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Judgment
T.R. Ravi, J
Petitioner owns 2.50.90 hectares of land in Sy.Nos.274/40 and 274/41 in Bison Valley village. The property was purchased by the petitioner as per Exts.P1 and P2 sale deeds Nos.1839/14 and 1840/14, both dated 11.08.2014. Ext.P2 also takes in a building bearing No.1/101 of Bison Valley Grama Panchayat. Mutation has been effected with respect to the property and basic tax paid, as is evidenced by Exts.P3 and P4. According to the petitioner, the property was purchased to maintain it as a farm and construct a residential building. The petitioner obtained Ext.P5 building permit on 28/10/2014 for the construction of a residential building with a plinth area of 784 sq.mtrs and thereafter obtained Ext.P6 building permit on 10.2.2016 for the construction of a residential building with 1183 sq.mtrs by submitting a revised plan. The petitioner submits that 90% of the construction was completed by May, 2016. On 30.5.2016, the District Collector issued the petitioner with Ext.P7 stop memo, alleging that the construction was carried out without his consent. It is also alleged that the construction is in violation of the order dated 21.1.2010 issued by this Court in W.P.(C) No.1801/2010, wherein it is directed that the construction in the Munnar area should be with the consent of the Revenue Department and after obtaining an NOC from the 1st respondent. In Ext.P9 order issued by the 1st respondent pursuant to Ext.P8 judgment, the 1st respondent has relied on the judgments of this Court and the preamble of the Munnar Special Tribunal Act, 2010 to state that “Munnar area” is not limited to Munnar Town and includes surrounding Villages viz., Chinnakkanal, Kannan Devan Hills, Santhanpara, Vellathooval, Aanavilasom, Pallivasal, Aanaviratty and Bison Valley. Ext.P9 was followed by Ext.P10 dated 26.05.2016, whereby the 2nd respondent directed the 3rd respondent to stop construction activities in the above-said seven Villages and to reject all applications for NOC with a direction to the applicant to approach the 1st respondent. On 9.6.2016, the 1st respondent issued a circular prescribing the guidelines for the grant of NOC and empowering the 2nd respondent to consider applications for NOC in relation to the construction of residential houses. The petitioner submitted Ext.P11 application on 27.6.2016 for NOC to complete the construction. Ext.P12 is the consent letter submitted by the petitioner for obtaining the NOC. By Ext.P13 letter dated 19.7.2021, the Additional Tahsildar recommended the issuance of NOC. Ext.P13 was forwarded to the 1st respondent along with Ext.P14 office note.
By Ext.P15 order dated 17.11.2016, the 2nd respondent rejected the request for NOC, stating that he is satisfied that the 3-storied building with an area of 1183.15 sq.meter is intended for non-residential purposes. Petitioner challenged Exts.P7, P9, P10, and P15 in W.P.(c).No.23773/2021. The writ petition was allowed as per Ext.P16 judgment dated 25.11.2021. The Court set aside Exts.P7 and P15 and directed the 2nd respondent to re-hear the petitioner and take a fresh decision.
The petitioner thereafter submitted Ext.P17 representation on 8.12.2021 before the 2nd respondent affirming that the building is for his own residential purposes. The 2nd respondent did not pass any orders. While so, the District Collector issued a notice to the petitioner alleging that he had violated Ext.P8 order dated 21.01.2010. The petitioner thereupon filed Contempt Case, COC No.255/2022, which was closed based on the submission of the 2nd respondent that final orders would be issued within one month. The 2nd respondent issued a notice on 22.4.2022 proposing to hear the petitioner on 29.04.2022. The petitioner submits that he was abroad at that time and came to know about the notice only on 28.4.2022 when the 4th respondent informed the caretaker of the petitioner that he had to appear on the next day. It is stated that the caretaker appeared and asked for an adjournment, but the 2nd respondent, on the same day, inspected the property. The petitioner was issued with a fresh notice on 9.5.2022 at his request. The petitioner submitted Ext.P19 on 19.5.2022. It is submitted that the petitioner was not served with any further notice, and on enquiry at the office of the respondents, Ext.P20 order was received alleging that the construction was in excess of the permitted plinth area, that there was a violation of Ext.P8 and the judgment in W.P.(C) No.32143/2016 and that petitioner was not able to satisfy the 2nd respondent that the building was for residential purposes. The petitioner submits that he is an NRI, and the residential building is constructed for his residence when he is in India. It is further submitted that the building is lying in an unfinished stage, exposed to varying weather conditions for the past more than 5 years. The petitioner has hence filed this writ petition seeking to quash Exts.P9, P10 and P20.
A counter affidavit has been filed by the respondents justifying the issuance of Ext.P20. It is stated that going by the size of the construction and the parking area, it can only be for commercial purposes. It is also submitted that the petitioner has violated the provisions of the Building Rules. A further contention is taken that the soil where the construction is being made can be susceptible to natural disasters.
Heard Sri P.Ramakrishnan, counsel for the petitioner, and Sri M.H.Hanil Kumar, Special Government Pleader on behalf of the respondents.
The counsel for the petitioner submits that this court had issued a positive direction to the respondents to pass orders after being satisfied that the construction is for residential accommodation and not for any commercial purpose. It is submitted that the construction is not yet completed, and it is unfair that the authorities have presumed that the construction is for commercial use. It is submitted that at this stage the petitioner can only assert about his intentions, and it is for the authorities to take action if, after completion, the petitioner puts the building for commercial use. It is submitted that this Court has, in Ext.P16 judgment issued positive directions to the respondent to consider the aspect whether the construction is for residential accommodation and, if so, to consider the request for NOC affirmatively. The counsel submits that in Ext.P17 statement submitted by the petitioner, it is specifically stated that the petitioner requires NOC for the construction of his residential house and that he has already undertaken that the construction will be solely for residential purpose. It is pointed out that Exts.P9 and P10 were issued much after Exts.P5 and P6 building permits were issued to the petitioner and the petitioner had completed a good portion of the construction. The permits were issued in accordance with the Kerala Panchayat Building Rules, 2011 (hereinafter referred to as the 2011 Rules), which was then in force. Another contention is that the definition of “Munnar” in the Munnar Special Tribunal Act, 2010 could not be applied to interpret Ext.P8 interim order which had been issued by this Court before the Act came into force. It is pointed out that the Additional Tahsildar had submitted a report recommending that NOC can be issued, after noting that the purpose is residential. Ext.P13 contains the report. In Ext.P14 note put up by the office, it is noticed that the application is for construction of residential building and that the petitioner does not have a residential house as per the village records. The note also says that there is no possibility of any ecological problems due to the construction. It is further pointed out that Ext.P20 refers to certain reports that are said to have been obtained from the Geologist and the Secretary of the Panchayat, copies of which have not been made available to the petitioner. Special Government Pleader contended that the construction can only be treated to be one for commercial purposes, going by the nature of the construction.
I have considered the contentions put forward by the counsel on either side. The stand taken in Ext.P20 cannot be legally justified. Exts.P5 and P6 are the building permits that have been issued to the petitioner, based on which the construction has been started. It can be seen that the category of building referred to in the permits is Group A1 residential building. The permit has been issued under the 2011 Rules which defines the different categories of buildings in clear terms. The conclusion in Ext.P20 that the building is found to be for commercial use cannot be justified and is without any legal basis. The buildings for commercial use, including lodging houses, tourist homes, tourist resorts are all categorised under Group A2 and not Group A1. The petitioner has submitted more than one affirmation and undertaking that the building is constructed for residential purpose. There is no contention for the respondents that the building is already being used for commercial purpose. It is premature to render a finding that there is a violation of the purpose for which the building permit is issued and to conclude that the construction is for commercial purposes. Such aspects can only be ascertained after the completion of the building and grant of the occupancy certificate. Ext.P20 also refers to other reasons. However, such reasons cannot be countenanced in view of Ext.P16 inter se judgment of this Court, wherein this Court has clearly held that if the construction is to be used only for residential accommodation and not for any commercial purpose then the petitioner’s request will have to be considered affirmatively, ensuring that in future the undertaking of the petitioner is not violated. At the stage of request for NOC, the petitioner can only give undertakings or affirmations regarding the purpose of the use. The 2nd respondent could not have presumed that, going by the size of the construction, it can only be for commercial purpose. Orders which affect the civil rights of citizens cannot be issued based on surmises or conjectures or on the ipse dixit of the authority who is empowered to issue the order. When the orders are issued pursuant to the directions issued by this Court, it is even more required that the purpose and intent of the order of the Court is understood. This Court has in Ext.P16 stated in clear terms that, what is to be ensured is that the undertaking regarding the purpose of the construction is not violated. This Court has evidently, taken cognizance of the fact that at the stage of requesting for NOC, all that can be done by the petitioner is to undertake that the construction is for residential purpose. The authority cannot pre-suppose that there will be violations, even before the grant of the NOC. In the above view of the matter, it is not necessary to go into the other contentions raised by the petitioner. Ext.P20 is liable to be quashed.
In the result, the writ petition is allowed. Ext.P20 is quashed. The respondents 1 and 2 are directed to grant NOC to the petitioner for the construction of the residential house and to complete the same as per the building permit issued by the Secretary of the Panchayat. The respondents are to ensure that the undertaking given by the petitioner that the building is to be used for residential purposes is not violated and take necessary action as permitted by law, for any such violation. The contentions of the petitioner regarding Exts.P9 and P10 are left open, to be considered in appropriate proceedings.