High Court of KeralaSingle Judge2023-06-02Writ petition disposed of: Ext.P9 quashed; Ext....

Lalitha and others v. State of Kerala and others

Case / Petition Number:W.P.(C) No.17943 of 2023

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: N. Nagareesh
Judgment Date: 2023-06-02
Court Decision / Holding: Ext.P9 notice set aside; competent authorities (Respondents 4 or 5) to reconsider Ext.P7 without insisting on Section 27A and to grant a Building Permit if otherwise eligible, within one month.
Final Disposition: Writ petition disposed of: Ext.P9 quashed; Ext.P7 to be reconsidered without mandatory 27A compliance; permit to be granted if otherwise eligible within one month; final disposal as stated in the order.

Parties to the Case

Appellants / Petitioners

Lalitha
Arjun C.S.
Anjana C.S.

Respondents

State of Kerala represented by Secretary to Government, Department of Agriculture, Secretariat, Thiruvananthapuram
Revenue Divisional Officer, Revenue Divisional Office, Fort Kochi, Kochi
Kochi Municipal Corporation, Park Avenue Road, Marine Drive, Kochi
The Secretary, Corporation of Cochin, Park Avenue Road, Marine Drive, Kochi
The Assistant Executive Engineer, Corporation of Cochin, Zonal Office, Edappally

Legal Representation & Advocates

Counsels for Petitioners

• Karthika Maria Santosh
• Mathew Arun
• Thomas Abi
• Benny Areeckal
• Diana Laurance Paul
• Aneeta Mary Saji

Counsels for Respondents

• R. Harishankar, SC

Case Synopsis & Summary

The petitioners (Lalitha; Arjun C.S.; Anjana C.S.), joint owners of 4.01 acres in Mamangalam Desam, Edappally South, sought to quash Ext.P9 and direct the fourth respondent to reconsider Ext.P7 for a Building Permit without insisting on compliance with Section 27A of the Kerala Conservation of Paddy Land and Wetland Act, 2008. They argued that the building in question predates 2008 and the strict data-bank and 27A requirements should not be applied to pre-existing constructions for which valid permits had already been obtained. The High Court recall of Global Education Trust v. State of Kerala (2020) and Anand Raman Menon v. Revenue Divisional Officer guided the court: where land has been used for construction with valid permits before 27A’s incorporation, the rigour of 27A cannot be insisted upon, and building permits may be considered afresh if other conditions are met. Respondents contended Ext.P9 was merely a notice, and that the petitioners could reply; the Assistant Executive Engineer possessed authority to issue such notice and Ext.P9 should not be annulled. The Court held Ext.P9 to be unsustainable and quashed it, directing respondent 4 or 5 to reconsider Ext.P7 without demanding 27A compliance, and to grant a permit if the petitioners are otherwise eligible, within one month. The writ petition is disposed of accordingly, reinforcing a remedial path that aligns regulatory aims with pre-27A land uses.

Provisions of Law Cited

Section 27A of the Kerala Conservation of Paddy Land and Wetland Act, 2008Section 5(4)(I) of the Kerala Conservation of Paddy Land and Wetland Act, 2008

Legal Doctrines & Maxims

Rigour of Section 27A cannot be insisted upon for land utilised by constructing buildings with valid permits or through process of law before incorporation of Section 27A of the Kerala Conservation of Paddy Land and Wetland Act, 2008.

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioners contend Ext.P9 seeking to remove their land from the Data Bank is unsustainable as they are relying on building exists prior to 2008, and that the building permit should not be conditioned by Section 27A. They rely on Global Education Trust v. State of Kerala (2020) and Anand Raman Menon v. Revenue Divisional Officer to permit reconsideration of the Building Permit without insisting on 27A if the construction predates 27A or its area does not exceed the existing construction.

Contentions of Respondents

The respondents maintain Ext.P9 is only a notice and can be replied to; the Assistant Executive Engineer is competent to issue such notices;Ext.P9 should not be set aside without a reply.

Cited Precedents (2)

Case Name	Citation	Treatment	Explanation
Global Education Trust v. State of Kerala	2020 (6) KLT 738	Positive	Cited by the Court to hold that the rigour of Section 27A cannot be insisted upon for land already utilised by constructing buildings with valid permits prior to 27A.
Anand Raman Menon v. Revenue Divisional Officer	W.P.(C) No.5218 of 2021	Positive	Used to direct the competent authority to reconsider Building Permit afresh and grant it if otherwise in order and within the permissible area, without insisting on 27A.

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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 N.NAGARESH** **FRIDAY, THE 2[ND] DAY OF JUNE 2023 / 12TH JYAISHTA, 1945 WP(C) NO. 17943 OF 2023** ## **PETITIONERS:** - **1 LALITHA, AGED 50 YEARS, W/O. SUDHARSHAN, CHERIYAKUMAROTH, ELAMAKKARA, ERNAKULAM, PIN - 682025** - **2 ARJUN C.S., AGED 22 YEARS, S/O. SUDHARSHAN, CHERIYAKUMAROTH, ELAMAKKARA, ERNAKULAM, PIN - 682025** - **3 ANJANA C.S., AGED 18 YEARS, D/O. SUDHARSHAN, CHERIYAKUMAROTH, ELAMAKKARA, ERNAKULAM, PIN - 682025** **BY ADVS. KARTHIKA MARIA SANTHOSH MATHEW ARUN THOMAS ABI BENNY AREECKAL DIANA LAURANCE PAUL ANEETA MARY SAJI** ## **RESPONDENTS:** - **1 STATE OF KERALA, REPRESENTED BY SECRETARY TO GOVERNMENT, DEPARTMENT OF AGRICULTURE, SECRETARIAT, THIRUVANANTHAPURAM, PIN - 695001** W.P.(C) No.17943 of 2023 : 2 : - **2 REVENUE DIVISIONAL OFFICER, REVENUE DIVISIONAL OFFICE, FORT KOCHI, KOCHI, PIN - 682001** - **3 KOCHI MUNICIPAL CORPORATION, PARK AVENUE ROAD, MARINE DRIVE, KOCHI, KERALA REPRESENTED BY ITS SECRETARY., PIN - 682011** - **4 THE SECRETARY, CORPORATION OF COCHIN, PARK AVENUE ROAD, MARINE DRIVE, KOCHI, KERALA ., PIN - 682011** - **5 THE ASSISTANT EXECUTIVE ENGINEER, CORPORATION OF COCHIN, ZONAL OFFICE, EDAPPALLY, PIN - 682024** **BY ADV R.HARISHANKAR, SC** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 02.06.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** W.P.(C) No.17943 of 2023 : 3 : ## **J U D G M E N T** _**Dated this the 2[nd] day of June, 2023**_ The petitioners, who are joint owners and title holders of 4.01 Ares of property in Mamangalam Desam of Edappally South Village, Kanayannur Taluk in Ernakulam District, are before this Court seeking to quash Ext.P9 and to direct the 4[th] respondent to reconsider and pass orders on Ext.P7 application for Building Permit without insisting on orders under Section 27A of the Kerala Conservation of Paddy Land and Wetland Act, 2008. 2. The short grievance of the petitioners is that they are proposing to make construction upon a building which is already in existence and which is constructed before the year 2008. This Court has held that in such circumstances, the persons like the petitioner who have applied for Building W.P.(C) No.17943 of 2023 : 4 : Permit, need not obtain orders under the Kerala Conservation of Paddy Land and Wetland Act, 2008. 3. Therefore, Ext.P9 order impugned in the writ petition under which the Assistant Executive Engineer has sought to remove the petitioners' land from Data Bank, is unsustainable. 4. Standing Counsel entered appearance and resisted the writ petition. The Standing Counsel pointed out that Ext.P9 is only a notice and it is not an order. Therefore, if the petitioners submit a reply to Ext.P9, the same can be considered. 5. The Standing Counsel further argued that the Assistant Executive Engineer is competent to issue a notice in the nature of Ext.P9 and the petitioners have not advanced any legal grounds to set aside Ext.P9. 6. I have heard the learned counsel for the petitioners, the learned Government Pleader representing respondents 1 and 2 and the learned Standing Counsel representing respondents 3 to 5. W.P.(C) No.17943 of 2023 : 5 : 7. The petitioners are holding 4.01 Ares of land in Mamangalam Desam of Edappally South Village, Kanayannur Taluk in Ernakulam District. The petitioners are proposing to make construction upon an existing building bearing Nos.38/3946, 38/3947, 38/3948 and 38/3949. This Court has held in the judgment in _**Global Education Trust v. State of Kerala** [2020 (6) KLT 738]_ that rigour of Section 27A of the Kerala Conservation of Paddy Land and Wetland Act, 2008 cannot be insisted upon a land which has been utilised by constructing buildings with valid permits or through process of law before incorporation of Section 27A of the Kerala Conservation of Paddy Land and Wetland Act, 2008. 8. In _**Anand Raman Menon v. Revenue Divisional Officer** [W.P.(C) No.5218 of 2021],_ a learned Single Judge of this Court has directed the competent authority to consider the application for Building Permit afresh and grant Building Permit, if the application is otherwise in order and if the area of the proposed construction does not exceed the area W.P.(C) No.17943 of 2023 : 6 : utilised for construction of the existing building, without insisting compliance of the provisions of Section 27A of the Kerala Conservation of Paddy Land and Wetland Act, 2008. 9. In view of the law laid down by this Court, Ext.P9 notice cannot stand the scrutiny of law. Ext.P9 is therefore set aside. There will be a direction to competent among respondent 4 or 5 to reconsider Ext.P7 application without insisting for compliance of Section 27A of the Kerala Conservation of Paddy Land and Wetland Act, 2008 and grant permit to the petitioners, if the petitioners are eligible otherwise, within a period of one month. The writ petition is disposed of as above. **Sd/-** **N. NAGARESH JUDGE** sss W.P.(C) No.17943 of 2023 : 7 : ## **APPENDIX OF WP(C) 17943/2023** ## **PETITIONERS' EXHIBITS** **EXHIBIT.P1 TRUE COPY OF THE TAX RECEIPT NO. KL07022401999/2022 DATED 14.02.2022 EXHIBIT.P2 TRUE COPY OF THE BUILDING PERMIT DATED 23.04.2005 ISSUED BY THE 5TH RESPONDENT** **EXHIBIT.P3 TRUE COPY OF THE OCCUPANCY CERTIFICATE DATED 25.03.2006 ISSUED BY THE 5TH RESPONDENT. EXHIBIT.P4 TRUE COPY OF THE PROPERTY TAX RECEIPT NOS. 48329 BEARING DOOR NUMBER 38/3948 DATED 21.02.2022 ISSUED BY THE 3RD RESPONDENT.** **EXHIBIT.P4(A) TRUE COPY OF THE PROPERTY TAX RECEIPT NO. 48330 DATED 21.02.2022 BEARING DOOR NUMBER 38/3949 EXHIBIT. P4(B) TRUE COPY OF THE PROPERTY TAX RECEIPT NO.0100224 FOR THE RESIDENTIAL BUILDING BEARING DOOR NUMBER 38/3946 DATED 17.02.2022 ISSUED BY THE 3RD RESPONDENT** **EXHIBIT. P4(C) TRUE COPY OF THE PROPERTY TAX RECEIPT NO.NO.0100224 FOR THE RESIDENTIAL BUILDING BEARING DOOR NUMBER 38/3947 DATED 17.02.2022 ISSUED BY THE 3RD RESPONDENT** **EXHIBIT.P5 TRUE COPY OF THE ORDER VIDE REFERENCE NO: K8-4082/2022 DATED 08.07.2022, ON FORM 5 APPLICATION ISSUED BY THE 2ND RESPONDENT, EXCLUDING THE SUBJECT PROPERTY FROM THE DATABANK PREPARED FOR EDAPPALLY SOUTH VILLAGE IN TERMS OF SECTION 5(4)(I) OF THE ACT, 2008, EXHIBIT.P6 TRUE COPY OF THE JUDGMENT DATED 31.08.2022 OF THIS HONOURABLE COURT IN W.P (C) NO.26689 OF 2022** **EXHIBIT.P7 TRUE COPY OF THE APPLICATION FOR BUILDING PERMIT SUBMITTED BY THE PETITIONERS DATED 19.12.2022 TO THE 3RD RESPONDENT** W.P.(C) No.17943 of 2023 : 8 : |**EXHIBIT.P8**|**TRUE COPY OF THE RECEIPT BEARING**| |---|---| ||**REFERENCE NO. EY P3/ 2806/2022 DATED**| ||**09.12.2022 ISSUED BY THE 3RD**| ||**RESPONDENT TO THE PETITIONERS**| |**EXHIBIT.P9**|**TRUE COPY OF THE NOTICE NO.**| ||**EYP3/236/12806/22 DATED 27.02.2023**| ||**ISSUED BY THE OFFICE OF THE 5TH**| ||**RESPONDENT**| |**EXHIBIT.P10**|**TRUE COPY OF THE JUDGMENT DATED**| ||**10.11.2020 OF IN W.P (C) NO.34791 OF**| ||**2019.**| |**EXHIBIT.P11**|**TRUE COPY OF THE JUDGMENT DATED**| ||**05.03.2021 IN W.P (C) NO. 5218 OF 2021**|