Beevi And Aboobacker Keyi Foundation vs State Of Kerala

N. Nagaresh, J

The petitioner, a charitable Trust, is aggrieved by the refusal by the Thalassery Municipality to issue Building Permit to the petitioner for construction of a Medical Centre.

The petitioner states that the Trust owns 4.05 Ares of land in Thiruvangad Desom in the 2nd respondent-Municipality. The land is a garden land but in the Revenue records, the land is shown as paddy land. The land was converted long ago, before the enactment of the Kerala Conservation of Paddy Land and Wetland Act, 2008. In Ext.P1 title document dated 30.03.2015, the land is described as ‘Thottam’.

The Agricultural Officer, as per Ext.P2, has certified that the land is not included in the Data Bank of paddy land and wetland. On an application for Building Permit made by the petitioner to construct a building in the land, the 2nd respondent issued Ext.P3 Building Permit dated 13.03.2017. The petitioner constructed the structure of Ground Floor, First Floor and Second Floor on the basis of the Building Permit. The Local Level Monitoring Committee (LLMC), as per Ext.P7 proceedings dated 24.12.2018, had decided to remove the land from Data Bank.

On the basis of a letter issued by the Agricultural Officer, the Municipal authorities cancelled the Building Permit on 28.05.2018. In W.P.(C) No.32284 of 2019 filed by the petitioner, this Court set aside the said order and directed reconsideration of the issue after hearing the petitioner. But, the Municipality after hearing the petitioner again revoked the Building Permit on 18.02.2020.

In the petitioner’s appeal, the Tribunal for Local Self Government Institutions directed the Municipal authorities to renew the Building Permit of the petitioner, as per Ext.P9 order dated 26.04.2022. The 2nd respondent, however, directed the petitioner to produce a land conversion order from the RDO, as per Ext.P10 order dated 01.06.2022. The petitioner seeks to quash Ext.P10 and to direct the 2nd respondent to renew Ext.P3 permit.

The petitioner states that after Ext.P9 order of the Tribunal, the Municipal authorities cannot insist on production of a conversion order for renewing the Building Permit. In view of the judgment in Global Education Trust v. State of Kerala [2020 (6) KLT 738], the petitioner need not apply for land conversion order under Section 27A of the Act, 2008.

The Senior Government Pleader and the Standing Counsel for the Municipality opposed the writ petition and argued that since the land is described as paddy land in the Revenue records, in view of Section 27A of the Kerala Conservation of Paddy Land and Wetland Act, 2008, the Municipality can issue or renew a Building Permit only if the land description in Revenue records is changed suitably. The judgment of this Court in Global Education Trust (supra) will not apply to the facts of the case, it was asserted on behalf of the respondents.

I have heard the learned counsel for the petitioner, the Senior Government Pleader representing respondents 1 and 3 and the learned Standing Counsel for the 2nd respondent.

The petitioner’s land has been described as paddy land in Revenue records, though it is a converted land. The land has been described as garden land in the title document of the year 2015. The Agricultural Officer issued Ext.P2 Certificate stating that the land is not included in the Data Bank. On an application submitted by the petitioner, a Building Permit was issued to the petitioner on 13.03.2017 as per Ext.P3. The petitioner constructed the structure of the building up to and inclusive of the 2nd floor.

While so, the Agricultural Officer required the Municipal Authorities to cancel the licence issued to the petitioner. The Municipal authorities cancelled the Building Permit. As the period of the Building Permit is expiring, the petitioner has applied for renewal of the Building Permit. The cancellation of the Building Permit was challenged by the petitioner in the Tribunal for Local Self Government Institutions.

The Tribunal noted that the Local Level Monitoring Committee has decided on 24.12.2018 to remove the land from the Data Bank and found that there is no justification for denial of renewal of Building Permit to the petitioner. The Tribunal allowed the appeal filed by the petitioner as per Ext.P9 order dated 26.04.2022. The operative portion of the judgment of the Tribunal reads as follows:

(1) Annexure-P1 impugned order bearing No.E3/BA/381/15-16 dated 18.02.2020 is hereby set aside.

(2) Since the Annexure-P2 building permit, the validity of the same has been expired on 06.10.2020 and the appellant submitted an application for renewal of the said permit. It is evident from the file produced by the side of the appellant. In such circumstances, the period of litigation can be exempted and the respondent is hereby directed to consider the renewal application and shall grant the building permit in favour of the appellant. The process shall be completed within 60 days from the date of this order.

Ext.P9 order of the Tribunal would show that there is mandatory direction given by the Tribunal to grant Building Permit in favour of the petitioner.

The 2nd respondent has not challenged Ext.P9 order of the Tribunal. Therefore, the matter has become final intra-party.

In this regard, it is to be noted that the petitioner was granted a Building Permit by the Municipality on 13.03.2017 as per Ext.P3, relying on Ext.P2 Certificate issued by the Agricultural Officer to the effect that the land in question is not included in the Data Bank. The Agricultural Officer later took a stand on 18.05.2018 that Ext.P2 was issued under a mistake. It was based thereon that the Municipality cancelled the Building Permit issued to the petitioner. But, it is to be noted that the LLMC on 24.12.2018 decided to remove the petitioner’s land from the Data Bank.

The petitioner has constructed the structure of the building up to and including the 2nd Floor based on the basis of the Building Permit issued by the Municipality. The Building Permit issued was cancelled by the Municipality on the basis of a letter issued by the Agricultural Officer stating that the land is included in the Data Bank. It is now clear that the LLMC has subsequently decided to remove the land from Data Bank.

In the facts and circumstances of the case, taking into account the fact that Ext.P9 order of the Tribunal directing the Municipality to issue Building Permit to the petitioner has become final and conclusive, that the petitioner has already constructed the structure of the building up to and including the 2nd Floor based on a Building Permit validly issued by the Municipality and that the LLMC has decided to remove the land from Data Bank, the petitioner should be permitted to construct the building as per Ext.P3 Building Permit.

The writ petition is therefore allowed. Ext.P10 is set aside. The 2nd respondent is directed to renew Ext.P3 Building Permit without insisting for any further requirements. Orders in this regard shall be passed within a period of one month.