High Court of KeralaSingle Judge2024-02-15Writ petition disposed of; Ext. P13 quashed; ma...

V K Hemanth v. Land Revenue Commissioner, Office of the Land Revenue Commissioner, Public Office Compound, Museum Junction, Thiruvananthapuram-695033, and Others

Case / Petition Number:WP(C) NO. 23037 OF 2022

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: Murali Purushothaman
Judgment Date: 2024-02-15
Court Decision / Holding: Ext. P13 order set aside. The 5th respondent is directed to consider the applicant’s building permit application in light of Ext. P12 and the binding precedents, and to verify compliance with Ext. P12’s conditions. The writ petition is disposed of accordingly.
Final Disposition: Writ petition disposed of; Ext. P13 quashed; matter remitted to 5th respondent to decide building permit under Ext. P12 in light of precedents and to verify compliance with P12’s conditions.

Parties to the Case

Appellants / Petitioners

V K Hemanth
Elamba P.O., Avananchery via, Thiruvananthapuram-695103, represented by its Secretary

Respondents

Land Revenue Commissioner, Office of the Land Revenue Commissioner, Public Office Compound, Museum Junction, Thiruvananthapuram-695033
Revenue Divisional Officer, Revenue Divisional Office, Civil Station, Kudappanakkunnu, Thiruvananthapuram-695043
Local Level Monitoring Committee, Mudakkal Grama Panchayat, represented by its Convenor, Agricultural Officer Krishi Bhavan, Mudakkal, Elamba P.O., Poovanathummoodu, Thiruvananthapuram-695103
Village Officer, Edakode Village, Thiruvananthapuram-695103
Mudakkal Grama Panchayat

Legal Representation & Advocates

Counsels for Petitioners

• M. Ziyad
• T. A. Prakash
• Arun S.
• M. R. Sasith

Counsels for Respondents

• SR. GP. SRI. E.G. Gordon

Case Synopsis & Summary

V K Hemanth, the owner of 10 cents of land in Edakode village, challenged Ext. P13, which refused his building permit on the grounds that the land-use change under Ext. P12 (Clause 6(2) of the Kerala Land Utilisation Order, 1967) permitted only non-building changes and did not authorize construction. Hemanth had obtained Ext. P12 to use the land for ‘other purposes’ without affecting water sources, wetlands, or streams; however, the 5th respondent Panchayat denied permission for constructing a residential building. The petitioner contended that the permission to alter the land’s nature for ‘other purposes’ should reasonably include a building. The Panchayat relied on Government Circular Ext. R5(a) to argue that ‘other purposes’ does not cover construction. The petitioner cited decisions Sunil and others v. Killimangalam-Panjal 5th ward and others (2012) and Shahul Hameed v. Principal Secretary, Local Self Government (2018) to support the interpretation that construction can follow from permission to change land use. After hearing, the Court found Ext. P13 unsustainable in light of the precedents and directed the 5th respondent to decide the building permit application per Ext. P12 and the binding precedents, with verification of compliance to Ext. P12’s conditions. The writ petition was disposed of accordingly, clarifying the interpretation of land-utilisation permissions and the scope of ‘other purposes.’

Provisions of Law Cited

Clause 6(2) of the Kerala Land Utilisation Order, 1967 (Kerala Land Utilisation Order, 1967)

Legal Doctrines & Maxims

Permission under Clause 6(2) of the Kerala Land Utilisation Order, 1967 for using land for 'other purposes' would include construction of a residential house or industry (as inferred from Shahul Hameed v. Principal Secretary, Local Self Government); Reading of paragraph 5 clearly indicates that seeking permission for changing the land’s nature or using it for any other purpose would definitely include construction of a residential house or even an industry; If construction rules are violated, the local authority must take appropriate action, implying alignment of land-use permissions with building regulations.

Submissions & Arguments

Contentions of Appellants / Petitioners

Petitioner contended that Ext. P12 granted under Clause 6(2) of the Kerala Land Utilisation Order, 1967 allows changing land for ‘other purposes’ and that such permission would include construction of a residential building, subject to compliance with Ext. P12’s conditions. It relied on binding precedents (Sunil v. Killimangalam-Panjal Ward; Shahul Hameed) that interpret ‘other purposes’ to include construction and argued Ext. P13 is unsustainable and must be set aside so that a building permit can be considered afresh by the 5th respondent.

Contentions of Respondents

Respondents contended that the phrase 'other purposes' does not include construction, referencing Government Circular Ext. R5(a) and the textual interpretation of the land-use policy. They argued that Ext. P12 does not authorize building construction and that the building permit was rightly denied under the statutory framework and building regulations; they urged the Court to respect the circular and separate regulatory regimes governing building permissions.

Cited Precedents (2)

Case Name	Citation	Treatment	Explanation
Sunil and others v. Killimangalam-Panjal 5th ward and others	2012 (4) KLT 511	Positive	Cited to support interpretation that permission under Clause 6(2) includes construction.
Shahul Hameed v. Principal Secretary, Local Self Government	2018 (1) KLT 1008	Positive	Used to justify that changing land for 'other purposes' can include construction, reinforcing the petition’s argument.

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Extracted Judgment Text

Exact text extracted from official judgment records.

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR.JUSTICE MURALI PURUSHOTHAMAN THURSDAY, THE 15[TH] DAY OF FEBRUARY 2024 / 26TH MAGHA, 1945 WP(C) NO. 23037 OF 2022`** ## **`PETITIONER:`** ``` V K HEMANTH, AGED 36 YEARS S/O KRISHNAN, MAKAYIRAM', KORANI, MUDAKKAL, ATTINGAL, THIRUVANANTHAPURAM DISTRICT 695104 REPRESENTED BY HIS POWER OF ATTORNEY HOLDER SHRI. KRISHNAN, AGED 76 YEARS. S/O MADHAVAN, MUDAKKAL, ATTINGAL, MAKAYIRAM', KORANI, MUDAKKAL, ATTINGAL, THIRUVANANTHAPURAM-695 104. ``` ``` BY ADVS. M.ZIYAD T.A.PRAKASH ARUN S. ``` ## **`RESPONDENTS:`** - `1 LAND REVENUE COMMISSIONER OFFICE OF THE LAND REVENUE COMMISSIONER, PUBLIC OFFICE COMPOUND, MUSEUM JUNCTION, THIRUVANANTHAPURAM-695 033.` - `2 REVENUE DIVISIONAL OFFICER, REVENUE DIVISIONAL OFFICE, CIVIL STATION, KUDAPPANAKKUNNU, THIRUVANANTHAPURAM-695 043.` - `3 LOCAL LEVEL MONITORING COMMITTEE , MUDAKKAL GRAMA PANCHAYAT, REPRESENTED BY ITS CONVENOR, AGRICULTURAL OFFICER KRISHI BHAVAN, MUDAKKAL, ELAMBA P.O., POOVANATHUMMOODU, THIRUVANANTHAPURAM-695 103.` - `4 VILLAGE OFFICER, EDAKODE VILLAGE, THIRUVANANTHAPURAM-695 103.` - `5 MUDAKKAL GRAMA PANCHAYAT` ``` WP(C) NO. 23037 OF 2022 ``` 2 ``` ELAMBA P.O., AVANANCHERY VIA, THIRUVANANTHAPURAM-695103, REPRESENTED BY ITS SECRETARY. ``` ``` BY ADV M.R.SASITH ``` ## **`OTHER PRESENT:`** ``` SR.GP.SRI.E.G.GORDEN ``` ``` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 15.02.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` WP(C) NO. 23037 OF 2022 ``` 3 ## JUDGMENT The petitioner is the owner in possession of 10 cents of property comprised in old Survey Nos. 146/A and 147 (re-survey No. 345/14-1) of Edakode village in Chirayinkeezhu Taluk. The petitioner has obtained Exhibit P-12 order under Clause 6(2) of the Kerala Land Utilisation Order, 1967 for using the property for other purposes without affecting the water sources, Thodu/ Slope/ Neerchalukal, Wet lands etc. Later, the petitioner applied for a building permit for construction of a residential building in the property. However, the same was rejected by the Secretary of the 5[th] respondent Panchayat vide Ext.P13 on the ground that in view of Ext.P-12 order, the petitioner cannot be permitted to carry out the construction of any ``` WP(C) NO. 23037 OF 2022 ``` 4 residential or commercial building in the property. The petitioner impugnes Ext.P-13 on the ground that Ext.P12 order permits him to use the land for ‘other purposes’ which would include construction of residential building in the property. 2. A Counter Affidavit has been filed by the 5[th] respondent Panchayat wherein it is stated that, as per Exhibit R-5(a) Circular issued by the Government, the petitioner cannot carry out any construction in the property since the words ‘other purposes’ would not include construction of residential or commercial buildings. 3. The learned Counsel for the petitioner refers to the Division Bench Judgment of this Court in Sunil and others v. Killimangalam-Panjal 5[th] ward and others ``` WP(C) NO. 23037 OF 2022 ``` 5 [2012 (4) KLT 511] and Shahul Hameed v. Principal Secretary, Local Self Government [2018 (1) KLT 1008] wherein it is held that permission for utilisation of land for other purposes under Clause 6 of the Kerala Land Utilisation Order would include permission for construction of residential house or even industry. 4. Heard the learned Counsel for the petitioner, learned Government Pleader and the learned Counsel for the 5[th] respondent Panchayat. 5. The petitioner has obtained Exhibit P-12 order under Clause 6(2) of the Kerala Land Utilisation Order, 1967 for use of property covered by Exhibit P-1 for other purposes on condition that the same shall not affect the water sources. The application of the petitioner for building permit has been rejected for the ``` WP(C) NO. 23037 OF 2022 ``` 6 reason that Exhibit P-12 will not enable the petitioner to carry out any residential or commercial construction in the property. Going by the dictum laid down by this Court in the decisions referred to above, when permission under Clause 6(2) of the Kerala Land Utilisation Order, 1967 has been granted permitting the petitioner to change the nature of land for other purposes, that will enable the petitioner to construct a residential building in the property. Paragraph 11 of the Judgment in Shahul Hameed (Supra) reads as follows:- “Reading of paragraph 5 clearly indicates, seeking permission for changing the nature of land or using the land for any, other purpose would definietly include construction of a residential house or even an industry. In that view of the matter, we are of the opinion, just because ``` WP(C) NO. 23037 OF 2022 ``` 7 the appellant herein made use of ground flour for commercial purpose, the object or the purpose for which Kerala Land Utilisation Order was promulgated will not be defeated in any manner. On the other hand, first floor is in accordance with the permission granted at Ext.P3. If at all any building Rules are violated, then alone local authority must take suitable action for contravening such Building Rules.” 6. In the light of the dictum laid down by this Court in the decisions cited supra, I am of the view that, Exhibit P-13 order passed by the Panchayat cannot be sustained. Accordingly, the same is set aside. The 5[th] respondent shall consider the application of the petitioner for building permit in the light of Exhibit P-12 order and in the light of the binding precedents of this Court cited above. It will be open ``` WP(C) NO. 23037 OF 2022 ``` 8 to the 5[th] respondent to verify as to whether the application for building permit complies with the conditions in Ext.P12. The writ petition is disposed of as above. ``` Sd/- ``` MURALI PURUSHOTHAMAN JUDGE SRJ **`WP(C) NO. 23037 OF 2022`** 9 ## **`APPENDIX OF WP(C) 23037/2022`** - `PETITIONER’S EXHIBITS Exhibit P1 TRUE COPY OF THE TAX RECEIPT ISSUED BY THE 4TH RESPONDENT OFFICE PERTAINING TO THE LAND DATED 02.06.2018.` - `Exhibit P2 TRUE COPY OF THE POSSESSION CERTIFICATE ISSUED BY THE 4TH RESPONDENT TO THE PETITIONER DATED 08.02.2018.` - `Exhibit P3 TRUE COPY OF THE REPORT DATED 03.12.2013 SUBMITTED BY THE 4TH RESPONDENT BEFORE THE 2ND RESPONDENT.` - `Exhibit P4 TRUE COPY OF THE ORDER PASSED BY THE 2ND RESPONDENT AND FORWARDED TO THE 5TH RESPONDENT DATED 13.02.2014.` - `Exhibit P5 TRUE COPY OF THE JUDGMENT PASSED BY THIS HON'BLE COURT IN WPC NO. 277/2016 DATED 17.11.2016.` - `Exhibit P6 TRUE COPY OF THE JUDGMENT PASSED BY THIS HON'BLE COURT DATED 20.06.2017 IN WP(C) NO. 20005/2017.` - `Exhibit P7 TRUE COPY OF THE REPORT SUBMITTED BY THE 4TH RESPONDENT BEFORE THE 3RD RESPONDENT DATED 14.02.2018.` - `Exhibit P8 TRUE COPY OF THE CERTIFICATE ISSUED BY THE 4TH RESPONDENT DATED 27.02.2018.` - `Exhibit P9 TRUE COPY OF THE ORDER DATED 17.10.2018 PASSED BY THE 2ND RESPONDENT.` - `Exhibit P10 TRUE COPY OF THE JUDGMENT IN WPC NO. 30013/2019 PASSED BY THIS HON'BLE COURT DATED 07.11.2019.` - `Exhibit P11 TRUE COPY OF THE ORDER DATED 06.03.2020 PASSED BY THE 1ST RESPONDENT.` ``` WP(C) NO. 23037 OF 2022 ``` 10 ``` Exhibit P12TRUE COPY OF THE ORDER DATED 15.12.2021 PASSED BY THE 2ND RESPONDENT. ``` ``` Exhibit P13TRUE COPY OF THE ORDER PASSED BY THE 5TH RESPONDENT DATED 18.05.2022. ``` ``` Exhibit P14TRUE COPY OF THE REPRESENTATION DATED 31.05.2022 SUBMITTED BY THE PETITIONER BEFORE THE 1ST RESPONDENT. ``` ``` RESPONDENTS’ EXHIBITS ``` ``` Exhibit R5 (a)True copy of the circular issued by the Government of Kerala numbered as DCPK/2642/2020-CA 1 DATED 05/03/2020. ```