P.Subair v. Ponnani Municipality and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN** **FRIDAY, THE 24[TH] DAY OF MARCH 2023 / 3RD CHAITHRA, 1945** ## **WP(C) NO. 5681 OF 2016** ## **NAME AND ADDRESS OF THE PETITIONER:** P.SUBAIR, AGED 54 YEARS, S/O.LATE T.K.ABDULLAKUTTY, PADARIYAKATH HOUSE, PONNANI NAGARAM, P.O.PONNANI, MALAPPURAM. BY ADVS. SRI.BABU KARUKAPADATH SRI.MITHUN BABY JOHN SRI.K.A.NOUSHAD SRI.J.RAMKUMAR SMT.M.A.VAHEEDA BABU SRI.P.U.VINOD KUMAR ## **NAME AND ADDRESS OF THE RESPONDENTS:** 1 PONNANI MUNICIPALITY, PONNANI SOUTH, PIN – 679 586, REPRESENTED BY ITS SECRETARY. 2 THE VILLAGE OFFICER, EZHUVATHIRUTHY, PONNANI - 679 577. 3 THE TAHASILDAR, TALUK OFFICE, PONNANI - 679 576. 4 THE LOCAL LEVEL MONITORING COMMITTEE REPRESENTED BY ITS CONVENER - AGRICULTURE OFFICER, OLD PANCHAYATH OFFICE BUILDING, NEAR EZHUVATHIRUTHY HEALTH CENTRE - 679 576. BY ADVS. SMT.T.N.GIRIJA, SC SRI.N.N.SUGUNAPALAN SR. SRI.C.V.MANUVILSAN, SC, PONNANI MUNICIPAL COUNCIL SMT.SURYA BINOY, SENIOR GP THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 24.03.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C) NO. 5681 OF 2016 2 ## **P.V.KUNHIKRISHNAN, J.** **-----------------------------W.P.(C)No. 5681 of 2016** **---------------------------------------------Dated this the 24[th] day of March, 2023** ## **JUDGMENT** The above writ petition is filed with the following prayers: _“(i) issue a writ of certiorari or any other appropriate writ, order or direction quashing Exhibit P-9;_ _(ii) issue a writ of mandamus or any other appropriate writ, order or direction commanding the 1st respondent to number the building constructed by the petitioner in the property owned by him, as per Exhibit P-5 and P-6 Building Permits and to issue Ownership Certificate for the same;_ _(iii) direct the 1st respondent to accept Building Tax for the building constructed as per Exhibit P-5 and P-6 Building Permits;_ _(iv) direct the 1st respondent to consider Exhibit P-11 Explanation and pass favourable orders._ _(v) grant such other reliefs, as this Hon'ble Court shall deem just.”[SIC]_ WP(C) NO. 5681 OF 2016 3 2. The petitioner is the owner of 20 cents of land which was purchased by him, as per Exhibits P-2 and P-3 Sale Deeds. The said property originally belonged to one Unni Menon as per Partition Deed No. 292/1970 of SRO, Ponnani, from whom, the petitioner purchased the same, is the submission. It is submitted that, as per the description of the property in the Sale Deeds, there was a residential building of about more than 60 years old, with Building No.EP IV/625 of Easwaramangalam Panchayath, evidenced by Exhibit P- 4 Tax receipt, which was later demolished. The property owned by the petitioner is situated on the southern side of Ponnani- Edappal PWD Road and on the western side of the Municipal Road, thus having direct access from the said two roads. Exhibit P-7 is the photographs showing the property. According to the petitioner, the property purchased by the petitioner is a garden dry land, which was reclaimed, much WP(C) NO. 5681 OF 2016 4 before the coming into force of the Kerala Conservation of Paddy and Wet Land Act, 2008 and it was accordingly that, Exhibits P-5 and P-6 Building Permits for construction of a building was issued by the 1[st] respondent, after conducting local inspection regarding the present lie and condition of the properties, both by Revenue authorities and the 1[st] respondent Municipality. The petitioner completed the construction of the Building in March 2015 as per Exts.P5 and P6 building permit. It is also the case of the petitioner that, on inspection, he was directed to remit fine for additional construction as well, which he remitted, as evident by Exhibit P-8. The grievance of the petitioner is that the 1[st] respondent is not numbering the building or issuing Ownership Certificate. So the petitioner is prevented from applying for Electrical Connection to the building so that, the building can be rented out. Subsequently, Exhibit P-9 notice was issued to the 5 WP(C) NO. 5681 OF 2016 petitioner under Rule 16 of the Kerala Municipality Building Rules, 1999. In Exhibit P-9 it is stated that there is violation of the provisions of Kerala Conservation of Paddy and Wet Land Act, 2008 and hence numbering is not possible. Aggrieved by the same, this writ petition is filed. 3. Heard counsel appearing for the petitioner, the counsel appearing for the 1[st] respondent and the learned Government Pleader. 4. When this writ petition came up for consideration on 15.02.2016, this Court passed the following order: _“Admit._ _Adv.S.Sujin, Standing counsel takes notice for R1. Government Pleader takes notice for R2 to R4._ _Further proceedings pursuant to Ext.P9 notice shall stands stayed for two months. The first respondent shall in the meanwhile number the building provisionally subject to the result of the writ petition.”_ 5. Today when the matter came up for WP(C) NO. 5681 OF 2016 6 consideration, the counsel appearing for the petitioner submitted that the point raised in this writ petition is covered in favour of the petitioner as per the judgment dated 10.02.2023 in W.P.(C)No.27625/2016 which relied the judgment of this Court in W.P. (C)No.25545/2020. Admittedly, Ext.P5 building permit was obtained by the petitioner on 12.11.2010. Ext.P6 is the proceeding granting renewal of the permit which was granted by the 1[st] respondent on 09.06.2014. Ext.P7 is the photographs of the building of the petitioner. This Court considered a similar issue in the judgment dated 11.08.2022 in W.P.(C)No.25545/2020. The relevant portion of the above judgment is extracted hereunder: _“11. Defence of the respondents is that after 30.12.2017, the Secretary to the Municipality or for that matter the Municipal Council, is not competent to issue a Building Permit or Occupancy Certificate in respect of a construction carried out in a paddy land or wetland. This Court finds that the specific issue was considered by the learned Single Bench of this Court in_ WP(C) NO. 5681 OF 2016 7 _**Leela Santu and another** (Supra). Relying on the Circular dated 30.08.2018 issued by the Department of Local Self Government, this Court held as follows:_ _9. In the instant case, it is beyond any dispute that building permits covered in both these Writ Petitions have been issued long prior to 30/12/2017 (the date of coming into force of the amended provisions of the State Act 28 of 2008 Act). Hence petitioners are fully entitled to get the benefit of the said Government Circular dated 13/08/2018. That apart, this Court has already held in various decisions as in Mahin v. Keezhmad Grama Panchayat (2020 KHC 243:2020 (2) KLT 478:2020 (2) KLJ 598) that in cases where the subject property has been converted prior to 2008 Act and building permit has been issued by the local body concerned without reference to the nature of the land and after the construction of the building the local body will be estopped from raising objections for grant of completion certificate, occupancy certificate or for grant of permit for additional construction on the ground that subject property continued to be descried as 'nilam/paddy land' in the BTR. Those aspects are also reiterated in judgments as in the one rendered on 26/02/2020 in W.P. (C).No.5520/2020 [Ext.P-6 in W.P._ WP(C) NO. 5681 OF 2016 8 _(C).No.14707/2020]. In both these cases, the respondent-local bodies have granted building permit to the respective applicants concerned without raising any objection regarding the nature of the land and construction has been completed and they have sought for grant of occupancy certificate and the building permits have been secured much prior to the cut off date of 30/12/2017. In the light of these aspects, the petitioners are also entitled to succeed on the basis of the aspects already dealt with by this Court in Mahin v. Keezhmad Grama Panchayat (2020 KHC 243:2020 (2) KLT 478:2020 (2) KLJ 598), etc. In that view of the matter, it is ordered that the impugned stand of the respondent-local body concerned rejecting the plea of the petitioners for grant of occupancy certificate, etc., is declared to be illegal and ultra vires and the same will stand set aside and quashed and consequential respective applications submitted by the respective petitioners for grant of occupancy certificate will stand remitted to the respective Secretary of the respondent-local body concerned in these cases for consideration and decision afresh._ _This judgment would squarely apply to the petitioners' case._ WP(C) NO. 5681 OF 2016 9 _12. The Standing Counsel for the Municipality pointed out that the judgment was delivered without noting the exact amplitude of Section 14 of the Kerala Conservation of Paddy Land and Wetland Act, 2008. Section 14 of the Kerala Conservation of Paddy Land and Wetland Act, 2008 reads as follows:_ _14. Refusal of licence by the Local AuthorityNotwithstanding anything contained in the Kerala Panchayat Raj Act, 1994 (13 of 1994) or in the Kerala Municipality Act, 1994 (20 of 1994) no Local Authority shall grant any licence or permit under the said Act for carrying out any activity or construction in a paddy land or a wetland converted or reclaimed in contravention of the provisions of this Act._ _13. It is evident from Section 14 of the Act that the restraint extended by the provision is for grant of any licence or permit under the Kerala Municipality Act, 1994. What is sought for by the petitioners in the writ petitions is not a licence or permit. In fact, the petitioners were already issued Building Permit for construction of the building. The building was constructed strictly adhering to the said Building Permit. What is sought for by the petitioners is only a permission to occupy the building legally constructed by the petitioners on the basis of a valid Building Permit. The Occupancy Certificate will not authorise_ WP(C) NO. 5681 OF 2016 10 _the petitioners to make any construction._ _14. In the circumstances, this Court is of the firm view that when a citizen makes an application for Occupancy Certificate in respect of a building which was constructed as per a valid Building Permit issued prior to 30.12.2017, the respondents cannot take umbrage under Section 14 to deny Occupancy Certificate to the building on the ground that the land where the construction is made is a paddy land or wetland._ _15. In view of the above, the petitioners are entitled to relief. The respondent-Municipality is therefore directed to issue Occupancy Certificate to the building constructed by the petitioner in WP(C) No.25545/2020, if the petitioner is otherwise eligible, within a period of one month. After taking a decision on the issuance of Occupancy Certificate, the respondent-Municipality shall consider numbering of the apartment unit of the petitioner in WP(C) No.6151/2021 and assess the apartment unit for property tax. ”_ In the light of the above judgment, this writ petition can be allowed. Therefore, this writ petition is allowed in the following manner: i. Ext.P9 is set aside. WP(C) NO. 5681 OF 2016 11 ii. The 1[st] respondent is directed to make the provisional building number issued as per the interim order dated 15.02.2016 of this Court absolute and issue occupancy certificate on the basis of Exts.P5 and P6 building permits, as expeditiously as possible, at any rate, within a period of one month from the date of receipt of a certified copy of this judgment. iii. The petitioner will produce a stamped certified copy of this judgment along with a copy of this writ petition before the 1[st] respondent for compliance. Sd/- DM **P.V.KUNHIKRISHNAN JUDGE** WP(C) NO. 5681 OF 2016 12 ## **APPENDIX OF WP(C) 5681/2016** PETITIONER EXHIBITS EXHIBIT P1 A TRUE COPY OF THE SALE DEED NO 2336/2009 DATED 12/5/2009 EXHIBIT P2 A TRUE COPY OF THE SALE DEED NO 2747/2010 OF SRO,PONNANI DATED 3/6/2010 EXHIBIT P3 A TRUE COPY OF THE SALE DEED NO 4923/2009 OF SRO,PONNANI DATED 15/10/2009 EXHIBIT P4 A TRUE COPY OF THE RECEIPT DATED 21/10/09 EVIDENCING PAYMENT OF PROPERTY TAX WITH RESPECT TO THE LAND IN QUESTION EXHIBIT P5 A TRUE COPY OF THE BUILDING PERMIT DATED 12/11/2010 GRANTED BY THE 1ST RESPONDENT EXHIBIT P6 A TRUE COPY OF THE PROCEEDINGS DATED 9/6/2014 OF THE SECRETARY OF THE 1ST RESPONDENT,GRANTING RENEWAL OF EXHIBIT P-1 BUILDING PERMIT EXHIBIT P7 A TRUE COPIES OF THE PHOTGRAPHS OF THE PROPERTY OF THE PETITIONER AND ITS ADJACENT BUILDINGS, SHOWING THAT, THE BUILDING CONSTRUCTED IS IN PUCCA GARDEN LAND EXHIBIT P8 A TRUE COPY OF THE RECEIPT DATED 26/5/2015 EVIDENCING PAYMENT OF RS. 18,609 AS FINE BEFORE THE 1ST RESPONDENT EXHIBIT P9 A TRUE COPY OF THE SHOW WP(C) NO. 5681 OF 2016 13 CAUSE NOTICE DATED 5/12/2015,ISSUED BY THE 1ST RESPONDENT TO THE PETITIONER EXHIBIT P10 A TRUE COPY OF THE WRITTEN EXPLANATION DATED 28/12/2015 SUBMITTED BY THE PETITIONER BEFORE THE 1ST RESPONDENT EXHIBITP11 A TRUE COPY OF THE INTERIM ORDER DATED 10/12/2015,IN WPC NO 37419/2015 RESPONDENT EXHIBITS: NIL //TRUE COPY// PA TO JUDGE