Abida M.K vs The Nilamel Grama Panchayath
2021 Latest Caselaw 4801 Ker

                IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                PRESENT

              THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR

    WEDNESDAY, THE 10TH DAY OF FEBRUARY 2021 / 21ST MAGHA,1942

                        WP(C).No.9454 OF 2018(F)


PETITIONER:

                ABIDA M.K.
                W/O.K.S.SALIM, LAILA MANZIL,KAITHODE, KOLLAM.691 535.

                BY ADV. SRI.P.K.RAVISANKAR

RESPONDENT/S:

      1         THE NILAMEL GRAMA PANCHAYATH
                REPRESENTED BY ITS SECRETARY,
                NILAMEL.P.O.,
                KOLLAM.691 535.

      2         THE SECRETARY
                NILAMEL GRAMA PANCHAYAT,NILAMEL.P.O.,
                KOLLAM.691 535.

      3         THE LOCAL LEVEL MONITORING COMMITTEE
                NILAMEL GRAMA PANCHAYAT,REPRESENTED BY ITS CONVENER,
                NILAMEL.P.O., KOLLAM.691 535,(AGRICULTURAL OFFICER,
                NILAMEL, KOLLAM).

      4         THE DISTRICT LEVEL MONITORING COMMITTEE
                KOLLAM, REPRESENTED BY ITS CHAIRMAN/REVENUEDIVISIONAL
                OFFICER, OFFICE OF THE REVENUEDIVISIONAL OFFICER,
                KOLLAM.691 001.

      5         TAHSILDAR
                KOTTARAKARA TALUK, KOLLAM.691 001.

                R1 BY ADV. SRI.T.M.ABDUL LATHEEF
                R3 BY ADV. SMT. G. RANJITA, GOVERNMENT PLEADER



     THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD          ON
10.02.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 WP(C).No.9454 OF 2018

                                    2




                           W.P.(C) No.9454 of 2018
                     ----------------------------------------------


                                 JUDGMENT

Petitioner owns 2.5 cents of land in Nilamel Village. The land of

the petitioner is situated within the limits of the first respondent Panchayat.

The petitioner constructed the cellar portion of a multi storied building in the

said land without obtaining building permit from the Panchayat. Later, she

applied to the Panchayat for regularisation of the construction. It is stated

that on the application of the petitioner, the Panchayath has regularised the

construction and is collecting property tax for the cellar portion of the

building from the year 2013 onwards. Later, without obtaining building

permit from the Panchayat, the petitioner has constructed two additional

floors also to the existing cellar portion of the building. Thereupon, she

preferred Ext.P7 application for regularisation of the said additional

construction as well. On Ext.P7 application, the petitioner was issued Ext.P9

communication by the second respondent, the Secretary of the first

respondent Panchayath, informing her that since the land of the petitioner is

shown in the revenue records as "Nilam", she needs to obtain permission

from the competent authority in terms of Act 29 of 2018 for the purpose of

seeking regulisaration of the construction. Ext.P9 is under challenge in the

writ petition.

WP(C).No.9454 OF 2018

2. Heard the learned counsel for the petitioner and the

learned counsel for respondents 1 and 2.

3. As noted, the structures sought to be regularised in terms

of Ext.P7 application are the structures constructed on the top of the existing

cellar portion of the building. The Panchayat does not dispute the fact that

the cellar portion of the building was though unauthorised initially, the same

has been regularised later. In other words, the building sought to be

regularised is one constructed on a land where there exists a building which

is authorised by the Panchayath. Act 29 of 2018 is a statute in terms of

which the concept of "unnotified land" and a prohibition against construction

on such lands without the permission of the competent authority, was

introduced to the Kerala Conservation of Paddy Land and Wetland Act, 2008

(the Act). Act 29 of 2018 came into force with effect from 31.12.2017. In

Mahin v. Keezhmad Grama Panchayat, 2020 (2) KLT 478, this Court held

that if a building authorised by the local body exists on a land falling within

the definition of "unnotified land" in terms of the provisions of the Act as on

the date of the coming into force of Act 29 of 2018, compliance of the

provisions contained in Act 29 of 2018 cannot be insisted in respect of such

land. Of course, the building that was existing in the land of the petitioner

when Act 29 of 2018 came into force is not a building that was constructed

after obtaining building permit from the Panchayat. Nevertheless, as noted

above, by regularising that construction, the Panchayat has authorised the

said building. If a local body regularises an unauthorised construction and WP(C).No.9454 OF 2018

thereby authorises the building, there cannot be any distinction between

such buildings and the building constructed after obtaining requisite building

permit from the local body. If that be so, the principle laid down by this

Court in Mahin applies squarely to the facts of the present case also.

4. In the course of the arguments, the learned counsel for

respondents 1 and 2 pointed out that there are a few defects in Ext.P7

application. In this context, the learned counsel for the petitioner submitted

that the petitioner is prepared to cure the defects, if any, in the application.

In the circumstances, the writ petition is allowed, Ext.P9 is

quashed and the second respondent is directed to consider and pass orders

on Ext.P7 application in accordance with law, after affording the petitioner

an opportunity of hearing, without taking note of the provisions contained in

Act 29 of 2018. This shall be done within two months. In the meanwhile, the

second respondent is free to issue a communication to the petitioner

indicating the defects, if any, in the application and in that event, the

petitioner shall cure the same within a week from the date of receipt of such

communication.

(SD/-)

P.B.SURESH KUMAR, JUDGE.

rps WP(C).No.9454 OF 2018

APPENDIX PETITIONER'S EXHIBITS:

EXHIBIT P1 A TRUE COPY OF THE POSSESSION CERTIFICATE DATED 07.07.2015, ISSUED BY THE VILLAGE OFFICER, NILAMEL.

EXHIBIT P2 A TRUE COPY OF THE LAND TAX RECEIPT DATED 08.08.2017, ISSUED FROM THE VILLAGE OFFICE, NILAMEL.

EXHIBIT P3 A TRUE COPY OF THE RELEVANT PAGE OF THE DRAFT DATA BANK PERTAINING TO THE PETITIONER'S PROPERTY.

EXHIBIT P4 A TRUE COPY OF THE MAHAZAR PREPARED BY THE VILLAGE OFFICER, NILAMEL DATED 28.04.2008.

EXHIBIT P5 A TRUE COPY OF THE REPORT DATED 14.05.2008 PREPARED BY THE ADDITIONAL TAHSILDAR, KOTTARAKARA.

EXHIBIT P6 TRUE COPY OF THE BUILDING TAX RECEIPT NO.11603101576 DATED 07.11.2016.

EXHIBIT P6(A) TRUE COPY OF THE BUILDING TAX RECEIPT NO.11603101577 DATED 07.11.2016.

EXHIBIT P6(B) TRUE COPY OF THE BUILDING TAX RECEIPT NO.11603101578 DATED 07.11.2016.

EXHIBIT P7 A TRUE COPY OF THE APPLICATION FOR REGULARISATION SUBMITTED BY THE PETITIONER DATED 23.05.2017.

EXHIBIT P8 A TRUE COPY OF THE BUILDING PLAN.

EXHIBIT P9 A TRUE COPY OF THE COMMUNICATION DATED 08.02.2017, ISSUED BY THE 1ST RESPONDENT PANCHAYAT.

EXHIBIT P10 A TRUE COPY OF THE COMMUNICATION DATED NO.612438/R.A1/2016/L.S.G.D DATED 25.05.2016.

EXHIBIT P11 A TRUE COPY OF THE REMINDER LETTER SENT BY THE PETITIONER DATED 26.02.2018.

WP(C).No.9454 OF 2018

EXHIBIT P12 TRUE COPY OF THE RELEVANT PAGES OF KERALA GAZETTE EXTRAORDINARY NO.2819 DATED 18.11.2019.

RESPONDENT'S EXHIBITS:

EXHIBIT R.2(A) TRUE COPY OF THE POSSESSION CERTIFICATE DATED 07-07-2010 ISSUED BY THE VILLAGE NILAMEL.

EXHIBIT R.2(B) TRUE COPY OF THE RELEVANT EXTRACT OF THE BUILDING TAX REGISTER.

EXHIBIT R.2(C) TRUE COPY OF THE APPLICATION DATED 23.05.2017.

EXHIBIT R.2(D) TRUE COPY OF THE LETTER DATED 27.07.2017.

                 //TRUE COPY//          PA TO JUDGE