TRUE COPY OF THE JUDGMENT W.P.(C) NO.18136 OF 2017 DATED 05.11.2018.**