Nidhina vs Kozhikode Corporation
2022 Latest Caselaw 6681 Ker

           IN THE HIGH COURT OF KERALA AT ERNAKULAM
                               PRESENT
                THE HONOURABLE MR.JUSTICE N.NAGARESH
THURSDAY, THE 9TH DAY OF JUNE 2022 / 19TH JYAISHTA, 1944
                       WP(C) NO. 4900 OF 2021
PETITIONER

               NIDHINA
               AGED 34 YEARS
               W/O. ABHILASH V, VALAPPIL HOUSE, KARUVISSERY
               P.O, KOZHIKODE DISTRICT.
               BY ADVS.
               R.BINDU (SASTHAMANGALAM)
               SRI.PRASANTH M.P

RESPONDENTS

    1          KOZHIKODE CORPORATION
               REPRESENTED BY ITS SECRETARY, KOZHIKODE -
               673001.
    2          THE SECRETARY
               KOZHIKODE CORPORATION, KOZHIKODE - 673001.
    3          THE REVENUE DIVISIONAL OFFICER
               KOZHIKODE, PIN - 673001
    4          STATE OF KERALA
               REPRESENTED BY THE SECRETARY TO GOVERNMENT,
               LOCAL SELF GOVERNMENT INSTITUTIONS, GOVERNMENT
               SECRETARIAT, THIRUVANANTHAPURAM, PIN - 695001.
               BY ADVS.
               SMT.BINDUMOL JOSEPH
               SRI.B.S.SYAMANTHAK

OTHER PRESENT:

               SMT.SURYA BINOY B SR.GP


        THIS    WRIT   PETITION    (CIVIL)   HAVING   COME    UP    FOR
ADMISSION       ON   09.06.2022,   THE   COURT   ON   THE    SAME   DAY
DELIVERED THE FOLLOWING:
 W.P.(C) No. 4900 of 2021           :2:



                           JUDGMENT

Dated this the 9th day of June, 2022

The petitioner, who is owner in possession of 1.5 cents

of land comprised in Re-Survey No.54/1 of Vengeri Village,

Kozhikode Taluk, has approached this Court seeking to

quash Ext.P2 and direct the respondents to allow the

application for building permit dated 20.3.2018 and grant

permission to the petitioner for construction of a commercial

building as sought for.

2. The petitioner states that he is the absolute owner in

possession of 1.5 cents of land comprised in Re-Survey

No.54/1 of Vengeri Village in Kozhikode District. The

property was acquired as per Ext.P1 settlement deed.

Earlier, the petitioner wanted to construct a building and

made application for building permit. The said application

was rejected.

3. The petitioner thereupon approached this Court filing

W.P(C) No.955/2015. This Court, as per Ext.P3 judgment,

granted positive directions to the respondents to grant

Building Permit, after affording an opportunity of hearing to

the petitioner, contends the petitioner.

4. Now, the petitioner wants to demolish an existing

building and construct a new building. The petitioner

therefore submitted application for building permit. The

application submitted for building permit stands returned as

per Ext.P2. In Ext.P2 notice issued by the Secretary to the

Municipal Corporation, the Secretary has indicated seven

defects in respect of the application. First of the defects

noted is that the land is a paddy land in the title deed and

therefore commercial building exceeding area of 40 square

metres cannot be permitted to be constructed in the land.

5. The learned counsel for the petitioner urged that

Ext.P2 is illegal and unsustainable. The 2 nd respondent ought

to have granted permission for construction of the

commercial building in the very same property since this

Court had earlier permitted the petitioner to carry out the

constructions. The 2nd respondent ought to have found that

though the property is described as 'Nilam' in Revenue

records, the property was actually converted to garden land

more than 40 years ago and a building existed there, for

more than 40 years. The counsel for the petitioner further

pointed out that there are other existing buildings situated in

the very same Survey number.

6. The Standing Counsel for respondents 1 and 2

entered appearance and resisted the writ petition. The

Standing Counsel pointed out that the application now made

by the petitioner is for a fresh permit. Section 27A(6) of the

Kerala Conservation of Paddy Land and Wetland Act, 2008

provides that no permission under Section 27A will be

necessary for constructing a commercial building having a

maximum area of 40 square metres in a maximum extent of

2.02 Ares of land. The building permit application submitted

by the petitioner is for a commercial building exceeding 40

square metres. As the application was submitted in the year

2018, the mandate of Section 27A would apply to the

application for building permit submitted by the petitioner.

Furthermore, the respondents have pointed out other defects

also in the building permit. In view of the said defects,

building permit is not liable to be granted.

7. I have heard the learned counsel for the petitioner,

the learned Standing Counsel for respondents 1 and 2 and

the learned Government Pleader representing respondents 3

and 4.

8. At the time of hearing, the counsel for the petitioner

submitted that if Section 27A(6) is the difficulty for

respondents 1 and 2 in granting building permit, the

petitioner is ready to construct the building strictly in

accordance with the Kerala Municipality Building Rules.

9. In view of the stand now taken by the parties on

either side, this Court feels that no adjudication of issues

involved in the writ petition is necessary in this writ petition.

In the result, the writ petition is disposed of permitting

the petitioner to make fresh application for Building Permit

adhering to the mandate of Section 27A of the Kerala

Conservation of Paddy Land and Wetland Act, 2008. If such

an application is made by the petitioner, respondents 1 and 2

shall consider the same and pass appropriate orders

thereon, without insisting for any orders from the Revenue

Divisional Officer.

Sd/-

N. NAGARESH, JUDGE smm/ 13.06.2022

APPENDIX OF WP(C) 4900/2021

PETITIONER EXHIBITS EXHIBIT P1 TRUE COPY OF THE SETTLEMENT DEED DATED 22.09.2014.

EXHIBIT P2 TRUE COPY OF THE ORDER ISSUED BY THE 2ND RESPONDENT DATED 16.04.2018.

EXHIBIT P3 TRUE COPY OF THE JUDGMENT PASSED BY THIS HON'BLE COURT IN WP(C) NO.

955/2015 DATED 19.06.2015.

EXHIBIT P4 TRUE COPY OF THE REPRESENTATION SUBMITTED BY THE PETITIONER BEFORE THE 2ND RESPONDENT DATED 06.06.2019.