IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE N.NAGARESH
THURSDAY, THE 9TH DAY OF JUNE 2022 / 19TH JYAISHTA, 1944
WP(C) NO. 4900 OF 2021
PETITIONER
NIDHINA
AGED 34 YEARS
W/O. ABHILASH V, VALAPPIL HOUSE, KARUVISSERY
P.O, KOZHIKODE DISTRICT.
BY ADVS.
R.BINDU (SASTHAMANGALAM)
SRI.PRASANTH M.P
RESPONDENTS
1 KOZHIKODE CORPORATION
REPRESENTED BY ITS SECRETARY, KOZHIKODE -
673001.
2 THE SECRETARY
KOZHIKODE CORPORATION, KOZHIKODE - 673001.
3 THE REVENUE DIVISIONAL OFFICER
KOZHIKODE, PIN - 673001
4 STATE OF KERALA
REPRESENTED BY THE SECRETARY TO GOVERNMENT,
LOCAL SELF GOVERNMENT INSTITUTIONS, GOVERNMENT
SECRETARIAT, THIRUVANANTHAPURAM, PIN - 695001.
BY ADVS.
SMT.BINDUMOL JOSEPH
SRI.B.S.SYAMANTHAK
OTHER PRESENT:
SMT.SURYA BINOY B SR.GP
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR
ADMISSION ON 09.06.2022, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
W.P.(C) No. 4900 of 2021 :2:
JUDGMENT
Dated this the 9th day of June, 2022 The petitioner, who is owner in possession of 1.5 cents of land comprised in Re-Survey No.54/1 of Vengeri Village, Kozhikode Taluk, has approached this Court seeking to quash Ext.P2 and direct the respondents to allow the application for building permit dated 20.3.2018 and grant permission to the petitioner for construction of a commercial building as sought for.
2. The petitioner states that he is the absolute owner in possession of 1.5 cents of land comprised in Re-Survey No.54/1 of Vengeri Village in Kozhikode District. The property was acquired as per Ext.P1 settlement deed. Earlier, the petitioner wanted to construct a building and made application for building permit. The said application was rejected.
3. The petitioner thereupon approached this Court filing W.P(C) No.955/2015. This Court, as per Ext.P3 judgment, W.P.(C) No. 4900 of 2021 :3: granted positive directions to the respondents to grant Building Permit, after affording an opportunity of hearing to the petitioner, contends the petitioner.
4. Now, the petitioner wants to demolish an existing building and construct a new building. The petitioner therefore submitted application for building permit. The application submitted for building permit stands returned as per Ext.P2. In Ext.P2 notice issued by the Secretary to the Municipal Corporation, the Secretary has indicated seven defects in respect of the application. First of the defects noted is that the land is a paddy land in the title deed and therefore commercial building exceeding area of 40 square metres cannot be permitted to be constructed in the land.
5. The learned counsel for the petitioner urged that Ext.P2 is illegal and unsustainable. The 2 nd respondent ought to have granted permission for construction of the commercial building in the very same property since this Court had earlier permitted the petitioner to carry out the constructions. The 2nd respondent ought to have found that W.P.(C) No. 4900 of 2021 :4: though the property is described as 'Nilam' in Revenue records, the property was actually converted to garden land more than 40 years ago and a building existed there, for more than 40 years. The counsel for the petitioner further pointed out that there are other existing buildings situated in the very same Survey number.
6. The Standing Counsel for respondents 1 and 2 entered appearance and resisted the writ petition. The Standing Counsel pointed out that the application now made by the petitioner is for a fresh permit. Section 27A(6) of the Kerala Conservation of Paddy Land and Wetland Act, 2008 provides that no permission under Section 27A will be necessary for constructing a commercial building having a maximum area of 40 square metres in a maximum extent of 2.02 Ares of land. The building permit application submitted by the petitioner is for a commercial building exceeding 40 square metres. As the application was submitted in the year 2018, the mandate of Section 27A would apply to the application for building permit submitted by the petitioner. W.P.(C) No. 4900 of 2021 :5: Furthermore, the respondents have pointed out other defects also in the building permit. In view of the said defects, building permit is not liable to be granted.
7. I have heard the learned counsel for the petitioner, the learned Standing Counsel for respondents 1 and 2 and the learned Government Pleader representing respondents 3 and 4.
8. At the time of hearing, the counsel for the petitioner submitted that if Section 27A(6) is the difficulty for respondents 1 and 2 in granting building permit, the petitioner is ready to construct the building strictly in accordance with the Kerala Municipality Building Rules.
9. In view of the stand now taken by the parties on either side, this Court feels that no adjudication of issues involved in the writ petition is necessary in this writ petition.
In the result, the writ petition is disposed of permitting the petitioner to make fresh application for Building Permit adhering to the mandate of Section 27A of the Kerala Conservation of Paddy Land and Wetland Act, 2008. If such W.P.(C) No. 4900 of 2021 :6: an application is made by the petitioner, respondents 1 and 2 shall consider the same and pass appropriate orders thereon, without insisting for any orders from the Revenue Divisional Officer.
Sd/-
N. NAGARESH, JUDGE smm/ 13.06.2022 W.P.(C) No. 4900 of 2021 :7: APPENDIX OF WP(C) 4900/2021 PETITIONER EXHIBITS EXHIBIT P1 TRUE COPY OF THE SETTLEMENT DEED DATED 22.09.2014.
EXHIBIT P2 TRUE COPY OF THE ORDER ISSUED BY THE 2ND RESPONDENT DATED 16.04.2018.
EXHIBIT P3 TRUE COPY OF THE JUDGMENT PASSED BY THIS HON'BLE COURT IN WP(C) NO.
955/2015 DATED 19.06.2015.
EXHIBIT P4 TRUE COPY OF THE REPRESENTATION SUBMITTED BY THE PETITIONER BEFORE THE 2ND RESPONDENT DATED 06.06.2019.