MM TV LIMITED NH BYPASS ROAD, AROOR PO ALAPPUZHA REPRESENTED BY ITS GENERAL MANAGER (P & A) SHRI TJ THANKACHAN v. THE SECRETARY, AROOR GRAMA PANCHAYAT

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE N.NAGARESH** **WEDNESDAY, THE 24[TH] DAY OF AUGUST 2022 / 2ND BHADRA, 1944** ## **WP(C) NO. 20169 OF 2022** ## **PETITIONER:** **MM TV LIMITED NH BYPASS ROAD, AROOR PO ALAPPUZHA REPRESENTED BY ITS GENERAL MANAGER (P & A) SHRI TJ THANKACHAN** **BY ADVS. MILLU DANDAPANI RAMEEZ NOOH RONIT ZACHARIAH** **RESPONDENT:** **THE SECRETARY, AROOR GRAMA PANCHAYAT, AROOR GRAMA PANCHAYAT OFFICE AROOR P.O., CHERTHALA, ALAPPUZHA, PIN – 688534** **BY ADV SHRI.V.N.SANKARJEE, SC, AROOR GRAMAPANCHAYAT** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 24.08.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C) NO.20169 OF 2022** **2** ## **JUDGMENT** Dated this the 24[th] day of August, 2022 The petitioner, a Company registered under the Companies Act, 1956, is before this Court seeking to declare that the petitioner is entitled to construct additional floors over the existing building bearing No.2/275-A of Aroor Grama Panchayat already constructed and occupied by virtue of Ext.P4 Building Permit irrespective of the fact that a part of its property is described as 'Nilam' as per the Revenue records. 2. The petitioner states that the respondent-Grama Panchayat granted Building Permit to the petitioner in the year 2010 for construction of a building. The petitioner wanted to construct additional floors over the building. Therefore, the petitioner submitted Ext.P6 online application for Building Permit for construction of two additional floors over the already existing building. The respondent-Secretary to the **WP(C) NO.20169 OF 2022** **3** Grama Panchayat, however, issued Ext.P9 stating that since the land is categorised as 'Nilam' in Revenue records, a Building Permit cannot be granted without the sanction of the Revenue Divisional Officer. It is aggrieved by Ext.P9 that the petitioner has approached this Court. 3. The respondent-Secretary to the Grama Panchayat filed a counter affidavit. The respondent submitted that Ext.P4 Building Permit was issued for construction of building having total plinth area of 1625.83 Square Metres including 1481.94 Square Metres for first floor and 143.89 Square Metres for stair room, in the property having an extent 80.7 Ares comprised in Survey Nos.420/1-A, 420/7-A-2, 420/7-A-1 and 420/7-B of the Aroor Village. There was an existing building consisting of the ground floor having plinth area of 2284.67 Square Metres and first floor having plinth area of 270.21 Square Metres. The said building which was then in existence was assessed during 2006-2007 with number 3/230B (old) and 2/275A (new). The respondent issued licence for TV **WP(C) NO.20169 OF 2022** **4** channel functioning with 260HP, Motor and TV, studio equipment in building No.III/230B during 2006-2007. The Building Permit sought to be issued by Ext. P6 application is for undertaking construction of the second and third floors having total plinth area of 4045.44 Square Metres over the construction undertaken pursuant to Ext.P4. 4. The property in which the existing building situates and over which new construction is sought to be undertaken is described as 'Nilam' in Revenue records, but the same is not included in the Data Bank. The paddy land covered by Exts.P1 to P3 are unnotified land which attracts Section 27A of the Kerala Conservation of Paddy Land and Wetland Act, 2008. The writ petition is bad for non-joinder of functionaries under the Kerala Conservation of Paddy Land and Wetland Act, 2008. The petitioner is not entitled to any of the reliefs sought for, submitted the respondent-Grama Panchayat. 5. I have heard the learned counsel for the petitioner and the learned Standing Counsel representing the **WP(C) NO.20169 OF 2022** **5** ## respondent-Grama Panchayat. 6. It is an admitted position that the petitioner has constructed a building over the property in question after obtaining a Building Permit, in the year 2006. The petitioner constructed additional floors in the year 2010 that was also after obtaining a Building Permit. However, now, when the petitioner wants to construct further additional floors, the Secretary to the Grama Panchayat has taken exception on the ground that the land is categorised as paddy land in Revenue records. 7. This Court has considered a similar issue in _**Soumini and others v. Naduvannur Grama Panchayat**_ _[2017 (1) KLT 168]_ and held as follows: 4. Hence only if the lands are included as “paddy land” or “wetland” in the data bank the same would be covered under that enactment and otherwise it would be covered under the Kerala Land Utilization Order, 1967 [for brevity “KLU Order”]. It is an admitted fact that there is an existing building in the said property and the petitioners intend to construct additional rooms in its first floor. In such circumstance, what is required is only an application before the District Collector/RDO under the KLU Order for change of **WP(C) NO.20169 OF 2022** **6** user of the land as has been held in Puthan Purakkal Joseph v. Sub Collector MANU/KE/0889/2015:2015 (3) KHC 727:2015 (3) KLT 182 : 2015 (3) KLT. 322. In the present case, since the land in question already has a building, if the petitioners file an application under Clause (6) of the KLU Order, necessarily the RDO has to grant the conversion of user as sought for. After conversion of user the petitioner could also apply for fresh assessment under the Kerala Land Tax Act, assessing the land as garden land as has been held in Kizhakkambalam Grama Panchayat v. Mariumma MANU/KE/0431/2015: 2015 (3) KHC 19: 2015 (2) KLT 516: 2015 (1) KLD 915: 2015 (2) KLJ 861. Considering the totality of the circumstances arising in this case, Ext.P4 is set aside and the Panchayat is directed to consider the application for building permit de hors the fact that in the possession certificate and title deed the property is described as ‘Nilam’. ## 8. The issue was considered by this Court again in the judgment in _**Deepu v. District Collector** [2022 (4) KLT 583]_ and declared as follows:- It is declared that permission of Revenue Divisional Officer under Section 27A is necessary only if owner of an unnotified land desires to utilise such land for residential or commercial or for other purpose, than one for which the unnotified land was used as on 30.12.2017. It is therefore held that if an unnotified land is used for residential or commercial purpose as on 30.12.2017, no permission of Revenue Divisional Officer under Section 27A would be required if the owner of the land carries out any activity relating to the residential or commercial purpose as the case may be, for the reason that by such activity, there is no resultant 'change of nature of unnotified land' as defined under **WP(C) NO.20169 OF 2022** **7** Section 2(i) of the Act, 2008. 9. In view of the law laid down by this Court in the judgments in _**Soumini and others**_ (supra) and _**Deepu**_ (supra), Ext.P9 issued by the Secretary to the Grama Panchayat cannot stand the scrutiny of law. In the circumstances, Ext.P9 letter is set aside. There will be a consequential direction to the respondent-Grama Panchayat to grant Building Permit to the petitioner for additional floors, if the petitioner is otherwise eligible. Orders in this regard shall be passed within a period of one month. **Sd/N.NAGARESH JUDGE** spk **WP(C) NO.20169 OF 2022** **8** ## **APPENDIX OF WP(C) 20169/2022** **PETITIONER EXHIBITS Exhibit P1 TRUE COPY OF THE SALE DEED NO. 978/2005 OF KUTHIATHODU S.R.O. DATED 23.03.2005** **Exhibit P2 TRUE COPY OF THE LATEST POSSESSION CERTIFICATE DATED 17.05.2022 ISSUED BY THE 1ST RESPONDENT TO THE PETITIONER Exhibit P3 TRUE COPY OF THE LATEST LAND TAX RECEIPT BEARING NO. KL04020205541/2022 DATED 12.05.2022 ISSUED BY THE LAND REVENUE DEPARTMENT TO THE PETITIONER Exhibit P4 TRUE COPY OF THE BUILDING PERMIT BEARING NO. L3-8645/10 (210) DATED 14.07.2010 ISSUED TO THE PETITIONER COMPANY BY THE RESPONDENT Exhibit P5 TRUE COPY OF THE LATEST PROPERTY TAX RECEIPT BEARING NO. A4382118 ISSUED BY THE RESPONDENT DATED 14.01.2022 SHOWING REMITTANCE OF PROPERTY TAX BY THE PETITIONER Exhibit P6 TRUE COPY OF THE ONLINE APPLICATION FOR BUILDING PERMIT BEARING E-FILE NO. 04504380122001445792 AND HAVING REGISTRATION NO. 1445792 DATED 15.01.2022 SUBMITTED BY THE PETITIONER COMPANY BEFORE THE RESPONDENT FOR CONSTRUCTION OF ADDITIONAL FLOORS Exhibit P7 TRUE COPY OF THE REPRESENTATION DATED 25.01.2022 ISSUED BY THE PETITIONER COMPANY TO THE RESPONDENT Exhibit P8 TRUE COPY OF THE LETTER ISSUED BY THE RESPONDENT TO THE PETITIONER COMPANY DATED 17.05.2022 Exhibit P9 TRUE COPY OF THE LETTER DATED 27.05.2022 BEARING NO. S3-884/2022 ISSUED BY THE RESPONDENT TO THE PETITIONER COMPANY** **WP(C) NO.20169 OF 2022** **9** **RESPONDENT EXHIBITS Exhibit R1(a) TRUE COPY OF THE LICENSE DATED 4.7.2006 ISSUED BY THE RESPONDENT. Exhibit R1(b) TRUE COPY OF THE STATEMENT OF FACTS DATED 23.8.2022 PREPARED BY THIS RESPONDENT.**