High Court of KeralaSingle Judge2022-11-08Writ petition disposed of; Ext.P10 set aside an...

M. Rajagopalan Nair v. State of Kerala and others

Case / Petition Number:WP(C) No.29656 of 2022

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: N. Nagareesh
Judgment Date: 2022-11-08
Court Decision / Holding: Ext.P10 is set aside. The 3rd and 4th respondents shall reconsider the petitioner’s application for a Building Permit in the light of the judgment in State of Kerala v. Binu Mathew Chacko and Others (supra) and pass orders within one month. Writ petition disposed of accordingly.
Final Disposition: Writ petition disposed of; Ext.P10 set aside and respondents directed to reconsider the application in light of the cited decision within one month.

Parties to the Case

Appellants / Petitioners

M. Rajagopalan Nair

Respondents

State of Kerala
Kerala State Housing Board
Kochi Municipal Corporation
Assistant Executive Engineer, Vyttila Zonal Office of Kochi Municipal Corporation
Tahsildar, Kanayannur Taluk

Legal Representation & Advocates

Counsels for Petitioners

• N. Sukumaran (Sr.)
• S. Shyam
• N.K. Karnis
• V.K. Balachandran
• Vinay Kumar Varma
• Drishya K. Prakash
• Amalendu A.

Counsels for Respondents

• V. Harish
• Arun Antony

Case Synopsis & Summary

The petitioner, M. Rajagopalan Nair, challenges Ext.P10, an order by the Kochi Municipal Corporation’s Assistant Executive Engineer denying him a building permit for Plot No. 33 in Elamkulam North Housing Scheme (Kumaranasan Nagar). Revenue records describe the land as paddy land, and Ext.P10 relies on the Kerala Conservation of Paddy Land and Wetland Act, 2008 to restrict construction. However, the petitioner points to long-standing actions by the Kerala State Housing Board that acquired and parceled the land for residential development, including allotment of 145 plots under the Elamkulam North Housing Scheme, which the 2nd respondent admits. The petitioner contends that the land was acquired and developed for housing long before the Act’s introduction, a scenario previously addressed by this Court in State of Kerala v. Binu Mathew Chacko and others, where the court held that lands acquired for housing schemes cannot be retroactively subjected to the paddy land regime. The respondents argue that the Act binds the Corporation and that the land’s paddy land description in revenue records allows no deviation from the Act’s requirements. The court agrees with the petitioner’s position, applying the Binu Mathew Chacko principle, and holds that Ext.P10 cannot stand. It directs the 3rd and 4th respondents to reconsider the permit application consistent with the cited decision within one month, disposing of the writ petition accordingly.

Provisions of Law Cited

Kerala Conservation of Paddy Land and Wetland Act, 2008

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioner argues that Ext.P10 is unsustainable since the land formed part of a housing scheme approved and allotted by the Kerala State Housing Board long before the Kerala Conservation of Paddy Land and Wetland Act, 2008. The land was acquired and parceled into plots for residential construction; the Board has admitted this history, including the allotment of 145 plots under Kumaranasan Nagar. Relying on the judgment in State of Kerala v. Binu Mathew Chacko and Others, the petitioner contends that where authorities have already provided sites for housing before 2008, the Act cannot be invoked to bar construction. The court should therefore set aside Ext.P10 and require reconsideration consistent with the housing scheme’s prior status.

Contentions of Respondents

The respondents contend that the Kerala Conservation of Paddy Land and Wetland Act, 2008 binds the Corporation and that, since the land is described as paddy land in revenue records, the Building Permit must be issued only in accordance with the Act. They rely on the Housing Board’s role but emphasize that the Act governs paddy land/wetland restrictions and that the matter requires conformity with the statutory framework.

Cited Precedents (1)

Case Name	Citation	Treatment	Explanation
State of Kerala and others v. Binu Mathew Chacko and others	2020 (6) KHC 717 (DB)	Positive	The present judgment follows and applies the principle from this decision that lands acquired/allocated by the government for a housing scheme before the Kerala Conservation of Paddy Land and Wetland Act, 2008 should not be subjected to the Act; the housing scheme status overrides retroactive paddy land restrictions.

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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 ``` ``` TUESDAY, THE 8[TH] DAY OF NOVEMBER 2022 / ``` ``` 17TH KARTHIKA, 1944 ``` ## `WP(C) NO. 29656 OF 2022` ## `PETITIONER` ``` M.RAJAGOPALAN NAIR AGED 69 YEARS 'AISWARYA' DIVANPURAM HOUSING COLONY, MOOLAVATTOM P.O., KOTTAYAM-686 012. BY ADVS. N.SUKUMARAN (SR.) S.SHYAM N.K.KARNIS V.K.BALACHANDRAN VINAY KUMAR VARMA DRISHYA K.PRAKASH AMALENDU A. ``` ## `RESPONDENTS` ``` 1STATE OF KERALA REPRESENTED BY ITS SECRETARY TO LOCAL SELF GOVERNMENTDEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM-695 001. 2KERALA STATE HOUSING BOARD, REPRESENTED BY ITS SECRETARY, HOUSING BOARD'S BUILDINGS, SANTHI NAGAR, THIRUVANANTHAPURAM-695 001. 3KOCHI MUNICIPAL CORPORATION, REPRESENTED BY ITS SECRETARY, ERNAKULAM MAIN P.O., KOCHI-682 011. 4ASSISTANT EXECUTIVE ENGINEER, VYTTILA ZONAL OFFICE OF KOCHI MUNICIPAL CORPORATION, ERNAKULAM, KOCHI-682 019. ``` W.P(C) No.29656 of 2022 2 ] ``` 5TAHSILDAR, KANAYANNUR TALUK, ERNAKULAM, KOCHI-682 011. BY ADVS. V.HARISH ARUN ANTONY ``` ## `OTHER PRESENT:` ``` SMT.DEEPA NARAYANAN SR.GP ``` ``` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 08.11.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` W.P(C) No.29656 of 2022 3 ] ## **J U D G M E N T** Dated this the 8[th] day of November, 2022 The petitioner is aggrieved by Ext.P10 letter issued by the Assistant Executive Engineer, Vyttila Zonal Office of Kochi Municipal Corporation declining Building Permit to the petitioner. 2. The petitioner states that he is owner of plot No.33 of Elamkulam North Housing Scheme (Kumaranasan Nagar). The petitioner wanted to construct a building in the property. However, the application stands rejected by Ext.P10 order holding that the land is a paddy land and construction can be permitted only upto a maximum area of 120 square metres. 3. The petitioner states that though the land is described as paddy land in Revenue records, this is a land purchased by the Kerala State Housing Board for facilitating residential buildings and pieces of land were allotted by the 2[nd] respondent-Kerala State Housing Board specifically for the purpose of construction of residential buildings. W.P(C) No.29656 of 2022 ] 4 4. The petitioner pointed out that this Court has held in the judgment in _**State of Kerala and others v. Binu Mathew Chacko and others**_ [2020 (6) KHC 717 (DB)] that where the competent authorities have provided sites suitable to construct houses under a Housing Scheme long before the introduction of the Kerala Conservation of Paddy Land and Wetland Act, 2008, then the provisions of the Act cannot be applied to such lands. Ext.P10 cannot stand the scrutiny of law, contended the petitioner. 5. A counter affidavit has been filed on behalf of the 2[nd] respondent. The 2[nd] respondent has admitted that the Kerala State Housing Board has acquired the said land and parcelled the land into a number of building plots and had offered such plots for allotment to persons under advance registration scheme for construction of residential building. The Kerala State Housing Board has allotted 145 building plots under the Elamkulam North Housing Scheme (Kumaranasan Nagar). W.P(C) No.29656 of 2022 5 ] 6. Standing Counsel for the 3[rd] respondent-Corporation entered appearance and submitted that the provisions contained in the Kerala Conservation of Paddy Land and Wetland Act, 2008, are binding on the Corporation and since the land is described as paddy land in Revenue records, the Corporation can issue Building Permit only following the provisions of the Act, 2008. 7. I have heard the learned counsel for the petitioner, the learned Government Pleader representing respondents 1 and 5 and the respective learned Standing Counsel representing respondents 2 to 4. 8. From the pleadings in the writ petition and the specific statement made by the 2[nd] respondent-Kerala State Housing Board in the counter affidavit, it is evident that the land was purchased by the Kerala State Housing Board long back and was divided into plots and assigned the plots to eligible allottees for the purpose of construction of residential buildings. W.P(C) No.29656 of 2022 6 ] 9. This Court has considered a similar issue in the judgment in _**State of Kerala and others v. Binu Mathew Chacko and others**_ (supra). In the said judgment, this Court held that when the Government authorities themselves acquired/purchased properties for the purpose of residential scheme, then the Government should be treated to have taken a decision to make the land a residential zone. In such cases, the provisions of the Kerala Conservation of Paddy Land and Wetland Act, 2008, cannot be enforced. 10. I find that the issue agitated in this writ petition relating to Kumaranasan Nagar Housing Scheme in Ernakulam is also a similar case. The Kerala State Housing Board, which is a statutory authority, has allocated housing plots, for construction of residential buildings. ` 11. In that view of the matter, the provisions of the Act, 2008 cannot be made applicable. The issue is squarely covered by the judgment of this Court in _**State of Kerala and others v. Binu Mathew Chacko and others** (supra)._ W.P(C) No.29656 of 2022 7 ] Therefore, respondents 3 and 4 are compellable to reconsider the request made by the petitioner. 12. Therefore, Ext.P10 order of the Assistant Executive Engineer is set aside. Respondents 3 and 4 shall reconsider the application submitted by the petitioner for Building Permit in the light of the judgment of this Court in _**State of Kerala and others v. Binu Mathew Chacko and others** (supra)_ and pass orders thereon within a period of one month. The writ petition is disposed of as above. Sd/- ## **N. NAGARESH, JUDGE** smm W.P(C) No.29656 of 2022 8 ] ## `APPENDIX OF WP(C) 29656/2022` ``` PETITIONER EXHIBITS ``` |`Exhibit P1`|`TRUE COPY OF ALLOTMENT ORDER ISSUED BY`| |---|---| ||`THE 2ND RESPONDENT IN FAVOUR OF THE`| ||`PETITIONER DATED 29.12.1983.`| |`Exhibit P2`|`TRUE COPY OF THE COMMUNICATION DATED`| ||`02.02.2010 ISSUED BY THE RESPONDENT TO`| ||`THE PETITIONER TO PAY RS.1,31,345/`| |`Exhibit P3`|`TRUE COPY OF THE RECEIPT DATED`| ||`24.02.2010 ISSUED BY THE 2ND RESPONDENT`| ||`ACKNOWLEDGING RECEIPT OF PAYMENT AS PER`| ||`EXT.P2.`| |`Exhibit P4`|`TRUE COPY OF THE AGREEMENT DATED`| ||`28.06.2011 EXECUTED BETWEEN THE`| ||`PETITIONER AND THE 2ND RESPONDENT.`| |`Exhibit P5`|`TRUE COPY OF THE SALE DEED EXECUTED BY`| ||`THE 2ND RESPONDENT IN FAVOUR OF OF THE`| ||`PETITIONER DATED 02.11.2021.`| |`Exhibit P6`|`TRUE COPY OF THE BASIC TAX RECEIPT`| ||`DATED 12.07.2022 ISSUED TO THE`| ||`PETITIONER.`| |`Exhibit P7`|`TRUE COPY OF POSSESSION CERTIFICATE`| ||`ISSUED TO THE PETITIONER DATED`| ||`27.05.2022.`| |`Exhibit P8`|`TRUE COPY OF DETAILS OF LANDS STATED BY`| ||`VILLAGE OFFICER, ELAMKULAM DATED NIL.`| |`Exhibit P9`|`TRUE COPY OF APPLICATION NIL SUBMITTED`| ||`BY THE PETITIONER BEFORE THE 4TH`| ||`RESPONDENT ON 21.07.2022.`| |`Exhibit P10`|`TRUE COPY OF ORDER OF 4TH RESPONDENT`| ||`DATED 21.07.2022 REJECTING EXT.P9.`| |`Exhibit P11`|`TRUE COPY OF APPLICATION DATED`| ||`09.08.2022 SUBMITTED BY THE PETITIONER`| ||`BEFORE THE 5TH RESPONDENT.`| |`RESPONDENT EXHIBITS`|| |`Exhibit R2(A)`|`A TRUE PHOTOCOPY OF THE AWARD NO.3/81`| ||`DATED 31-01-1981 BY THE SPECIAL`| ||`TAHSILDAR (LA).`| |`Exhibit R2(B)`|`A TRUE PHOTOCOPY OF THE AWARD NO.4/81`| ||`DATED 29-04-1981 BY THE SPECIAL`| ||`TAHSILDAR (LA)`| W.P(C) No.29656 of 2022 9 ]