High Court of KeralaSingle Judge2017-10-20Writ petition allowed; Ext.P12 quashed; officer...

Mercy @ Mary Sebastian v. Wadakkanchery Municipality

Case / Petition Number:W.P(C).No. 31698 of 2017 (J)

Neutral Citation:/null

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: P.B.SURESH KUMAR
Judgment Date: 2017-10-20
Court Decision / Holding: Writ petition allowed. Ext.P12 quashed. The respondent Secretary is directed to regularise the additional construction, if the application is otherwise in order, within four weeks from production of a copy of the judgment.
Final Disposition: Writ petition allowed; Ext.P12 quashed; officer directed to regularise the additional construction within four weeks if otherwise in order.

Parties to the Case

Appellants / Petitioners

Mercy @ Mary Sebastian

Respondents

Wadakkanchery Municipality
Wadakkanchery Municipality represented by its Secretary

Legal Representation & Advocates

Counsels for Petitioners

• T.C. Suresh Menon
• P.S. Appu
• A.R. Nimod

Counsels for Respondents

• P.P. Thajudeen

Case Synopsis & Summary

The petitioner, Mercy @ Mary Sebastian, owns about 12.5 cents of land described as Paddy land in revenue records. Her predecessor obtained permission under the Kerala Land Utilization Order, 1967 to use the land for purposes other than paddy cultivation and constructed a residential building, followed by an additional structure later. After inheriting the property, the petitioner sought regularisation of the unauthorised addition under the Kerala Municipality Building Rules, 1999, contending that the construction conforms to the rules governing building permits. The Municipality rejected the application (Ext.P12) on the ground that the possession certificate describes the property as Paddy land, thereby restricting development to permission under the Land Utilization Order. The Municipality’s stand is that, since the land is described as Paddy land, any construction must comply with LUO regulations and the predecesor’s LUO permission for residential use is the controlling factor. The petitioner argues that the LUO authority can permit use of Paddy land for any purpose and, given that the predecessor was allowed a non-paddy use, the present regularisation cannot be indefinitely barred. The Court relies on Puthan Purakkal Joseph v. Sub Collector to hold that the LUO can permit use of Paddy land for any purpose whatsoever, quashes Ext.P12, and directs regularisation if the application is otherwise in order, within four weeks."

Provisions of Law Cited

Kerala Land Utilization Order, 1967Kerala Municipality Building Rules, 1999

Legal Doctrines & Maxims

The competent authority under the Land Utilization Order can permit use of paddy land for any purpose whatsoever.

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioner contends that she has complied with the Kerala Municipality Building Rules, 1999, and seeks regularisation of the unauthorised addition since the LUO predecessor’s permission to use the land for non-paddy purposes permitted commercial/residential construction. It is argued that the building conforms to building rules and that regularisation should be allowed, especially given that the LUO could permit non-paddy use. The petitioner relies on the principle stated in Puthan Purakkal Joseph v. Sub Collector that LUO can permit use of paddy land for any permissible purpose, which supports regularisation of the enhanced structure.

Contentions of Respondents

The Municipality maintains that revenue records describe the land as Paddy land; therefore, construction must be in accordance with the LUO. Ext.P1 shows the predecessor’s permission limited to residential use; the possession certificate’s description of Paddy land and the LUO restriction justify denying regularisation (Ext.P12). It argues that the prior permission cannot override the statutory restrictions implied by the LUO and revenue description, and therefore the petition should be dismissed or the regularisation denied.

Cited Precedents (1)

Case Name	Citation	Treatment	Explanation
Puthan Purakkal Joseph v. Sub Collector	2015(3) KLT 182	Positive	The court cited this decision to support that the Land Utilization Order can permit the use of Paddy land for any permissible purpose, guiding the present regularisation view.

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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 P.B.SURESH KUMAR** **FRIDAY, THE 20TH DAY OF OCTOBER 2017/28TH ASWINA, 1939** **W.P(C).No. 31698 of 2017 (J) ----------------------------** **PETITIONER : ------------** **MERCY @ MARY SEBASTIAN, W/O. T.D.SEBASTIAN, AGED 54 YEARS, RESIDING AT THONIKUZHIYIL HOUSE, ATHANI PO., THRISSUR PIN-680 581.** **BY ADVS.SRI.T.C.SURESH MENON SRI.P.S.APPU SRI.A.R.NIMOD** **RESPONDENT :** **------------** ## **WADAKKANCHERY MUNICIPALITY** **REPRESENTED BY ITS SECRETARY, MUNICIPAL OFFICE, WADAKKANCHERY, THRISSUR, PIN-680 582.** **BY ADV. SRI.P.P.THAJUDEEN, SC, WADAKANCHERY MUNICIPALITY** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 20-10-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **W.P(C).No. 31698 of 2017 (J)** **----------------------------** ## **APPENDIX** ## **PETITIONER'S EXHIBITS** **---------------------** - **EXHIBIT P1 TRUE COPY OF THE ORDER PASSED BY THE REVENUE DIVISIONAL OFFICER, THRISSUR DATED 30.04.1997** - **EXHIBIT P2 TRUE COPY OF THE LATEST BUILDING TAX RECEIPT IN RESPECT TO THE RESIDIENTIAL BUILDING DATED 12.05.2017.** - **EXHIBIT P3 TRUE COPY OF THE LATEST BUILDING TAX RECEIPT IN RESPECT TO THE COMMERCIAL BUILDING DATED 12.05.2017.** - **EXHIBIT P4 TRUE COPY OF THE LATEST BUILDING TAX RECEIPT IN RESPECT TO THE COMMERCIAL BUILDING DATED 12.05.2017.** - **EXHIBIT P5 TRUE COPY OF THE LATEST BUILDING TAX RECEIPT IN RESPECT TO THE COMMERCIAL BUILDING DATED 12.05.2017.** - **EXHIBIT P6 TRUE COPY OF THE LATEST BUILDING TAX RECEIPT IN RESPECT TO THE COMMERCIAL BUILDING DATED 12.05.2017.** - **EXHIBIT P7 TRUE COPY OF THE LATEST BUILDING TAX RECEIPT IN RESPECT TO THE COMMERCIAL BUILDING DATED 12.05.2017.** - **EXHIBIT P8 TRUE COPY OF THE LATEST BUILDING TAX RECEIPT IN RESPECT TO THE COMMERCIAL BUILDING DATED 12.05.2017.** - **EXHIBIT P9 TRUE COPY OF THE APPLICATION DATED 23.11.2016 WHICH WAS SUBMITTED BY THE PETITIONER AFTER PAYING THE REQUISITE FEE ON 08.12.2016.** - **EXHIBIT P10 TRUE COPY OF THE REPORT OF THE OVERSEER DATED 10.01.2017.** **-2-** ## **W.P(C).No. 31698 of 2017 (J)** **----------------------------** **EXHIBIT P11 TRUE COPY OF THE REQUEST MADE BY THE PETITIONER DATED 07.07.2017.** **EXHIBIT P12 TRUE COPY OF THE ORDER PASSED BY THE RESPONDENT MUNICIPALITY DATED 19.09.2017. EXHIBIT P13 TRUE COPY OF THE POSSESSION CERTIFICATE ISSUED BY THE VILLAGE OFFICER, PERINGANDOOR VILLAGE DATED 11.06.2014** . **RESPONDENT'S EXHIBITS : NIL ---------------------** **//TRUE COPY//** **P.A. TO JUDGE** **bpr** ## **P.B.SURESH KUMAR, J.** ## **----------------------------------------------W.P.(C) No.31698 of 2017 ----------------------------------------------Dated 20[th] October, 2017.** ## **J U D G M E N T** Ext.P12 communication of the Secretary of the respondent Municipality is under challenge in the writ petition. 2. The petitioner owns an item of property having an extent of 12.5 cents which is described in the revenue records as 'paddy land'. The property originally belonged to the husband of the petitioner and he had obtained permission from the competent authority under the Kerala Land Utilization Order, 1967 for use of of the same for purposes other than paddy cultivation. Ext.P1 is the order issued by the competent authority under the Land Utilization Order in this regard. It is stated by the petitioner that the property was later transferred to her by her husband and she has constructed a residential building as also a commercial building therein. Subsequently, the petitioner had made an additional structure in the WPC No.31698 of 2017 2 commercial building constructed in the property. As the said additional structure was made without obtaining building permit from the Municipality, she preferred an application before the Municipality for regularisation of the additional construction. The specific case of the petitioner is that the construction effected by her in the building is in accordance with the Kerala Municipality Building Rules, 1999 and as such, she is entitled to get the additional construction regularised. The application for regularisation preferred by the petitioner has, however, been rejected by the Municipality as per Ext.P12 communication stating that the property is described in the possession certificate produced before the Municipality as 'Paddy land' and that therefore, the petitioner is not entitled to the regularisation claimed. The petitioner is aggrieved by the said decision of the Municipality. 3. A statement has been filed by the Municipality. The stand taken by the Municipality in the statement is that in so far as the property is described in the revenue records as 'Paddy land', the construction has to be in accordance with the WPC No.31698 of 2017 3 permission accorded by the competent authority under the Land Utilization Order; that in terms of Ext.P1 order passed by the competent authority under the Land Utilization Order, the predecessor of the petitioner was permitted only to use the property for constructing residential buildings and that therefore, the petitioner is not entitled to construct a commercial building in the property. According to the Municipality, it is on account of the said reason that the application preferred by the petitioner for regularisation has been rejected. 4. Heard the learned counsel for the petitioner as also the learned counsel for the Municipality. 5. The fact that the predecessor of the petitioner has obtained permission to use the property for purposes other than paddy cultivation in terms of Ext.P1 order is not disputed by the Municipality. Likewise, the fact that the petitioner has erected a residential building as also a commercial building in the property is also not disputed by the Municipality. The case of the petitioner that the aforesaid constructions were made by WPC No.31698 of 2017 4 her in terms of the building permits issued by the Municipality is also not disputed. True, Ext.P1 order indicates that permission has been granted by the competent authority under the Land Utilization Order to the predecessor of the petitioner only for the purpose of putting up a residential building. This Court has held in **Puthan Purakkal Joseph v. Sub Collector** (2015(3) KLT 182) that the competent authority under the Land Utilization Order can permit use of paddy land for any purpose whatsoever. In other words, had the predecessor of the petitioner applied for permission to construct a commercial building in the property, there would have been no impediment whatsoever for the competent authority under the Land Utilization Order in granting the same. In the circumstances the Municipality having permitted the petitioner to erect a commercial building and occupy the same for the purpose intended, I do not think that they are justified now in rejecting the application preferred by the petitioner for regularisation of the additional construction made to the said building on the ground that the land in which the building is put up is a paddy WPC No.31698 of 2017 5 land in terms of the revenue records. In the result, the writ petition is allowed, Ext.P12 communication of the Secretary of the respondent is quashed and the said officer is directed to regularise the additional construction made by the petitioner to the existing commercial building, if the application preferred by the petitioner for the said purpose is otherwise in order. This shall be done within four weeks from the date of production of a copy of this judgment. Sd/- ## **P.B.SURESH KUMAR, JUDGE.** tgs (true copy)