Global Education Trust v State of Kerala and Kochi Municipal Corporation and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE** **TUESDAY, THE 10TH DAY OF NOVEMBER 2020 / 19TH KARTHIKA, 1942** ## **WP(C).No.34791 OF 2019(Y)** ## **PETITIONER:** ## **GLOBAL EDUCATION TRUST** **CANAL ROAD, GIRINAGAR, KADAVANTHRA, KOCHI, ERNAKULAM682020, REPRESENTED BY ITS MANAGING TRUSTEE, MR. P.JACOB.** **BY ADVS. SRI.SANTHOSH MATHEW SRI.ARUN THOMAS SRI.JENNIS STEPHEN SRI.VIJAY V. PAUL SMT.KARTHIKA MARIA SRI.ANIL SEBASTIAN PULICKEL SMT.DIVYA SARA GEORGE SMT.JAISY ELZA JOE SMT.LEAH RACHEL NINAN SHRI.ABI BENNY AREECKAL** ## **RESPONDENTS:** - **1 STATE OF KERALA REPRESENTED BY SECRETARY TO GOVERNMENT, LOCAL SELF GOVERNMENT DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695001.** - **2 KOCHI MUNICIPAL CORPORATION, PB 1016, COCHIN, ERNAKULAM, PIN-682011, REPRESENTED BY ITS SECRETARY.** - **3 ASSISTANT EXECUTIVE ENGINEER, TOWN PLANNING DEPARTMENT, KOCHI MUNICIPAL CORPORATION, PB 1016, KOCHI, ERNAKULAM-682011.** - **4 REVENUE DIVISIONAL OFFICER, FIRST FLOOR, KB JACOB RD, FORT KOCHI, KOCHI, KERALA682001.** - **5 VILLAGE OFFICER, ELAMKULAM, MIG 20, GANCHINAGAR ROAD, KOCHI-682020.** **R2 BY SRI.P.FAZIL,SC, COCHIN CORPORATION** **ADV. SRI.Y JAFFAR KHAN GP** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 10.11.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C).No.34791 OF 2019(Y)** **2** **C.R** ## **JUDGMENT** **Dated this the 10th day of November 2020** The short point that arises for consideration in this writ petition is whether the owner of a converted paddy land with a building constructed prior to incorporation of Section 27A in the Kerala Paddy Land and Wetland Act, 2008 is required to obtain an order of regularisation under Section 27A of Act 28 of 2008 as a pre requisite to obtain building from a local authority. 2. Facts are not in dispute. The petitioner owns a land described as “Nilam” in BTR and entered as a converted land in Data Bank. The main application before the Cochin Corporation is for a building permit. Admittedly, an old building exists in the land. The land is situated in Elamkulam Village within the limits of Cochin Corporation. The Corporation refused to consider the application for the reason that the land is required to be regularised under Section 27 A of Act 28 of 2008. 3. The old building exists in the land appears to have been constructed without obtaining any order under the Kerala Land **WP(C).No.34791 OF 2019(Y)** **3** Utilization Order, 1967. Prior to incorporation of Section 27A of Act 28 of 2008, with effect from 30.12.2017, converted paddy land can be utilised for other purposes, only after obtaining an order under Clause 6 of the Kerala Land Utilisation Order, 1967. After coming into force of Section 27A of Act 28 of 2008, if any person desirous of utilising an unnotified land, he will have to apply before the Revenue Divisional Officer, as provided under Section 27A of Act 28 of 2008. Regularisation is permissible on payment of fees prescribed. 4. Section 27A of Act 28 of 2008 is having only a prospective application. Therefore, the question arises is whether the construction already made without obtaining an order under the Kerala Land Utilisation Order can be treated as legal or not, to demand application of Section 27A of Act 28 of 2008. 5. Section 27 A of Act 28 of 2008 essentially seeks to legalise reclamation of an unnotified land which has been converted prior to 12.08.2008, the date on which Act 28 of 2008 came into force. That is to say, if an unnotified land has to be reclaimed, the holder of the land will have to approach the Revenue Divisional Officer, seeking permission under Section 27A of Act 28 of 2008. The problem presented in this case is when a reclamation had already **WP(C).No.34791 OF 2019(Y)** **4** taken place without orders under the Kerala Land Utilisation Order, is it a requirement under law to seek regularisation of land which has already been utilised through the process of law. 6. The above question can be considered only in the background of objectives of the Kerala Land Utilisation Order. The Kerala Land Utilisation Order is a piece of subordinate legislation to augment food production, by cultivating the food crops referred to in the Kerala Land Utilisation Order. The power conferred on the Collector under the Kerala Land Utilisation Order is an enabling power to command the holder of land to cultivate with food crops which were in cultivation. This Court in _**Archana Varghese Vs. District Collector**_ [2015 (1) KLT 937] referred to the nature of power that can be exercised by the Collector under Clause 7 of the Kerala Land Utilisation Order and observed that it is only an enabling power to command the holder of the land to cultivate with crops which were in cultivation. The scheme of the Kerala Land Utilisation Order has to be understood within the framework of the Essential Commodities Act, 1955. The prohibition under Clause 6 of the Kerala Land Utilisation Order utilising the land for any other purpose except under and in accordance with the terms of a written permission given by the **WP(C).No.34791 OF 2019(Y)** **5** Collector have to be understood with reference to Clause 7 of the Kerala Land Utilisation Order. Clause 7 of the Kerala Land Utilisation Order confers power on the Collector to command the holder of the land to cultivate the crops which were in cultivation. This power is given to the Collector when the holder of the land is attempting to convert or utilise the land for other purposes without permission under Clause 6 of the Kerala Land Utilisation Order. If Clauses 6 and 7 of the Kerala Land Utilisation Order read together, it inevitably leads to conclusion that the power under the Kerala Land Utilisation Order is required to be exercised only if it is required for the purposes under the Essential Commodities Act, 1955. If that power is not required to be exercised by the Collector under Clause 7 of the Kerala Land Utilisation Order, the prohibition under Clause 6 of the Kerala Land Utilisation Order will not become operative. Thus, it is clear that the prohibition under Clause 6 of the Kerala Land Utilisation Order would apply, only if the land is required for any other purposes under the Essential Commodities Act. If there is no requirement to exercise power of the Collector under Clause 7 of the Kerala Land Utilisation Order, the prohibition under Clause 6 of the Kerala Land Utilisation Order will not bind the landholder. The Court cannot read the **WP(C).No.34791 OF 2019(Y)** **6** provisions under the Kerala Land Utilisation Order out of the context and objectives of the Essential Commodities Act. The Essential Commodities Act is an enactment of Parliament to regulate production, supply and distribution of essential commodities. If there is no requirement of any of the crops which were in cultivation as essential commodities, the power under Kerala Land Utilisation Order cannot be invoked by the Collector. It is only when a decision is taken to augment food and essential commodities, the power under Clause 7 of the Kerala Land Utilisation Order can be invoked. Therefore, the provisions of the Kerala Land Utilisation Order cannot be treated to prevent one from enjoying his own land in accordance with law. On the other hand, it is only a provision that confers power on the Collector to be exercised when there is any requirement under the Essential Commodities Act. Thus, any construction made without written permission under the Kerala Land Utilisation Order cannot be treated as an illegal construction. If the Collector has no reason to exercise the power under Clause 7 of the Kerala Land Utilisation Order to achieve the objectives of the Essential Commodities Act, any utilisation or enjoyment of the land by the landholder in accordance with law will have to be treated as legal. **WP(C).No.34791 OF 2019(Y)** **7** 7. The Division Bench of this Court, noting the nature of the provision under the Kerala Land Utilisation Order, in **Aishabeevi and** **another Vs. Superintendent of Police, Ernakulam and others [2014 (3) KLT 1078]** held that the construction undertaken without obtaining order under the Kerala Land Utilisation Order cannot be treated as illegal. A recent judgment of the Division Bench in _**Cheranelloor Grama Panchayat v. Joe Thattil**_ [2020 (5) KLT 763] also approved the judgment in _**Aishabeevi's** case (_ supra). Therefore, it is clear that a construction, undertaken prior to incorporation of Section 27A of Act 28 of 2008, has to be treated as legal. 8. It is also to be noted that the Government of Kerala issued a circular dated 13.08.2018 stating that the construction completed in accordance with the building permit on an application submitted for building permit before 30.12.2017 in compliance of the requirement of Section 27A of Act 28 of 2008 need not be insisted. The requirement of Section 27 A of Act 28 of 2008 is only in respect of a land which had not been utilised legally prior to incorporation of Section 27A of Act 28 of 2008. Thus the holder of any land utilised for other purposes through the process of law, need not apply to regularise his land under Section 27 A of Act 28 of 2008. **WP(C).No.34791 OF 2019(Y)** **8** 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 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 27A of Act 28 of 2008. The rigor of 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 Section 27 A of Act of 28 of 2008. 10. In this case the entire area owned by the petitioner is covered by a building. Therefore, there may not be any difficulty for the Corporation in considering the application without insisting compliance of Section 27A of Act 28 of 2008. Accordingly, the Corporation is directed to consider the application in accordance with **WP(C).No.34791 OF 2019(Y)** **9** law without insisting compliance of Section 27A of Act 28 of 2008. Needful shall be done within a period of four weeks. Ordered accordingly. **Sd/-** ## **A.MUHAMED MUSTAQUE** **JUDGE** SAS/10/11/2020 **WP(C).No.34791 OF 2019(Y)** **10** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF THE 12A REGISTRATION PROCEEDINGS OF THE COMMISSIONER OF INCOME TAX DATED 11.1.2006 OF THE TRUST. EXHIBIT P2 TRUE COPY OF THE SALE DEED NO.2785/2015. EXHIBIT P2 A TRUE COPY OF THE LAND TAX RECEIPT DATED 26.6.2019. EXHIBIT P3 TRUE COPY OF THE PROPERTY TAX RECEIPT DATED 7.5.2018. EXHIBIT P4 TRUE COPY OF THE RECEIPT OF THE ONLINE APPLICATION FOR BUILDING PERMIT. EXHIBIT P5 TRUE COPY OF THE COMMUNICATION NO.KRP1/108/16 BY THE 3RD RESPONDENT DATED 5.5.2018. EXHIBIT P6 TRUE COPY OF THE COMMON ORDER IN WP(C) NO.25262/2018 DATED 3.8.2018. EXHIBIT P7 TRUE COPY OF THE APPLICATION IN FORM 5 OF THE KERALA PADDY LAND AND WETLAND ACT, 2008 DATED 13.3.2019. EXHIBIT P7 A TRUE COPY OF THE APPLICATION IN FORM 6 OF THE KERALA PADDY LAND AND WETLAND ACT, 2008 DATED 28.1.2019. EXHIBIT P8 TRUE COPY OF THE REPORT OF THE 5TH RESPONDENT DATED 4.7.2019. EXHIBIT P9 TRUE COPY OF THE DEMAND NOTICE ISSUED BY THE 4TH RESPONDENT DATED 25.11.2019. EXHIBIT P10: TRUE COPY OF THE PHOTOGRAPHS OF THE BUILDING WHICH IS EXISTING ON THE SAID PROPERTY. EXHIBIT P11 TRUE COPY OF THE PROPERTY TAX RECEIPT DATED 16/09/2020. RESPONDENTS' EXHIBITS:NIL** //TRUE COPY// P.A. TO JUDGE