Raphel vs Nenmanikkara Gramapanchayath
2021 Latest Caselaw 15466 Ker

         IN THE HIGH COURT OF KERALA AT ERNAKULAM
                            PRESENT
              THE HONOURABLE MR.JUSTICE N.NAGARESH
   FRIDAY, THE 23RD DAY OF JULY 2021 / 1ST SRAVANA, 1943
                    WP(C) NO. 16326 OF 2020
PETITIONER:

         RAPHEL,
         AGED 56 YEARS,
         S/O.VAREED, VELIYATHUKUDY HOUSE,
         THALORE P.O., THRISSUR DISTRICT.

         BY ADV V.M.KRISHNAKUMAR


RESPONDENTS:

    1    NENMANIKKARA GRAMAPANCHAYATH,
         REPRESENTED BY ITS SECRETARY,
         NENMANIKKARA,
         THRISSUR DISTRICT, PIN-680 301.
    2    SECRETARY,
         NENMANIKKARA GRAMAPANCHAYATH,
         NENMANIKKARA,
         THRISSUR DISTRICT, PIN-680 301.

         BY ADVS.
         SRI.C.HARIKUMAR, SC, NENMANIKKARA GRAMA
         PANCHAYATH
         SHRI.ANAND GOKULDAS
         SRI.RENJITH RAJAPPAN

     THIS WRIT PETITION       (CIVIL) HAVING COME UP       FOR
ADMISSION ON 23.07.2021,      THE COURT ON THE SAME        DAY
DELIVERED THE FOLLOWING:
 WP(C) No.16326/2020
                                :2 :




                        JUDGMENT

~~~~~~~~~

Dated this the 23rd day of July, 2021

The petitioner seeks to quash Ext.P6 and to direct

the respondents to accept the regularisation application from

the petitioner for regularising 2 nd floor of the petitioner's

building.

2. The petitioner states that he is in possession of

6.004 Ares of land in Nenmanikkara Village. The property is

abutting a National Highway. When the petitioner applied for

Building Permit to construct a building, the Panchayat

authorities intimated that the land is paddy land and no

building permit can be granted in view of the provisions of the

Kerala Conservation of Paddy Land and Wetland Act, 2008.

The petitioner states that the land where the petitioner

proposes construction is not a paddy land and that in the Data WP(C) No.16326/2020

Bank also the land is described as converted land.

3. The petitioner thereupon filed WP(C)

No.21773/2015. By Ext.P2 judgment, this Court directed the

Panchayat to conduct a local inspection and to ascertain the

present lie of the land and surrounding properties. The

respondents were directed to consider the application and

pass positive orders granting building permit. Thereupon, the

petitioner was granted Ext.P3 building permit for construction

of three floors. Over and above the basement floor, ground

floor and first floor as permitted in Ext.P3, the petitioner

constructed one additional floor. The petitioner was granted

building number for the permitted three floors.

4. The petitioner approached the 1st respondent-

Grama Panchayat submitting a revised plan and requesting

regularisation of additional construction. The Panchayat has

issued Ext.P6 communication stating that for construction of

additional floor, the petitioner has to obtain orders from the

Local Level Monitoring Committee (LLMC). The petitioner

would submit that the Secretary has sufficient powers under WP(C) No.16326/2020

Section 92 of the Kerala Panchayat Building Rules, 2019 to

regularise the unauthorised construction and hence the

petitioner need not be driven to LLMC to obtain their consent.

5. Heard the learned counsel for the petitioner and the

learned Standing Counsel for respondents 1 and 2.

6. The petitioner has constructed three floors of a

building after obtaining a Building Permit. An additional floor

has been constructed without obtaining Building Permit. Still,

if the said additional floor does not violate Building Rules, the

petitioner may be entitled to regularise the unauthorised

construction. But, the Panchayat authorities have required the

petitioner to get necessary permissions under the Kerala

Conservation of Paddy Land and and Wetland Act, 2008 since

that land is paddy land as per Revenue records and Data

Bank entries.

7. This Court has held in the judgment in Global

Education Trust v. State of Kerala and Others [2020 (6)

KLT 738] that owner of a paddy land with a building

constructed prior to incorporation of Section 27A in the Act, WP(C) No.16326/2020

2008 is not required to obtain an order of regularisation under

Section 27A as a pre-requisite to obtain building permit. The

petitioner would submit that the judgment of this Court in

Leela Santu and another v. Secretary, Kothamangalam

Municipality and others [2020 (4) KLT 1011] also would

render Ext.P6 communication unsustainable.

In the facts and circumstances of the case, the writ

petition is disposed of directing the respondents to reconsider

the application submitted by the petitioner for regularisation of

unauthorised construction in the light of the judgments of this

Court in Global Education Trust (supra) and Leela Santu

and another (supra). Orders in this regard shall be passed

within a period of two months. To enable the respondents to

reconsider the issue, Ext.P6 communication is set aside.

Sd/-

N. NAGARESH, JUDGE

aks/24.08.2021 WP(C) No.16326/2020

APPENDIX OF WP(C) 16326/2020

PETITIONER'S EXHIBITS:

EXHIBIT P1 TRUE COPY OF THE BASIC TAX RECEIPT DATED 03.06.2020 ISSUED BY VILLAGE OFFICE, NENMANIKKARA.

EXHIBIT P1 A TRUE COPY OF THE BASIC TAX RECEIPT DATED 27.07.2020 ISSUED BY VILLAGE OFFICE, NENMANIKKARA.

EXHIBIT P2 TRUE COPY OF THE JUDGMENT IN WPC NO.21773/2015 DATED 19.08.2015.

EXHIBIT P3 TRUE COPY OF THE BUILDING PERMIT ISSUED BY THE PANCHAYATH TO THE PETITIONER DATED 30.01.2016.

EXHIBIT P4            PHOTOGRAPH    SHOWING    THE    COMPLETED
                      BUILDING   OF   THE   PETITIONER    HAVING

BASEMENT FLOOR, GROUND FLOOR PLUS TWO FLOORS.

EXHIBIT P5 TRUE COPY OF THE RECEIPT DATED 10.11.2017 ISSUED BY VILLAGE OFFICE NENMANIKKRA EVIDENCING PAYMENT OF RS.16,200/- AS BUILDING TAX.

EXHIBIT P5 A TRUE COPY OF THE RECEIPT DATED 28.02.2018 ISSUED BY VILLAGE OFFICE NENKANIKKARA EVIDENCING PAYMENT OF RS.16,057/- AS BUILDING TAX.

EXHIBIT P5 B TRUE COPY OF THE BUILDING TAX RECEIPT DATED 14.05.2018 ISSUED BY NENMANIKAKRA VILLAGE.

EXHIBIT P5 C TRUE COPY OF THE RECEIPT DATED 14.05.2018 ISSUED BY VILLAGE OFFICE NENMANIKKARA EVIDENCING PAYMENT OF RS.16,200/- AS TAX.

EXHIBIT P5 D TRUE COPY OF THE RECEIPT DATED 29.10.2018 ISSUED BY VILLAGE OFFICE NENMANIKKARA EVIDENCING PAYMENT OF RS.16,415/- AS TAX.

EXHIBIT P6            TRUE COPY OF LETTER DATED 07.05.2020
                      ISSUED   BY   THE   PANCHAYATH    TO   THE
                      PETITIONER.
 WP(C) No.16326/2020



EXHIBIT P7            TRUE   COPY    OF  THE   LETTER  DATED

23.03.2020 ISSUED BY THE PANCHAYATH TO THE PETITIONER EXHIBIT P8 TRUE COPY OF THE CIRCULAR NO.994733/ R A1/2016/LSGD DATED 22.12.2016

RESPONDENTS' EXHIBITS:

EXHIBIT R1(a) THE TRUE COPY OF THE LETTER ISSUED BY THE SECRETARY OF THE PANCHAYATH TO THE REVENUE DIVISIONAL OFFICER, IRINJALAKKUDA DATED 8.6.2020

SR