Anand Raman Menon vs Revenue Divisional Officer
2021 Latest Caselaw 7744 Ker

               IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                PRESENT

              THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR

     FRIDAY, THE 05TH DAY OF MARCH 2021 / 14TH PHALGUNA, 1942

                       WP(C).No.5218 OF 2021(B)


PETITIONER:

               ANAND RAMAN MENON
               S/O.LATE RAMAN MENON, MOOTHEDATH HOUSE,
               KCRA HOUSE NO.16,
               KAMATH LANE,
               POOTHOLE P.O., THRISSUR-680004.

               BY ADVS.
               SRI.SANTHOSH MATHEW
               SRI.ARUN THOMAS
               SRI.JENNIS STEPHEN
               SRI.VIJAY V. PAUL
               SMT.KARTHIKA MARIA
               SMT.VEENA RAVEENDRAN
               SRI.ANIL SEBASTIAN PULICKEL
               SMT.DIVYA SARA GEORGE
               SHRI.ANANDAPADMANABHAN UNNIKRISHNAN
               SMT.JAISY ELZA JOE

RESPONDENTS:

      1        REVENUE DIVISIONAL OFFICER
               FIRST FLOOR,
               CIVIL STATION,
               CIVIL LINES RD,
               AYYANTHOLE,
               THRISSUR,
               KERALA-680003.

      2        THRISSUR CORPORATION,
               THRISSUR CORPORATION OFFICE,
               THEKKINKADU MAIDAN,
               THRISSUR-680001,
               REPRESENTED BY ITS SECRETARY.

      3        THE THAHSILDAR,
               THRISSUR TALUK OFFICE,
               OPP. THRISSUR TOWN HALL,
               CHEMBUKKAVU,
               THRISSUR-680020.
 WP(C).No.5218 OF 2021

                            2

     4     THE LOCAL LEVEL MONITORING COMMITTEE,
           REPRESENTED BY ITS AGRICULTURAL OFFICER,
           OFFICE OF PRINCIPAL AGRICULTURAL OFFICER,
           UDAYANAGAR, CHEMBUKAVV, THRISSUR,
           KERALA-680005.

           BY ADVS:
           SHRI. SANTHOSH P.PODUVAL, SC, THRISSUR CORPN.
           SRI.K.J.MANURAJ, GP

     THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD
ON 05.03.2021, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
 WP(C).No.5218 OF 2021

                                  3




                   W.P.(C) No.5218 of 2021
            -----------------------------------------------


                         JUDGMENT

Petitioner holds a land within the limits of the

second respondent Corporation. There exists a single storied

building in the said land having a plinth area of 106.39 square

meters. Petitioner intends to put up a new building in the

place of the existing building. He preferred an application

before the Corporation for building permit for the said

purpose. The proposal of the petitioner is for construction of a

multi storied building exceeding 120 square meters in area.

On the said application, the petitioner was issued Ext.P5

communication by the competent authority of the

Corporation. It is stated in Ext.P5 communication that since

the land of the petitioner is classified as 'Nilam' in the revenue

records, the petitioner is entitled to construct only a building

having a plinth area less than 120 square meters. Ext.P5 is

under challenge in the writ petition. WP(C).No.5218 OF 2021

2. Heard the learned counsel for the petitioner

as also the learned Standing Counsel for the second

respondent.

3. The relevant portion of Ext.P5 reads thus: "ടട സലല അലഗഗകത മമസർ പമനടൽ Residential Zone ൽ ഉൾപപടന. കകൈവശമവകൈമശ രരഖയടൽ നടലല എന കൈമണന. സ.ഉ .(പട) നമർ 85/2018/റവനന്യൂ തഗയതട 15/12/2018 പ്രകൈമരല 4.04 ആർ ഭമടയടൽ 120 ച.മഗ വടസതടയള വഗടട നടർമടകനതടരനമ പനർ നടർമടകനതടരനമ വടപലഗകൈരടകനതടരനമ സമധടകകൈയള. ആയതടനമൽ area നടജപപടതട പമൻ സമർപടകകൈരയമ RDO യടൽ നടനള തരല മമറടയ ഉതരവട ഹമജരമകകൈരയമ പചരയണതമണട. അലമത പകല തമങൾ സമർപടച അരപകയടൽ തടർനടപടടകൈൾ സസഗകൈരടകമൻ കൈഴടയമതതടനമൽ ഇനടപയമരറടയടപടലമപത തമങളപട അരപക നടരപമധടകൈല നടരസടകനതമപണന ഇതടനമൽ അറടയടകന."

It is evident from the extracted portion of the order that the

stand of the Corporation is that as the land of the petitioner is

classified as 'Nilam' in the revenue records, he is entitled to

put up in the said land only a building having a plinth area less

than 120 square meters. The said restriction is one imposed

in terms of Section 27A of the Kerala Conservation of Paddy

Land and Wetland Act, 2008(the Act). In other words, the

stand of the Corporation is that if the petitioner wants to

construct a building exceeding a plinth area of 120 square

meters, he has to obtain permission under Section 27A of the

Act.

WP(C).No.5218 OF 2021

4. As noted, there is no dispute to the fact that

there exists a building in the land. The certificate issued by

the Corporation in this regard is part of the records as

Ext.P6(A). The question as to whether the provisions of

Section 27A could be pressed into service in respect of such a

land has been considered by this court in Global Education

Trust v. State of Kerala, 2020(6) KLT 738 and it was held

that if the area of the proposed construction does not exceed

the area utilised for construction of the existing building,

compliance of the provisions of Section 27A of the Act cannot

be insisted. Paragraph 9 of the judgment reads thus:

"9. Therefore, I am of the considered view that S.27A of Act 28 of 2008 cannot be insisted in respect of a land already utilised by constructing building prior to incorporation of 27A of Act 28 of 2008 even without obtaining permission under the Kerala Land Utilisation Order. However, it has to be verified from such application for building permit whether the proposed construction or reconstruction exceeds the appurtenant land covered by existing construction. If any construction or reconstruction is proposed beyond the utilisation of the land already done, that has to be regularised by submitting application under S.27A of Act 28 of 2008. The rigor of S.27A of Act 28 of 2008 cannot be insisted upon the land which has been WP(C).No.5218 OF 2021

utilised by constructing buildings with valid permit or through the process of law before incorporation of S.27 A of Act of 28 of 2008."

In the light of the decision aforesaid, Ext.P5 is

quashed and the writ petition is disposed of directing the

competent authority of the second respondent Corporation to

consider the application of the petitioner for building permit

referred to in Ext.P5 afresh and grant the building permit

sought by the petitioner, if the application is otherwise in

order and if the area of the proposed construction does not

exceed the area utilised for construction of the existing

building, without insisting compliance of the provisions of

Section 27A of the Act. This shall be done within two weeks

from the date of receipt of a copy of the judgment. It is made

clear that in the matter of ascertaining the area of the

proposed building, the area of the upper floors of the proposed

building shall not be reckoned. All other issues are left open.

Sd/-

P.B.SURESH KUMAR, JUDGE.

PV WP(C).No.5218 OF 2021

APPENDIX PETITIONER'S EXHIBITS:

EXHIBIT P1 TRUE COPY OF THE TAX RECEIPTS DATED 16.06.2020 SHOWING THE REMITTANCE OF TAX BY THE 1ST PETITIONER.

EXHIBIT P2 TRUE COPY OF THE PROPERTY TAX RECEIPT DATED 23.06.2020.

EXHIBIT P3 TRUE COPY OF THE LOCATION CERTIFICATE DATED 15.05.2017.

EXHIBIT P4 PHOTOCOPY OF THE PHOTO OF THE BUILDING SHOWING AN EXISTING RESIDENTIAL BUILDING IN THE SAID LAND.

EXHIBIT P4(A) COPY OF THE SITE PLAN SHOWING THE EXISTING CONSTRUCTION WITHIN THE ENTIRE EXTENT OF PROPERTY.

EXHIBIT P5 TRUE COPY OF THE NOTICE DATED 21.12.2020 ISSUED BY THE 2ND RESPONDENT STATING THAT THE PROPERTY OF THE PETITIONER IS INCLUDED AS RESIDENTIAL ZONE IN THE MASTER PLAN.

EXHIBIT P6 TRUE COPY OF THE DATA BANK WHERE IN THE PROPERTY IS NOT INCLUDED.

EXHIBIT P6(A) TRUE COPY OF THE CERTIFICATE DATED 06.01.2021 ISSUED BY THE 2ND RESPONDENT.

EXHIBIT P7 TRUE COPY OF THE FORM A APPLICATION DATED 23.02.2021 SUBMITTED BY THE PETITIONERS TO THE 3RD RESPONDENT WITHOUT ANNEXURES.