IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C) No. 4548 of 2008(N)
1. NOBI, AGED 22, S/O.PAULY APPADEN,
... Petitioner
Vs
1. THE THRISSUR MUNICIPAL CORPORATION,
... Respondent
2. THE ASSISTANT ENGINEER,
3. THE DISTRICT COLLECTOR,
For Petitioner :SRI.G.SREEKUMAR (CHELUR)
For Respondent :SRI.K.B.MOHANDAS,SC,THRISSUR CORPORATIO
The Hon'ble MR. Justice PIUS C.KURIAKOSE
Dated :11/03/2008
O R D E R
PIUS.C.KURIAKOSE, J.
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W.P.(c).No. 4548 OF 2008
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Dated this the 11th day of March, 2008
JUDGMENT
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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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 = 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.
2. I have heard the submissions of Sri.Sreekumar and those of
Sri.K.B.Mohandas, standing counsel for the Corporation.
WPC.No.4548/08 3
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 = 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.
3. 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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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 = 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.
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.
PIUS.C.KURIAKOSE
JUDGE
sv.
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