BlueOne Realtors v. Kochi Municipal Corporation and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE MONDAY, THE 02ND DAY OF NOVEMBER 2020 / 11TH KARTHIKA, 1942** ## **WP(C).No.351 OF 2019(T)** ## **PETITIONER/S:** **BLUEONE REALTORS, BUILDING NO.35/1759A, TRINITY HOUSE, OPP.CHANGAMPUZHA PARK, P.O.EDAPPALLY, KOCHI - 682 024, REPRESENTED BY ITS PARNTER, MR.ARUN C.MATHEW.** **BY ADVS. SRI.M.GOPIKRISHNAN NAMBIAR SRI.K.JOHN MATHAI SRI.JOSON MANAVALAN SRI.KURYAN THOMAS SRI.PAULOSE C. ABRAHAM** ## **RESPONDENT/S:** - **1 KOCHI MUNICIPAL CORPORATION, REPRESENTED BY ITS SECRETARY, PARK AVENUE, MARINE DRIVE, ERNAKULAM, KOCHI - 682 011.** - **2 THE EXECUTIVE ENGINEER-II, KOCHI MUNICIPAL CORPORATION (HEAD OFFICE), PARK AVENUE, MARINE DRIVE, ERNAKULAM, KOCHI - 682 011.** - **3 THE ASSISTANT EXECUTIVE ENGINEER, ZONAL OFFICE, KOCHI MUNICIPAL CORPORATION, VYTTILA, KOCHI - 682 019.** - **4 GREATER COCHIN DEVELOPMENT AUTHORITY, REPRESENTED BY ITS SECRETARY, KADAVANTHRA, KOCHI-682 020.** - **5 REVENUE DIVISIONAL OFFICER, JACOB ROAD, FORT KOCHI, KOCHI - 682 001.** - **6 AGRICULTURAL FIELD OFFICER, KRISHI BHAVAN, (COCHIN CORPORATION), VYTTILA, KOCHI - 682 019.** - **7 KERALA STATE REMOTE SENSING AND ENVIRONMENT CENTRE REPRESENTED BY ITS DIRECTOR, VIKAS BHAVAN, THIRUVANANTHAPURAM - 695 033.** **WP(C).No.351/2019 2** - **8 STATE OF KERALA, REPRESENTED BY THE CHIEF SECRETARY TO GOVERNMENT, SECRETARIAT, THIRUVANANTHAPURAM - 695 001.** **R1-3 BY SRI.V.S.SREEJITH, SC, COCHIN CORPORATION R4 BY ADV. SRI.ARUN ANTONY R7 BY ADV. SRI.S.VISHNU R8 BY SRI.MOHAMMED ANZAR K.J., SPL.G.P. FOR REVENUE** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 02.11.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C).No.351/2019 3** ## **JUDGMENT** ## **Dated this the 2nd day of November 2020** The petitioner approached this Court seeking the following ## reliefs: - i. Issue a writ of mandamus or any other appropriate writ, directing the first respondent to forthwith issue the building permit pursuant to Ext.P2 application for development of a residential apartment complex in an extent of land admeasuring 18.547 Ares (46.176 Cents) situated in Sy.No.330/12 of Elamkulam Village, Kanayannoor Taluk in Gandhi Nagar area, Ernakulam. - ii. Declare that Sections 27A-27D of the Kerala Conservation of Paddy Land and Wetland Act, 1967, are _ultra vires_ , unconstitutional and liable to be set aside. - iii. Declare that Sections 27A-27D of the Kerala Conservation of Paddy Land and Wetland Act, 1967, are not applicable to the petitioner's property having an extent of land admeasuring 18.547 Ares (46.176 Cents) situated in Sy.No.330/12 of Elamkulam Village, Kanayannoor Taluk in Gandhi Nagar area, Ernakulam. - iv. In the alternative, issue a writ of mandamus or any other appropriate writ, directing the 5[th] respondent to pass appropriate orders on Ext.P9 application after affording an opportunity of hearing to the petitioner within a time frame that may be deemed appropriate by this Hon'ble Court. **WP(C).No.351/2019 4** 2. The petitioner submitted an application for building permit before the Kochi Municipal Corporation vide Ext.P2 on 10.4.2017. The Corporation had not acted upon this request for building permit for two reasons: i. The petitioner had not obtained an order under KLU. ii. The petitioner has to regularize the land in terms of Section 27A of the Kerala Conservation of Paddy Land and Wetland Act, 2008 (for short, the Act 28 of 2008). 3. However, the State has different contentions in this matter. According to them, the petitioner purchased the property from GCDA without obtaining sanction from the Government. Therefore, it is submitted that the transfer is illegal and invalid. GCDA failed to obtain sanction from the Government. 4. I have take up the matter in respect of the objection raised by the Cochin Corporation. Admittedly, the land was purchased from GCDA pursuant to an auction conducted by GCDA. The petitioner was the successful bidder. 5. This was acquired by GCDA based on the Government Order dated 15.05.1975 under a detailed Town Planning Scheme. The land was acquired under the Scheme and divided into different plots, including the land purchased by the **WP(C).No.351/2019 5** petitioner. 5. A Division Bench of this Court in **Antony Jayan v. State of Kerala [2015 (4) KLT 370]** had taken the view that the KLU will not apply in respect of the land covered under the Town Planning Scheme. It was further held that when an activity is permitted in accordance with the provisions of a Scheme prepared under the Town Planning Act, the owners of such land can put the land to use as specified without there being any obligation to obtain any further permission under the Land Utilisation Order. It is to be noted that GCDA was the previous owner. They acquired the land for a specific purpose under the Town Planning Scheme. That scheme is acknowledged under the statutory provision. The very idea of conferring the power to the Collector under KLU is with a view to augment the cultivation of food crops. Once the statutory authority acting under the statutory provision and developed the land for certain other objects, implicitly means that the Collector under KLU has consented to use the land for other purposes. Once the land is acquired through the proceedings of the land acquisition enactment for the purpose or development under the Town Planning Scheme, it is a declaration that it is no longer required for the purpose of cultivation. **WP(C).No.351/2019 6** Therefore, I am of the view that the petitioner cannot be insisted to obtain an order under KLU. 6. The Act 28 of 2008 underwent an amendment with effect from 30.12.2017 incorporating Section 27A. The Government, in its circular dated 13.8.2018 clarified that Section 27A is having only a prospective application and it will not apply in respect of the application for building permit prior to 30.12.2017. In that view of the matter, the Corporation cannot insist on the petitioner to regularize the land in terms of Section 27A of the Act 28 of 2008. 7. In regard to the objection raised by the learned Special Government Pleader as to the validity of the sale conducted by GCDA, I need not express anything in this regard in this writ petition. Absolutely, no materials have been placed before this Court to show that the proceedings have been initiated to nullify the sale conducted by GCDA. If the Government is proposing to take any action against GCDA officials and as against the sale conducted by GCDA, they are free to do so, in accordance with law. It is to be noted that more than five years lapsed. In such circumstances, I cannot direct the Corporation to await any proceedings to be initiated by the Government. The Corporation is bound to **WP(C).No.351/2019 7** consider the application for building permit in accordance with law subject to any initiation of proceedings by the Government in respect of the transfer made by GCDA. With the above observations, the writ petition is disposed of directing the Corporation to consider the application for building permit as above within a period of one month. **Sd/-** **A.MUHAMED MUSTAQUE** **JUDGE** ln **WP(C).No.351/2019 8** ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** - **EXHIBIT P1 A TRUE COPY THE REGISTERED SALE DEED DATED 13/04/2015 EXECUTED BETWEEN THE 4TH RESPONDENT AND PARTNERS OF THE PETITIONER.** - **EXHIBIT P2 TRUE COPY OF THE APPLICATION DATED 10/04/2017 FOR BUILDING PERMIT SUBMITTED BY THE PETITIONER TO THE 3RD RESPONDENT ON 21/04/2017.** - **EXHIBIT P3 TRUE COPY OF THE INITIAL SITE NOC BEARING NO.F214037/17 DATED 19/12/2017.** - **EXHIBIT P4 TRUE COPY OF THE LETTER DATED 19/02/2018 ISSUED BY THE 2ND RESPONDENT.** - **EXHIBIT P5 TRUE COPY OF THE REPLY LETTER DATED 23/03/2018 ISSUED BY THE PETITIONER.** - **EXHIBIT P6 TRUE COPY OF THE APPLICATION DATED 27/03/2018 SUBMITTED BY THE PETITIONER TO THE 6TH RESPONDENT.** - **EXHIBIT P7 TRUE COPY OF THE CERTIFICATE DATED 10/04/2018 ISSUED BY THE 6TH RESPONDENT.** - **EXHIBIT P8 TRUE COPY OF THE LETTER DATED 11/04/2018 ISSUED BY THE PETITIONER.** - **EXHIBIT P9 TRUE COPY OF THE APPLICATION DATED 28/05/2018 SUBMITTED BY THE PETITIONER TO THE 5TH RESPONDENT. (WITHOUT ENCLOSURES)** - **EXHIBIT P10 TRUE COPY OF THE LETTER DATED 19/07/2018 SENT BY THE PETITIONER TO THE 5TH RESPONDENT(WITHOUT ENCLOSURE).** - **EXHIBIT P11 TRUE COPY OF THE LETTER DATED 26/07/2018 ISSUED BY THE 5TH RESPONDENT.** - **EXHIBIT P12 TRUE COPY OF THE GOVERNMENT ORDER DATED 15/05/1975.** - **EXHIBIT P13 TRUE COPY OF THE APPLICATION DATED 03/11/2018 SUBMITTED BY THE PETITIONER UNDER RTI ACT.** - **EXHIBIT P14 TRUE COPY OF THE REPLY ISSUED BY THE GCDA DATED 01/12/2018.** **WP(C).No.351/2019 9** - **EXHIBIT P15 TRUE COPY OF THE ORDER DATED 31/03/2015 ISSUED BY THE DISTRICT COLLECTOR, ERNAKULAM.** - **EXHIBIT P16 A TRUE COPY OF THE GOVERNMENT CIRCULAR DATED 2212-2016.** - **EXHIBIT P17 A TRUE COPY OF THE REPORT DATED 13-06-2018 OF THE VILLAGE OFFICER, ELAMKULAM, ADDRESSED TO THE REVENUE DIVISIONAL OFFICER.** - **EXHIBIT P18 A TRUE COPY OF THE EXTRACT OF THE LAND IDENTIFICATION DETAILS ISSUED BY THE VILLAGE OFFICER, ELAMKULAM, DATED NIL WHICH IS ENDORSED/CERTIFIED BY THE AGRICULTURAL FILED OFFICER, KRISHI BHAVAN (CORPORATION OF KOCHI), VYTTILA, KOCHI-682019.** - **EXHIBIT P19 A TRUE COPY OF THE RTI APPLICATION DATED 31.12.2018 SUBMITTED BY THE PETITIONER.** - **EXHIBIT P20 A TRUE COPY OF THE REPLY TO RTI DATED 31.01.2019 ISSUED BY THE 1ST RESPONDENT.** - **EXHIBIT P21 A TRUE COPY OF THE LETTER DATED 09.05.2019 ISSUED BY THE PETITIONER TO THE ASST.EXECUTIVE ENGINEER OF THE 1ST RESPONDENT.** - **EXHIBIT P22 A TRUE COPY OF THE REPLY DATED 01.06.2019 ISSUED BY THE 1ST RESPONDENT.** - **EXHIBIT P23 TRUE COPY OF THE AWARD NO.6/89 IN LAC 6/88 DATED 16.05.1989.** - **EXHIBIT P24 TRUE COPY OF THE TENDER FLOATED BY THE GCDA DATED 25.08.2014 FOR THE SAID LAND.** - **EXHIBIT P25 TRUE COPY OF NOTIFICATION NO.K-13430/08 DATED 14.12.2009.** - **EXHIBIT P26 TRUE COPY OF THE TENDER APPLIATION SUBMITTED BY SRI.ABDUL RASHEED, ON BEHALF OF THE PETITIONER FIRM, DATED 28.08.2014.** - **EXHIBIT P27 TRUE COPY OF THE ORDER DATED 09.01.2015 ISSUED BY THE GCDA CONFIRMING THE SALE.** **WP(C).No.351/2019 10** **RESPONDENT'S/S EXHIBITS:** |**EXHIBIT R4(a):**|**AWARD NO.6/89 DATED 16/05/1989.**| |---|---| |**EXHIBIT R4(b):**|**EXECUTIVE COMMITTEE DECISION DATED**| ||**27/10/2014.**| |**EXHIBIT R4(c):**|**JUDGMENT OF HON'BLE KERALA HIGH COURT,**| ||**DATED 25/11/2014 WPC.22096/2014.**| |**EXHIBIT R4(d) AND**|**LETTER OF POLICE SUPERINTENDED ACCOMPANIED**| |**R4(d)(1):**|**WITH VIGILANCE REPORT DATED 30/05/2018.**| |**EXHIBIT R4(e):**|**LETTER DATED 07/10/2018 OF GCDA TO**| ||**GOVERNMENT SECRETARY.**| |**EXHIBIT R4(f):**|**LETTER FROM ADDL. CHIEF SECRETARY TO GCDA**| ||**DATED 16/03/2019.**| |**EXHIBIT R4(g):**|**LETTER DATED 11/04/2019 OF GCDA TO ADDL.**| ||**CHIEF SECRETARY.**| |**EXHIBIT R8 A**|**TRUE COPY OF G.O.(MS) NO.387/00/RD DATED**| ||**22/12/2000.**| |**EXHIBIT R8 B**|**TRUE COPY OF STATUS REPORT OF THE**| ||**INVESTIGATING OFFICER IN VC-15/2016/SCE.**| |**EXHIBIT R8 C**|**TRUE COPY OF LETTER NO.VC-15/2016/SCE/1953**| ||**DATED 30/05/2018 OF THE DYSP,VACB, SPECIAL**| ||**CELL, ERNAKULAM TO THE SECRETARY, GCDA.**|