M. J. Francis and others v. State of Kerala and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE SHAJI P.CHALY** **FRIDAY, THE 06TH DAY OF DECEMBER 2019 / 15TH AGRAHAYANA, 1941** ## **WP(C).No.25852 OF 2019(F)** ## **PETITIONERS :** |**1**|**M.J.FRANCIS,**| |---|---| ||**AGED 61 YEARS,**| ||**S/O.JOSEPH, MUKKADAYAIL HOUSE, 6505,**| ||**KOVIL VATTOM ROAD, MAHARAJAS COLLEGE P.O.,**| ||**ERNAKULAM - 682 035.**| |**2**|**MRS. ELIZABETH FRANCIS,**| ||**W/O.M.J.FRANCIS, MUKKADAYAIL HOUSE, 6505,**| ||**KOVIL VATTOM ROAD, MAHARAJAS COLLEGE P.O.,**| ||**ERNAKULAM - 682 035.**| |**3**|**MR.JEFFERSON FRANCIS,**| ||**S/O.M.J.FRANCIS, MUKKADAYAIL HOUSE, 6505,**| ||**KOVIL VATTOM ROAD, MAHARAJAS COLLEGE P.O.,**| ||**ERNAKULAM - 682 035.**| ||**BY ADVS.**| ||**SRI.BIJU VARGHESE ABRAHAM**| ||**SRI.K.M.ANEESH**| ||**SRI.K.SANTHOSH KUMAR (KALIYANAM)**| ||**SRI.ADARSH KUMAR**| ||**SRI.DILEEP CHANDRAN**| ||**SRI.SHASHANK DEVAN**| ## **RESPONDENTS :** **1 STATE OF KERALA REPRESENTED BY ITS SECRETARY TO GOVERNMENT, REVENUE DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM - 695 001, KERALA. 2 THE DISTRICT COLLECTOR, CIVIL STATION BUILDING, KAKKANAD, ERNAKULAM-682 030, KERALA.** **WP(C).No.25852 OF 2019(F)** 2 - **3 THE THASILDHAR, TALUK OFFICE, KANAYANUR TALUK, ERNAKULAM -682 011.** - **4 THE SECRETARY, KOCHI MUNICIPAL CORPORATION, PARK AVENUE ROAD, KOCHI, KERALA - 682 011.** **R1 TO R3 BY GOVT. PLEADER SRI.JESTIN MATHEW** **R4 BY SRI.S.SUDHEESH KUMAR, SC, KOCHI MUNICIPAL CORPORATION** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 06.12.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING :** **WP(C).No.25852 OF 2019(F)** 3 ## **JUDGMENT** This writ petition is filed by the petitioner seeking the following reliefs :- (i) Call for the records leading up to issuance of Ext.P8 order and quash Ext.P8 order by issuance of a Writ of Certiorari or such other writ, order or direction. (ii) to issue a Writ of Mandamus or other appropriate order or direction to the 4[th] respondent to consider and pass orders on Ext.P7 application for building permit de hors the conditions stipulated in Ext.P8. (iii) to issue a Writ of Mandamus or other appropriate order or direction to the 3[rd] respondent to pass orders on Ext.P10 representation to re-assess the petitioner's property based on Ext.P3 judgment within the stipulated time as directed by this Court. 2. Apparently, petitioners are owners of 0.0592 ares, 0.0705 ares and 0.294 ares of property comprised in old survey No.262/1 of Elamkulam village, Ernakulam District within the limits of the Corporation of Kochi. Evidently, petitioner has secured Ext.P6 order from the District Collector, Ernakulam dated 27.02.2018 whereby **WP(C).No.25852 OF 2019(F)** 4 petitioners were permitted to utilise the property in terms of Clause 6 of the Kerala Land Utilisation Order, 1967. Petitioners have also submitted Ext.P10 request before the Tahsildar, Kanayannnoor Taluk, Ernakulam, i.e. the 3[rd] respondent herein seeking to make necessary corrections in the Basic Tax Register, wherein the property is shown as 'nilam'. The petitioners have also submitted Ext.P7 building permit application before the Secretary of the Corporation of Kochi i.e. the 4[th] respondent, which is also pending consideration. According to the petitioners, Ext.P7 was considered by the Secretary of the Corporation and due to the order of the Revenue Divisional Officer, petitioners will have to remit an amount of Rs.100/- per square feet exceeding 3000 square feet and on production of the receipt for the same, further action will be taken on the permit application. It seems, since the property is remaining in the Basic Tax Register as paddy field, clarification was sought for by the Secretary of the Corporation from the Revenue Divisional Officer, Fort Kochi in order to identify whether the consideration of the permit application has any adverse **WP(C).No.25852 OF 2019(F)** 5 consequences vis-a-vis, the amended provisions of the Kerala Conservation of Paddy Land and Wetland Act, 2008. Suffice it to say, Section 27A is introduced into Act, 2008 on and with effect from 30.12.2017, which reads thus : ## **27A. Change of nature of unnotified land.-** (1) If any owner of an unnotified land desires to utilise such land for residential or commercial or for other purpose, he shall apply to the Revenue Divisional Officer for permission in such manner as may be prescribed. (2) Notwithstanding anything contained in any judgment, decree or order of any Court or Tribunal or any other authority, the Revenue Divisional Officer may, after considering the reports of the Village Officer concerned, pass such orders as deemed fit and proper on such applications, ensuring that there is no disruption to the free flow of water to the neighbouring paddy lands, if any, through such water conservancy measures as is deemed necessary: Provided that, if the area of such parcel of land where the application is allowed is more than 20.2 Ares, ten percent of such land shall be set apart for water conservancy measures. (3) if the application is allowed, the applicant shall be liable to pay a fee at such rate as may prescribed : **WP(C).No.25852 OF 2019(F)** 6 Provided that, no such fee shall be collected if the applicant proves that the land where the application is allowed is, filled up or naturally filled up before the 4[th] day of July, 1967, the date of commencement of the Kerala Land Utilisation Order, 1967, after completing such procedure, as may be prescribed. (4) If the application is allowed, the Revenue Divisional Officer shall ensure that the reclamation of the unnotified land shall not adversely affect the cultivation of paddy or any other crops, if any, in the adjoining land and shall specify such water conservancy measures as is necessary to ensure such cultivation: Provided that in specifying such water conservancy measures, the Revenue Divisional Officer may, if he deems fit, refer to satellite maps of the area maintained by Government agencies. (5) No permission under this section shall be necessary where the purpose for which the unnotified land is converted or attempted to be converted or utilized or attempted to be utilized is for paddy cultivation. (6) Notwithstanding anything contained in the Kerala Panchayat Raj Act, 1994 (13 of 1994) or in the Kerala Municipality Act, 1994 (20 of 1994), no permission under this section shall be necessary for constructing a residential building having a maximum area of 120 square meters in a maximum extent of 4.04 ares of land or a commercial building having a maximum area of 40 square meters in a maximum extent of 2.02 ares of land: **WP(C).No.25852 OF 2019(F)** 7 Provided that the construction of a housing complex or complexes or flats or multi-storied residential complexes shall not come within the meaning of residential building specified in this sub-section. Provided further that this exemption shall be granted only once. (7) The exemption under sub-section (6) shall be applicable only to owners of unnotified lands under the Kerala Conservation of Paddy Land and Wetland (Amendment) Act, 2018 : Provided that if the area of the residential building or commercial building exempted under subsection (6) is subsequently increased by new extension, the exemption under sub-section (6) shall cease to have effect and the owner of the land as on the date of detection of the new extension shall be liable to pay fee as per sub-section (3). (8) Where conversion of an unnotified land is required for any public purpose, the Revenue Divisional Officer shall submit a report to Government outlining the measures to be adopted to ensure that the reclamation shall not disrupt the free flow of water to the neighbouring paddy lands, if any, and shall suggest such water conservancy measures as is necessary to ensure this. (9) The Government may, on receipt of a report under sub-section (8), issue permission to reclaim unnotified land for public purpose : **WP(C).No.25852 OF 2019(F)** 8 Provided that where permission is granted, the Government may make necessary modifications to the recommendations of the Revenue Divisional Officer as deemed fit : Provided further that, if the area of such parcel of land where the application is allowed is more than 20.0 Ares, ten percent of such land shall be set apart for water conservancy measures. (10) The order issued under sub-section (2) and (9) shall clearly indicate the survey number of the lands and the extent of the land in each survey number for which sanction has been accorded, the extent of the land in which water conservancy measures are to be adopted by the applicant and a sketch of such land indicating the aforementioned details shall be appended to the order. (11) The Revenue Divisional Officer may, either suo motu or on the application of any aggrieved party, cancel any order issued under sub-section (2) if the conditions specified in the order issued therein are not complied by the applicant, either fully or partially. (12) No order of cancellation under subsection (11) shall be made by the Revenue Divisional Officer unless the applicant thereof has been given an opportunity of being heard in the matter. (13) Any application received for the change of nature of unnotified land from the date of commencement of the Kerala Conservation of Paddy Land and Wetland (Amendment) Act, 2018 shall be considered **WP(C).No.25852 OF 2019(F)** 9 and disposed of only in accordance with the provisions of the Act. 3. Therefore it is evident that the Revenue Divisional Officer has issued Ext.P9 clarification dated 16.07.2019, directing the Secretary of the Corporation to impose Rs.100/- per square feet exceeding the 3000 square feet in terms of the amended provisions. These are the basic facts available for consideration. 4. I have heard learned counsel for the petitioners, learned Government Pleader and the Standing Counsel appearing for the 4[th] respondent and perused the pleadings and documents on record. Evidently, Ext.P6 order is passed by the District Collector on 27.02.2018 on the basis of an application submitted by the petitioners on 21.11.2017 i.e. prior to the amendment of the Kerala Conservation of Paddy Land and Wetland Act, 2008 on and with effect from 30.12.2017. Any how, when the application was submitted by the petitioners before the Secretary of the Corporation seeking issuance of building permit, the subject matter was **WP(C).No.25852 OF 2019(F)** **==> picture [13 x 8] intentionally omitted <==** seen referred to the Revenue Divisional Officer and the Revenue Divisional Officer has apparently passed Ext.P9 order dated 16.07.2019 thinking that the provisions of Section 27A of the Act, 2008 would apply and presumably not aware of Ext.P6 order passed by the District Collector on an application received antecedent to the amendment in question. 5. In my considered view, when the application under Clause 6 was considered and allowed by the District Collector as per Ext.P6 order on an application submitted prior to the introduction of Section 27A to Act, 2008, then the petitioners are entitled to enjoy the benefit of the said order without the trappings of the amended provision. It is also evident that petitioners have submitted the application before the cut off date fixed, in accordance with the amendment to the Kerala Conservation of Paddy Land and Wetland Act, 2008 i.e. 30.12.2017. Therefore, I am of the considered opinion that Ext.P10 application submitted by the petitioners will have to be considered by the Tahsildar, Kanayannoor Taluk, Ernakulam taking into account the **WP(C).No.25852 OF 2019(F)** **==> picture [13 x 8] intentionally omitted <==** proposition of law laid down by this Court in **Kizhakkambalam Grama Panchayath v. Mariumma [2015 (2) KLT 516]** wherein it was held that if a Clause 6 application is allowed by the statutory authority, then necessary additions are to be made in the Basic Tax Register adding to the existing entries. Needless to say, considering the case on hand accordingly, there is no scope for imposing any charge for construction in contemplation of Section 27A of Act, 2008. Accordingly there will be a direction to the 3[rd] respondent to finalise Ext.P10, in accordance with law, at the earliest and at any rate, within a period of one month from the date of receipt of a copy of this judgment, after providing notice of hearing to the petitioners. If and when the petitioners are producing enabling orders from the Tahsildar as directed above, the building permit application submitted by the petitioners shall be considered by the Secretary of the Corporation, in accordance with law, at the earliest and at any rate, within a period of one month from the date of production of the order by the petitioners as directed above, **WP(C).No.25852 OF 2019(F)** **==> picture [13 x 8] intentionally omitted <==** de hors the findings contained in Exts.P8 and P9 communications issued by the Secretary of the Corporation and Revenue Divisional Officer. Sd/- **SHAJI P.CHALY JUDGE** RKM **WP(C).No.25852 OF 2019(F)** 13 ## **APPENDIX** ## **PETITIONERS' EXHIBITS:** **EXHIBIT P1** **TRUE COPY OF THE DATA BANK SHOWING THE PETITIONER'S PROPERTIES AS "CONVERTED LAND BEFORE 2008".** **EXHIBIT P2 TRUE COPY OF THE ACKNOWLEDGMENT RECEIPT ISSUED BY THE 4TH RESPONDENT.** **EXHIBIT P3 TRUE COPY OF THE JUDGMENT IN WP(C) 16349/2017 DATED 16.05.2017.** **EXHIBIT P4 TRUE COPY OF THE JUDGMENT IN CON. CASE(C) NO.1962/2017(S) DATED 16.11.2017.** **EXHIBIT P5 TRUE COPY OF THE ORDER DATED 29.01.2018 PASSED UNDER CLAUSE 6(2) OF THE KLU ORDER BY THE 2ND RESPONDENT.** **EXHIBIT P6 TRUE COPY OF THE ORDER DATED 27.02.2018 PASSED UNDER CLAUSE 6(2) OF THE KLU ORDER BY THE 2ND RESPONDENT. EXHIBIT P7 TRUE COPY OF THE BUILDING PERMIT APPLICATION SUBMITTED BEFORE THE 4TH RESPONDENT DATED 26.02.2019.** - **EXHIBIT P8 TRUE COPY OF THE LETTER DATED 30.07.2019 ISSUED BY THE 3RD RESPONDENT.** **EXHIBIT P9 TRUE COPY OF THE CIRCULAR DATED 16.07.2019 ISSUED BY THE SUB COLLECTOR.** **EXHIBIT P10 TRUE COPY OF THE REPRESENTATION DATED 29.08.2019 SUBMITTED BEFORE THE 3RD RESPONDENT. EXHIBIT P11 TRUE COPY OF THE ACKNOWLEDGMENT RECEIPT DATED 29.08.2019 ISSUED BY THE 3RD RESPONDENT.**