Full Judgment
WP(C) NO. 6073 OF 2022 1
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN FRIDAY, THE 15TH DAY OF JULY 2022 / 24TH ASHADHA, 1944 WP(C) NO. 6073 OF 2022 PETITIONER/S: KHALID AGED 32 YEARS S/O. ABOOBACKER, VEERASSERI HOUSE, VENNIYUR P.O., MALAPPURAM DISTRICT , PIN - 676508 BY ADV K.RAKESH RESPONDENT/S: 1 THE SUB COLLECTOR PERINTHALMANNA, MALAPPURAM DISTRICT, PIN - 679322 2 THE KONDOTTY MUNICIPALITY KONDOTTY, MALAPPURAM DISTRICT, REPRESENTED BY ITS SECRETARY , PIN - 673638
3 THE SECRETARY KONDOTTY MUNICIPALITY, KONDOTTY, MALAPPURAM DISTRICT , PIN - 673638 BY ADVS. GOVERNMENT PLEADER K.A.JALEEL WP(C) NO. 6073 OF 2022 2 SHRI.K.A.JALEEL, SC, KONDOTTY MUNICIPALITY OTHER PRESENT: SMT.VIDYA KURIAKOSE, GP THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 15.07.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C) NO. 6073 OF 2022 3 P.V.KUNHIKRISHNAN, J -------------------------------------------- W.P.(C) No.6073 of 2022 -------------------------------------- Dated this the 15th day of July, 2022
JUDGMENT
The above writ petition is filed with following prayers : I) Call for records leading up to Ext P3 and set aside the same by issuing a writ of certiorari or any other writs orders or directions; ii) Direct the 3rd respondent to issue occupancy certificate to the petitioner for the building constructed as per Ext P2 building permit; iii) Declare that the petitioner is entitled to get occupancy certificate for the building he constructed as per Ext P2 building permit; iv) Grant such other reliefs as this Hon’ble Court may deem fit and proper in the circumstances of the case.” [SIC]
2. The petitioner is the owner of the property comprised in
Block No.12, survey No. 451/5-2 and 451/5-1 of the Kondotty WP(C) NO. 6073 OF 2022 4 Village in Kondotty Taluk and the extent of the property is 18.90 cents. According to the petitioner, out of the total extent of the
land, the predecessors of the petitioner had obtained Ext.P1 order
under Clause 6 of the Kerala Land Utilization Order on 27.12.1991 for 9½ cents. On 10.8.2014, the 3 rd respondent issued Ext.P2 building permit for construction of a commercial building in the said land. After completing the construction, when the petitioner applied for occupancy certificate, the 3rd respondent rejected the same stating that Ext.P1 was issued for residential building and what is constructed is a commercial building. Moreover, it is also stated that the plot has an area of 18.90 cents and the area not
covered by Ext.P1 is observed as 'nilam'. Ext.P3 is the order
passed by the 3rd respondent and the same is challenged.
3. Heard the learned counsel for the petitioner and the learned counsel appearing for respondent Nos. 2 and 3.
4. The main challenge is against Ext.P3 order. The counsel
for the petitioner relied the Division Bench judgment of this Court in Shahul Hameed v. Principal Secretary, Local Self Govt. WP(C) NO. 6073 OF 2022 5 and others [2018 (2) KHC 48] and submitted that the stand taken by the Municipality is unsustainable. It will be better to extract the relevant portion of the judgment.
“12. In the present case when the authority under the Kerala Land Utilisation Order is not competent to decide whether the land should be used for commercial purpose or residential purpose or industrial purpose, even if certain conditions are imposed, it is without any authority conferred on said authority. Therefore, there was no requirement of again seeking permission of RDO under the Kerala Land Utilisation Order in order to obtain regularisation of the building put up by the appellant/writ petitioner. The local authority must see whether any building laws like rules or regulations were in existence at the relevant point of time and whether the appellant has contravened such procedure. On the other hand, after numbering the building they have even collected tax for 4 to 5 years.”
5. This Court considered the same question in the above
decision. This Court observed that once permission is granted to change the agriculture nature to some other purpose, whether it is residential or commercial building, the land would lose its agriculture nature and hence, if the building is of commercial nature, there is no change so far as the utilization of the land is WP(C) NO. 6073 OF 2022 6 concerned. If that is the case, Ext.P3 is unsustainable. Therefore, this writ petition is allowed in the following manner : 1) Ext.P3 is set aside. 2) The application submitted by the petitioner for occupancy certificate and regularization shall be considered by the 2 nd and 3rd respondents as expeditiously as possible, at any rate, within six weeks from the date of receipt of a copy of this
judgment.
Sd/- P.V.KUNHIKRISHNAN JUDGE SKS WP(C) NO. 6073 OF 2022 7 APPENDIX OF WP(C) 6073/2022 PETITIONER EXHIBITS Exhibit P1 TRUE COPY OF THE KLU ORDER DATED 27-12-1991 ISSUED BY THE 1ST RESPONDENT PERMITTING CONVERSION OF 9 ½ CENTS. Exhibit P2 TRUE COPY OF THE BUILDING PERMIT ISSUED BY THE 3RD RESPONDENT ON 10-9-2014. Exhibit P3 TRUE COPY OF THE ORDER PASSED BY THE 3RD RESPONDENT DATED 4-2-2022. Exhibit P4 TRUE COPIES OF THE PHOTOGRAPHS SHOWING THE CONSTRUCTION AND NEARBY BUILDINGS. Exhibit P5 TRUE COPY OF THE INFORMATION RECEIVED BY THE PETITIONER THROUGH THE RIGHT TO INFORMATION ACT DATED 19-2-2022.