Allowed

Nobi v. Thrissur Municipal Corporation & Others

Kerala HC11 Mar 2008WP(C)/4548/2008

Case brief

AI extract

What is this about?

In this writ petition, an assignee challenged a Municipal Corporation order stopping construction. The Court held that the original Land Utilisation Order permit enures to the benefit of all persons claiming under the predecessor, dismissing the Corporation's claim for a separate permit.

What did the court decide?

Ext.P3 and Ext.P7 quashed; petitioner permitted to continue construction confirming to the approved plan.

Nobi Vs Thrissur Municipal Corporation & Others — Land Acquisition | Kerala HC (2008)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT :

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THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE

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TUESDAY, THE 11TH MARCH 2008 / 21ST PHALGUNA 1929 WP(C).No. 4548 of 2008(N)

PETITIONER:

NOBI, AGED 22, S/O.PAULY APPADEN, APPADEN HOUSE, OLLUR, THRISSUR DISTRICT.

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BY ADV. SRI.G.SREEKUMAR (CHELUR)

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RESPONDENTS:

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THE THRISSUR MUNICIPAL CORPORATION, REP. BY ITS SECRETARY, M.O.ROAD, THRISSUR.

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THE ASSISTANT ENGINEER, THRISSUR CORPORATION, ZONAL OFFICE, KOORKANCHERRY.

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THE DISTRICT COLLECTOR, AYYANTHOLE, COLLECTORATE, THRISSUR.

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R1& R2 BY ADV. SRI.K.B.MOHANDAS, SC, THRISSUR CORPORATION SRI.LELLULAL T.G.THUNDATHIL SRI.M.R.DHANIL SRI.K.A.SREEJITH

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R3 BY GOVERNMENT PLEADER, SMT.RAMANI

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THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 11/03/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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W.P.(C) NO.4548/2008

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APPENDIX

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PETITIONER'ES EXHIBITS:

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EXT. P1: COPY OF THE DOCUMENT NO.8640/07 DATED 24/12/07 OF THE KUTTANELLUR S.R.O.

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EXT. P2: COPY OF A TAX RECEIPT ISSUED IN THE NAME OF THE PETITIONER DATED 7/1/08.

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EXT. P3: COPY OF THE LAND UTILIZATION ORDER ISSUED TO THE ASSIGNOR OF THE PETITIONER DATED 27/2/96.

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EXT. P4: COPY OF THE COMMUNICATION BY THE TAHSILDAR, DATED 3/8/06.

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EXT. P5: COPY OF THE BUILDING PERMIT ISSUED TO THE PETITIONER DATED 9/1/08.

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EXT. P6: COPY OF THE BUILDING PERMIT ISSUED TO ONE MR.JOSE DATED 1/3/05.

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EXT. P7: COPY OF THE COMMUNICATION ISSUED BY THE SECOND RESPONDENT DATED 1/2/08.

/TRUE COPY/

P.A. TO JUDGE

PIUS.C.KURIAKOSE, J.

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- - - - W.P.(c).No. 4548 OF 2008

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Dated this the 11^th day of March, 2008

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JUDGMENT

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This writ petition has been filed by the petitioner who owns 7 cents of land by virtue of Ext.P1 and was issued with Ext.P5 building permit for the construction of a residential building seeking to quash Ext.P7 order issued by the Corporation. Under Ext.P7 the petitioner is directed to stop all the construction works pursuant to Ext.P5 and is directed to produce a permit under the Kerala Land Utilisation Order in his own favour. It was considering Ext.P3 permit under the Land Utilisation Order that the Corporation had issued the petitioner with Ext.P5. The stand of the Corporation now is that Ext.P3 will enure to the benefit of only Sri.Jose , s/o Devassy in whose favour Ext.P3 was issued. The Corporation is therefore insisting that unless the petitioner produces a permit under the Land Utilisation Order from the Revenue Divisional Officer pertaining to his property and issued in his name, the petitioner is not entitled to carry out construction on the basis of Ext.P5. Challenging Ext.P7, petitioner has raised various grounds and

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WPC.No.4548/08

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filed this writ petition seeking quashment of Ext.P7. The Corporation has filed a detailed counter affidavit justifying Ext.P7. It is contended therein that Ext.P3 order was issued in favour of Sri.Jose S/o Devassy only and that Ext.P7 cannot enure to the benefit of the petitioner . It is further stated in the counter affidavit that in Ext.P1 title deed the property is shown as paramba, but on inspection of the cite it was revealed that the property is not an original paramba, but is nilam converted as Paramaba. More seriously, it is contended that Ext.P3 permit issued to Sri.Jose under the Land Utlisation Order was given for the construction of “ a residential building” in 2 acre 81 ½ cents of property covered by Ext.P3. In violation of Ext.P3, what Sri.Jose has now done is to divide the entire area covered in Ext.P3 to several plots and assign the same to several persons. Since there is violation of clause 3 and 5 of Ext.P3, the petitioner is only an assignee from Sri.Jose and is not entitled to claim under Ext.P3 which has automatically become in valid.

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I have heard the submissions of Sri.Sreekumar and those of Sri.K.B.Mohandas, standing counsel for the Corporation.

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WPC.No.4548/08

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Sri.Sreekumar submitted that the interpretation placed on Ext.P3 by the Corporation is a pedantic one. Ext.P3 accords sanction to Sri.Jose, predecessor in interest of the petitioner regarding a total extent of 2 acre and 81 ½ cents of land which was originally wet land subject to four conditions. Though it is true that in the opening part of Ext.P3 the words “ a residential building” is used, the third condition in Ext.P3 will indicate that the construction of more than one building was in contemplation. Being an assignee from Sri.Jose, the petitioner is entitled to the benefits granted to Sri.Jose on Ext.P3. Sri.Jose was a close relative and it is on the basis of a family arrangement that the property was divided into plots for allotment to the members of the family. The petitioner is an NRI. He has already invested substantial amounts for facilitating construction of a residential building so that he can occupy the same when comes back. Learned standing counsel for the Corporation would resist all the submissions of Sri.Sreekumar on the basis of the counter affidavit.

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Having considered the rival submissions addressed at the Bar, I am inclined to accept the petitioner's contention that Ext.P3

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WPC.No.4548/08 4

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enures to the benefit of all persons who claim under Sri.Jose. The insistence of the Corporation that the petitioner should obtain a separate permit under Land Utilisation Order covering the property covered by Ext.P3 is not at all justifiable. In fact the conversion of the property as dry land has already become fait accompli when Ext.P1 document was executed in favour of the petitioner and this is the reason why the property is mentioned as dry land in the schedule of Ext.P1. Since the extent of land covered by Ext.P3 is 2 acre 81 ½ cents, the construction of more than one building was certainly in contemplation and this is why, in condition No.3 incorporation in Ext.P3 it is stated that the local authority's licence should be obtained before 'buildings' are constructed.

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The result of the above discussion is that the writ petition will stand allowed. Ext.P3 is quashed and the petitioner is permitted to continue with the construction confirming to the approved plan in respect of which Ext.P5 permit was issued.

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PIUS.C.KURIAKOSE JUDGE

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sv.

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WPC.No.4548/08 5

Nobi v. Thrissur Municipal Corporation & Others

Case brief

What is this about?

What did the court decide?

Nobi v. Thrissur Municipal Corporation & Others

Case brief

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What did the court decide?

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