Back
2021 Supreme(Ker) 669
IN THE HIGH COURT OF KERALA AT ERNAKULAM
N. NAGARESH, J.
Anwar P.K. S/o Late Kunhibava – Petitioner
Versus
Thrissur Corporation, Rep. by its Secretary – Respondent
W.P. (C) No. 11996 of 2021
Decided On : 23-09-2021
Important Points
Subject
Land Use and Zoning - Building Permits
Act Referred
Headnote
Kerala Municipal Building Rules, 1999 - Rule-6 and Rule-27 petitioner claimed proportionate benefit extendable for construction in plots part of which have been surrendered free of cost for road development. Though the respondents initially rejected the claim of the petitioner for such benefit, finally the Government as per Ext.P5 held that the petitioner is entitled to benefit up to 3 FAR - Thereafter rejection under.
Finding of the Court:
When the benefit under Chapter XI is a statutory right attached to the property, the owner of the property can claim and enjoy the benefit in part if he so wishes, reserving his right to claim and enjoy the remainder benefit at a later date, up to the permissible limits. The respondents cannot insist that the petitioner shall utilise the benefits under Chapter XI at one go, as long as there is no such restriction in the Rules, 1999 - application of rules modified as per Chapter XI of the KMBR, 1999, though is by way of a concession when land is surrendered by an owner free of cost for new road formation or road widening or junction improvement etc., the said concession acquires the character of a statutory right on owners of such land, part of which have been surrendered free of cost, by the incorporation of Chapter XI in the KMBR.
Result: Petition allowed.
Advocate Appeared:
For the Petitioners: P.B. Krishnan, P.B. Subramanyan, Sabu George.
For the Respondent: Santhosh P. Poduval.
JUDGMENT :
N. NAGARESH, J.
1. The petitioner seeks to call for the records relating to Ext.P10 and to quash the same. The petitioner also seeks to direct the 2nd respondent to consider and take a decision on the application submitted by the petitioner for the building permit after considering Ext.P6 site plan.
2. The petitioner states that he along with his brother, were owners of 384.5 Cents of property in Survey No. 48/1 of Koorkkenchery Village and Survey No. 153P and 154/2 of Chiyyaram Village. There were certain transactions in respect of the property between the petitioner and his brother and finally, by Ext.P1 Partition Deed, the property was divided among them. By Ext.P1, the petitioner got 31.97 Ares of land in Survey No. 48/1/1, 48/1/2 and 48/1/3 of Koorkkenchery Village as Item No. 1, another 5.13 Ares in Survey No. 153 of Chiyyaram Village as item No. 2 and 39.39 Ares in Survey No. 154/2 of Chiyyaram Village as item No. 3.
3. The predecessor in interest of the property had surrendered 29.5 Cents which was part of the aforesaid properties, for a road widening. The balance extent of property is eligible for the benefit of Chapter XI of the Kerala Municipal Building Rules, 1999. The petitioner submitted an application for relaxation of the Rules under Chapter XI. As the petitioner obtained only half of the 384.5 Cents, the petitioner claimed benefit only in respect of half of the extent of property (14.525 Cents) surrendered. However, the Special Committee rejected the application of the petitioner.
4. The petitioner challenged the rejection order filing WP (C) No. 38078/2016. This Court as per Ext.P4 judgment dated 28.09.2018, directed the State Government to reconsider the claim. Consequently, as evidenced by Ext.P5 minutes, the Government held that the petitioner is entitled for the benefit of 3 FAR while granting a permit for constructing buildings in his property. The petitioner was required to submit a revised application in accordance with the exemption granted.
5. The petitioner proposed to construct a residential apartment complex in 20.70 Ares of property out of the larger extent in his possession. The petitioner submitted a revised plan claiming the benefit for the said area and reserving the benefit of Ext.P5 decision to be used for the balance land in future. Thereupon, the 2nd respondent issued Ext.P8 letter requiring the petitioner to submit a fresh plan including all the properties belonging to the petitioner.
6. The petitioner submitted Ext.P9 representation pointing out that he is entitled to claim the benefit in part and that if the entire property is shown in the plan, the purchasers of apartment units may stake claim over the entire property. The 2nd respondent as per Ext.P10 insisted to submit a fresh plan including the whole property belonging to the petitioner and calculating the FAR and coverage on the basis of the same. The petitioner challenges Ext.P10.
7. The 2nd respondent contested the writ petition. The 2nd respondent stated that the petitioners purchased the property in 2005 whereas the predecessor in interest relinquished the property only subsequently. The petitioner obtained only a small extent of property in Survey No. 154/2, a part of which was surrendered. Only the land owner who surrendered the land will get the benefit and that too in respect of the remaining land owned by him as on the date of surrender. The property which was retained by the predecessor in interest formed part of the properties which was set apart to the brother of the petitioner.
8. The Ext.P1 partition Deed has been executed including some other properties. The petitioner is claiming the benefit for constructions in such properties also, which were acquired subsequent to the date of the surrender. Exts.R2(a) and R2(b) would show that the property set apart for the petitioner as per Ext.R2(c) was severed from remaining properties as on 30.02.2003 itself. Hence, the benefit, if any, on account of the surrender could no
