Siraj Hussain & Fathima Ashraf v. Thrikkakara Municipality and Secretary, Thrikkakara Municipality; Russel M. Easa & Anwar M. Easa v. Thrikkakara Municipality and Secretary, Thrikkakara Municipality

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR.JUSTICE VIJU ABRAHAM`** ``` THURSDAY, THE 4[TH] DAY OF JANUARY 2024 / 14TH POUSHA, 1945 ``` ## **`WP(C) NO. 16631 OF 2020`** ## **`PETITIONERS:`** ``` 1SIRAJ HUSSAIN,AGED 41 YEARS S/O. V.M.HUSSAIN KHAN, CHEMBARAPPALLIL HOUSE, NADAKKAL P.O., ERATTUPETTA, KOTTAYAM DISTRICT-686 124 2FATHIMA ASHRAF,W/O. M.K.SAHRAF, MATTAKOMBANAL HOUSE, NADAKKAL P.O., ERATTUPETTA, KOTTAYAM DISTRICT-686 124 BY ADVS.KURIAN GEORGE KANNANTHANAM (SR.) SRI.TONY GEORGE KANNANTHANAM SRI.P.A.SALIM,SRI.THOMAS GEORGE SHRI.SIVASHANKAR PANICKER SRI.ARUN SAMUEL,ALEX GEORGE ``` ## **`RESPONDENTS:`** |**`1`**|**`THE THRIKKAKARA MUNICIPALITY,`**| |---|---| ||**`REPRESENTED BY ITS SECRETARY, THRIKKAKARA,`**| ||**`KAKKANADU, ERNAKULAM DISTRICT-682 030`**| |**`2`**|**`THE SECRETARY,`**| ||**`THRIKKAKARA MUNICIPALITY, THRIKKAKARA,`**| ||**`KAKKANADU,ERNAKULAM DIST-682 030`**| |**`3`**|**`THE REVENUE DIVISIONAL OFFICER,`**| ||**`FORT COCHIN-682 011`**| ||**`BY ADV S.JAMAL, SC, THRIKKAKARA MUNICIPALITY`**| ## **`OTHER PRESENT:`** ``` GP - RIYAL DEVASSY ``` ``` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 04.01.2024, ALONG WITH WP(C).20701/2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` WP(C) Nos.16631 & 20701 of 2020 2 ## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR.JUSTICE VIJU ABRAHAM`** ``` THURSDAY, THE 4[TH] DAY OF JANUARY 2024 / 14TH POUSHA, 1945 ``` ## **`WP(C) NO. 20701 OF 2020`** ## **`PETITIONERS:`** - **`1 RUSSEL M.EASA, AGED 51 YEARS S/O.P.S.MUHAMMED EASA RAWTHER, PUTHENPARAMBIL HOUSE, NADAKKAL P.O., ERATTUPETTA, NOW RESIDING AT VALAVIVAULT, PAREKKATTU TEMPLE ROAD, THRIKKAKARA, COCHIN-682 031.`** - **`2 ANWAR M.EASA,PUTHENPARAMBIL, PAREKKATTU TEMPLE ROAD, THRIKKAKARA, COCHIN-682 031.`** ``` BY ADVS. KURIAN GEORGE KANNANTHANAM (SR.) SRI.P.A.SALIM SRI.TONY GEORGE KANNANTHANAM ``` ## **`RESPONDENTS:`** - **`1 THE THRIKKAKARA MUNICIPALITY REPRESENTED BY ITS SECRETARY, THRIKKAKARA, KAKKANADU, ERNAKULAM DISTRICT.`** - **`2 THE SECRETARY, THRIKKAKARA MUNICIPALITY, THRIKKAKARA, KAKKANADU, ERNAKULAM DISTRICT-682 030.`** - **`3 THE REVENUE DIVISIONAL OFFICER, FORT COCHIN-682 001.`** ``` GP RIYAL DEVASSY S.JAMAL, SC, THRIKKAKARA MUNICIPALITY ADVOCATE GENERAL OFFICE KERALA ``` ``` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 04.01.2024, ALONG WITH WP(C).16631/2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` WP(C) Nos.16631 & 20701 of 2020 3 ## **VIJU ABRAHAM, J.** **................................................................. W.P (C) Nos.16631 & 20701 of 2020 .................................................................** Dated this the 4[th] day of January, 2024 ## **JUDGMENT** Since the issues raised in both these writ petitions are same, both of them are heard and disposed of together. 2. Brief facts in W.P.(C) No.16631 of 2020 are as follows: Petitioners are the owners of about 14.97 Ares of property comprised in Vazhakkala Village in Thrikkakara Municipality, adjacent to Sun Rise Hospital facing the seaport-airport road. They have been running a saw mill industry there and on finding that the place is not ideal for a saw mill industry, petitioners decided to stop the same by demolishing the existing building and to construct a new building in its place. To get a new building permit petitioners approached the Municipality wherein the Municipality directed them to obtain a no objection certificate from the revenue authorities. Thereupon petitioners approached the revenue authorities and they were informed that they have to make an application under Section 27A of the Kerala Conservation of Paddy Land and Wetland Act, 2008 (hereinafter referred to as “Act of 2008”) and make payment towards conversion fee as provided therein. Petitioners submit that the said property having an extent of 14.97 Ares WP(C) Nos.16631 & 20701 of 2020 4 comprised in resurvey no.562/1, 2, 10 and 11 of Vazhakkala Village was purchased by them as per Ext.P1 deed dated 25.01.2003. At the time of purchase of the property there were two buildings in existence which were being used for the purpose of saw mill functioning there. The original licence in the name of the previous owner which is produced as Ext.P4, show the building number of the saw mill and later the saw mill was transferred to the 1[st] petitioner’s name and Ext.P5 licence was issued in his name. A perusal of Ext.P4 would reveal that the property has been reclaimed before 1998. The intention of the petitioners is to stop the saw mill and construct a new commercial building in the said place for which Ext.P6 application was submitted. Petitioners also submitted an application before the Local Level Monitoring Committee to make necessary corrections in the data bank as is evident from Ext.P7. Petitioners rely on Ext.P9 report of the Village Officer wherein it is reported that a saw mill was functioning in the property from 1998 onwards and that for the last 25 years there is no paddy cultivation in the property and that the property is not fit for paddy cultivation. Ext.P10 report of the Agricultural Officer was also relied on by the petitioners wherein it is also reported that the property has been converted prior to 2008 and in the data bank the property has been included as a converted land. On Ext.P6 building permit application they were issued with Ext.P11 notice directing them to WP(C) Nos.16631 & 20701 of 2020 5 produce necessary no objection certificate from the revenue authorities and later Ext.P17 also. 3. Whereas in W.P.(C) No.20701 of 2020, 1[st] petitioner along with one Latheef Hussain purchased 20.09 Ares of property comprised in resurvey nos.560/5/9, 560/4/2, 560/4/3 and 560/4 in Vazhakkala Village during 1997-1998 and they purchased the property for the purpose of putting up a saw mill therein. Later the 2[nd] petitioner purchased the rights of Sri.Latheef Hussain. 1[st] petitioner applied to the local authority for licence for the establishment of a saw mill and the local authority as per order dated 11.12.1996 granted permission for installation of a 45 h.p. motor in the premises of the property. Thereafter petitioner started construction of the shed for the purpose of the saw mill and at that point of time no building permit from the local authority was necessary. By Ext.P3 the charges for installing a 45 h.p. motor was received by the Panchayat and Ext.P4 no objection certificate was issued by the Kerala State Pollution Control Board also. Petitioners wanted to stop the saw mill and pull down the existing structure and put up a new commercial building and submitted Ext.P5 application in that regard. Ext.P6 is the decision of the Local Level Monitoring Committee wherein the committee has decided to remove the property having an extent of 4.05 and 8.09 Ares comprised in survey no.560/4, 6.86 Ares comprised in survey no.560/4, 0.59 Ares comprised in survey no.560/10, 1.37 Ares WP(C) Nos.16631 & 20701 of 2020 6 comprised in survey no.560/11, .98 Ares comprised in survey no.560/3 and 1.09 Ares comprised in survey no.560/05 from the data bank. In the BTR, the property has been shown as nilam, but the petitioners contended that the property is used for commercial purposes for over 24 years. On Ext.P5 application for building permit Ext.P7reply was given by the local authority wherein it is informed that since the property has been shown as nilam in BTR, the extent of construction that could be undertaken is much less than the one applied for as per Ext.P5. Thereafter Ext.P8 notice was issued wherein the respondent Municipality has taken a stand that necessary permission under Section 27A of the Act of 2008 is to be obtained for processing the building permit application. Petitioners also rely on Ext.P10 circular wherein it is held that in properties having an existing building which has been numbered by the local authority, fresh permission could be granted for construction of a new building after verifying as to whether the property has been converted prior to 12.08.2018 though the same has been included in the revenue records/BTR as nilam or wetland. In view of the said circular issued as per Ext.P10 petitioners contended that since there was an existing commercial building in the property, they are entitled to for a building permit as sought for. 4. Essentially the issued raised is one regarding the applicability of Section 27A of the Act of 2008 in respect of the property in question. WP(C) Nos.16631 & 20701 of 2020 7 Section 27A was brought into the statute book as per an amendment brought to the Act on 30.12.2017. The specific contention of the petitioners is that the property has been converted long before the coming into force of the Act of 2008 and that commercial buildings have been constructed for the functioning of a saw mill and therefore for construction of a commercial building in the place of the said saw mill, petitioners are not required to undergo the procedure as prescribed under Section 27A including payment of any conversion fee. The documents produced in these writ petitions would show that the property has been converted long back and that a saw mill was functioning in the subject property. Petitioners rely on Section 393 of the Kerala Municipality Act, 1994 which deals with the grounds on which approval of site or permission to construct or reconstruct building may be refused. Section 393(1)(i) reads as follows: _“(1) The grounds on which approval of site for construction or reconstruction of a building or permission to construct or reconstruct a building shall be refused are the following, namely:— (i) that the work or use of the site for the work or any of the particulars comprised in the site plan, ground plan, elevations, sections or specifications would contravene provisions of any law, or any order, rule, declaration or bye-law made under such law;”_ So going by the said provision, if the work or use of the site for the work as stated in the building permit application would contravene any provision of any law or any order, rule, declaration or bye-law made WP(C) Nos.16631 & 20701 of 2020 8 under such law, then the application for building permit could be refused. Section 14 of the Act of 2008 deals with refusal of licence by the local authority. Section 14 reads as follows: _“_ _**14. Refusal of licence by the Local Authority** – Notwithstanding anything contained in the Kerala Panchayat Raj Act, 1994 (13 of 1994) or in the Kerala Municipality Act, 1994 (20 of 1994) no Local Authority shall grant any licence or permit under the said Act for carrying out any activity or construction in a paddy land or a wetland or an unnotified land, nature of which has been changed in contravention of the provisions of this Act converted or reclaimed in contravention of the provisions of this Act.”_ Section 14 starts with a non obstante clause that nothing contained in the Kerala Panchayat Raj Act, 1994 or in the Kerala Municipality Act, 1994 shall empower the local authority to grant any licence or permit under the said Act for carrying out any activity or construction in a paddy land or a wetland or an unnotified land, nature of which has been changed in contravention of the provisions of this Act converted or reclaimed in contravention of the provisions of this Act. A perusal of Section 14 would reveal that the permit could not be granted by the local authority if a paddy land or wetland has been converted or reclaimed in contravention of the provisions of the Act and in an unnotified land, the nature of which has been changed in contravention of the provisions of the Act. In the present case it is contended that the property has been converted prior to 2008 and that a commercial WP(C) Nos.16631 & 20701 of 2020 9 establishment was functioning in the said property inasmuch a saw mill was functioning. 5. This Court had occasion to consider almost identical situation in **Global Education Trust v. State of Kerala and others, 2020 (6) KHC** **538** wherein this Court has held that an owner of a converted paddy land with a building constructed prior to incorporation of Section 27A in the Act of 2008 is not required to obtain an order of regularisation under Section 27A as a pre-requisite to obtain building permit from a local authority. Paragraphs 8 and 9 of the said judgment read as follows: _“8. It is also to be noted that the Government of Kerala issued a circular dated 13.08.2018 stating that the construction completed in accordance with the building permit on an application submitted for building permit before 30.12.2017 in compliance of the requirement of Section 27A of Act 28 of 2008 need not be insisted. The requirement of Section 27 A of Act 28 of 2008 is only in respect of a land which had not been utilised legally prior to incorporation of Section 27A of Act 28 of 2008. Thus the holder of any land utilised for other purposes through the process of law, need not apply to regularise his land under Section 27 A of Act 28 of 2008._ _9. Therefore, I am of the considered view that Section 27A of Act 28 of 2008 cannot be insisted in respect of a land already utilised by constructing building prior to incorporation of 27A of Act 28 of 2008 even without obtaining permission under the Kerala Land Utilisation Order. However, it has to be verified from such application for building permit whether the proposed construction or reconstruction exceeds the appurtenant land covered by existing construction. If any construction or reconstruction is proposed beyond the utilisation of the land already done, that has to be regularised by submitting application under 27A of Act 28 of 2008. The rigor of 27A of Act 28 of 2008 cannot be insisted upon the land which has been utilised by_ WP(C) Nos.16631 & 20701 of 2020 10 _constructing buildings with valid permit or through the process of law before incorporation of Section 27 A of Act of 28 of 2008.”_ ## This Court in **Deepu D. v. District Collector, Kollam and others, 2022** ## **(5) KHC 90** in paragraphs 27 and 28 has held as follows: _“27. Such instances cannot be treated as violation of Section 27A for want of permission of Revenue Divisional Officer for the reason that Section 27A mandates permission of Revenue Divisional Officer only if the owner of an unnotified land desires to utilise such land for residential or commercial or for other purpose. The term 'other purpose' appearing in Section 27A can only mean any purpose other than the purpose for which the unnotified land is/was being used as on 30.12.2017, with effect from which date Section 27A was inserted in the Act, 2008. Attribution of any other meaning to Section 27A or the term 'other purposes' would only create absolute clog on the user of the land, which is not contemplated by the Act, 2008 and which will not be in public interest._ _28. For the afore reasons, 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 Section 2(i) of the Act, 2008.”_ In the said judgment it is held that if an unnotified land is used for residential or commercial purpose as on 30.12.2017, ie., the date on WP(C) Nos.16631 & 20701 of 2020 11 which Section 27A was incorporated in the Act of 2008, no permission of Revenue Divisional Officer under Section 27A would be required if the owner of the land carries out any activity relating to 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 Section 2(i) of the Act of 2008. 6. Admittedly the property in question is one where the property was utilised for a commercial purpose, ie., running of a saw mill, for which buildings were also constructed in the subject property. Now what the petitioners require is to demolish the buildings constructed for running the said saw mill and construct a commercial building. Going by the dictum laid down in **Deepu D** .’s case cited supra, if an unnotified land is used for residential or commercial purpose before 30.12.2017, no permission under Section 27A is required to be obtained by the owner of the land for the reason that since the activity carried out by the owner of the land in the said property was itself a commercial activity. Therefore, it cannot be said that there is any change of nature of an unnotified land as defined under Section 2(i) of the Act of 2008. Section 27A is mandated for the purpose of change of nature of unnotified land. Section 27A provides for the procedures that is to be undertaken by an owner of a land for change of nature of unnotified land. As per Section 2(i) change of nature of unnotified land means such act or series of acts WP(C) Nos.16631 & 20701 of 2020 12 whereby the nature of an unnotified land is changed or has been changed irreversibly and in such a manner that it cannot be reverted back to the original condition by ordinary means. Here is a case where the property has been put to use for a commercial purpose prior to the coming into force of Section 27A in the statute book. The building permit now requested for is for construction of a commercial building. So once an unnotified land is put to use for a commercial purpose that too before coming into force of Section 27A in the statute book and that the present request made before the local authority is for issuance of a building permit for undertaking a commercial activity, it cannot be said that there is change in nature of unnotified land whereby the nature of land has been changed irreversibly and in such a manner that it cannot be reverted back to the original condition. 7. In view of the facts and circumstances stated in the writ petitions, I am of the opinion that the provisions of Section 27A of the Act of 2008 cannot be made applicable in the case of the subject property owned by the petitioners. But in **Global Education Trust** ’s case cited supra, though this Court has held that Section 27A of the Act of 2008 cannot be insisted in respect of land already utilised constructing building prior to incorporation of Section 27A in Act of 2008 even without obtaining permission under the Kerala land Utilization Order, this Court has also held that it has to be verified from such application for building permit WP(C) Nos.16631 & 20701 of 2020 13 whether the proposed construction or reconstruction exceeds the appurtenant land covered by existing construction and if any construction or reconstruction is proposed beyond the utilisation of the land already done, that has to be regularised by submitting an application under Section 27A of the Act of 2008. Though Section 393 of the Kerala Municipality Act, 1994 empowers the local authority to refuse the building permit application if the construction undertaken is in violation of provision any other law and Section 14 of the Act of 2008 mandates that no local authority shall issue licence if the activity undertaken in unnotified land, the nature of which has been changed in contravention of the provisions of the Act, in the present case the change of nature of an unnotified land cannot be said to be in contravention of the provisions of the Act of 2008 inasmuch as going by the dictum laid down by this Court in **Global Education Trust** and **Deepu D.** ’s cases cited supra, when already commercial activity is being undertaken in the said property by construction of a commercial building, a subsequent intention of the property owner for construction of a new commercial building cannot by any stretch of imagination could be held to be an activity coming under the definition of change of nature of unnotified land as defined in Section 2(i) of the Act of 2008. In view of the same the stand taken by the local authority that the petitioners have to undergo the provisions of Section 27A is without WP(C) Nos.16631 & 20701 of 2020 14 appreciating the provisions of law in a proper perspective. Therefore, I am of the opinion that the matter requires reconsideration by the local authority in the light of the observations made above and also the dictum laid down in by this Court in **Global Education Trust** ’s cases cited supra as well as **Deepu D.** ’s case cited supra. Therefore the above writ petitions are disposed of with a direction to the local authority, the Secretary of the Thrikkakara Municipality to reconsider the request of the petitioners for issuance of a building permit for construction of a commercial building in the light of the observations made above as well as the declaration of law as stated by this Court in **Global Education Trust** ’s cases cited supra as well as **Deepu D.** ’s case cited supra and take a final decision in the matter within an outer limit of two months from the date of receipt of a copy of the judgment, after affording an opportunity of being heard to the petitioners. With the abovesaid direction, the writ petitions are disposed of. Sd/- **VIJU ABRAHAM** cks WP(C) Nos.16631 & 20701 of 2020 15 ## **`APPENDIX OF WP(C) 16631/2020`** ``` PETITIONER EXHIBITS ``` - `EXHIBIT P1 TRUE COPY OF THE SALE DEED 14.97 ARES OF PROPERTY IN RE.SY NO.562/1,2,10 & 11 OF VAZHAKKALA VILLAGE ON 25.1.2003` - `EXHIBIT P2 TRUE COPY OF THE PROPERTY TAX RECEIPT DATED 7.5.2018` - `EXHIBIT P3 TRUE COPY OF THE PROPERTY TAX RECEIPT DATED 7.5.2018` - `EXHIBIT P4 TRUE COPY OF THE LICENCE DATED` - `10.8.1998 ISSUED BY THE THRIKKAKARA GRAMA PANCHAYAT` - `EXHIBIT P5 TRUE COPY OF THE LICENSE DATED` - `17.9.2018 ISSUED BY THE THRIKKAKARA MUNICIPALITY` - `EXHIBIT P6 TRUE COPY OF THE RELEVANT PAGES OF THE APPLICATION DATED 23.9.2018 SUBMITTED BY THE PETITIONERS` - `EXHIBIT P7 TRUE COPY OF THE APPLICATION DATED 6.10.2018 SUBMITTED BY THE PETITIONER` - `EXHIBIT P8 TRUE COPY OF THE RELEVANT PAGES OF THE REPRESENTATION DATED 9.12.2018 SUBMITTED BY THE PETITIONERS` - `EXHIBIT P9 TRUE COPY OF THE REPORT DATED 15.11.2018 SUBMITTED TO THE SUB COLLECTOR, FORT KOCHI` - `EXHIBIT P10 TRUE COPY OF THE REPORT DATED` - `17.11.2018 TO THE 3RD RESPONDENT` - `EXHIBIT P11 TRUE COPY OF THE NOTICE DATED 22.11.2018 ISSUED BY THE 2ND RESPONDENT` - `EXHIBIT P12 TRUE COPY OF THE JUDGMENT DATED` - `1.2.2019 IN WPC NO.39303/2018 OF THIS` WP(C) Nos.16631 & 20701 of 2020 16 ``` HON.COURT ``` ``` EXHIBIT P13TRUE COPY OF THE REPRESENTATION DATED 22.7.2019 FROM THE PETITIONERS ``` ``` EXHIBIT P14TRUE COPY OF THE NOTICE DATED ``` ``` 27.7.2019 ISSUED BY THE 2ND RESPONDENT ``` ``` EXHIBIT P15TRUE COPY OF THE DECISION TAKEN ON 24.7.2019 BY THE TOWN PLANNING PERMIT ADALAT ``` ``` EXHIBIT P16TRUE COPY OF THE NOTICE DATED 5.8.2019 ISSUED BY THE 2ND RESPONDENT ``` ``` EXHIBIT P17TRUE COPY OF THE NOTICE DATED 28.5.2018 ISSUED BY THE 2ND RESPONDENT ``` ``` EXHIBIT P18TRUE COPY OF THE CIRCULAR DATED 22.1.2011 ISSUED BY THE GOVERNMENT EXHIBIT P19TRUE COPY OF THE CIRCULAR DATED 22.12.2016 ISSUED BY THE GOVERNMENT ``` WP(C) Nos.16631 & 20701 of 2020 17 ## **`APPENDIX OF WP(C) 20701/2020`** - `PETITIONER EXHIBITS` - `EXHIBIT P1 TRUE COPY OF THE STOP MEMO DATED 11.12.1997 TO THE PETITIONER.` - `EXHIBIT P2 TRUE COPY OF THE RECEIPT DATED 11.12.1996 ISSUED BY THE THRIKKAKARA MUNICIPALITY.` - `EXHIBIT P3 TRUE COPY OF THE RECEIPT DATED 11.12.1996 ISSUED BY THE THRIKKAKARA MUNICIPALITY.` - `EXHIBIT P4 TRUE COPY OF THE NO OBJECTION CERTIFICATE DATED 15.01.1998 ISSUED BY THE POLLUTION CONTROL BOARD.` - `EXHIBIT P5 TRUE COPY OF THE RELEVANT PAGES OF THE APPLICATION DATED 16.06.2020 SUBMITTED BY THE PETITIONERS.` - `EXHIBIT P6 TRUE COPY OF THE ORDER NO.TKA.25/19-20 DATED NIL TO THE 1ST PETITIONERS.` - `EXHIBIT P7 TRUE COPY OF THE NOTICE DATED 03.07.2020 TO THE 1ST PETITIONER.` - `EXHIBIT P8 TRUE COPY OF THE FINAL NOTICE DATED 07.07.2020 ISSUED TO THE 1ST PETITIONER.` ``` EXHIBIT P9TRUE COPY OF THE CIRCULAR DATED 22.01.2011 ISSUED BY THE GOVERNMENT. ``` - `EXHIBIT P10 TRUE COPY OF THE CIRCULAR DATED` ``` 22.12.2016 ISSUED BY THE GOVERNMENT. ``` WP(C) Nos.16631 & 20701 of 2020 18