Sivaparvathi Educational & Charitable Society (SPECs) v. Chengannur Municipality

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID** **MONDAY, THE 1ST AUGUST 2011 / 10TH SRAVANA 1933** **WP(C).No. 16273 of 2011(H)** **---------------------------------------** ## **PETITIONER:** - **-------------------** **SIVAPARVATHI EDUCATIONAL & CHARITABLE SOCIETY (SPECS), REG.NO.A 3010/06, CHENGANUR, REP. BY ITS GENERAL SECRETARY, K.MURALI MANOHAR.** **BY ADVS. SRI.B.S.SWATHY KUMAR, SRI.ANITHA RAVINDRAN, SMT.M.G.AISHWARYA.** **RESPONDENTS:** **------------------------** **1. THE CHENGANUR MUNICIPALITY, CHENGANUR-688 001, REPRESENTED BY ITS SECRETARY – 688 001.** **2. THE SECRETARY, CHENGANUR MUNICIPALITY, CHENGANUR, ALAPPUZHA DISTRICT-688 001.** ## ***ADDITIONAL R.3. IMPLEADED:** **3. AJOY L.S, S/O. SUKUMARAN NAIR, AGED 44 YEARS, RESIDING AT KOUSTHABHAM, KEEZHCHERIMEL, CHENGANUR, ALAPUZHA DISTRICT.** ***IS IMPLEADED AS ADDL. R.3. AS PER ORDER DTD. 23/06/11 IN I.A. 9939/11.** **R1 & R2 BY SRI. S. HARIKRISHNAN, S.C, R3 BY ADV. SRI.GEORGE SEBASTIAN.** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 01/08/2011, ALONG WITH W.P.(C). NO. 14377 OF 2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **W.P.(C). NO.16273/2011-H:** ## **APPENDIX** ## **PETITIONERS' EXHIBITS:** **EXT.P.1: COPY OF THE BUILDING PERMIT NO.B.A. NO.52/09 ISSUED BY THE R.1.** **EXT.P.2: COPY OF THE COMPLETION CERTIFICATE DTD. 26/05/2011.** **EXT.P.3: COPY OF THE CERTIFICATE NO. 1133/08 DTD. 26/06/2008 ISSUED BY THE VILLAGE OFFICER, CHENGANNUR.** **EXT.P.4: COPY OF THE CERTIFICATE DTD. 04/06/2011 ISSUED BY THE VILLAGE OFFICER, CHENGANNUR.** **EXT.P.5: COPY OF THE JUDGMENT IN W.P.(C).NO.8098/2011 DTD. 24/05/2011.** ## **RESPONDENTS' EXHIBITS: NIL.** ## **//TRUE COPY//** **P.A. TO JUDGE.** **Prv.** ## **HARUN-UL-RASHID, J. -----------------------W.P.(C).Nos.16273 & 14377 Of 2011 ---------------------Dated this the 1[st] day of August, 2011.** ## **J U D G M E N T** The petitioner in W.P.(C).No.16273/2011 is a registered charitable society. The petitioner is running a public school by name, Vani Public School. The writ petition is filed for the relief of declaration that the petitioner institution is legally entitled to be issued with the completion certificate, get the building numbered, occupy the same and commence class. The facts and exhibits referred in the following paragraphs relate to W.P.(C). No.16273/2011. 2. Ext.P1 is the building permit issued to the petitioner for the construction of a building. The petitioner constructed the building and applied to allot building number to occupy the building and house the students in the new building. Ext.P2 is the completion certificate dated 26.5.2011. Ext.P1 permit is issued on 16.6.2009. The 3[rd] respondent is one Sri.Ajoy L.S. He is the petitioner in the connected writ petition No.14377/2011. He is a resident of the locality where the building is situated and he opposed the reliefs sought for in W.P.(C).No.16273/2011. **::2::** ## **W.P.(C).Nos.116273 & 14377 Of 2011** 3. Ext.P3 is the copy of the report of the Village Officer dated 26.6.2008. The Village Officer in Ext.P3 reported that the land is not a paddy land, that there are several trees aged between 15-45 years standing in the property and that the property is not fit for cultivation of paddy. The gist of the report is that the property wherein the petitioner obtained permit for construction of building is not a paddy land but a dry land. Ext.P4 is the certificate issued by the Village Officer dated 4.6.2011 certifying that the aforesaid property is exempted from the provisions of the Kerala Conservation of Paddy Land & Wetland Act, 2008. 4. The petitioner in W.P.(C).No.16273/2011 pointed out that Sri.Ajoy filed W.P.(C).No.8098/2011 before this Court raising the very same allegation now raised in W.P.(C).No.14377/2011. This Court by Ext.P5 judgment dated 24.5.2011 disposed of the said writ petition directing the first respondent RDO to consider the complaint of Sri.Ajoy and pass appropriate orders. Both sides submitted that the matter is pending before the 1[st] respondent. The learned counsel for the petitioner pointed out that Ext.P2 completion certificate is submitted on 26.5.2011. In spite of the **::3::** ## **W.P.(C).Nos.116273 & 14377 Of 2011** production of the Ext.P2, it is submitted that respondents 1 & 2 are not numbering the building and therefore, the petitioner is not in a position to occupy the building. The learned counsel for the petitioner submits that the building has been put up in strict compliance with the permit and that the land wherein the building is situated is not a wet land/paddy land and therefore the Municipality is bound to number the building and that the numbering of the building is necessary so as to enable the petitioner to commence the class in the building. It is also pointed out that the petitioner had spent a huge amount collected from the public and the delay in issuing number to the building, occupying and commencing the class will adversely affect the goodwill of the institution. 5. The Municipality received a petition on 31.3.2010 stating that the Trust is constructing the building in violation of the approved plan and permits granted by the respondents, that the Trust encroached and filled up an irrigation water canal bisecting its properties. On receipt of the complaint, the Municipality deputed a Building Inspector. The Building Inspector reported that the Trust had constructed the office building instead **::4::** ## **W.P.(C).Nos.116273 & 14377 Of 2011** of a residential building as permitted by BA.No.52/2009. Pursuant to the report, the Municipality issued a show cause notice dated 9.4.2010 to the petitioner calling for explanation. Another notice was also issued on 24.3.2011. It is also stated that the petitioner appeared and undertook to rectify the violation of the approved plan and permit. The statement further shows that the Trust submitted a revised completion plan before the Municipality in rectification of the plan covered by permit BA.No.52/09 and that the Municipality has not issued any occupancy certificate in pursuance to the building permit granted, till date. Referring to the Draft Data Bank obtained from the Agricultural Officer, Chengannur, it is stated that the property comprised in R.S.Nos.219/29 & 219/30 of Chengannur Village are reported as paddy land. It is also stated that since the work site involves paddy land, the Municipality has sought for opinion of the District Town Planner, Alappuzha over the revised completion plan of the building covered by permit BA 52/09 and as and when the same is received, the Municipality intends to take a decision in the matter under Sections 395 & 406 of the Kerala Municipalities Act r/w Rules 16 , 17 & 18 of the Kerala **::5::** ## **W.P.(C).Nos.116273 & 14377 Of 2011** Municipalites Building Rules. 6. The connected writ petition No.14377/2011 is filed by Sri.Ajoy.L.S. The relief sought for in the said writ petition is for a direction directing respondents 1 to 4 to see that the buildings constructed in pursuance of Exts.P4 and P5 are not occupied and used till the proceedings in pursuance of Exts.P4, P5 & P6 are finalised and without getting occupancy certificate as per Rule 22 (3) of the Kerala Municipality Building Rules and for a direction to the 2[nd] respondent to finalise the proceedings in pursuance to Exts.P6, P7 and P8 within a time frame to be fixed by this Court. This writ petition was filed on 26.5.2011. Ext.P1 is the complaint lodged by him before the RDO complaining about the unauthorised filling up of paddy land and construction of building in the same. The earlier writ petition No.8089/2011 was filed by the very same petitioner, in which Ext.P5 judgment was passed, a few months before filing W.P.(C).No.14377/2011. A direction was issued in that case to the 1[st] respondent RDO to consider and dispose of the petition filed by the petitioner. Both sides submitted that the matter is pending consideration. So long as the matter is pending consideration before the RDO, there is no **::6::** ## **W.P.(C).Nos.116273 & 14377 Of 2011** reason for the petitioner in W.P.(C).No.14377/2011 to approach this Court again for a direction not to number the building. The petitioner in W.P.(C).No.14377/2011 is not entitled to any relief sought for. He is at liberty to pursue his remedies in the matter now pending before the RDO. 7. I have referred to Ex.P3 report of the Village Officer, who had reported that the land is not a paddy land and there are trees aged between 10 to 15 years. I have also refer to Ext.P4 certificate of the Village Officer certifying that the property is exempted from the provisions of the Kerala Conservation of Paddy Land & Wetland Act, 2008. Ext.R5(d) in W.P.(C). No.14377/2011 is the communication issued by the Public Information Officer, Village Office, Chengannur reporting that there are several trees standing in the property aged about 15 to 45 years, that several residential buildings are located adjacent to the land owned by the Trust that the property is not fit for paddy cultivation etc. 8. It cannot be denied that the Municipality is bound to conduct site inspection in order to convince about the nature of the land and thereafter can only issue permits. In this case, ## **::7::** ## **W.P.(C).Nos.116273 & 14377 Of 2011** permit is issued to the petitioner for construction of the building finding that the property is fit for construction of building. Issuance of occupancy certificate and numbering of the building are delayed for the reason that Sri.Ajoy had lodged a petition before the RDO and the same is pending consideration. 9. A Division Bench of this Court in _**Praveen v. Land Revenue Commissioner**_ (2010 (2) KLT 617) held that the nature of the property recorded in the village office as paddy land is not a reason for rejecting the application for permit and that the ground realty has to be considered before passing an order on the application for building permit. Similar view was taken by this Court in the decision reported in _**Shahanaz Shukkoor v. Chelannur Grama Panchayath**_ (2009 (3) KLT 899). 10. The proceedings pending before the RDO and the proceedings for issuance of revised plan may take a few years to attain finality. It is likely to be taken up before various authorities. The Municipality is free to take a decision in accordance with law in the application submitted by the petitioner Trust for granting a revised permit. Admittedly, the application for rectification of the plan and for issuance of a revised permit is **::8::** ## **W.P.(C).Nos.116273 & 14377 Of 2011** pending consideration before the Secretary of the Municipality. The petitioner Trust also submitted before this Court that the Municipality issued communication dated 23.7.2011 stating that the nature of the property described in the title deed as paddy land and that though the property wherein the building is constructed is excluded from the purview of Kerala Conservation of Paddy Land & Wetland Act, 2008 and that so far the Government approval has not been granted till date, the Municipality is not in a position to issue completion certificate. In these circumstances, issuance of occupancy certificate and act of numbering the building cannot be delayed further. Accordingly, W.P.(C).No.16273/2011 is allowed. There will be a direction to the 2[nd] respondent to issue completion certificate and number the building, provisionally, within two weeks from the date of receipt of a copy of this judgment. The petitioner shall produce a copy of the judgment before the 2[nd] respondent. W.P.(C).No.14377/2011 stands dismissed. **HARUN-UL-RASHID, Judge.** bkn/-