Shaji S/o Krishnan v. Kottarakkara Municipality

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN** ## **WEDNESDAY, THE 09TH DAY OF OCTOBER 2019 / 17TH ASWINA, 1941** ## **WP(C).No.38309 OF 2018(K)** ## **PETITIONER:** **SHAJI S/O. KRISHNAN, THRIVENI, CHIRATTAKONAM, THALACHIRA P.O., VETTIKKAVALA, KOLLAM DISTRICT.** **BY ADV. SRI.ANCHAL C.VIJAYAN** ## **RESPONDENTS:** - **1 KOTTARAKKARA MUNICIPALITY KOTTARAKKARA, REPRESENTED BY ITS SECRETARY, PIN - 691 532.** - **2 THE SECRETARY, KOTTARAKKARA MUNICIPALITY, KOLLAM DISTRICT 691532** - **3 THE ASSISTANT ENGINEER, OFFICE OF THE ASSISTANT ENGINEER, KOTTARAKKARA MUNICIPALITY, KOTTARAKKARA, KOLLAM DISTRICT 691532** - **R1 BY SRI.M.K.CHANDRAMOHAN DAS, SC, KOTTARAKKARA MUNICIPALITY** ## **M.K.CHANDRAMOHAN DAS -S.C** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 09.10.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C).No.38309 OF 2018 2** ## **JUDGMENT** The petitioner has approached this Court challenging the 2[nd] condition imposed by the 2[nd] respondent-Secretary of Kottarakkara Municipality in Ext.P9 communication, wherein he has been directed to produce appropriate orders from the competent Authority under the Kerala Land Utilization Order (KLU order for short) with respect to his property comprised of in Survey No.99/16-2 of Kottarakkara Village. 2. The petitioner says that, as is clear from Ext.P1, he had already obtained a building permit to cause a construction in the said property, it being a garden land for the last several decades, and that he has completed construction of the ground floor as permitted thereunder. 3. The petitioner submits that the building has now been assessed to tax by ## **WP(C).No.38309 OF 2018 3** the Municipality but that when he made an application for further construction, they have illegally imposed the impugned condition in Ext.P9, as per which he has been directed to obtain orders under the KLU Order. The petitioner asserts that the property is not included in the Data Bank prepared under the provisions of the _Kerala Conservation of Paddy Land & Wetland Act_ (hereinafter referred to as 'the Paddy Land Act' for short) and that it has been remaining as a garden land for the last several decades; but conceding that in the Revenue Records and Basic Tax Register (BTR for short) it is still shown as 'Nilam' (Paddy Land). The petitioner, therefore, prays that the 2[nd] condition in Ext.P9 be quashed. 4. The learned Standing Counsel appearing for the MunicipalityShri.M.K.Chandramohan Das, submits that, as is evident from Ext.P9, there are several ## **WP(C).No.38309 OF 2018 4** violations noticed at the instance of the petitioner but that he has chosen to challenge only the 2[nd] condition therein. He says that, therefore, it will not be sufficient that the petitioner is able to get out of the rigour of this condition and that his application can be considered only if the other conditions in Ext.P9 are also complied with. As regards the 2[nd] condition in Ext.P9 is concerned, the learned Standing Counsel submits that since the property is shown as 'Nilam' in the BTR, the petitioner must certainly obtain orders from the competent Authority under the KLU Order before he can be now allowed to make further construction. 5. When I consider the afore submissions and go through the pleadings available on record, it is rather unclear as to how the Municipality granted Ext.P1 building permit to the petitioner to make construction of the ground floor in the **WP(C).No.38309 OF 2018 5** first place. However, the Municipality appears to have done so, since the property is not included in the Data Bank nor is it, in its physical attributes, remaining like a paddy field as of now. True, the property still continues to be defined as 'Nilam' (Paddy Land) in the BTR but the Municipality may have been under the impression, at the relevant time, that no further action is required by the petitioner to make construction thereon. 6. That said, however, the position of law has now changed drastically over the years with provisions of Section 27A being incorporated into the Paddy Land Act. These provisions were incorporated on account of the judgment of the Hon'ble Supreme Court in _**Revenue Divisional Officer v. Jalaja Dileep**_ [2015(1)KLT 984] that even the lands converted prior to coming into force of the Paddy Land Act will require sanction from a competent Authority before it is put to **WP(C).No.38309 OF 2018 6** other use. 7. Obviously,therefore, the petitioner will have to now either move an application under Section 27A of the Paddy Land Act. 8. Further conditions in Ext.P9 are concerned, as rightly pointed out by the learned Standing Counsel for the Municipality, the petitioner is certainly enjoined to rectify the same; but since none of such conditions are impunged in this writ petition, I do not deem it necessary to delve into the same and leave it to the petitioner to do so in terms of law. Resultantly, I order this writ petition and grant liberty to the petitioner to make an appropriate application under Section 27A of the Paddy Land Act and if this is done within a period of two weeks from the date of receipt of a copy of this judgment, same shall be considered by the competent ## **WP(C).No.38309 OF 2018 7** Authority as expeditiously as is possible, after following due procedure and affording an opportunity of being heard to the petitioner, as expeditiously as is possible, but not later than two months from the date of receipt of a copy of this judgment. Once the petitioner is able to obtain necessary orders from the competent Authority as afore, he will be at liberty to approach the 1[st] respondent-Kottarakkara Municipality and seek further action based on Ext.P9, subject to all other conditions therein being complied with. ## **Sd/-** ## **DEVAN RAMACHANDRAN** ## **JUDGE** MC/9.10.19 **WP(C).No.38309 OF 2018 8** ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** - **EXHIBIT P1 TRUE COPY OF THE BUILDING PERMIT NO. E243/2014-15 DATED 2.6.2014 ISSUED BY THE 2ND RESPONDENT IN FAVOUR OF THE PETITIONER** - **EXHIBIT P2 TRUE COPY OF THE JUDGMENT IN WPC NO. 36692/2016 DATED 30.11.2016 OF THIS HONBLE COURT** - **EXHIBIT P3 TRUE COPY OF THE RECEIPT NO. 7284 DATED 8.8.2017 ISSUED BY THE 2ND RESPONDENT TO THE PETITIONER FOR PAYMENT OF PROPERTY TAX** - **EXHIBIT P4 TRUE COPY OF THE OWNERSHIP CERTIFICATE NO. R1/114/17 DATED 9.10.2017 ISSUED BY THE 2ND RESPONDENT TO THE PETITIONER** - **EXHIBIT P5 TRUE COPY OF THE APPLICATION ALONG WITH REGULARIZATION PLAN SUBMITTED BY THE PETITIONER TO THE 2ND RESPONDENT** - **EXHIBIT P6 TRUE COPY OF THE RECEIPT NO. 0005674 DATED 25.06.2018 FOR RS. 50/- ISSUED BY THE 2ND RESPONDENT TO THE PETITIONER** - **EXHIBIT P7 TRUE COPY OF NOTICE NO. E1-8885/2018 DATED 6.7.2018 ISSUED BY THE 3RD RESPONDENT** - **EXHIBIT P8 TRUE COPY OF THE NOTICE NO. E1/8885/18 DATED 1.9.2018 ISSUED BY THE 3RD RESPONDENT TO THE PETITIONER** - **EXHIBIT P9 TRUE COPY OF THE NOTICE NO. E1/8885/18 DATED 5.10.2018 ISSUED BY THE 3RD RESPONDENT TO THE PETITIONER** - **EXHIBIT P10 TRUE COPY OF THE CERTIFICATE NO. KBKTR-12 / 18-19 DATED 15.10.2018 ISSUED BY THE AGRICULTURAL OFFICER, KRISHI BHAVAN, KOTTARAKKARA** - **EXHIBIT P11 TRUE COPY OF THE CIRCULAR NO. 994733/RAI/2016/LSGS DATED 22.12.2016 ISSUED BY THE SECRETARY TO GOVERNMENT, LOCAL SELF GOVERNMENT DEPARTMENT** - **RESPONDENT'S/S EXHIBITS:** **NIL** **MC** **(TRUE COPY) PA TO JUDGE**