IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN
FRIDAY, THE 1ST DAY OF JULY 2022 / 10TH ASHADHA, 1944
WP(C) NO. 25950 OF 2021
PETITIONER:
DR.K.P.AYYAPPAN
AGED 77 YEARS
S/O.PADMANABHAN, MANAGING DIRECTOR, VENAD
HOSPITAL, NEDUMANGAD, THIRUVANANTHAPURAM-695541.
BY ADVS.
G.RANJU MOHAN
M.SANTHI (K/868/2011)
RESPONDENTS:
1 SECRETARY TO GOVERNMENT
LOCAL SELF GOVERNMENT DEPARTMENT, SECRETARIAT,
TRIVANDRUM-695001.
2 NEDUMANGAD MUNICIPALITY
REPRESENTED BY ITS SECRETARY, NEDUMANGAD,
TRIVANDRUM-695541.
3 THE REVENUE DIVISIONAL OFFICER,
CIVIL STATION, KUDAPPANAKUNNU,
THIRUVANANTHAPURAM-695043.
4 VILLAGE OFFICER
VILLAGE OFFICE, NEDUMANGAD,
THIRUVANANTHAPURAM-695541.
BY ADV SHRI.R.B.RAJESH, SC, NEDUMANGAD
MUNICIPALITY
OTHER PRESENT:
SMT.DEEPA NARAYANAN, SR.GP
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR
ADMISSION ON 01.07.2022, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
W.P.(C).No.25950/2021
2
P.V.KUNHIKRISHNAN, J.
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W.P.(C).No.25950 of 2021
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Dated this the 01st day of July, 2022
JUDGMENT
This writ petition is filed with following prayers: i. A Issue a writ of Certiorari or other appropriate writ order or direction to quash Ext.P6, Ext.P7, Ext.P9 & Ext P11.
ii. Issue a writ of Mandamus or other appropriate writ order or direction directing the 2nd respondent to issue building permit for the construction of 1st Floor of the building of the petitioner without insisting for an application under section 27 A of the Kerala Conservation of Wetland and Paddy land Act, 2008.
iii. Declare that an application u/s Section 27 A of the Conservation of Wetland and Paddy land Act, 2008 is not necessary for granting Ext.P3 building permit.
W.P.(C).No.25950/2021 3 iv. Such other or further orders as their Lordships may deem fit and proper in the interest of justice.
(SIC)
2. The petitioner is the absolute owner in possession of 28.90 Ares of property comprised in resurvey no.791/13 and Re Sy.No.791/14 in Block No.36 of Karipoor Village, Thiruvananthapuram. It is the case of the petitioner that the property of the petitioner was converted from Nilam to Purayidam much before the purchase of the property. But the category of the above property is shown as Nilam in the BTR. The above property is not included in the data bank and remains as unnotified land. During the year 2002, the petitioner obtained building permit from the 2 nd respondent municipality for the construction of a hospital building as evident by Ext.P1. The petitioner obtained extension of Ext.P1 permit for a period of 3 years. But as the petitioner could not start the work of first floor within that time, the permit for the work of first floor was again extended further for a period of 3 years. But due to huge financial stringency, the petitioner could not complete the work of first floor within that extended W.P.(C).No.25950/2021 4 period. It is the case of the petitioner that he is conducting the said hospital for the past 20 years and now due to the lack of space, the petitioner is constrained to extend the hospital building further. So the petitioner approached the 2 nd respondent Municipality seeking permit for construction of first floor in the existing building which was actually included in the initial Ext.P1 permit for construction itself. The 2 nd respondent issued a communication stating that as the petitioner's property is shown as Nilam in the Revenue Records and not included in the data bank, the petitioner should approach the 3rd respondent and submit an application under Section 27(A) of the Kerala Conservation of Wetland and Paddy land Act, 2008 (for short, the Act 2008). The Act 2008 came into force only in the year 2011 and the land in question was converted much prior to the enactment. Hence this writ petition is filed seeking an order to quash Ext.P6, Ext.P7, Ext.P9 and Ext.P11 and for a declaration that an application u/s Section 27 A of the Act 2008 is not necessary for granting Ext.P3 building permit.
3. Heard the learned counsel for the petitioner and W.P.(C).No.25950/2021 5 the learned Government Pleader.
4. Admittedly the petitioner submitted an application for building permit much prior to the date on which the Act 2008 came into force. Ext.P1 is the initial building permit which is dated 23.11.2002. Ext.P3 is the application for fresh building permit submitted by the petitioner. In Cheranelloor Grama Panchayat v. Jose Thattil [2020 (5) KHC 669], this Court observed that the land described as nilam in BTR and not included in the data bank and the building permit issued prior to 30.12.2017, Section 27A of the Act 2008 which came into force on 30.12.2017 is not applicable to building permits granted prior to the said date. In the light of the same, prayers in the writ petition are to be allowed.
Therefore, this writ petition is allowed in the following manner:
1. Exts.P6, P7, P9 and P11 are set aside.
2. The 2nd respondent is directed to issue building permit for the construction of the first floor of the building of the petitioner without insisting for an application under Section 27A of the Kerala Conservation of Paddy Land and W.P.(C).No.25950/2021 6 Wetland Act, 2008, as expeditiously as possible, at any rate, within one month from the date of receipt of a copy of this judgment.
sd/-
P.V.KUNHIKRISHNAN
JV JUDGE
W.P.(C).No.25950/2021
7
APPENDIX OF WP(C) 25950/2021
PETITIONER EXHIBITS
Exhibit P1 TRUE COPY OF THE BUILDING PERMIT DATED
23.11.2002.
Exhibit P2 TRUE COPY OF THE COMPLETION
CERTIFICATE OF THE BUILDING SHOWING PARTIAL COMPLETION DATED 25.11.02. Exhibit P3 TRUE COPY OF THE APPLICATION FOR BUILDING PERMIT FILED BY THE PETITIONER AS TP 1/12668/2020 DATED 01.12.2020.
Exhibit P4 TRUE COPY OF THE NOTICE DATED 29.01.2021 ISSUED BY THE 2ND RESPONDENT.
Exhibit P5 TRUE COPY OF THE REVISED APPLICATION SUBMITTED BY THE PETITIONER.
Exhibit P6 TRUE COPY OF THE COMMUNICATION DATED 31.03.2021.
Exhibit P7 TRUE COPY OF THE COMMUNICATION DATED 17.04.2021.
Exhibit P8 TRUE COPY OF THE REPLY SUBMITTED BY THE PETITIONER DATED 30.04.2021.
Exhibit P9 TRUE COPY OF THE REPLY SUBMITTED BY THE 2ND RESPONDENT TO EXT.P8 DATED 14.05.2021.
Exhibit P10 TRUE COPY OF THE REFERENCE FILED BY THE PETITIONER DATED 24.06.2021.
Exhibit P11 TRUE COPY OF THE ORDER DISMISSING EXT.P10 REFERENCE, DATED 30.09.2021. Exhibit P12 TRUE COPY OF THE CIRCULAR NO.994733/R.A 1/2016 ISSUED BY THE LSGD(R.A) DATED 22.12.2016.