Allowed

Jose M.O., v. Kodassery Gramapanchayath

Kerala HC26 Jun 2024WP(C)/3170/2024

Case brief

AI extract

What is this about?

Panchayat refused occupancy certificate and building number because the land was assigned under land assignment rules. Court found no misrepresentation by petitioner since possession certificate did not disclose assigned status; quashed refusal and directed consideration of applications within one month. Government directed to consider adding an assigned-land column in permit application forms.

What did the court decide?

Ext.P6 quashed; direction to consider occupancy certificate and building number within one month; report from Government on application form amendment in two months.

Jose M.O., Vs Kodassery Gramapanchayath — Municipal and Town Planning | Kerala HC (2024)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT

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THE HONOURABLE MR.JUSTICE MOHAMMED NIAS C.P.

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WEDNESDAY, THE 26THDAY OF JUNE 2024 / 5TH ASHADHA, 1946
WP(C) NO. 3170 OF 2024

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PETITIONER:

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JOSE M.O.,
AGED 53 YEARS
S/O OUSEPH, MUNDANMANI HOUSE,
KUTTICHIRA P.O., CHALAKUDY,
THRISSUR DISTRICT, PIN – 680724

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BY ADVS.

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 V.M.KRISHNAKUMAR
 P.R.REENA

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RESPONDENTS:

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KODASSERY GRAMAPANCHAYATH,
REPRESENTED BY ITS SECRETARY,
KODASSERY GRAMAPANCHAYATH OFFICE,
1
CHATTIKULAM.P.O, THRISSUR DISTRICT,
PIN – 680721

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SECRETARY,
KODASSERY GRAMAPANCHAYATH,
KODASSERY GRAMAPANCHAYATH OFFICE,
2
CHATTIKULAM.P.O., THRISSUR DISTRICT,
PIN – 680721

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BY ADVS.

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 DAISY A.PHILIPOSE, SC, KODASSERY GRAMA PANCHAYAT
 JAI GEORGE
 DEVISHRI R GP

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THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
26.06.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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W.P(C) No.3170 of 2024 2

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MOHAMMED NIAS C.P., J.

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............................................................

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W.P(C) No.3170 of 2024

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Dated this the 26^th day of June, 2024

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JUDGMENT

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The petitioner is stated to be the owner of 6.5 cents of land in Survey No.1057 and 1416 of Kuttichira village in Chalakkudy Taluk in Thrissur District. He contends that he had obtained the said property as per registered sale deed No.2296/1/2017 of Chalakudy Sub Registry. The possession certificate dated 07.08.2023 issued to the petitioner is produced as Ext.P1. The petitioner applied for a Building permit before the 1st respondent Panchayat for constructing a building having 138.48 square metres (residential) and 237.02 square metres (commercial) totalling 375.5 square metres. The petitioner was granted Ext.P2 Building Permit dated 22.10.2021. The petitioner submits that he had completed the construction in tune with Ext.P2 Building Permit and had sought the occupancy certificate and also for building number for the building. The petitioner also submits that he has remitted the tax under the Kerala Building Tax Act, 1975. The petitioner is aggrieved by Ext.P6 dated 13.12.2023 issued by the 2nd respondent refusing to number the building on the ground that the land is one assigned under the provisions of the Kerala Land Assignment Rules, 1964 and hence the building number cannot be

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W.P(C) No.3170 of 2024 3

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granted for a building constructed for commercial purposes. The petitioner challenges Ext.P6 and seeks a direction to the 2nd respondent to issue occupancy certificate and to assign a building number to the building constructed as per Ext.P2 Building Permit.

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A Counter affidavit has been filed by the respondent Panchayat stating that on any land assigned for agricultural and residential purposes, no commercial activity/commercial building could have been constructed. Further reference is made to Ext.R2(a) Government Order dated 22.02.2021 directing the Village Officer to issue Possession Certificates by mentioning the nature of the land and whether the land is assigned for any specific purpose under the Kerala Land Assignment Act, 1960. The Government found that the said order was not implemented and issued under another circular dated 1.10.2021 directing the Panchayats to implement the same and to insist on an affidavit from the applicants for Possession Certificate. The said circular is marked as Ext.R2(b). The same was circulated to all panchayats and the Directors of Panchayat by way of Ext.R2(c) circular dated 12.10.2021. The respondent submits that since the possession certificate issued dated 26.04.2021, which was produced by the petitioner while making the application for a building permit only described the land as “Purayidom” and they came to know that the land was assigned only when the petitioner produced Ext.P1 Possession Certificate along with his request for Occupancy Certificate dated 28.11.2023. Thus contenting that the permit was obtained by

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W.P(C) No.3170 of 2024 4

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suppression of the fact that the land was assigned under the Kerala Land Assignment Rules, 1964, Ext.P6 was issued.

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Heard the learned counsel for the petitioner and the learned Standing Counsel appearing for the respondent.

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The learned counsel for the petitioner relies on the judgments passed by this court in WP(C)No.25800/22 and WP(C)38106/22 both concerning the same Panchayat. In identical cases. This court had directed the consideration of the application for occupancy certificate as the building therein was constructed without any violation of the conditions in the building permit. It was noticed in those cases that the building permit was issued prior to the circular dated 01.10.2021.

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The learned counsel for the respondent also pointed out that as regards the judgment in WP(C)No.25800/22, it was found that the building was constructed to be used for agricultural-related purposes. The judgment in WP(C)No.25800/22 was again followed in WP(C)No.38106/22. In the instant case, the learned counsel for the petitioner submitted that he was an assignee of the patta holder and produced his sale deed along with the application for a building permit. The Secretary had to consider all the documents in terms of Rule 9 of the Kerala Panchayat Building Rules, which he did consequent to which the permit was issued. He also submits that since the building was constructed in terms of Ext.P2 permit, under Rule 20(2), the panchayat was obliged to issue the occupancy certificate and also to assign the building number.

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W.P(C) No.3170 of 2024 5

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It is to be noted that the contention of the learned Standing Counsel for the Panchayat, that there was no material before the Panchayat to find out whether the land was assigned under the provisions of the Kerala Land Assignment Rules appears to be correct as the possession certificate initially submitted by the petitioner never indicated the fact that the land was assigned. True, the petitioner may not have done it willfully, but the possession certificate did not indicate it. The Village Officer should have been diligent while issuing certificates, more so after the issuance of the circulars noted above.

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However, taking note of the fact that the building is constructed, the permit has not been cancelled so far in accordance with law and also because of my finding earlier rendered that there was no misrepresentation as such by the petitioner and also taking a cue from the judgments noticed above, I am inclined to allow the writ petition and Ext.P6 is quashed. There will be a direction to the respondent to consider the application submitted by the petitioner for issuance of occupancy certificate and assigning of building numbers within one month from the date of receipt of a copy of this judgment. if the applications are otherwise in order and without relying on the objection stated in Ext.P6. The Panchayat shall also ensure that the construction is put up in terms of Ext.P2 Building permit.

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Before parting, I take note of the apprehension raised by the learned counsel for the respondent Panchayat that the non-mentioning of whether the land for which the permit is sought was assigned or not

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W.P(C) No.3170 of 2024 6

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can lead to misuse, which virtually defeats the purpose of the assignment. Though the Government has issued circulars to prevent the same, it would be effective if the Government considers incorporating a column in the application form to be filled up by the applicant seeking a building permit (both online & offline application form) requiring the applicant to state whether the land in question was an assigned land or not or one issued with any conditions attached to it. This will avert situations like the one on hand and those dealt with

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by this Court in the earlier two judgments mentioned above and also accomplish the purpose of the Land Assignment Act.

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There will be a direction to the additional 3rd respondent, Principal Secretary to Government, Local Self Government Department to consider the suggestion and to file a report within two months from the date of receipt of a copy of this judgment before this Court. The learned Government Pleader is directed to intimate this order to the 3rd respondent for compliance with the order.

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The Writ Petition is allowed as above.

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Sd/MOHAMMED NIAS C.P. JUDGE

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MSA

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W.P(C) No.3170 of 2024 7

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APPENDIX OF WP(C) 3170/2024

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PETITIONER EXHIBITS

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Exhibit P1TRUE COPY OF THE POSSESSION CERTIFICATE
DATED 07.08.2023 ISSUED TO THE PETITIONER
TRUE COPY OF BUILDING PERMIT ISSUED BY THE
Exhibit P2
2ND RESPONDENT DATED 22.10.2021 TO THE
PETITIONER
Exhibit P3PHOTOGRAPH SHOWING THE COMPLETED BUILDING
OF THE PETITIONER
Exhibit P4PHOTOGRAPHS OF BUILDINGS ADJACENT TO
PETITIONER'S PROPERTY
TRUE COPY OF THE BUILDING TAX RECEIPT
Exhibit P5
DATED 06.12.2023 ISSUED BY THE VILLAGE
OFFICE KUTTICHIRA
TRUE COPY OF LETTER DATED 13.12.2023
Exhibit P6
ISSUED BY THE 2ND RESPONDENT TO THE
PETITIONER
TRUE COPY OF THE ACKNOWLEDGEMENT RECEIPT
Exhibit P7DATED 30.11.2023 ISSUED BY THE RESPONDENT
PANCHAYATH TO THE PETITIONER

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RESPONDENT EXHIBITS

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EXHIBIT R.2 (a)A true copy of G.O[MS]NO. 61/2021 dated
22/2/2021
EXHIBIT R.2 (b)A true copy of Circular NO. Rev-
A2/49/2021-REV dated 1/10/2021
A true copy of Circular NO. Rev-
EXHIBIT R.2 (c)A2/49/2021-REV dated 12/10/2021 issued by
the Director of Panchayaths

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W.P(C) No.3170 of 2024 8

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A True copy of the Possession Certificate
EXHIBIT R.2 (d)
No.55820067 dated 26.4.2021 issued by the
Kuttichira Village Office.

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A True copy of the sale deed
EXHIBIT R.2 (e)
no.2296/1/2017 dated 24/8/2017 of the Sub
Registry Office, Chalakkudy.
EXHIBIT R.2 (f)A true copy of the request letter No.SC2-
7017/23 dated 30/11/2023

Jose M.O., v. Kodassery Gramapanchayath

Case brief

What is this about?

What did the court decide?

Jose M.O., v. Kodassery Gramapanchayath

Case brief

What is this about?

What did the court decide?

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