Jinesh Koorkkaparambil vs State Of Kerala
2021 Latest Caselaw 20230 Ker

                    IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                        PRESENT
                    THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN
       THURSDAY, THE 30TH DAY OF SEPTEMBER 2021 / 8TH ASWINA, 1943
                              WP(C) NO. 16337 OF 2021
PETITIONER:

                  JINESH KOORKKAPARAMBIL
                  AGED 34 YEARS
                  EDASSERY HOUSE, METHOTTU THAZHAM, NELLIKODE P.O.,
                  KOTTULLI, KUTHIRAVATTOM, KOZHIKODE - 670 316.

                  BY ADV UNNI. K.K. (EZHUMATTOOR)



RESPONDENTS:

       1          STATE OF KERALA
                  REPRESENTED BY SECRETARY TO GOVERNMENT, REVENUE
                  DEPARTMENT, GOVT. SECRETARIATE,
                  THIRUVANANTHAPURAM - 695 001.

       2          SUB COLLECTOR/REVENUE DIVISIONAL OFFICER
                  REVENUE DIVISIONAL OFFICE, KOZHIKODE - 673 020.

       3          VILLAGE OFFICER
                  VILLAGE OFFICE, VALAYANADU, KOZHIKODE - 673 014.

       4          KOZHIKODE MUNICIPAL CORPORATION
                  REPRESENTED BY ITS SECRETARY, BEACH ROAD,
                  KOZHIKODE - 673032.

       5          SECRETARY, KOZHIKODE MUNICIPAL CORPORATION
                  BEACH ROAD, KOZHIKODE - 673 032.

                  BY ADV V.KRISHNA MENON



                  SRI. APPU. P.S GP


THIS       WRIT    PETITION   (CIVIL)   HAVING    COME   UP   FOR   ADMISSION   ON
30.09.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 WP(C) NO. 16337 OF 2021

                                            2


                                     JUDGMENT

This writ petition is filed seeking the following reliefs:

i) Issue a writ of certiorari or any other appropriate writ order calling the records of Ext.P8 dated 6.4.2020 of the 5th respondent and quash the same holding that the same is illegal.

ii) To declare that the petitioner is entitled to get building permit to construct residential cum commercial building in plot bearing Re.Sy no.99/27, in which the 5th respondent already granted Ext.P4 building permit in the year 2000.

iii) To declare that it is not possible to reject the application for building permit demanding the permission under S.27A of Kerala Conservation of paddy and Wet Land Act 2008, on a land in which a building constructed as per legally issued building permit, in view of the decisions of this Hon'ble Court in Global Education Trust Vs State of Kerala 2020(6) KLT 738 and Cheranelloor Grama Panchayath, Ernakulam Vs Joy Thattil 2020(5) KLT 763.

iv) To declare that it is not possible to reject the building permit, on an area identified as residential/commercial area as per the Town planning Act in view of the decisions of this Hon'ble Court in State of Kerala and Others Vs Binu Mathew Chacko and other 2021(1) KLT 232. Issue a writ of mandamus directing the 5 th respondent to issue building permit to the petitioner to construct a residential cum commercial building having 508.33 M2 area.

2. Heard the learned counsel for the petitioner, the learned

Government Pleader as well as the learned counsel appearing for

respondents 4 and 5.

WP(C) NO. 16337 OF 2021

3. It is submitted by the learned counsel for the petitioner that the

petitioner had purchased a property having an extent of 3.80 ares of land

in Survey No.99/27 of Valayanadu Village in Kozhikode Taluk, Kozhikode

District. It is submitted that the property had a residential building even

as on the date when the petitioner purchased the same. It is submitted

that in the year 2000, on an application preferred, Ext.P4 permit was

granted by the Corporation for extension of the building and a building

was constructed as per the permit. It is submitted that Ext.P2 possession

certificate issued to the petitioner by the Village Officer shows the nature

of the property as Thottam. The petitioner had thereafter proposed a

residential cum commercial building in the property with a total build up

area of 508.33 M2. However, the application was rejected by Ext.P8 by the

Corporation stating that the petitioner had to obtain an order under the

Kerala Conservation of Paddy Land and Wetland Act, 2008 (hereinafter

referred to as 'the 2008 Act') for the change of user of the property since

the property is shown as paddy land in the revenue records.

4. The learned counsel for the petitioner submits that since a

building permit had admittedly been issued for a construction of a

residential house in the property as early as in 2000 and since there was a WP(C) NO. 16337 OF 2021

building admittedly existing in the property, there is no merit in the

contention raised by the respondents that the petitioner has to obtain

permission under Section 27A of the 2008 Act before an application for

building permit can be taken. The learned counsel for the petitioner

places reliance on the decisions of this Court in Cheranelloor Grama

Panchayath, Ernakulam Vs Joy Thattil [2020 (5) KLT 763] and Global

Education Trust Vs State of Kerala [2020 (6) KLT 738], in support of his

contentions. It is submitted that the application submitted by the

petitioner for a building permit is therefore liable to be considered by the

5th respondent without reference to the objection raised in Ext.P8. The

learned counsel for the petitioner further submits that Ext.P10

application has been submitted by the petitioner under Form No.6 in

terms of Section 27A of the 2008 Act, the same is also liable to be

considered in accordance with law. However it is submitted that the

consideration for the application for building permit does not have to

await the result of the application preferred by the petitioner under

Section 27A.

5. A statement has been filed on behalf of respondents 4 and 5. It is

submitted that the petitioner had submitted an application for building WP(C) NO. 16337 OF 2021

permit for construction of residential cum commercial building in the

place of an old house in the property. It is stated that Annexure A is the

possession certificate which was produced by the petitioner along with

his application and that the said possession certificate clearly shows the

property as Nancha and not as Thottam as claimed by the petitioner on

the strength of Ext.P2. It is submitted that a clarification with regard to

the type of land is required from the Village Officer. It is further

submitted that no building permit can be issued in respect of property

which is clearly shown as paddy land in the revenue records and that the

fact that a building permit had been issued before the 2008 Act was

amended in 2018, cannot be a reason for the petitioner to insist that a

building permit is liable to be granted to him as sought for. It is further

submitted that according to the approved master plan for the Kozhikode

city, the area where the petitioner's property is situated is a 'Residential

Zone' and that a commercial building in residential zone can be

permitted only if the total area of the building proposed to be

constructed does not exceed 200Sq.m. It is submitted that as per the

application submitted by the petitioner, the proposed construction is of a

commercial building having an extent of 177.05Sq.m and for a residential WP(C) NO. 16337 OF 2021

building having an extent of 331.28Sq.m and that the total build up area

is 508.33 sqm. It is further stated that the request of the petitioner for

building permit can be considered only after the nature of the land is

corrected in the revenue records.

6. Having considered the contentions advanced, I notice that the

only reason stated in Ext.P8 for a non consideration of the application

preferred by the petitioner for building permit is that he has to obtain an

order in terms of the amended provisions of the Kerala Conservation of

Paddy Land and Wetland Act, 2008. This Court in the decisions referred to

by the petitioner has held that where a building permit had already been

granted by a Local Authority there can be no insistence that an

application for a permission for reconstruction of the building will be

considered only after orders are produced in terms of Section 27A of the

2008 Act. In Global Education Trust Vs State of Kerala [2020 (6) KLT 738]

this Court had held as follows:

"9. Therefore, I am of the considered view that Section 27A of Act 28 of 2008 cannot

be insisted in respect of a land already utilised by constructing building prior to

incorporation of S.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 WP(C) NO. 16337 OF 2021

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 utilised by constructing buildings with valid permit or through the

process of law before incorporation of S.27A of Act of 28 of 2008."

The same view has been taken by a Division Bench of this Court in

Cheranelloor Grama Panchayath, Ernakulam Vs Joy Thattil [2020 (5) KLT

763] as well.

7. In the above view of the matter, I am of the opinion that the

application preferred by the petitioner for a residential cum commercial

building requires a reconsideration at the hands of the respondents. In

view of the fact that the master plan has not been produced before me, I

am not entering into any findings as to the zoning as provided in the

master plan or the requirements thereof. However, the decision of this

Court in State of Kerala and Others Vs Binu Mathew Chacko and other

[2021 (1) KLT 232], shall also be taken note of by the 5th respondent while

considering the application. Appropriate orders shall be passed after

considering all relevant aspects of the matter and after considering the WP(C) NO. 16337 OF 2021

contentions to be raised by the petitioner after putting the petitioner on

notice and after hearing an authorised representative of the petitioner,

within a period of six weeks from the date of receipt of a copy of this

judgment.

There will also be a direction to the 2 nd respondent to take up,

consider and pass orders on Ext.P10 application preferred by the

petitioner after considering all relevant aspects of the matter and after

obtaining due reports from the Village Officer within a period of three

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

clear that the result of Ext.P10 application does not have to be awaited by

the 5th respondent for consideration of the application for building

permit submitted by the petitioner.

This writ petition is ordered accordingly.

Sd/-

ANU SIVARAMAN JUDGE SVP WP(C) NO. 16337 OF 2021

APPENDIX OF WP(C) 16337/2021

PETITIONER EXHIBITS

Exhibit P1 TRUE COPY OF THE SALE DEED NO.114/2018 DT.

24/01/2018.

Exhibit P2 TRUE COPY OF THE POSSESSION CERTIFICATE DT.

24/06/2020.

Exhibit P3 TRUE COPY OF THE TAX RECEIPT DT 22/6/2020.

Exhibit P4 TRUE COPY OF THE BUILDING PERMIT DATED 25/2/2000.

Exhibit P5 TRUE COPY OF THE BUILDING TAX FOR DOOR NO.31/1157.

Exhibit P6                TRUE COPY OF THE PHOTOGRAPH OF THE
                          BUILDING.

Exhibit P7                TRUE COPY OF THE PLAN SUBMITTED TO THE
                          CORPORATION.

Exhibit P8                TRUE COPY OF THE REJECTION ORDER DATED
                          6/4/2020.

Exhibit P9                TRUE COPY OF THE CERTIFICATE 23/09/2020
                          ISSUED BY THE AGRICULTURAL FIELD OFFICER,
                          KOZHIKODE.

Exhibit P10               TRUE COPY OF THE APPLICATION DATED
                          1/10/2020 IN FORM NO.6.

RESPONDENTS EXHIBITS

ANNEXURE A                A COPY OF THE POSSESSION CERTIFICATE
                          PRODUCED ALONGWITH THE APPLICATION FOR
                          BUILDING PERMIT