High Court of KeralaSingle JudgeWrit petition allowed

Jaison Daniel and C. P. Sibu v. Kothamangalam Municipality and Others

Case / Petition Number:WP(C) No.19625 of 2020

Case Details & Bench

Court
High Court of Kerala
Hon'ble Judges
  • P. B. Suresh Kumar
Judgment Date
2020-10-01
Court Decision / Holding
Writ petition allowed; Ext.P9 communication quashed; the second respondent directed to deal with the application for regularization of the construction in accordance with the Kerala Municipality Building (Regularization of Unauthorized Construction) Rules, 2018, untrammelled by the provisions of the Kerala Conservation of Paddy Land and Wetland Act, 2008.
Final Disposition
Writ petition allowed

Parties to the Case

Appellants / Petitioners

  • Jaison Daniel
  • C. P. Sibu

Respondents

  • Kothamangalam Municipality
  • The Secretary, Kothamangalam Municipality
  • The Senior Town Planner
  • The District Town Planner
  • Regional Joint Director Department of Urban Affairs
  • State of Kerala represented by the Secretary to Government, Department of Local Self Government

Legal Representation & Advocates

Counsels for Petitioners

  • • Sri. Alexander Joseph
  • • Smt. Teresa C. Joseph
  • • Smt. Akhilasree Bhaskaran
  • • Sri. George Alex

Counsels for Respondents

  • • Sri. Peeus A. Kottam, SC

Case Synopsis & Summary

This writ petition challenges the failure of the Municipality to consider regularization of unauthorized construction under the Kerala Municipality Building (Regularization of Unauthorised Construction) Rules, 2018. Petitioners, who own an 8-cent plot, constructed a single-storey building with a building permit prior to the Kerala Conservation of Paddy Land and Wetland Act, 2008. They later added a floor without a fresh permit and sought regularization under the 2018 Rules. The Municipal reply grounded its refusal on Rule 6(4)(iv) of the Rules, which disallows regularization for buildings that do not conform to the Act’s provisions. The court examines whether the land is within the Act’s purview: the land is shown as paddy land in revenue records, and the Act targets lands cultivated as on 12.8.2008. It is conceded the building was permitted before the Act’s enactment and that the land was reclaimed prior to the Act, suggesting the subject land may fall outside the Act’s restrictive scope. Relying on Mahin v. Keezhmad Grama Panchayat (2020) 2 KLT 478, the court holds that where a building permit existed before the Act, authorities cannot bar regularization merely on the Act’s terms. The petition is allowed; Ext.P9 is quashed and the matter is remitted to process the application under the Rules, untrammelled by the Act. The judgment reflects a balance between pre-existing permits and post-Act statutory controls.

Provisions of Law Cited

Kerala Municipality Building (Regularization of Unauthorized Construction) Rules, 2018 - Rule 6(4)(iv)Kerala Conservation of Paddy Land and Wetland Act, 2008 - Section 27A

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioners contended that they obtained a building permit before the Act came into force and later sought regularization under the 2018 Rules for the added first floor. Since the land was reclaimed prior to the Act and is shown as paddy land, the subject land should not fall within the Act’s restrictions. The 2018 Rules permit regularization of unauthorized constructions, and Mahin v. Keezhmad Grama Panchayat (2020) 2 KLT 478 supports regularization where a building permit existed before the Act. Therefore Ext.P9 should be quashed, and the Municipality should consider the regularization application under the Rules, untrammelled by the Act.

Contentions of Respondents

The respondents argued that Rule 6(4)(iv) of the 2018 Rules bars regularization for buildings not conforming to the Act, and that the land, being paddy land or unnotified land under the Act, requires permission under Section 27A before any change in use. They contend the Act should govern the regularization process and that the petition should be dismissed unless compliance with the Act’s provisions is ensured.

Cited Precedents (2)

Case NameCitationTreatmentExplanation
Mahin v. Keezhmad Grama Panchayat2020 (2) KLT 478PositiveCited with approval to support the proposition that a building permit obtained prior to the Act can immunize construction from the Act’s restrictions, guiding the court to allow regularization despite the Act.
W.P.C. No.19769/2013WPC 19769/2013Mentioned OnlyJudgment dated 07.10.2013 in WPC No.19769/2013 is cited as Exhibit P10; it is not expressly discussed or distinguished in the reasoning, thus treated as a reference/exhibit.

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Extracted Judgment Text

Exact text extracted from official judgment records.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR** ## **THURSDAY, THE 01ST DAY OF OCTOBER 2020 / 9TH ASWINA, 1942** ## **WP(C).No.19625 OF 2020(C)** ## **PETITIONER:** |**1**|**JAISON DANIEL, AGED 56 YEARS**| |---|---| ||**S/O. DANIEL, CHEMBAKOTTUKUDIYIL HOUSE,**| ||**AYROORPADAM P. O., KOTHAMANGALAM - 686691.**| |**2**|**C. P. SIBU, AGED 48 YEARS**| ||**S/O. PAPPACHAN, CHEMBAKOTTUKUDIYIL HOUSE,**| ||**AYROORPADAM P. O., KOTHAMANGALAM - 686691.**| ## **BY ADVS.** **SRI.ALEXANDER JOSEPH SMT.TERESA C. JOSEPH SMT.AKHILASREE BHASKARAN SHRI.GEORGE ALEX** ## **RESPONDENTS:** |**1**|**KOTHAMANGALAM MUNICIPALITY**| |---|---| ||**REPRESENTED BY ITS SECRETARY, KOTHAMANGALAM,**| ||**ERNAKULAM DISTRICT, PIN - 686691.**| |**2**|**THE SECRETARY**| ||**KOTHAMANGALAM MUNICIPALITY, KOTHAMANGALAM -**| ||**686691.**| |**3**|**THE SENIOR TOWN PLANNER**| ||**CIVIL STATION, KAKKANAD, ERNAKULAM - 682 030.**| |**4**|**THE DISTRICT TOWN PLANNER**| ||**PADAMUGHAL, KAKKANAD, ERNAKULAM - 682 030.**| W.P.(C) No. 19625 of 2020 ..2.. - **5 REGIONAL JOINT DIRECTOR DEPARTMENT OF URBAN AFFAIRS, BROADWAY, MARINE DRIVE, ERNAKULAM - 682 031.** **6 STATE OF KERALA REPRESENTED BY THE SECRETARY TO GOVERNMENT, DEPARTMENT OF LOCAL SELF GOVERNMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM - 695 001.** **SRI. PEEYUS A. KOTTAM, SC** ## **OTHER PRESENT:** **GP. K.J MANURAJ** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 23-09-2020, THE COURT ON 01-10-2020 DELIVERED THE FOLLOWING:** W.P.(C) No. 19625 of 2020 ..3.. ## **P.B.SURESH KUMAR, J.** **------------------------------------W.P.(C) No.19625 of 2020** **--------------------------------------** **Dated this the 1[st] day of October, 2020** ## **JUDGMENT** Petitioners hold an item of property measuring 8 cents. They have constructed a single storied building in the said property after obtaining the requisite building permit from the first respondent Municipality and have been remitting property tax in respect of the same from 2005 - 2006. Of late, the petitioners have constructed an additional floor to the existing building, without obtaining a building permit for the same. However, when the Kerala Municipality Building (Regularization of Unauthorised Construction) Rules, 2018 (the Rules) was promulgated, the petitioners preferred an application for regularization of the construction of the first floor of the building. On this application, the petitioners are now issued W.P.(C) No. 19625 of 2020 ..4.. Ext.P9 communication informing that in terms of Rule 6(4)(iv) of the Rules, a building which does not conform to the provisions of the Kerala Conservation of Paddy Land and Wetland Act, 2008 cannot be regularized and therefore, the application preferred by the petitioners for regularization cannot be considered. The petitioners are aggrieved by the said communication. 2. Heard the learned counsel for the petitioners, the learned Standing Counsel for respondents 1 and 2 as also the learned Government Pleader. 3. True, in terms of Rule 6(4)(iv) of the Rules, a building which does not conform to the provisions of the Act cannot be regularized. The question therefore, is as to whether the building involved in this matter is one which does not conform to the provisions of the Act. It is conceded by the petitioners that the land where the building is constructed is one shown in the revenue records as paddy land. Insofar as it is seen that the petitioners have put up the building in the land after obtaining the requisite building permit prior to the coming into force of the Act, it can be certainly W.P.(C) No. 19625 of 2020 ..5.. presumed that the land is one reclaimed prior to the Act. The general provisions of the Act would apply only to lands which were cultivable as on 12.8.2008. A land which was reclaimed for the purpose of putting up a structure prior to the Act would not, therefore, fall within the scope of the Act. True, insofar as it is conceded that the land involved in the matter is shown in the revenue records as paddy land, it would fall within the definition of “unnotified land” under the Act and the Act prohibits use of such lands for other purposes without the permission of the competent authority in terms of Section 27A. In **Mahin v. Keezhmad Grama Panchayat,** 2020 (2) KLT 478, this Court held that in cases where the subject land has been converted prior to the coming into force of the Act and building permit has been issued for any construction without reference to the nature of the land, after the construction of the building, the local body cannot raise any objection as regards the building constructed in the land based on the provisions of the Act. Insofar as as the petitioners have been granted a building permit by the Municipality and insofar as they have put up a W.P.(C) No. 19625 of 2020 ..6.. building on the strength of the said building permit prior to the coming into force of the Act, I am of the view that in the light of the decision of this Court in **Mahin,** the Municipality is not justified in refusing to consider the application preferred by the petitioners under the Rules for regularization of the additional construction made to the building constructed on the basis of the building permit. In the result, the writ petition is allowed, Ext.P9 communication is quashed and the second respondent is directed to deal with the application submitted by the petitioners for regularization of the construction in accordance with the Rules, untrammelled by the provisions of the Act. **Sd/P.B.SURESH KUMAR JUDGE** ds 22.09.2020 W.P.(C) No. 19625 of 2020 ..7.. ## **APPENDIX** **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF THE PROPERTY TAX RECEIPT DATED 16.09.2020 ISSUED BY THRIKKARIYOOR VILLAGE.** **EXHIBIT P2 TRUE COPY OF THE OCCUPANCY CERTIFICATE DATED 02.02.2016 ISSUED BY THE 1ST RESPONDENT.** **EXHIBIT P3 TRUE COPY OF THE CERTIFICATE DATED 08.09.2020 ISSUED BY THE 1ST RESPONDENT.** **EXHIBIT P4 TRUE COPY OF THE BUILDING TAX RECEIPT DATED 07.02.2020 ISSUED BY THE 1ST RESPONDENT.** **EXHIBIT P5 TRUE COPY OF THE KERALA MUNICIPALITY BUILDING (REGULARIZATION OF UNAUTHORIZED CONSTRUCTION) RULES 2018 WITHOUT APPENDIX AND FORMS.** - **EXHIBIT P6 TRUE COPY OF THE RECEIPT DATED 15.05.2018 ISSUED BY THE 2ND RESPONDENT.** **EXHIBIT P7 TRUE COPY OF THE DETAILED REPORT IN FORM 1B OF THE 2ND RESPONDENT.** **EXHIBIT P8 TRUE COPY OF THE NOTICE DATED 18.06.2019 OF THE 3RD RESPONDENT TO 2ND RESPONDENT.** W.P.(C) No. 19625 of 2020 ..8.. **EXHIBIT P9 TRUE COPY OF THE NOTICE DATED 12.12.2019 OF 2ND RESPONDENT TO THE PETITIONERS. EXHIBIT P10 TRUE COPY OF THE JUDGMENT DATED 07.10.2013 IN WPC NO.19769/2013 OF THIS HON'BLE HIGH COURT OF KERALA.**