Dr.K.P.Ayyappan vs Secretary To Government
2022 Latest Caselaw 8145 Ker

            IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                PRESENT
        THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN
    FRIDAY, THE 1ST DAY OF JULY 2022 / 10TH ASHADHA, 1944
                      WP(C) NO. 25950 OF 2021
PETITIONER:

            DR.K.P.AYYAPPAN
            AGED 77 YEARS
            S/O.PADMANABHAN, MANAGING DIRECTOR, VENAD
            HOSPITAL, NEDUMANGAD, THIRUVANANTHAPURAM-695541.
            BY ADVS.
            G.RANJU MOHAN
            M.SANTHI (K/868/2011)

RESPONDENTS:

    1       SECRETARY TO GOVERNMENT
            LOCAL SELF GOVERNMENT DEPARTMENT, SECRETARIAT,
            TRIVANDRUM-695001.
    2       NEDUMANGAD MUNICIPALITY
            REPRESENTED BY ITS SECRETARY, NEDUMANGAD,
            TRIVANDRUM-695541.
    3       THE REVENUE DIVISIONAL OFFICER,
            CIVIL STATION, KUDAPPANAKUNNU,
            THIRUVANANTHAPURAM-695043.
    4       VILLAGE OFFICER
            VILLAGE OFFICE, NEDUMANGAD,
            THIRUVANANTHAPURAM-695541.
            BY ADV SHRI.R.B.RAJESH, SC, NEDUMANGAD
            MUNICIPALITY

OTHER PRESENT:

            SMT.DEEPA NARAYANAN, SR.GP


     THIS     WRIT   PETITION    (CIVIL)     HAVING    COME    UP    FOR
ADMISSION     ON   01.07.2022,    THE     COURT   ON   THE    SAME   DAY
DELIVERED THE FOLLOWING:
 W.P.(C).No.25950/2021

                                     2




                   P.V.KUNHIKRISHNAN, J.
                    --------------------------------
                   W.P.(C).No.25950 of 2021
             ----------------------------------------------
            Dated this the 01st day of July, 2022


                              JUDGMENT

This writ petition is filed with following prayers:

i. A Issue a writ of Certiorari or other appropriate writ order or direction to quash Ext.P6, Ext.P7, Ext.P9 & Ext P11.

ii. Issue a writ of Mandamus or other appropriate writ order or direction directing the 2nd respondent to issue building permit for the construction of 1st Floor of the building of the petitioner without insisting for an application under section 27 A of the Kerala Conservation of Wetland and Paddy land Act, 2008.

iii. Declare that an application u/s Section 27 A of the Conservation of Wetland and Paddy land Act, 2008 is not necessary for granting Ext.P3 building permit.

W.P.(C).No.25950/2021

iv. Such other or further orders as their Lordships may deem fit and proper in the interest of justice.

(SIC)

2. The petitioner is the absolute owner in possession

of 28.90 Ares of property comprised in resurvey no.791/13 and

Re Sy.No.791/14 in Block No.36 of Karipoor Village,

Thiruvananthapuram. It is the case of the petitioner that the

property of the petitioner was converted from Nilam to

Purayidam much before the purchase of the property. But the

category of the above property is shown as Nilam in the BTR.

The above property is not included in the data bank and

remains as unnotified land. During the year 2002, the

petitioner obtained building permit from the 2 nd respondent

municipality for the construction of a hospital building as

evident by Ext.P1. The petitioner obtained extension of Ext.P1

permit for a period of 3 years. But as the petitioner could not

start the work of first floor within that time, the permit for the

work of first floor was again extended further for a period of 3

years. But due to huge financial stringency, the petitioner

could not complete the work of first floor within that extended W.P.(C).No.25950/2021

period. It is the case of the petitioner that he is conducting the

said hospital for the past 20 years and now due to the lack of

space, the petitioner is constrained to extend the hospital

building further. So the petitioner approached the 2 nd

respondent Municipality seeking permit for construction of

first floor in the existing building which was actually included

in the initial Ext.P1 permit for construction itself. The 2 nd

respondent issued a communication stating that as the

petitioner's property is shown as Nilam in the Revenue

Records and not included in the data bank, the petitioner

should approach the 3rd respondent and submit an application

under Section 27(A) of the Kerala Conservation of Wetland

and Paddy land Act, 2008 (for short, the Act 2008). The Act

2008 came into force only in the year 2011 and the land in

question was converted much prior to the enactment. Hence

this writ petition is filed seeking an order to quash Ext.P6,

Ext.P7, Ext.P9 and Ext.P11 and for a declaration that an

application u/s Section 27 A of the Act 2008 is not necessary

for granting Ext.P3 building permit.

3. Heard the learned counsel for the petitioner and W.P.(C).No.25950/2021

the learned Government Pleader.

4. Admittedly the petitioner submitted an application

for building permit much prior to the date on which the Act

2008 came into force. Ext.P1 is the initial building permit

which is dated 23.11.2002. Ext.P3 is the application for fresh

building permit submitted by the petitioner. In Cheranelloor

Grama Panchayat v. Jose Thattil [2020 (5) KHC 669], this

Court observed that the land described as nilam in BTR and

not included in the data bank and the building permit issued

prior to 30.12.2017, Section 27A of the Act 2008 which came

into force on 30.12.2017 is not applicable to building permits

granted prior to the said date. In the light of the same,

prayers in the writ petition are to be allowed.

Therefore, this writ petition is allowed in the following

manner:

1. Exts.P6, P7, P9 and P11 are set aside.

2. The 2nd respondent is directed to issue building

permit for the construction of the first floor of

the building of the petitioner without insisting

for an application under Section 27A of the

Kerala Conservation of Paddy Land and W.P.(C).No.25950/2021

Wetland Act, 2008, as expeditiously as

possible, at any rate, within one month from

the date of receipt of a copy of this judgment.

sd/-

                                            P.V.KUNHIKRISHNAN
JV                                                 JUDGE
 W.P.(C).No.25950/2021





                 APPENDIX OF WP(C) 25950/2021

PETITIONER EXHIBITS
Exhibit P1        TRUE COPY OF THE BUILDING PERMIT DATED
                  23.11.2002.
Exhibit P2        TRUE COPY OF THE COMPLETION

CERTIFICATE OF THE BUILDING SHOWING PARTIAL COMPLETION DATED 25.11.02. Exhibit P3 TRUE COPY OF THE APPLICATION FOR BUILDING PERMIT FILED BY THE PETITIONER AS TP 1/12668/2020 DATED 01.12.2020.

Exhibit P4 TRUE COPY OF THE NOTICE DATED 29.01.2021 ISSUED BY THE 2ND RESPONDENT.

Exhibit P5 TRUE COPY OF THE REVISED APPLICATION SUBMITTED BY THE PETITIONER.

Exhibit P6 TRUE COPY OF THE COMMUNICATION DATED 31.03.2021.

Exhibit P7 TRUE COPY OF THE COMMUNICATION DATED 17.04.2021.

Exhibit P8 TRUE COPY OF THE REPLY SUBMITTED BY THE PETITIONER DATED 30.04.2021.

Exhibit P9 TRUE COPY OF THE REPLY SUBMITTED BY THE 2ND RESPONDENT TO EXT.P8 DATED 14.05.2021.

Exhibit P10 TRUE COPY OF THE REFERENCE FILED BY THE PETITIONER DATED 24.06.2021.

Exhibit P11 TRUE COPY OF THE ORDER DISMISSING EXT.P10 REFERENCE, DATED 30.09.2021. Exhibit P12 TRUE COPY OF THE CIRCULAR NO.994733/R.A 1/2016 ISSUED BY THE LSGD(R.A) DATED 22.12.2016.