Saraswathi v. State of Kerala and Kodassery Grama Panchayath

W.P.(C).No.954 of 2023 1 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN MONDAY, THE 20[TH] DAY OF FEBRUARY 2023 / 1ST PHALGUNA, 1944** ## **WP(C) NO.954 OF 2023** ## **PETITIONER:** SARASWATHI AGED 71 YEARS W/O.BHASKARAN, KURINJIKKADAN HOUSE, KUTTICHIRA DESOM, KUTTICHIRA VILLAGE, CHALAKUDY TALUK, THRISSUR DISTRICT, PIN - 680724 BY ADV N.L.BITTO ## **RESPONDENTS:** 1 STATE OF KERALA REP. BY THE SECRETARY TO THE GOVERNMENT, LOCAL SELF GOVERNMENT DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM P.O, PIN - 695001 2 KODASSERY GRAMA PANCHAYAT REP. BY THE SECRETARY, KODASSERY DESOM, CHATTIKULAM P.O., KODASSEY VILLAGE, CHALAKUDY TALUK, THRISSUR DISTRICT, PIN - 680721 BY ADVS. GOVERNMENT PLEADER Daisy. A.PHILIPOSE JAI GEORGE(K/000636/1996) ## **OTHER PRESENT:** SMT.PARVATHY.K-GP ADV.DAISY A PHILIPOSE FO R2 THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 14.02.2023, THE COURT ON 20.02.2023 DELIVERED THE FOLLOWING: W.P.(C).No.954 of 2023 2 ## **ANU SIVARAMAN, J.** ## **= = = = = = = = = = = = = = =** ## **W.P.(c).No.954 of 2023** **= = = = = = = = = = = = = = = = Dated this the 20[th] day of February, 2023** ## **JUDGMENT** ## 1.The prayers in this writ petition are as follows:- “i)call for the records leading to Ext.P6 and issue writ of certiorari quashing the same. ii) Issue a writ of mandamus or any other appropriate writ, order or direction commanding the 2[nd] respondent to issue building numbers which is constructed accordance with the building permit.” 2.Heard the learned counsel for the petitioner, learned Government Pleader as well as the learned counsel appearing for the 2[nd] respondent. 3. It is submitted by the learned counsel for the petitioner that the petitioner is the owner of 1.09 ares of land along with a commercial cum residential building in Survey No.1423/4-4 of Kuttichira Village. The property was assigned to the previous owners by means of land assignment. After obtaining building permit, the petitioner constructed a residential cum commercial building in the said premises. W.P.(C).No.954 of 2023 3 When the petitioner applied for occupation and building number, the same was rejected stating that the prior owners got the said land by way of land assignment for agricultural purpose and the said land is an “Assigned Land" hence construction is illegal. The learned counsel for the petitioner submits that after granting building permit, the Panchayat cannot refuse to number the building and relies on a decision reported in **Mahin and Another vs. Keezhmad Grama Panchayath and Another** [2020 (2) KLT 478]. 4.A counter affidavit has been placed on record by the 2[nd] respondent contending that commercial activities are not permitted in the land assigned for agricultural and residential purpose and that the Government had issued G.O.[MS] No.61/2021 dated 22.2.2021 directing all village officers to issue possession certificates by mentioning the nature of the land and whether the land is assigned for any specific purposes under the Kerala Land Assignment Act, 1960. A circular was also issued on 1.10.2021. The said materials are also produced along with the counter affidavit. W.P.(C).No.954 of 2023 4 - 5.The learned counsel for the respondent places reliance on the decisions of this Court in **Haridas R v. State of Kerala and others** [ 2016 (5) KHC 615] and **Raphy John v. Land Revenue Commissioner** [2022 (3) KLT 679]. - 6.I have considered the contentions advanced. It is an admitted fact that the petitioner is the owner of a small plot of land which is a part of property which was originally assigned by way of purchase certificate issued under the Land Assignment Rules. The petitioner submitted an application for building permit for the construction of a residential cum commercial building which had been duly granted by the 2[nd] respondent by Exhibit P4 dated 10.11.2021. The petitioner completed the construction on the basis of the permit. Thereafter, Exhibit P6 proceedings have been issued stating that the petitioner's application for numbering of the building cannot be allowed in view of the fact that the land was assigned under the Land Assignment Rules, 1964 for agricultural purpose and therefore a W.P.(C).No.954 of 2023 5 commercial building cannot be constructed thereon. The petitioner has produced Exhibit P3 purchase certificate and contends that there was no prohibition contained therein and construction of residential buildings are perfectly permissible even going by the provisions of the Land Assignment Rules. The petitioner would state that the petitioner intends to use the commercial part of the building for agriculture related activities only. 7.I find that the respondents have already issued a building permit to the petitioner, knowing that the petitioner intends to construct a residential cum-commercial building. It is on the basis of a valid building permit that the petitioner has constructed the building. The judgment of the Division Bench relied on by the petitioner relates to the use of a land assigned under the Kerala Land Assignment Rules, 1964 for the conduct of a quarry. It was held that there is no right to secure a quarrying lease if the lands are assigned for any such purpose. In **Haridas R v. State of Kerala and others,** the finding was that when a land was assigned to W.P.(C).No.954 of 2023 6 pattadar for personal cultivation, subsequent assignees would also be subjected to the restrictions contained in the Patta and that the purpose of the assignment is to be looked into when permitting a commercial activity. However, in the instant case, I notice that it is after the issuance of the building permit and after the construction is complete that the objection is being raised by the respondents. After construction of a building on the basis of a valid building permit issued, now the respondents have taken a stand that the building cannot be numbered. 8.I find that the conduct of the 2[nd] respondent is highly arbitrary. Taking into consideration the fact that the building being constructed by the petitioner is primarily a residential building, partly to be used for commercial purpose and since construction of a building for residential purpose is not prohibited under the Purchase Certificate and also taking into consideration the fact that the petitioner intends to do agriculture related activities in the commercial part of the building, the 2[nd] respondent is 7 W.P.(C).No.954 of 2023 compellable to assign building number to the petitioner and issue Occupancy Certificate, if applied for by the petitioner. 9.In the result, Exhibit P6 order is set aside. There will be a direction to the 2[nd] respondent to assign building number to the building constructed by the petitioner in accordance with the building permit. In case the building is constructed in accordance with permit, appropriate action shall be taken by the 2[nd] respondent within a period of one month from the date of receipt of copy of this judgment. The writ petition is ordered accordingly. sd/- **Anu Sivaraman, Judge** sj W.P.(C).No.954 of 2023 8 ## **APPENDIX OF WP(C) 954/2023** PETITIONER EXHIBITS Exhibit-P1 - A TRUE COPY OF THE SETTLEMENT DEED NO. 2185 OF 2020 OF THE CHALAKUDY SRO DATED 8/12/2020 - Exhibit-P2 A TRUE COPY OF THE BASIC TAX RECEIPT ISSUED FROM THE KUTTICHIRA VILLAGE OFFICE DATED 03/08/2022 - Exhibit-P3 A TRUE COPY OF THE PATTA NO.786 ISSUED FROM THE OFFICE OF SPECIAL TAHASILDAR, THRISSUR DATED NIL Exhibit-P4 A TRUE COPY OF THE BUILDING PERMIT NO.A2BA(271398)/2021 ALONG WITH PLAN ISSUED FROM THE KODASSERY GRAMA PANCHAYATH DATED 10/11/2021 Exhibit-P5 A TRUE COPY OF THE ACKNOWLEDGEMENT FOR THE APPLICATION FOR OCCUPANCY AND BUILDING NUMBER FROM THE 2ND RESPONDENT DATED 16/12/2022 Exhibit-P6 A TRUE COPY OF THE COMMUNICATION ISSUED FROM THE 2ND RESPONDENT TO THE PETITIONER DATED 06/01/2023 RESPONDENT EXHIBITS EXHIBIT R.2 (a) 1960. A true copy of G.OMS]NO. 61/2021 dated 22/2/2021 EXHIBIT R.2 (b) A True copy of ircular NO. RevA2/49/2021-REV dated 1/10/2021. EXHIBIT R.2 (c) A true copy of Letter No.PAN/4001/2021C1(DP) dated 12/10/2021 issued by the Director of Panchayaths. TRUE COPY