Sanchayita Lahkar

The High Court of Kerala Single Bench of Justice P.M. Manoj has held that land assigned specifically for residential purposes under a government scheme cannot be converted for commercial use. The Court directed that such plots in Giri Nagar Housing Colony be utilized strictly in accordance with the conditions of assignment and the statutory provisions governing land use. The judgment mandates the enforcement authorities to take appropriate legal action against any unauthorised commercial usage within the residential layout and nullifies permissions that conflict with the purpose of the assignment.

The writ petition was instituted by residents of Giri Nagar Housing Colony, aggrieved by the transformation of the residential layout into a commercial area. The petitioners, members and residents of the Ernakulam Co-operative House Construction Society (6th respondent), asserted that such conversion was in violation of the original government allotment and patta conditions.

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The colony was established pursuant to a government assignment of land to the 6th respondent in 1965, initially comprising 17.86 acres. A further 4.96 acres previously earmarked for Indian Central Coconut Committee staff quarters were added in 1968. Additional land totalling approximately 10 acres was later granted for roads and amenities, culminating in 33.183 acres assigned to the Society. The 5th respondent subsequently issued patta in accordance with government orders.

According to Ext.P5 and subsequent sale deeds like Ext.P6, the land was explicitly designated for constructing residential buildings for middle and low-income families. The sale deeds prohibited usage for non-residential purposes and mandated that any alienation must comply with Society membership conditions.

The petitioners contended that respondents 2 to 4, including the Corporation of Cochin, granted building permits for commercial constructions and failed to inspect or enforce compliance with patta terms. They alleged that residential homes were being converted to offices and businesses, affecting the residential character of the colony.

Supporting their argument, petitioners cited precedents such as Bhaskaran Pillai v. State of Kerala [1991 KHC 408], Raphy John v. Land Revenue Commissioner [2022 KHC 3494], and Varghese Kurian v. State of Kerala [2023 KHC OnLine 9226], to assert that land assigned for residential use under the Land Assignment Act cannot be altered in purpose without due legal process.

They also relied on the judgement in Philip George v. State of Kerala [2014 (2) KLT 116] stating that the restrictions on land use were statutory, not contractual, and must be upheld in public interest. The petitioners maintained that respondents 3 and 5, being the statutory authorities for enforcing land assignment rules, had failed to prevent illegal conversions. Additionally, the 6th respondent Society, the original assignee, took no steps to prevent the misuse.

Citing Bangalore Medical Trust v. B.S. Mundappa [AIR 1991 SC 1902], the petitioners argued that executive inaction in contravention of legal provisions raises questions of accountability. They also referred to T. Damodhar Rao v. Special Officer, Municipal Corporation of Hyderabad [AIR 1987 AP 171], to affirm that planning declarations are legally binding and enforceable.

Further reliance was placed on Mahindra Holidays and Resorts v. State of Kerala [2019(3) KHC 233] and Haridas R. v. State of Kerala [2016 (5) KHC 615], where the Court held that the original object of public land assignment binds subsequent transferees as well.

In response, the 1st respondent supported the position that the land was assigned solely for residential use. The 2nd respondent GCDA stated that it had no role as Giri Nagar did not fall under its scheme. The 4th respondent Corporation contended it had authority to issue permits under the Town Planning Scheme and had granted commercial permits accordingly.

The 6th respondent admitted the residential nature of the assignment and terms of the sale deeds. It acknowledged the construction of 279 residential buildings on 33.138 acres and affirmed that allottees were required to use the properties solely for residential purposes. It also confirmed the remission of full land value to the government.

The petitioners insisted that ongoing violations had caused congestion, loss of privacy, pollution, and insecurity in the colony, thereby infringing on their rights under Article 21 of the Constitution. Reliance was placed on M.C. Mehta v. Union of India [(2006) 3 SCC 399] to argue that official apathy enabling illegal use undermines the rule of law.

The Court observed, "Going by Ext.P5, it can be seen that the lands allotted by the Government were on the express terms that, the same shall only be used for the purpose of constructing residential buildings for the members of the Society and it shall be utilised for the said purpose within a period of two years."

It was recorded that, "Ext.P6 sale deed stipulates that the vendee shall use the land and building for residential purposes and shall not do or cause to be done anything likely to cause danger, discomfort, obstruction, annoyance or nuisance to other residents of the colony."

"The Vendee shall not sell or otherwise dispose of the plot to anyone unless that person is or becomes a member of the vendor society and without intimation to the vendor society," the Court quoted further, noting that this created enforceable conditions.

The Court stated, "Residents of Giri Nagar Colony, whether original allottees or transferees from the original allottees, are bound by the terms of assignment, that their plots which were assigned as house plots cannot be altered for the purpose of allotment."

In examining the conduct of the authorities, the Court recorded: "Respondents 2 to 4 did not scrutinise the purpose of the building permits or verify violations of the patta conditions. Similarly, respondents 3 and 5 did not care to prevent the illegal conversions."

Regarding statutory obligations, it observed, "The restriction imposed is one through a Statute and not through a contract. Such restrictions have to be complied in the public interest."

"All such grants are under the provisions of Land Assignment Act and Rules with the specific restriction that the plots shall be utilised for residential purpose alone. The change of use is impermissible."

On municipal authorities’ powers, the Court recorded: "The official respondents are indiscriminately granting permits, licences, permission for conversion of user, etc., without proper application of mind and also without verifying the records as to whether such conversion is permissible under the provisions of the original assignment."

The Court quoted extensively from precedent, noting in R.K. Mittal v. State of U.P. [AIR 2012 SC 389], "The Master Plan and the zonal plan specify the user as residential and therefore these plots cannot be used for any other purpose. The plans have a binding effect in law."

The Court, upon concluding that the prayers in the writ petition could not be granted, nonetheless issued a strong caution regarding the residential character of the Giri Nagar Housing Colony. It held:

"On the aforementioned observations, I deem that the prayer sought in the writ petition cannot be granted, nor are those contentions worth warranting the exercise of discretion under Article 226 of the Constitution of India. Accordingly, the prayers sought in the writ petition cannot be entertained."

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However, the Court made it clear that the dismissal of the writ petition was not to be construed as approval for commercial conversion. It stated: "The decline of the prayers in the writ petition will not be a flag off to an enmassed conversion to commercial occupancy from residential occupancy, but a full stop."

"This dismissal is only meant not to set the clock back. The Government, as well as the Cochin Corporation, shall be vigilant against further conversion of residential occupancy to commercial occupancy, which will affect the basic nature of residential occupancy area and will affect their right to have a decent life under Article 21 of the Constitution of India."

The Court added: “The Government, as well as the Cochin Corporation, shall be vigilant against further conversion of residential occupancy to commercial occupancy, which will affect the basic nature of residential occupancy area and will affect their right to have a decent life under Article 21 of the Constitution of India. Any future application for converting the residential occupancy to a commercial nature shall be viewed accordingly."

Accordingly, the Writ Petition was dismissed. In light of this finding, the connected Contempt Case was also closed.

 
Case Title: P. Kesavan v. State of Kerala & Others
Neutral Citation: 2025: KER:33192
Case Number: WP(C) No. 1816 of 2015 and Con. Case(C) No. 751 of 2022
Bench: Justice: P.M. Manoj

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