Krishnankutty v. State of Kerala and Others (W.P.(C).No.38872 of 2022)

W.P.(C).No.38872 of 2022 1 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN** **FRIDAY, THE 24[TH] DAY OF FEBRUARY 2023 / 5TH PHALGUNA, 1944** ## **WP(C) NO. 38872 OF 2022** ## **PETITIONER:** KRISHNANKUTTY AGED 67 YEARS S/O. KORU, ATHIYARATHU HOUSE, KADAMBODU DESOM, PADY P.O., VELLIKULANGARA VILLAGE, CHALAKUDY TALUK, THRISSUR DISTRICT, PIN:680 699. BY ADV N.L.BITTO ## **RESPONDENTS:** - 1 THE STATE OF KERALA REPRESENTED BY THE SECRETARY TO THE GOVERNMENT, LOCAL SELF GOVERNMENT DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM P.O., PIN: 695 001. 2 KUTTICHIRA GRAMAM PANCHAYATH** (CORRECTED) REPRESENTED BY THE SECRETARY, ATHIYARATHYU DESOM, KUTTICHIRA VILLAGE, MUKUNDAPURAM TALUK, THRISSUR DISTRICT, PIN:680 724. ** KODASSERY GRAMA PANCHAYATH, REPRESENTED BY SECRETARY, CHATTIKULAM P.O., CHALAKUDY TALUK, THRISSUR DISTRICT-680 721. (AS PER ORDER DATED 15-12-2022 IN IA 1/2022) BY ADVS. Daisy. A.Philipose JAI GEORGE(K/000636/1996) THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 23.02.2023, THE COURT ON 24.02.2023 DELIVERED THE FOLLOWING: W.P.(C).No.38872 of 2022 2 ## **ANU SIVARAMAN, J.** **= = = = = = = = = = = = = = = W.P.(c).No.38872 of 2022** **= = = = = = = = = = = = = = = = Dated this the 24[th] day of February, 2023 JUDGMENT** - 1.The prayers in this writ petition are as follows:- “i)call for the records leading to Ext.P7 and issue writ of certiorari quashing the same. ii) Issue a writ of mandamus or any other appropriate writ, order or direction commanding the 2[nd] respondent to issue building numbers which is constructed accordance with the building permit.” - 2.Heard the learned counsel for the petitioner, learned Government Pleader as well as the learned counsel appearing for the 2[nd] respondent. 3. It is submitted by the learned counsel for the petitioner that the petitioner is the owner of 55.2 ares of land Survey No.80/73-1 and 2113/1 of Kuttichira Village, Chalakudy Taluk. The property was assigned to the previous owners by means of land assignment. After obtaining building permit, the petitioner constructed a building in the said premises. When the petitioner applied for occupation and building W.P.(C).No.38872 of 2022 3 number, the same was rejected stating that the prior owners got the said land by way of land assignment for agricultural purpose and the said land is an “Assigned Land" hence construction is illegal. The learned counsel for the petitioner submits that after granting building permit, the Panchayat cannot refuse to number the building and relies on a decision reported in **Mahin and Another vs. Keezhmad Grama Panchayath and Another** [2020 (2) KLT 478]. 4.A counter affidavit has been placed on record by the 2[nd] respondent contending that commercial activities are not permitted in the land assigned for agricultural and residential purpose and that the Government had issued G.O.[MS] No.61/2021 dated 22.2.2021 directing all village officers to issue possession certificates by mentioning the nature of the land and whether the land is assigned for any specific purposes under the Kerala Land Assignment Act, 1960. A circular was also issued on 1.10.2021. The said materials are also produced along with the counter affidavit. W.P.(C).No.38872 of 2022 4 - 5.The learned counsel for the respondent places reliance on the decisions of this Court in **Haridas R v. State of Kerala and others** [ 2016 (5) KHC 615] and **Raphy John v. Land Revenue Commissioner** [2022 (3) KLT 679]. - 6.I have considered the contentions advanced. It is an admitted fact that the petitioner is the owner of a small plot of land which is a part of property which was originally assigned by way of patta issued under the Land Assignment Rules. The petitioner submitted an application for building permit for the construction of a commercial building which had been duly granted by the 2[nd] respondent by Exhibit P4 dated 10.11.2021. The petitioner completed the construction on the basis of the permit. Thereafter, Exhibit P6 proceedings have been issued stating that the petitioner's application for numbering of the building cannot be allowed in view of the fact that the land was assigned under the Land Assignment Rules, 1964 for agricultural purpose and therefore a small industrial building cannot be constructed thereon. The petitioner has produced Exhibit W.P.(C).No.38872 of 2022 5 P4 patta and contends that there was no prohibition contained therein and construction of buildings are perfectly permissible even going by the provisions of the Land Assignment Rules. The petitioner would state that the petitioner intends to use the building for agriculture related activities only. 7.I find that the respondents have already issued a building permit to the petitioner, knowing that the petitioner intends to construct a small industrial building. It is on the basis of a valid building permit that the petitioner has constructed the building. The judgment of the Division Bench relied on by the petitioner relates to the use of a land assigned under the Kerala Land Assignment Rules, 1964 for the conduct of a quarry. It was held that there is no right to secure a quarrying lease if the lands are assigned for any such purpose. In **Haridas R v. State of Kerala and others,** the finding was that when a land was assigned to pattadar for personal cultivation, subsequent assignees would also be subjected to the restrictions contained in the Patta and that W.P.(C).No.38872 of 2022 6 the purpose of the assignment is to be looked into when permitting a commercial activity. However, in the instant case, I notice that it is after the issuance of the building permit and after the construction is complete that the objection is being raised by the respondents. After construction of a building on the basis of a valid building permit issued, now the respondents have taken a stand that the building cannot be numbered. 8.I find that the conduct of the 2[nd] respondent is highly arbitrary. Taking into consideration the fact that the building was constructed by the petitioner specifically after obtaining a building permit and since the building permit had not been revoked at any point and also taking into consideration the contention that the petitioner intends to do agriculture related activities in the building, the 2[nd] respondent has to assign building number to the petitioner and issue Occupancy Certificate, if applied for by the petitioner. W.P.(C).No.38872 of 2022 7 9.In the result, Exhibit P7 order is set aside. There will be a direction to the 2[nd] respondent to assign building number to the building constructed by the petitioner in accordance with the building permit. In case the building is constructed in accordance with permit, appropriate action shall be taken by the 2[nd] respondent within a period of one month from the date of receipt of copy of this judgment. The writ petition is ordered accordingly. sd/- **Anu Sivaraman, Judge** sj W.P.(C).No.38872 of 2022 8 ## **APPENDIX OF WP(C) 38872/2022** PETITIONER EXHIBITS Exhibit P1 A TRUE COY OF DOCUMENT NO.2395 OF 1986 OF CHALAKUDY SRO DATED 05/06/1986. Exhibit P2 - A TRUE COPY OF DOCUMENT NO.178 OF 1999 OF CHALAKUDY SRO DATED 07/01/1999. - Exhibit P3 A TRUE COPY OF THE BASIC TAX RECEIPT ISSUED FROM THE KUTTICHIRA VILLAGE OFFICE DATED 05/04/2022. - Exhibit P4 A TRUE COPY OF THE EXTRACT OF THE PATTA NO. LA (P) 598 KDY ISSUED FROM TAHASILDAR MUKUNDAPURAM DATED 19/12/1975. Exhibit P5 A TRUE COPY OF THE BUILDING PERMIT NO. A2-BA (42012)/2022 ISSUED FROM THE KODASSERY GRAMA PANCHAYATH 03/02/2022.. - Exhibit P6 A TRUE COPY OF THE ACKNOWLEDGMENT RECEIPT FOR SUBMISSION OF COMPLETION CERTIFICATE DATED 11/04/2022. Exhibit P7 A TRUE COPY OF THE COMMUNICATION ISSUED BY THE 2ND RESPONDENT TO THE PETITIONER DATED 10/06/2022. RESPONDENT EXHIBITS EXHIBIT R.2 (a) A true copy of G.O[MS]NO.61/2021 dated 22/2/2021. EXHIBIT R.2 (b) A true copy of Circular NO. RevA2/49/2021-REV dated 1/10/2021 W.P.(C).No.38872 of 2022 9 EXHIBIT R.2 (c) A true copy of Letter No.PAN/4001/2021C1(DP) dated 12/10/2021 issued by the Director of Panchayaths True copy PS to Judge