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2021 Supreme(Online)(KER) 4244
HIGH COURT OF KERALA
P. B. Suresh Kumar, J
M/S.MELMONT CONSTRUCTIONS PVT LTD. – Appellant
Versus
THE STATE OF KERALA – Respondent
WP(C) NO. 3381 OF 2021 | WP(C) NO. 6495 OF 2021
For the Appellants/Petitioners: SANTHOSH MATHEW, SRI.ARUN THOMAS, SRI.JENNIS STEPHEN, SRI.VIJAY V. PAUL, SMT.KARTHIKA MARIA, SRI.ANIL SEBASTIAN PULICKEL, SMT.DIVYA SARA GEORGE, SMT.JAISY ELZA JOE, SHRI.ABI BENNY AREECKAL, SMT.VEENA RAVEENDRAN
For the Respondents: SRI.G.G.MANOJ, SRI.S.SARATH PRASAD, SRI.RENJITH THAMPAN
Court reaffirmed earlier rulings that legal permissions allow construction without compliance with new regulations, ensuring clarity in land use rights and classifications.
Headnote:(A) Kerala Municipality Building Rules, 1999; Kerala Land Utilization Order, 1967; Kerala Conservation of Paddy Land and Wetland Act, 2008; Kerala Land Tax Act, 1961 - Petitioners are real estate developers owning lands classified as 'Nilam' and 'Purayidom' - Stop memo issued contradicted by earlier judgment, which declared KLU order inapplicable - Court rules on necessity of obtaining permits - Established that KLU order does not apply retroactively to lands used prior to its implementation. (Paras 2, 10, 14)
(B) Construction and Permit Compliance - The court found that the requirement to obtain permission under KLU order or Section 27A of the Act cannot obstruct the construction commenced legally based on earlier permissions - Clarification on nature of land and rights of petitioners. (Paras 8, 11, 12)
Facts of the case:
Petitioners sought legal clarity on their land classification and building permissions following stop notices from authorities, relying on past court rulings on land classifications.
Findings of Court:
The court held that existing permissions allow construction without needing additional compliance with newer regulations pertaining to land classifications.
Issues: The main issues involved the applicability of the KLU order to the petitioners' land and the necessity of new permissions.
Ratio Decidendi: The court reasserted earlier judgments that established a framework for compliance with older regulations while detailing the implications of newer ones.
Result: Writ petitions allowed; existing permits upheld without additional condition.
| Table of Content |
|---|
| 1. facts about the petitioners' real estate development and land classification. (Para 1 , 2 , 3) |
| 2. details on applications submitted for construction and permits. (Para 4 , 5) |
| 3. discussion on the applicability of klu order for prior land use. (Para 9 , 10) |
| 4. clarification of responsibilities under new land use legislations. (Para 11 , 12) |
| 5. final directives for the municipality and district collector. (Para 13 , 14) |
JUDGMENT
Issues arising for consideration in these matters are closely interlinked and they are, therefore, disposed of by this common judgment. Parties and documents are referred to in this judgment, as they appear in W.P.(C) No.3381 of 2021.
2. The facts relevant for adjudication of the issues are the following : Petitioners are real estate developers. They own lands in Vazhakkala Village within the limits of Thrikkakkara Municipality (the Municipality). A portion of the lands owned by the petitioners is shown in the revenue records as 'Nilam' and the rest as 'Purayidom'. The lands were purchased by the petitioners for the purpose of promoting jointly a residential/commercial project prior to the implementation of the Kerala Municipality Building Rules , 1999 within the limits of the Thrikkakkara Panchayat, which was later upgraded as Thrikkakkara Municipality. As such, after acquiring the lands, the first petitioner applied to the Panchayat for a No Objection Certificate for the project proposed by the petitioners and on the said application, Ext.P2 certificate was issued by the then Thrikkakkara Panchayat on 23.8.2006 stating that since the , 1999(wrongly shown as Kerala Building Rules, 1984) have not been enforced within the limits of the Panchayat, permission of the Panchayat is not necessary for the construction proposed by the petitioners. It was, however, stated in the certificate that there shall not be any construction within three meters from the boundaries of the adjoining public roads and that there shall be adequate drainage facilities for the building. It is stated by the petitioners that on the strength of Ext.P2 certificate, they have commenced construction of the building and completed the piling works and a portion of the columns of the building. While so, on 1.9.2008, the Village Officer issued Ext.P6 stop memo to the petitioners stating that the construction undertaken by the petitioners is contrary to the provisions of the Kerala Land Utilization Order , 1967 (KLU order) and therefore, they shall not proceed with the construction without obtaining orders from the competent authority under the KLU order. According to the petitioners, the lands owned by them fall under residential zone in terms of the structural plan of Central Cochin City sanctioned by the Government under the Town Planning Act, 1108 M.E. and therefore, permission under the KLU order is not necessary for utilizing the same for constructing a building for residential purpose. The petitioners, therefore, challenged Ext.P6 stop memo before this court in W.P.(C) No.9156 of 2010 and the said writ petition was allowed and Ext.P6 stop memo was quashed holding that KLU order is inapplicable to the area to which the Town Planning Scheme has been implemented. Ext.P11 is the judgment in the said case. It was however, made clear by this court in Ext.P11 judgment that the petitioners shall obtain building permit in terms of the for resuming the work as the , 1999 have been implemented within the limits of the erstwhile Thrikkakkara Grama Panchayat with effect from 6.11.2006.
3. It is stated by the petitioners that though there was no impediment for the petitioners to proceed with the construction proposed by them in the light of Ext.P11 judgment after obtaining building permit from the Panchayat, with a view to avoid further legal issues in the course of construction, they have preferred an application before the District Collector requesting orders for construction of the building in the lands which are classified in the
