Sikhivahan and Nalini v. Puthenvelikkara Grama Panchayath and LLMC, Puthenvelikkara Grama Panchayath

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN** **FRIDAY, THE 10[TH] DAY OF FEBRUARY 2023 / 21ST MAGHA, 1944** **WP(C) NO. 27625 OF 2016** ## **PETITIONERS:** **1 SIKHIVAHAN AGED 62 YEARS AGED:62 YEARS, S/O SACHITHANADAN NAIR, "SACHITHANANDA VILASAM" FRIENDS LANE, THOTTAKATTUKARA, ALVUA** **2 A.R. NALINI AGED:58 YEARS, W/O SIKHIVAHAN, "SACHITHANANDA VILASAM" FRIENDS LANE, THOTTAKATTUKARA, ALVUA** **BY ADVS. SRI.BABU KARUKAPADATH SMT.AMRIN FATHIMA SRI.MITHUN BABY JOHN SRI.J.RAMKUMAR SRI.N.SATHEESH KUMARNEMMARA SMT.M.A.VAHEEDA BABU SRI.P.U.VINOD KUMAR** ## **RESPONDENTS:** - **1 PUTHENVELIKKARA GRAMA PANCHAYATH PUTHENVELIKKARA PO, ERNAKULAM DISTRICT, REPRESENTED BY ITS SECRETARY-680682** - **2 THE SECRETARY** - **PUTHENVELIKKARA GRAMA PANCHAYATH PUTHENVELIKKARA PO, ERNAKULAM DISTRICT-680682** - **3 THE LOCAL LEVEL MONITORING COMMITTEE LLMC PUTHENVELIKKARA GRAMA PANCHAYATH, REPRESENTED BY THE AGRICULTURAL OFFICER.** **BY ADVS.** **SRI.JOHN JOSEPH VETTIKAD SRI.C.JOSEPH JOHNY** **OTHER PRESENT:** **2** ## **WP(C) NO. 27625 OF 2016** **SR.G P - SMT NISHA BOSE** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 10.02.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C) NO. 27625 OF 2016** **3** ## **P.V.KUNHIKRISHNAN, J. =================== WP(C) No. 27625 OF 2016** ## **=================== Dated this the 10[th] day of February, 2023** ## **J U D G M E N T** 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-4 order of the 2[nd] respondent; ii) Issue a writ of certiorari or any other appropriate writ, order or direction commanding the 1[st] and 2[nd] respondents to issue Occupancy Certificate to the building constructed by the petitioners after obtaining Exhibit P-1 building permit and to assign building number to it immediately ; iii) Grant such other reliefs, as this Hon'ble Court shall deem just.” (SIC) ## 2. The petitioners are husband and wife. They **WP(C) NO. 27625 OF 2016** **4** purchased an extent of 16.51 ares in Survey No.184/2 and 3.64 ares in Survey No.183/6 of Puthevelikkara Village as per sale deed No.2653/2012 of SRO, Chennamangalam. Later, they obtained Ext.P1 building permit and approved plan for constructing an auditorium in that property. It is the case of the petitioner that, the building permit was issued, after verifying all the documents relating to the property and also after the site inspection. According to the petitioners, the site has been a purayidam for the last more than 60 years. Ext.P2 is the photographs which will show that the petitioners completed the construction of the auditorium and is already in occupation. The petitioners submitted completion certificate as required under Rule 25 of the Kerala Panchayath Building Rules, 2011, for obtaining the occupancy certificate and for numbering the building. It is the case of the petitioner that, under the Rules, the 2[nd] respondent is bound to issue **WP(C) NO. 27625 OF 2016** **5** the same within 15 days. However, the 2[nd] respondent has declined to do so, stating that, in the land tax receipt the property shown as “nilam”. The grievance of the petitioners is that, the stand taken by of the 2[nd] respondent is unsustainable. Hence, this writ petition is filed. 3. Heard the learned Counsel for the petitioners and the learned Counsel appearing for the respondents No.1 and 2. 98281 4. The learned Counsel for the petitioners submitted that, the points raised in this writ petition is covered in favour of the petitioner in judgment dated 11.08.2022 in W.P.(C).No.25545/2020 which relied a judgment of this Court in **Leela Santu and another v. Secretary Kothamangalam Municipality and others** **[2020 (4) KLT 1011].** The learned counsel for the petitioners submitted that, the petitioners already **WP(C) NO. 27625 OF 2016** **6** obtained the permit for constructing the building before 30.12.2017. Therefore, the respondent has no authority to interfere in the matter. 5. The learned Counsel appearing for the respondents submitted relying the judgment in **Adani Infrastructure & Developers Pvt.Ltd, Mumbai and Others v. State of Kerala and Others [2015 (1) KHC 469]** that, the construction can be undertaken, if they have take up the matter before the local level monitoring committee. This Court considered the contention of the petitioners and the respondents. It is an admitted fact that, the 1[st] and 2[nd] respondent, Panchayath issued Ext.P1 building permit on 13.03.2014. It is an admitted fact that, Ext.P2 photographs shows that the building is already constructed. If that is the case whether the respondents can deny occupancy certificate and number to the building **WP(C) NO. 27625 OF 2016** **7** is the question to be decided. This point is considered by this Court in detail, relying on several earlier decisions of this Court in judgment dated 11.08.2022 in W.P. (C).No.25545/2020 and the relevant portion of the judgment is extracted here under; “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 **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 **WP(C) NO. 27625 OF 2016** **8** 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.(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 **WP(C) NO. 27625 OF 2016** **9** body concerned in these cases for consideration and decision afresh. This judgment would squarely apply to the petitioners' case. 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 provisions 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 **WP(C) NO. 27625 OF 2016** **10** 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 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. **WP(C) NO. 27625 OF 2016** **11** Therefore, the writ petition is allowed in the following manner; 1. Ext.P4 is set aside. 2. The first and 2[nd] respondents are directed to issue occupancy certificate to the petitioners building, in the light of Ext.P1 building permit on the basis of completion certificate, as expeditiously as possible, at any rate, within one month from the date of receipt of a copy of this judgment. 3. The petitioners will produce the certified copy of the judgment before the 1[st] and 2[nd] respondents for compliance. Sd/- **P.V.KUNHIKRISHNAN JUDGE** saap **WP(C) NO. 27625 OF 2016** **12** ## **APPENDIX OF WP(C) 27625/2016** PETITIONER EXHIBITS Exhibit P1 TRUE COPY OF THE BUILDING PERMIT DATED 13.03.2014 ISSUED BY THE RESPONDENTS IN FAVOUR OF THE PETITIONERS. Exhibit P2 TRUE COPIES OF THE PHOTOGRAPHS OF THE PROPERTY ALONG WITH THE BUILDING CONSTRUCTED BY THE PETITIONERS. Exhibit P3 A TRUE COP OF TE LETTER DATED 3/06/2016 ISSUED BY THE 2ND RESPONDENT TO THE PETITIONERS. Exhibit P4 A TRUE COPY OF THE ORDER DATED 21.06.2016 ISSUED BY THE 2ND RESPONDENT. Exhibit P5 A TRUE COPY OF THE CERTIFICATE DATED 11.08.2016 ISSUED BY THE VILLAGE OFFICER,PUTHENVELIKKARA STATING THAT THE PROPERTY IN SURVEY NO.184/2. Exhibit P6 A TRUE COPY OF THE RELEVANT PART OF THE DATA BANK (LAND IDENTIFICATION DETAILS) OF PUTHENVELIKKARA VILLAGE. //TRUE COPY//PA TO JUDGE