BY AD v. BINOY VASUDEVAN

BY SRI.SANTHOSH P.PODUVAL, SC SMT.K.AMMINIKUTTY, SR.GOVERNMENT PLEADER THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 10.01.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C) No.39719 of 2023 2 JUDGMENT Petitioner is the owner in possession of an extent of 54.28 Ares [134.07 cents] of property situated in Sy.Nos.805/2-2, 824/PT 2, 824/PT 32, 805/2-1, 824/PT1, 824/PT 33, 825/PT32 in Ayyanthole Village, Thrissur Taluk within the jurisdiction of the 1st respondent Corporation. The petitioner and his predecessor-in-interest had obtained permission under Clause 6(2) of the Kerala Land Utilisation Order, 1967 [for brevity, ‘the KLU Order’] as evident from Exts.P2 to P2(c) and the property was re-classified as purayidom. Thereafter, the petitioner submitted an application for building permit. The Executive Engineer, on behalf of the respondent-Corporation, had then issued Ext.P8 communication to the petitioner directing him to produce the certificate from the authorities concerned as to W.P.(C) No.39719 of 2023 3 whether construction can be effected in the property, which had been reassessed under the provisions of the Kerala Land Tax Act, 1961 [for brevity, ‘the Act’]. The petitioner challenges Ext.P8 contending that when the holders of the land had converted it into purayidom as per the provisions of the KLU Order and the Act, there cannot be any restriction in effecting construction in such land, which has been reassessed to tax under the provisions of the KLU Order and the Act.

2. Heard the learned counsel for the petitioner, the learned Senior Government Pleader and the learned Standing Counsel.

3. A counter affidavit has been filed by respondents 1 & 2 and paragraphs 3 & 4 thereof read as follows: “3. The petitioner has submitted an W.P.(C) No.39719 of 2023 4 application for construction of a building having a plinth area of 16509.11M². (177702.41 sq.ft.) As per the schedule an amount of Rs. 1,74,70,241/- is payable by the petitioner to the Government. Since the issue involves huge revenue payable to the Government and also since the permission granted by the RDO did not specify the nature of construction and area restriction, if any for the building the petitioner was directed to get a certificate specifying whether construction of such a building is permissible in the property converted as per permission under Kerala Land Utilization order and consequentially subjected to re- assessment of tax.

4. It is humbly submitted that as per Rule 12(17) of the Rules even in cases where permission under Kerala Land Utilization Order is obtained a specific amount is payable The said provision is not declared as ultravires in the judgments referred to in the Writ petition. In the schedule which forms part of the Rules it is specified that if the area of the construction exceeds 3000 W.P.(C) No.39719 of 2023 5 sq.ft. then fee equivalent to 100 per sq.ft. exceeding 3000 sq. ft. has to be obtained in the property for which conversion has been permitted. Hence area of the proposed construction in properties which has been permitted to be converted assume significance. It is under such circumstances that the petitioner was directed to obtain a certificate for clarity on these aspects from the whet concerned.”

4. The petitioner has filed an application for building permit to construct building in the land, which has been reassessed under the provisions of the KLU Order and the Act. When the statutory authorities have permitted reassessment of the land under the particular Statute, respondents 1 and 2 cannot insist the petitioner to produce any further certificate from the authorities concerned seeking permission for construction in the said land. The application of the petitioner W.P.(C) No.39719 of 2023 6 has to be considered independently under the provisions of the Kerala Municipality Act and the Kerala Municipality Building Rules. The application cannot be rejected on the grounds stated in Ext.P8.

5. Accordingly, there will be a direction to the 2nd respondent to consider the application of the petitioner for building permit, referred to in Ext.P8, in accordance with law, as expeditiously as possible, at any rate, within a period of one month from the date of receipt of a certified copy of this judgment. The writ petition is disposed of. Sd/- MURALI PURUSHOTHAMAN JUDGE sp/10/01/2024 W.P.(C) No.39719 of 2023 7 PETITIONER' S EXHIBITS:- APPENDIX EXHIBIT P1 TRUE COPY OF THE JUDGMENT DATED 16.02.2022 IN W.P.(C) NO.3703/2022 EXHIBIT P1 (A) TRUE COPY OF THE JUDGMENT DATED 16.02.2022 IN W.P.(C) NO.3181/2022 EXHIBIT P1(B) EXHIBIT P1(C) EXHIBIT P2 EXHIBIT P2(A) EXHIBIT P2(B) EXHIBIT P2(C) EXHIBIT P3 EXHIBIT P3(A) EXHIBIT P3(B) TRUE COPY OF THE JUDGMENT DATED 16.02.2022 IN W.P.(C) NO.3538/2022 TRUE COPY OF THE JUDGMENT DATED 16.02.2022 IN W.P.(C) NO.3688/2022 TRUE COPY OF ORDER NO.D7-9104/2020 DATED 07.04.2022 ISSUED IN FAVOUR OF THE PETITIONER AND HIS WIFE SMT.LEENA SASI TRUE COPY OF ORDER NO.D7-9108/2020 DATED 07.04.2022 ISSUED IN FAVOUR OF SMT. NITHYA VASAN NAIR TRUE COPY OF ORDER NO.D7-9106/2020 DATED 07.04.2022 ISSUED BY THE 3RD RESPONDENT IN FAVOUR OF SMT. SOBHANA VASAN NAIR TRUE COPY OF ORDER NO.D7-9105/2020 DATED 07.04.2022 ISSUED BY THE 3RD RESPONDENT IN FAVOUR OF SMT. JISHA SREEKUMAR TRUE COPY OF THE JUDGMENT DATED 08.07.2022 IN W.P.(C) NO.22011 OF 2022 TRUE COPY OF THE JUDGMENT DATED 02.08.2022 IN W.P.(C) NO.24907 OF 2022 TRUE COPY OF THE JUDGMENT DATED 02.08.2022 IN W.P.(C) NO.24825 OF 2022 W.P.(C) No.39719 of 2023 8 EXHIBIT P3(C) TRUE COPY OF THE JUDGMENT DATED 02.08.2022 IN W.P.(C) NO.24791 OF 2022 EXHIBIT P4 EXHIBIT P4(A) EXHIBIT P4(B) EXHIBIT P5 EXHIBIT P5(A) EXHIBIT P5(B) EXHIBIT P5(C) EXHIBIT P5(D) EXHIBIT P6 EXHIBIT P7 EXHIBIT P8 TRUE COPY OF ORDER NO.B10-19957/20 DATED 24.11.2022 OF THE 4TH RESPONDENT IN RESPECT OF THE PROPERTY OWNED BY SMT. NITHYA VASAN NAIR TRUE COPY OF THE PROCEEDINGS NO.B10- 19956/2020 DATED 24.11.2022 ISSUED IN RESPECT OF THE PROPERTY OWNED BY SMT. SHOBHANA VASAN NAIR TRUE COPY OF THE PROCEEDINGS NO.B10- 14647/2021 DATED 24.11.2022 ISSUED IN FAVOUR OF SMT. JISHA SREEKUMAR TRUE COPY OF DOCUMENT NO.1603/2023 DATED 19.05.2023 TRUE COPY OF DOCUMENT NO.1062/2023 DATED 30.03.2023 TRUE COPY OF DOCUMENT NO.1061/2023 DATED 30.03.2023 TRUE COPY OF DOCUMENT NO.1060/2023 DATED 30.03.2023 TRUE COPY OF DOCUMENT NO.1059/2023 DATED 30.03.2023 TRUE COPY OF THE POSSESSION CERTIFICATE DATED 15.09.2023 TRUE COPY OF THE LAND TAX RECEIPT DATED 03.05.2023 ISSUED BY THE VILLAGE OFFICER, AYYANTHOLE VILLAGE COPY NOTICE OF TRUE NO.DW5/BA/68/23-24 DATED 26.10.2023 BY THE EXECUTIVE ENGINEER ATTACHED TO THE 1ST RESPONDENT THE W.P.(C) No.39719 of 2023 9 EXHIBIT P9 EXHIBIT P10 TRUE COPY OF THE RECEIPT ISSUED BY THE 4TH RESPONDENT DATED 01.11.2023 TRUE COPY OF THE REQUEST MADE BY THE PETITIONER DATED 27.10.2023