R. Natarajan v. Village Officer, Kanayannur Taluk, Government Press Road Ernakulam; Revenue Divisional Office, Fort Cochin; District Collector, Ernakulam; Cochin Corporation

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE P.N.RAVINDRAN TUESDAY, THE 25TH DAY OF SEPTEMBER 2012/3RD ASWINA 1934 RP.No. 776 of 2012 (I) IN WPC/31690/2011 ----------------------------------------AGAINST THE ORDER/JUDGMENT IN .NO./ IN WPC.31690/2011 DATED 31-07-2012 REVIEW PETITIONER/PETITIONER: ------------------------------- R.NATARAJAN SON OF N.RAMALINGA IYER, OLIPARAMB PULLEYPADY ROAD, ERNAKULAM, COCHIN - 682 018. BY ADVS.SRI.P.B.SAHASRANAMAN SRI.K.JAGADEESH SRI.T.S.HARIKUMAR RESPONDENT(S)/RESPONDENTS: -------------------------- 1. THE VILLAGE OFFICER KANAYANNUR TALUK, GOVERNMENT PRESS ROAD ERNAKULAMCOCHIN - 682 011. 2. THE REVENUE DIVISIONAL OFFICE, OFFICE OF THE REVENUE DIVISIONAL OFFICER, FORT COCHIN, COCHIN - 682 001. 3. THE DISTRICT COLLECTOR, COLLECTORATE, KAKKANAD, ERNAKULAM 682 030. 4. THE COCHIN CORPORATION, REPRESENTED BY ITS SECRETARY, COCHIN - 682 011. BY ADV. SRI.JIBU P THOMAS FOR R4 GOVERNMENT PLEADER SRI.REJI JOSEPH THIS REVIEW PETITION HAVING COME UP FOR ADMISSION ON 25-09-2012, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ## **P.N.RAVINDRAN, J.** **----------------------------** **==> picture [246 x 10] intentionally omitted <==** **IN W.P.(c) No.31690 of 2011** **---------------------------Dated this the 25[th] day of September, 2012** **O R D E R** This is an application filed by the writ petitioner seeking a review of the judgment delivered by this Court on 31.7.2012 dismissing W.P.(C)No.31690 of 2010. 2. The petitioner's father owned a parcel of land, situate in Sy.Nos.476/1 and 478/1 of Ernakulam Village, Kanayannur Taluk, Ernakulam District lying to the south of the existing PulleppadyTammanam road, which has been in existence for the past several years. It is bounded on the east by a private pathway. In the year 2003, the petitioner's father submitted an application for a building permit to put up a residential apartment building. In the application, the total extent of land in which the building was proposed to be put up was mentioned as 19.13 ares of land situate in Sy.Nos.476/1 and 478/1 of Ernakulam Village, Kanayannur Taluk and mentioned in partition deed No.1175 dated 7.6.1973 of the Sub-Registrar's Office, Ernakulam. Simultaneous with the application for building permit, the petitioner's father submitted Ext.P1 application dated 3.9.2002 for R.P. No.776/2012 2 relinquishment of 2.28 ares of land (228 Sq. meters) situate in Sy.No.478/1 of Ernakulam Village, Kanayannur Taluk, Ernakulam District (on the southern side of his holding) for the purpose of the Tammanam-Pulleppady Road. The relinquishment was as a matter of fact for the purpose of the new Pulleppady-Tammanam road originating from Mahatma Gandhi Road, situate a few hundred meters to the west of the property. 3. The application submitted by the petitioner's father for a building permit was forwarded to the special committee known as the road committee constituted under rule 85 of the Kerala Municipality Building Rules, 1999 then in force. The road committee that met on 4.10.2002 took note of Ext.P1 application and resolved to grant the application for building permit. The road committee that met on 30.10.2003 considered a revised plan submitted by the petitioner's father and resolved to approve it. A building permit was accordingly issued to the petitioner's father on 11.3.2004 permitting him to construct a five storied apartment building in the remaining lands. The files produced by the Cochin Corporation disclose that the construction of a five storied apartment building was completed on 15.10.2005 and on an application dated 18.10.2005 filed by the petitioner's father, an occupancy certificate was issued to him on 25.10.2005. 3 R.P. No.776/2012 4. Long after the construction of the building was completed, the petitioner's father executed Ext.P2 settlement deed dated 2.9.2011, settling 2.08 ares of land situate in Sy.No.478/1 of Ernakulam Village (which admittedly is part of the land which was the subject matter of Ext.P1 application for relinquishment) on the petitioner herein. The petitioner thereupon submitted Ext.P3 application before the Village Officer, Ernakulam for effecting mutation in the revenue records. When the Village Officer declined to act on the application on the ground that the land settled on the petitioner is part of the land which was surrendered by his father for the proposed Tammanam-Pulleppady Road, the instant writ petition was filed for an order directing the Village Officer, Ernakulam to effect mutation in the revenue records in respect of the land settled on the petitioner as per Ext.P2 settlement deed and to accept land tax from him. 5. The principal contention raised by the petitioner in the writ petition was that though his father had submitted Ext.P1 application for relinquishment in Form A prescribed in rule 3 of the Kerala Land Relinquishment Rules, 1958, no order has been passed by the competent authority accepting the relinquishment and therefore, as the land has not vested in the Government, his father was competent to settle the properties on him. The Revenue Divisional Officer, Fort R.P. No.776/2012 4 Cochin resisted the writ petition by filing a counter affidavit, contending inter alia that the petitioner's father had unconditionally surrendered all his rights over 2.28 ares of land situate in Sy.No.478/1 of Ernakulam Village, Kanayannur Taluk, Ernakulam District for widening and development of Tammanam-Pulleppady road and therefore, he had no right to execute the settlement deed. The Corporation of Cochin which was not a party to the writ petition got itself impleaded as the additional fourth respondent and filed a counter affidavit dated 14.6.2012. Paragraphs 3, 4 and 5 thereof are extracted below for easy reference:- " _3. The father of the petitioner in the writ petition Sri.N.Ramalinga Iyer, Oliparambil, Pullepady road, Kochi-682018 was the owner in possession of 2.08 Ares in Sy.No.478/1 in Ernakulam Village. On 06.09.2002, he submitted a building application for construction of ground floor+7 floors residential building in Sy Nos.476/1, 478/1 of an extent of 774.51 meter square._ _4. The Corporation of Cochin has formed a project for widening Thammanam-Pullepady road and the property in Sy No.478/1 is included in the said project. For this purpose Sri.Ramalinga Iyer agreed to surrender 228 meter square of land for the widening project unconditionally and declaration was signed before the Village Officer, Ernakulam._ _5. Subsequently, Sri.Ramalinga Iyer submitted a revised building plan for ground+5 floors. The proposal was submitted to the Road Committee and the same was approved on the condition that no compound wall should be constructed on the eastern side of the property. The building permit was granted for construction in the plots of which has been part of the property surrendered free of cost for road development._ R.P. No.776/2012 5 _He constructed the building accepting the benefits of free surrender as per permit No.MOP1-358/02. True copy of the building permit and true copy of the approved plan is produced herewith and same may be marked as Ext.R4(a) and Ext.R4(b) respectively. It is submitted that father of the writ petitioner Sri.Ramalinga Iyer constructed the building enjoying all benefits under Kerala Building Rules 79 to 84. Now the petitioner who is son of said Ramalinga Iyer approaching this Hon'ble court seeking a direction to the effect mutation of the same property which has been surrendered free of cost to avail the building permit with benefits under Rules 79 to 84. Hence the writ petition is devoid of any merits and the same deserves to be dismissed with compensatory cost."_ 6. The stand taken by the Cochin Corporation was that a building permit was issued to the petitioner's father in view of the surrender made by him and he was extended all benefits under rules 79 to 84 of the Kerala Municipality Building Rules, 1999 then in force. The Cochin Corporation also stated in its counter affidavit that the application for building permit was submitted to the road committee and it was approved on condition that no compound wall should be constructed on the eastern side of the property. The petitioner filed a reply affidavit dated 27.6.2012 wherein he disputed the said claim of the Cochin Corporation and contended as follows: _"5. Likewise the averment in paragraph 5 of the same counter affidavit filed by the 4[th] respondent that Sri.Ramalinga Iyer has constructing the building enjoying all the benefits under the Kerala Building Rules 79 to 84 is incorrect. There is no provision in the Kerala Building Rules enabling the said additional_ R.P. No.776/2012 6 _4[th] respondent for granting any relaxation. The plan as well as the Building Permit was issued in accordance with the KBR prevailing then and the building was also constructed in accordance therewith."_ 7. After hearing the learned counsel on both sides, I dismissed the writ petition by judgment delivered on 31.7.2012 holding that though an order under section 4 of the Kerala land Relinquishment Act, 1958 has not been issued and the land which was mentioned in Ext.P1 application has not vested in the Government, as the building permit was issued in accordance with the provisions contained in Chapter XI of the Kerala Municipality Building Rules, 1999 then in force, taking note of the surrender of land by the petitioner's father, no relief can be granted to him in exercise of the discretionary jurisdiction of this Court under Article 226 of the Constitution of India. 8. In the instant review petition, the petitioner has put forward three contentions. The first contention is that this Court has in the judgment sought to be reviewed proceeded on the basis that the Pulleppady-Tammanam road lies on the eastern side of the disputed property. It is contended that the said road lies on the southern side of the land and had this Court not proceeded on the misconception that the said road is situate on the eastern side of the property offered to be surrendered, the impugned judgment would not have been R.P. No.776/2012 7 rendered. The second contention raised is that the petitioner's father did not surrender the land, that he had only offered to surrender the land and therefore, this Court erred in proceeding on the basis that he had surrendered the land. The third and the last contention is that there is no averment or evidence to prove that the building permit was issued in accordance with Chapter XI of the Kerala Municipality Building Rules, 1999 then in force and therefore, the finding in that regard is an error apparent on the face of the record. It is also contended that in this Court no such argument was advanced by the fourth respondent and therefore the finding that the building permit issued was in accordance with Chapter XI of the Kerala Municipality Building Rules, 1999, then in force, is vitiated by an error apparent on the face of the record. 9. I heard Sri.P.B.Sahasranaman, learned counsel appearing for the review petitioner, Sri.Jibu P.Thomas, learned counsel appearing for the Cochin Corporation and Sri.Reji Joseph, learned Government Pleader appearing for respondents 1 to 3. The learned counsel appearing for the review petitioner contended with particular reference to section 4C of the Kerala land Relinquishment Act, 1958 and the decision of a learned single Judge of this Court in _**Pallichal Grama Panchayat v. Lalithambika A. and Another**_ (2009 (4) KHC 844) R.P. No.776/2012 8 that as the petitioner's father had only offered to surrender the land and the surrender had not been accepted by a formal order as on the date on which the writ petition was dismissed, the land did not vest in the Government and therefore, the petitioner's father was entitled to settle the properties on the petitioner. The learned counsel contended that under the Kerala Land Relinquishment Act, 1958 and the rules framed thereunder, surrender can only be in favour of the State Government and not the local authority and therefore, merely for the reason that an application for relinquishment had been made for the purpose of widening the Thammanam-Pulleppady road, it cannot be said that there was surrender of land in favour of the Government or the local authority. 10. Pursuant to the directions issued by this Court, the learned standing counsel appearing for the Cochin Corporation once again made available the files relating to the application for building permit submitted by the petitioner's father. The learned counsel for the review petitioner was also permitted to peruse the files. The files disclose that the application dated 6.9.2002 submitted by the petitioner's father for a building permit to construct an apartment building was forwarded to the road committee and the road committee that met on 4.10.2002 resolved to grant the permit having regard to R.P. No.776/2012 9 Ext.P1 application for relinquishment. Later, a revised plan was submitted and the road committee that met on 31.10.2003 considered the application and resolved to approve the revised plan. Thereupon Ext.R4(a) building permit was issued on 11.3.2004 for constructing a 5 storied residential apartment building. One of the conditions imposed was that the eastern boundary of the plot shall be kept open without construction of any permanent wall in order to provide access to fire fighting vehicles. It is not in dispute that the land mentioned in Ext.P1 application lies on the southern side of the land where the apartment building was constructed. A new road is proposed to be laid from Pulleppady to Thammanam by straightening out a curve at Pulleppady in the existing Thammanam-Pulleppady road which admittedly passes along the northern boundary of the land where the apartment building was put up. A reading of the impugned judgment discloses that it was not because of the conditions stipulated in the building permit alone that this Court held that there was surrender of the land. Rules 79 to 85 of the Kerala Municipality Building Rules, 1999 deal with construction in plots, a part of which has been surrendered free of cost for road development. Sub rule (2) of rule 79 as amended with effect from 11.1.2006 stipulates that surrendering of land shall be made as per the relinquishment procedure of the Government and the land shall R.P. No.776/2012 10 be demarcated and taken into possession by the authority concerned. It is also stipulated that the existing compound wall or fencing or any structure within the land so surrendered shall be demolished by the owner at his risk and cost and the new boundary shall be demarcated suitably by permanent demarcating structures and the building permit shall be issued only after completing the above procedure. In the instant case, the rules in force before 11.1.2006 have to be considered in view of the fact that the construction of the building was completed in the year 2005 and the occupancy certificate was issued on 25.10.2005. Rule 79 in Chapter XI of the Kerala Municipality Building Rules, 1999 as it stood in force at the relevant time was as follows: _“_ _**79. Provisions to apply as modified for constructions in certain plots** :-(1) In the case of buildings proposed or alteration or addition proposed on existing buildings in plots left after part of the same plot has been surrendered free of cost to a Municipality, Development Authority, Government Department or Quasi-Government Department or Institution for new road formation or for road widening or for junction improvement or formation or development of any facility relating to road structure. Other provisions in the Kerala Municipality Building Rules, 1999 shall apply subject to the modifications in this chapter._ _Provided that such road formation or road widening or junction improvement or formation or development of facility relating to road structure shall be one proposed or taken up as a project by the Municipality or Development Authority by resolution or have been sanctioned or undertaken by a Government or Quasi-Government Department or Institution or shall form part of any published or sanctioned Master Plan or Development plan_ R.P. No.776/2012 11 _or Detailed Town Planning Scheme or shall be one proposed or taken up by a Residents Association or a Social Welfare Organisation with the approval of the Government for the purpose of this rule._ _Provided further that the provisions under this Chapter shall not apply to the roads envisaged in any lay out:_ _Provided further that the benefit of the provisions in this Chapter shall not be allowed to the constructions in such plots if surrendering is not made for the implementation of the scheme in total:_ _Provided also that in case the scheme is modified or the width of the road is reduced with the prior approval of the Government, the benefit of the provisions shall be allowed if surrendering of the land is made for the implementation of such modified scheme in total or for widening or formation of the road to the reduced width in total._ _(2) The surrendering of the land shall be made in the manner as may be decided by the special committee constituted under rule 85._ _Provided that in case the formation or widening or other work is not done immediately, the Secretary shall earmark the land required for the implementation of the scheme in consultation with the Department, Institution, Agency, Association or Organisation specified in sub rule (1) and take possession of the land, and shall develop that portion or hand over the possession of such land to the concerned Department, Institution, Agency, Association or Organisation for development of that portion:_ _Provided further that the surrendered land shall not used for purposes other than that envisaged in the scheme.”_ 11. In sub rule (2) of rule 79 as it then stood, it was stipulated that the surrendering of land shall be made in the manner as may be decided by the special committee constituted under rule 85. For the R.P. No.776/2012 12 applicability of rules 79 to 85 as it stood prior to 11.1.2006, it was not necessary that the surrender of land should have been made in terms of the procedure prescribed in the Kerala Land Relinquishment Act, 1958 and the rules framed thereunder. It was enough if the surrendering of the land was made in the manner decided by the special committee constituted under rule 85 of the rules then in force. Rule 85 of the Kerala Municipality Building Rules as it stood in force before 11.1.2006 is extracted below for easy reference:- _**85. Constitution of Special Committees:-** (1) The Government may, on receipt of a request to that effect from any municipality or suo motu, if found necessary, by order, constitute a Special Committee for the purposes of any or all municipalities to consider and decide on the application for building permits that may be submitted under the provisions of this Chapter._ _(2) The Special Committee shall consist of the following members namely:-_ _(i) Mayor/Chairperson of the Municipality, who shall be the Chairman of the Committee;_ _(ii) Chairman of the Development Authority, if any constituted for the area or an officer authorised by him;_ _(iii) Town Planner of the District in the Town and Country Planning Department;_ _(iv) Executive Engineer, Buildings and Road, Public Works Department, having jurisdiction in the area or an officer authorised by him;_ _(v) one or two representative of the Department, Authority, Institution, Association or Organization in change of or responsible for carrying out or proposing or sponsoring the formation or widening of the road or improvement of the junction or other works envisaged under this chapter;_ R.P. No.776/2012 13 _(vi) Secretary of the Municipality concerned, who shall be the convener of the Special Committee;_ _(3) The quorum for the meeting shall be three including the Convenor and the Chairman._ _(4) The Secretary shall, considering the number of applications and urgency of the work to be executed, convene the meetings of the Special Committee at such place and time, as may be fixed by him in consultation with the Chairperson, by giving seven clear days notice to all the members;_ _Provided that if so directed by the Government or the Chairperson, the Secretary shall convene the meeting within such time as may be specified in that direction._ _(5) The Secretary shall place all the applications submitted under this chapter before the Special Committee for consideration and shall issue permit as decided by the Committee.”_ 12. The files produced by the Cochin Corporation disclose that the road committee constituted in terms of rule 85 that met initially on 4.10.2002 approved the plan for construction of a 7 storied building and later on 31.10.2003 approved the plan for construction of a 5 storied apartment building. The files produced by the Cochin Corporation disclose that on the strength of such a building permit, the petitioner's father constructed an apartment building. It is thus evident that the petitioner's father had enjoyed benefits under Chapter XI of the Kerala Municipality Building Rules, 1999, which was in force during the relevant time to obtain a building permit for the construction of a residential apartment building, the construction of which was completed in the year 2005 itself, long before Chapter XI R.P. No.776/2012 14 was amended to provide that surrender of land shall be made as per the relinquishment procedure of the Government. Such being the position, I find no merit in the petitioner's contention that as an order accepting the relinquishment in terms of the provisions contained in the Kerala Land Relinquishment Act, 1958 and rules framed thereunder had not been passed, the surrender has not taken effect and the land has not vested with the Government and therefore, the judgment dismissing the writ petition is liable to be reviewed. Likewise I also find no merit in the petitioner's contention that this Court had dismissed the writ petition on the misconception that the PulleppadyTammanam lies on the eastern side of the disputed property. 13. I shall next deal with the contention that there was no averment or evidence to prove that the building permit was issued in accordance with Chapter XI of the Kerala Municipality Building Rules, 1999 then in force and the further contention that no such argument was advanced by the fourth respondent and therefore, the finding that the building permit was issued in accordance with Chapter XI of the Kerala Municipality Building Rules then in force is vitiated by an error apparent on the face of the record. Paragraphs 3 to 5 of the counter affidavit dated 14.6.2012 filed by the Cochin Corporation, which is extracted in paragraph 5 above, contains the relevant averments R.P. No.776/2012 15 regarding surrender of land by the petitioner's father and the benefits given to him under rules 79 to 84 of the Kerala Municipality Building Rules, 1999. This contention was pressed into service by the learned counsel appearing for the Cochin corporation when the writ petition was heard. The files produced by the Cochin Corporation disclose that the building permit was granted to the petitioner's father pursuant to the decision taken by the road committee. If Chapter XI of the Kerala Municipality Building Rules, 1999 had no application, it was not necessary for the road committee to consider the application submitted by the applicant for building permit. I therefore find no merit in the said contentions as well. I accordingly hold that there is no merit in the review petition. The review petition fails and is dismissed. No costs. ## **(JUDGE)** vps R.P. No.776/2012 16 R.P. No.776/2012 17