P. Beeran v. Tirur Municipality and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR** **TUESDAY, THE 12TH DAY OF DECEMBER 2017/21ST AGRAHAYANA, 1939** ## **WP(C).No. 31444 of 2017 (E)** **----------------------------** ## **PETITIONER :** **----------------------** **P.BEERAN, S/O. ABOOBACKER HAJI, AGED 50 YEARS, POOLAKAL HOUSE, KODAKKAL P.O., MALAPPURAM DISTRICT, REPRESENTED BY HIS POWER OF ATTORNEY HOLDER SRI. P.MUJEEB, AGED 41 YEARS, S/O. ABOOBACKER HAJI, POOLAKAL HOUSE, BEERAN CHIRA, VETTOM PALLIPURAM P.O., TIRUR, MALAPPURAM.** **BY ADVS.SRI.K.I.ABDUL RASHEED SMT.P.K.MINIMOLE** **RESPONDENT(S): --------------------------** **1. TIRUR MUNICIPALITY, REP. BY ITS SECRETARY, TIRUR, MALAPPURAM DISTRICT, PIN - 676 101.** **2. THE SECRETARY, TIRUR MUNICIPALITY, TIRUR, MALAPPURAM DISTRICT, PIN - 676 101.** **3. THE DIRECTOR OF URBAN AFFAIRS, PUBLIC OFFICE BUILDING, MUSEUM P.O., THIRUVANANTHAPURAM, PIN - 695 003.** **R1 & R2 BY SRI.P.VENUGOPAL, SC,** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 12-12-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **sts** **WP(C).No. 31444 of 2017 (E) -----------------------------------------** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS** ## **--------------------------------------** - **EXHIBIT P1 TRUE COPY OF THE DOCUMENT NO. 3958/2012 OF TIRUR SUB REGISTRY IN SURVEY NO. 205/3 DATED 10.09.2012.** - **EXHIBIT P2 TRUE COPY OF THE BUILDING PERMIT NO. 417/2012 DATED 28.07.2012, ISSUED BY THE 2ND RESPONDENT.** - **EXHIBIT P3 PHOTOGRAPH SHOWING THE LIE OF THE PROPERTY AND THE CONSTRUCTION ALREADY MADE.** - **EXHIBIT P4 TRUE COPY OF THE NOTICE NO. B.A.NO. 417/12 DATED 22.03.2014 ISSUED THE 2ND RESPONDENT TO THE PETITIONER.** - **EXHIBIT P5 TRUE COPY OF THE OBJECTION DATED 03.04.2014 SUBMITTED BY THE PETITIONER TO THE RESPONDENTS.** - **EXHIBIT P6 TRUE COPY OF THE LETTER DATED 18.09.2015 ISSUED BY THE 2ND RESPONDENT.** - **EXHIBIT P7 TRUE COPY OF THE JUDGMENT IN W.P.(C) NO.39710/2015 DATED 08.01.2016 OF THIS HON'BLE COURT.** - **EXHIBIT P8 TRUE COPY OF THE ORDER IN B.A.NO. 417/2012 DATED 12.05.2016 OF THIS HON'BLE COURT.** - **EXHIBIT P9 TRUE COPY OF THE DATA BANK ISSUED BY THE VILLAGE OFFICER, THRIKKANDIYOOR VILLAGE.** **RESPONDENT(S)' EXHIBITS** **-----------------------------------------** - **EXHIBIT R1(A) TRUE COPY OF THE APPLICATION DATED 05/02/2014 SUBMITTED BY PETITIONER ON 06/02/2014 FOR TRANSFER OF EXHIBIT P2 BUILDING PERMIT IN HIS FAVOUR** - **EXHIBIT R1(B) TRUE COPY OF THE APPLICATION DATED 28/02/2013 SUBMITTED BY THE PETITIONER ON 01/03/2013 FOR APPROVAL OF THE REVISED PLAN** - **EXHIBIT R1(C) TRUE COPY OF THE ORDER DATED 12/05/2016 PASSED BY THE SECOND RESPONDENT IN PROCEEDINGS NO.PW3-6269/13.** ## **/TRUE COPY/** **P.A.TO JUDGE** **sts** ## **P.B.SURESH KUMAR, J** **- - - - - - - - - - - - - - - - - - -** W.P.(C).No.31444 of 2017 **- - - - - - - - - - - - - - - - - - - - - - - - - - -** Dated this the 12[th] day of December, 2017 ## **JUDGMENT** Petitioner along with one Muhammed Basheer purchased 25.25 cents of land in Survey No.205/3 of Thrikkandiyur Village, within the limits of the first respondent Municipality. Ext.P1 is the sale deed in favour of the petitioner and Muhammed Basheer. The vendors of the petitioner in Ext.P1 sale deed had in fact obtained a building permit for construction of a two storied commercial building in the property and have also raised the structure of the building proposed by them at the time when the property was transferred to the petitioner and Muhammed Basheer. Ext.P2 is the building permit obtained by the vendors of the petitioner. Later, Muhammed Basheer assigned his undivided right in the property to the petitioner and consequently the petitioner became the absolute owner of the property. Thereupon, the petitioner preferred an application to the Municipality W.P. (C).No.31444 of 2017 **2** for transfer of Ext.P2 building permit in his favour. He also preferred an application for revision of the plan of the building approved in terms of the building permit. The application preferred by the petitioner for revision of the approved plan has been rejected by the Municipality as per Ext.P6 communication. The petitioner was under the impression that the application preferred by the petitioner for transfer of building permit was the application that was rejected in terms of Ext.P6 communication. He, therefore challenged Ext.P6 communication on that basis before this court in W.P.(C).No.39710 of 2015. It is seen that the Municipality also did not bring to the notice of this Court that what was rejected in terms of Ext.P6 communication was the application preferred by the petitioner for revision of the approved plan. This Court quashed Ext.P6 communication holding that the application for transfer of building permit cannot be rejected on the grounds mentioned in Ext.P6 communication and consequently directed the matter to be reconsidered by the W.P. (C).No.31444 of 2017 **3** Municipality. Ext P7 is the judgment rendered by this Court in the said writ petition. Earlier, the Municipality issued Ext.P4 notice to the petitioner stating that the property covered by Ext.P1 sale deed is a paddy land as per the revenue records; that the permit for construction of the building at a distance of about 16 meters from Ponnani river has been granted without CRZ clearance; that the approved plan is not in accordance with Rule 34 of the Kerala Municipality Building Rules (the Rules) and that therefore, the Muncipality proposes to revoke the building permit. As per Ext.P4 notice, the petitioner was called upon therefore to prefer objections, if any, against the proposed decision of the Municipality. In Ext.P4, it is also stated that in the light of the proposal made therein, the request of the petitioner for transfer of the building permit cannot be granted. The petitioner submitted Ext.P5 objections to Ext.P4 notice. Later, after Ext.P7 judgment, by Ext.P8 order, the Municipality revoked Ext.P2 building permit. Ext.P8 order is under challenge in W.P. (C).No.31444 of 2017 **4** this writ petition. 2. A counter affidavit has been filed by the Municipality supporting Ext.P8 order. 3. Heard the learned counsel for the petitioner as also the learned counsel for the Municipality. 4. Ext.P8 order indicates that Ext.P2 building permit has been revoked by the Municipality for three reasons. The first reason is that the property covered by Ext.P1 sale deed is a paddy land as per the revenue records. The second reason is that the permit for construction of a building at a distance of about 16 meters from the Ponnani river has been granted without the CRZ clearance. The third reason is that the plan approved in terms of the building permit sought to be revoked is contrary to Rule 34 of the Rules. None of the aforesaid reasons, according to me, is sustainable in law. 5. Rule 16 of the Rules dealing with suspension and revocation of building permits reads thus: “ **Suspension and Revocation of permit.** - The Secretary shall suspend or revoke any permit issued under W.P. (C).No.31444 of 2017 **5** these rules if it is satisfied that the permit was issued by mistake or that a patent error has crept in it or that the permit was happened to be issued on misrepresentation of fact or law or that the construction if carried on will be a threat to life or property. Provided that before revoking permit, the owner of the permit shall be given sufficient opportunity to explain and the explanation shall be duly considered by the Secretary.” As per the said Rule, a building permit can be revoked only when the competent authority is satisfied that the permit was issued by mistake or that a patent error has crept in it or that the permit was happened to be issued on misrepresentation of fact or law or that the construction if carried on will be a threat to life or property. It is seen that the specific contention raised by the petitioner in Ext.P5 objection preferred to Ext.P4 show cause notice was that though the property is a paddy land in terms of the revenue records, the same is one converted long prior to coming into force of the Kerala Conservation of Paddy Land and Wetland Act, 2008 ('the Act'); that the said fact is recorded in the Data Bank prepared under the Act and that therefore there was no W.P. (C).No.31444 of 2017 **6** impediment at all in granting the building permit. Ext.P9 Data Bank prepared under the Act indicates that the said contention of the petitioner is correct. If the property is one converted prior to the coming into the force of the Act, the provisions of the Act would not apply. If the provisions of the Act would not apply to the property of the petitioner, the vendors of the petitioner were certainly entitled to put up the building proposed by them, after obtaining permission from the competent authority under the Kerala Land Utilisation Order. True, there is nothing on record to indicate that the predecessors of the petitioner had obtained permission of the competent authority under the Land Utilisation order for constructing the building proposed by them. The Municipality has no case in Ext.P8 order that the predecessors of the petitioner had not obtained permission of the competent authority under the Kerala Land Utilization Order for construction of the building. Even if the predecessors of the petitioner had not obtained permission of the competent authority under the W.P. (C).No.31444 of 2017 **7** Kerala Land Utilisation Order, the same cannot be a reason for canceling the building permit already issued, for, the issue as to whether such permission is required was settled by the Apex Court once for all only after Ext.P2 permit, in **Revenue Divisional Officer** v. **Jalaja Dileep** (2015(1) KLT 984). 6. As regards the reason stated in Ext.P8 order that the plan approved in terms of the building permit sought to be transferred is not one conforming to Rule 34 of the Rules, the contention of the petitioner is that he would construct the building only in conformity with the said Rule and that therefore, the transfer sought by him can be granted subject to that condition. If the petitioner is prepared to construct the building covered by the permit in conformity with the Rules, I do not find any reason to refuse the permission sought by the petitioner on that ground. 7. Coming to the reason stated in Ext.P8 order that CRZ clearance was not obtained for the building W.P. (C).No.31444 of 2017 **8** permit, it is seen that Ext.P2 permit is issued on the specific condition that the construction shall not protrude towards river from the building line. The specific case of the petitioner is that CRZ norms would apply only to the buildings constructed in the proximity of rivers which are influenced by tidal action and that the river referred to in the order is not one influenced by tidal action. Be that as it may, as per the CRZ norms, constructions within the building line of existing building were exempted all throughout and the condition in the building permit that the petitioner shall not construct the building protruding towards the river beyond the building line indicates that the permit is one issued consciously, having regard to the CRZ norms. If that be so, I do not think that a change of opinion of the subsequent incumbent in the office of the Secretary of the Municipality would bring a permit issued under the Rules within the ambit of Rule 16 of the Rules. The said reason also, in the circumstances, is unsustainable. W.P. (C).No.31444 of 2017 **9** 8. Rule 21 of the Rules dealing with the authority of the Secretary of the Municipality in dealing the application for transfer of building permit reads thus. “ **Transfer of plots to be intimated.** - (1) Every person holding development or building permit shall, unless the work has been executed in full and development or occupancy certificate obtained, inform the Secretary, every transfer of the whole or part of any property involved in the permit together with the name and address of the transferee and his intention to transfer or otherwise of the permit. (2) Every person in whose favour any property is transfered along with a development or building permit by the transferor shall before commencing or continuing the work obtain permit of the Secretary in writing. (3) The request for permission to commence or continue work shall be submitted in white paper affixed with necessary court fee stamp, together with document regarding the ownership and possession certificate and fee of Rs.25. (4) The Secretary shall, if convinced that the transfer will not in any way badly affect the development or construction, issue permission in writing, transferring the permit and allowing the commencement or continuation of the work, within 15 days from the date of receipt of the request.” It is evident from the said Rule that an application for transfer of building permit can be declined by the Secretary only if it is found that the transfer of building W.P. (C).No.31444 of 2017 **10** permit would affect the development or the construction. The materials on record do not indicate that the transfer sought by the petitioner would affect the development or the construction. On the other hand, the request for transfer of permit was turned down by the Municipality only on the ground that the permit is liable to be revoked. In so far as it is found that the permit is not liable to be revoked, the petitioner is entitled to get the permit transferred to his name. 9. The learned counsel for the Municipality contended that the vendors of the petitioner have not informed the transfer of the property involved in the permit and their intention to transfer or otherwise of the permit, to the Municipality and that therefore, the petitioner is not entitled to claim transfer of the permit in his favour. True, sub-rule (1) of Rule 21 of the Rules creates an obligation on the transferor of the property involved in a building permit to inform the local authority the transfer and the intention to transfer or otherwise of W.P. (C).No.31444 of 2017 **11** the permit, the omission, if any, on the part of the transferor to discharge the said obligation cannot be a ground to reject an application for transfer of building permit in favour of the transferee of the property, for, going by the scheme of Rule 21, the power conferred on the Secretary under sub-rule (4) of Rule 21 to effect transfer of permit is a power independent of sub-rule (1) of Rule 21. In the result, the writ petition is allowed, Ext.P8 order is quashed and the Municipality is directed to transfer Ext.P2 building permit in favour of the petitioner. This shall be done within one month from the date of receipt of a copy of this judgment. Sd/- **P.B.SURESH KUMAR JUDGE** bng