Pankajakshan Nair M.N. v. The Secretary, Kothamangalam Municipality

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE ALEXANDER THOMAS** **WEDNESDAY, THE 26TH DAY OF FEBRUARY 2020/7TH PHALGUNA, 1941** **WP(C).No.5520 OF 2020(L)** ## **PETITIONER:** **PANKAJAKSHAN NAIR.M.N., AGED 55 YEARS, S/O.NARAYANAN NAIR, KALLARACKAL PUTHENPURA HOUSE, PINDIMANA.P.O., KOTHAMANGALAM.** **BY ADV. SRI.P.K.SOYUZ** ## **RESPONDENT:** **THE SECRETARY, KOTHAMANGALAM MUNICIPALITY, KOTHAMANGALAM.P.O., PIN-686691, REPRESENTED BY ITS SECRETARY.** **SRI.PEEYUS A.KOTTAM, STANDING COUNSEL** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 26.02.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** W.P. (C) No. 5520 of 2020 ..2.. ALEXANDER THOMAS, J. --------------------------------------W.P. (C) No. 5520 of 2020 --------------------------------------Dated this the 26[th] day of February, 2020 ## J U D G M E N T The case set up in this Writ Petition (Civil) is as follows: The petitioner constructed a building having first and second floors as per Ext.P-1 building permit issued by the Kothamangalam Municipality. Even though the Municipality has numbered the ground floor and issued occupancy certificate, they have not issued occupancy certificate for the first and second floors. As per Ex.P-4 the Municipality is insisting that until the BTR is corrected as per Sec.27A of the Kerala Conservation of Paddy Land and Wet Land Act, 2008, the petitioner's application will not be considered. According to the petitioner, the construction of the petitioner's building is completed much before the implementation of the said Act, and hence the demand in Ext.P-4 is nothing but illegal and unsustainable in law. It is in the light of these averments and contentions that the petitioner has filed the instant Writ Petition (Civil) with the following prayers: W.P. (C) No. 5520 of 2020 ..3.. - “ - _i. Call for the entire records leading to Ext-P4 intimation and quash the same by issuing a writ of certiorari or any other appropriate writ, order or direction._ - _ii. Issue a writ of mandamus or any other appropriate writ, order or direction thereby command the respondent municipality to issue occupancy certificate for the petitioner's first and second floor without insisting for correction in the basic tax register in compliance with the dictum laid down by this Hon'ble Court in Ext.P-8 judgment._ - _iii. Grant such other reliefs, which are just and necessary in the interest of justice and deem fit, just and proper.”_ 2. Heard Sri.P.K.Soyus, learned counsel appearing for the petitioner and Sri.Peeyus A.Kottam, learned counsel appearing for the respondent Kothamangalam Municipality. 3. It is beyond any factual controversy that the respondent Kothamangalam Municipality had issued building permit in favour of the petitioner to undertake construction in the subject property, and the construction has been duly completed, and the substantial part of the building has also been duly numbered and occupancy certificate has also been granted as can be seen from Ext.P-2. The present dispute raised by the respondent Kothamangalam Municipality is that, the subject property is still classified as Nilam going by the entries in the Basic Tax Register (BTR), the petitioner can be given occupancy certificate for the rest of the building only if he secures order under Sec.27A of the Kerala Conservation of Paddy Land and Wet Land Act, 2008 as amended, so as to ensure that the entries in W.P. (C) No. 5520 of 2020 ..4.. the BTR are converted as garden land/purayidam, etc. This aspect is clear from para No.2 of Ext.P-4 order dated 24.9.2019 issued by the respondent. Para No.1 of Ext.P-4 order also makes reference to certain allegations that the petitioner has made changes in the approved plan, etc. 4. Regarding that aspect it is urged by Sri.P.K.Soyus, learned counsel appearing for the petitioner that the defects pointed out in para No.1 of Ext.P-4 order are minor in nature and does not amount to any substantial variation of the approved building plan, and it is fully within the domain of the respondent Municipality to regularise those aspects on the basis of the Kerala Municipality Building Rules, which prevailed at the time of issuance of building permit. As regards the main aspect, it is urged by Sri.P.K.Soyus, learned counsel appearing for the petitioner that the matter in issue is covered by judgments of this Court as in Ext.P-8 judgment dated 5.11.2018 rendered by this Court in WP(C).No.18136/2017 rendered in a similar case. Ext.P-8 judgment dated 5.11.2018 rendered by this Court in WP(C).No.18136/2017 reads 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_ W.P. (C) No. 5520 of 2020 ..5.. _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 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 ”_ 5. The petitioner would also place reliance on the judgment W.P. (C) No. 5520 of 2020 ..6.. of 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. 6. In the light of Ext.P-8 judgment dated 5.11.2018 rendered by this Court in WP(C).No.18136/2017, etc this Court is of the considered view that the matte in relation to Ext.P-4 proceedings requires serious reconsideration at the hands of the respondent Municipal authorities concerned and it warrants a remit in that regard. For effectuating such a remit, it is ordered that Ext.P-4 order will stand set aside and the plea of the petitioner will stand remitted to the respondent Municipality for consideration and decision afresh. 7. The competent authority of the respondent Municipality will take up the plea of the petitioner for consideration afresh, and after affording reasonable opportunity of being heard to the petitioner W.P. (C) No. 5520 of 2020 ..7.. through authorised representative/counsel if any, will render a considered decision on the said plea without any reference to the nature of the land as shown in BTR and other certificates as held by this Court in Ext.P-8 judgment, as well as taking into consideration the other orders and directions issued by this Court in Ext.P-8 judgment. 8. It has to be borne in mind by the respondent Municipality that the respondent Municipality themselves has given building permit in favour of the petitioner for construction of subject property, and the construction has been duly completed, and the substantial part of the building has also been numbered and occupancy certificate has also been given and at this late stage, it will not be right and proper for the respondent Municipality to insist on the conditions referred to in the impugned proceedings, in view of the legal position already settled by this Court in Ext.P-8 judgment. 9. As regards the defects noted in para No.1 of Ext.P-4 order, the petitioner is given liberty to file requisite application before the respondent Municipality for regularization of those aspects, if it is so required, and such application may also be duly W.P. (C) No. 5520 of 2020 ..8.. considered by the respondent Municipality, and if the defects are not substantial in nature, then its regularization may be considered in accordance with the provisions of the building rules as it existed at the time of issuance of building permit, given in favour of the petitioner. With these observations and directions, the above Writ Petition (Civil) will stand finally disposed of. Sd/- ALEXANDER THOMAS, JUDGE MMG W.P. (C) No. 5520 of 2020 ..9.. ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** |**EXHIBIT P1**|**THE TRUE COPY OF THE BUILDING PERMIT**|**THE TRUE COPY OF THE BUILDING PERMIT**| |---|---|---| ||**NO.547/13-14 DATED 11.7.2014 WHICH**|**WAS**| ||**REVISED ON 28.11.2015.**|| |**EXHIBIT P2**|**TRUE COPY OF THE PARTIAL OCCUPANCY**|| ||**CERTIFICATE**<br>**ISSUED**<br>**BY**|**THE**| ||**KOTHAMANGALAM**<br>**MUNICIPALITY**<br>**DATED**|| ||**7.9.2017 FOR THE GROUND FLOOR OF**|**THE**| ||**PETITIONER'S BUILDING.**|| |**EXHIBIT P3**|**THE**<br>**TRUE**<br>**PHOTOGRAPHS**<br>**OF**|**THE**| ||**PETITIONER'S BUILDING.**|| |**EXHIBIT P4**|**TRUE COPY OF THE INTIMATION NO.P.W2-**|| ||**8991/18 SERVED ON THE PETITIONER DATED**|| ||**24.9.2019.**|| |**EXHIBIT P5**|**THE TRUE COPY OF THE REPRESENTATION**|| ||**SUBMITTED BY THE PETITIONER BEFORE**|**THE**| ||**KOTHAMANGALAM**<br>**MUNICIPALITY**<br>**DATED**|| ||**13.2.2020.**|| |**EXHIBIT P6**|**TRUE COPY OF THE RECEIPT ISSUED BY**|**THE**| ||**RESPONDENT MUNICIPALITY TOWARDS **|**THE**| ||**RECEIPT OF EXT.P5 REPRESENTATION.**|| |**EXHIBIT P7**|**THE TRUE COPY OF THE RELEVANT PAGE**|**IN**| ||**THE DATA BANK PERTAINING TO **|**THE**| ||**PROPERTY**<br>**IN**<br>**SY.NO.1265/9**|**OF**| ||**KOTHAMANGALAM VILLAGE.**|| |**EXHIBIT P8**|**THE TRUE COPY OF THE JUDGMENT **|**IN**| ||**WPC.NO.18136/2017 DATED 5.11.2018.**||