Regularisation of additional residential construction on previously converted paddy land could not be conditioned on Section 27A permission where the permit preceded that provision. The court dismissed the Panchayat’s appeal, upholding reconsideration of occupancy under the Building Rules applicable when the permit was issued.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR
&
THE HONOURABLE MR. JUSTICE SHAJI P.CHALY
THURSDAY, THE 24TH DAY OF SEPTEMBER 2020 / 2ND ASWINA, 1942
WA.No.1007 OF 2020
AGAINST THE JUDGMENT DATED 16.03.2020 IN WP(C) 7007/2020(A) OF HIGH COURT OF KERALA
APPELLANTS/RESPONDENTS:
1 CHERANELLOOR GRAMA PANCHAYATH, REPRESENTED BY ITS SECRETARY, SOUTH CHITTOOR P.O., ERNAKULAM-682 027.
2 THE SECRETARY, CHERANALLOOR GRAMA PANCHAYATH, SOUTH CHITTOOR P.O., ERNAKULAM-682 027.
BY ADVS. SRI.P.MOHANDAS (ERNAKULAM) SRI.K.SUDHINKUMAR SRI.S.K.ADHITHYAN SRI.SABU PULLAN SRI.GOKUL D. SUDHAKARAN DR.K.P.SATHEESAN (SR.)
RESPONDENTS/PETITIONER:
JOE THATTIL,
AGED 43 YEARS, S/O. ANTONY THATTIL, TAHTTIL HOUSE, 8TH CROSS, DIVINE NAGAR, SOUTH CHOTTOOR P.O., ERNAKULAM, KOCHI-682 027.
R1 BY ADV. SRI.P.K.SOYUZ
THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 24-09-2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
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CR
JUDGMENT
Shaji. P. Chaly, J.
The appeal is preferred by the respondents in W.P.(C) No. 7007 of 2020 i.e., the Cheranalloor Grama Panchayat and its Secretary challenging the judgment of the learned single Judge dated 26.02.2020, whereby the learned Single Judge allowed the writ petition and quashed Ext.P6 notice issued by the Secretary of the Grama Panchayat dated 15.12.2018 declining to issue, the occupancy certificate and building number due to the additional construction carried out by the writ petitioner/respondent against Ext.P3 permit dated 26.10.2015 granted by the Secretary of the Grama Panchayat. Consequently, the writ petitioner was directed to secure necessary orders from the Revenue Divisional Officer concerned under Section 27A of the Kerala Conservation of Paddy Land and Wetland Act, 2008 ('the Act, 2008' for short). Thereby, the Secretary was directed to consider the grant of occupancy certificate afresh without any reference to the nature of land in revenue records as paddy field, in accordance with the provisions of the Kerala Panchayat Building Rules, 2011 ('Rules, 2011' for brevity), which was in force at the time of grant of Ext.P3 building permit dated 26.10.2015 and not on the basis of the subsequent Building Rules that has come into force, after providing an opportunity of hearing to the writ petitioner and within a period of one month from the date of production of a copy of the judgement. It is, thus, challenging the legality and correctness
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of the said judgment, this appeal is filed.
The writ petitioner is the owner in possession of 5.66 Ares of property
comprised in re-Survey No. 306/4, Block No.4 of Cheranalloor Village in Kanayannur Taluk, Ernakulam District, which is an undisputed fact. The said property was included in the data bank prepared by the Local Level Monitoring Committee of the Cheranalloor Grama Panchayat under the provisions of the Act, 2008 as converted before 5 years. The writ petitioner submitted an application for building permit before the Secretary of the Grama Panchayat, the second appellant herein, for the construction of the residential house in the property, against which Ext.P3 permit was granted for the construction of 240.77 square meters of residential building in two floors. Admittedly, over and above the plinth area permitted to be constructed as per the permit, the writ petitioner carried out additional constructions and it was completed on 28.12.2017. Thereafter, in accordance with Rules, 2011, the writ petitioner has submitted a completion plan, and an application seeking occupancy certificate before the Secretary on 30.01.2018. Since the application was not considered, the writ petitioner approached this Court by filing W.P.(C) No. 31405 of 2018 seeking appropriate directions for consideration of the application. The said writ petition was disposed of directing the writ petitioner to file an application for regularisation in the prescribed format and thereupon, directed the respondents therein to consider and dispose of the application within three months. It was thereafter that Ext.P6 impugned notice was issued by the
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Secretary of the Grama Panchayat dated 15.12.2018 stating that since the land owned by the writ petitioner is classified as 'nilam' in the revenue records, permission should be obtained from the Revenue Divisional Officer as per Section 27A of the Act, 2008, with a further direction that a proper application should be submitted for regularisation of additional portion of building constructed deviating from the approved plan. The case of the writ petitioner is that since the writ petitioner was abroad, the application for regularisation of the additional construction could be furnished only on 29.02.2020, produced as Ext.P7 along with the writ petition and the Secretary of the Grama Panchayat has issued Ext.P8 receipt for the same.
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permit, a Government circular was in force allowing construction of residential buildings having an area of 300 square meters, in paddy fields converted prior to 2008, and recorded as paddy land in revenue records. It is further contended that Ext.P3 building permit was granted accordingly for a plinth area of 240.77 square meters; however, the writ petitioner has constructed a building having an area of 528.66 square meters. Therefore, the construction, even as per the then existing circular, is in violation of the building permit and hence, it cannot be regularised. It is further submitted that if the direction of the learned Single Judge is allowed to be implemented, the same will have far reaching consequences, since a large number of regularisation applications of those who have constructed buildings in unnotified lands without obtaining permission under Section 27A, are pending, and in all those cases, the appellants have consistently directed the applicants to obtain permission under Section 27A of the Act, 2008. Therefore, if the claim of the writ petitioner is allowed, it will be a wrong message and all such constructions of similarly placed persons would be constrained to be regularised in violation of the legal provisions.
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provisions of the Act, 2008, Kerala Land Utilisation Order, 1967 and the attendant circulars issued by the State Government, in order to regularise the constructions carried out in the paddy fields. The Act, 2008 was brought into force on and with effect from 12-08 2008, which has undergone amendment in the years 2011, 2015, 2016 and 2018.
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Centre State Science and Technology Institutions on the basis of satellite pictures by incorporating the survey numbers and extent in the data-bank and get it notified by the concerned Panchayat/ Municipality/Corporation, in such manner as may be prescribed, and exhibit the same for the information of the public, in the respective Panchayat/Municipality/Corporation Office and in the Village Office/Offices. This was the provision as it originally stood and there was no provision under the Act to consider the grievance of an aggrieved person consequent to the inclusion of any property in the data bank. Thereupon, directions were being issued by this Court in writ petitions filed by aggrieved persons to consider such application for removal of the property from the data bank. Anyhow, by virtue of an amendment introduced by Ordinance No. 41 of 2017, a proviso was brought into existence on and with effect from 30-12-2017 after sub-section 4(1) of Act, 2008, which was replaced by Ordinance Nos. 13 of 2018 dated 12.02.2018 and 30 of 2018 dated 04.04.2018 and later by bill dated 06-07-2018 to have deeming effect from 30-12-2017, by which any person aggrieved by the entries in the data bank so existed may prefer an application to the Revenue Divisional Officer concerned, who shall dispose of such application within a period of three months after following such procedure as may be prescribed and in case the RDO finds that the land included as a paddy land or wet land in the said data bank is not a paddy land or wetland, it shall be deemed to have been removed from the data bank.
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Kerala Land Utilisation Order, 1967 has lost its relevance, in Revenue Divisional Officer, Fort Kochi and others v. Jalaja Dileep and another
[2015(2) KHC 109=2015(1) KLT 984], the Apex Court had held that if land is not included in the data bank or draft data bank prepared under Paddy Land Act and if it is not a paddy land or wet land as defined under the Act, and the classification of land is noted as paddy field in the revenue records, provisions of Kerala Land Utilisation Order will be applicable to such land and Collector as defined in clause 2(a) of Order, 1967 has power to grant permission to utilise such land for other purposes. It was further held that, enquiry to ascertain as to whether the land is a paddy field or dry land, and for conversion of such land for residential purpose or for any public purpose is governed by the Act, 2008 and the Kerala Land Utilisation Order, 1967, and the authorities constituted thereunder respectively are competent authorities, and the aggrieved person has to approach such authority, and further that under the guise of rectification of mistakes in Section 18 of Land Tax Act, conversion of nature of the land cannot be effected bypassing the procedure stipulated under the KLU Order and the Act, 2008. Therefore, we have to proceed on the basis that if the property was not included in the data bank prepared as per the Act, 2008, it was guided by the provisions of the Kerala Land Utilisation Order, 1967. But, fact remains, Section 27A was introduced into the Act, 2008 on and with effect from 30.12.2017 as per the ordinances specified above and later as per the provisions of the Kerala Paddy and Wetland (Amendment) Act, 2018 ('the Act, 2018' for short). As per sub-Section (1) of Section 27A, if any owner of un-notified land desires
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to utilise such land for residential or commercial or for other purposes, he shall apply to the Revenue Divisional Officer for permission in such manner as may be prescribed. Other provisions are also introduced into Section 27A so as to deal with such applications.
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Clause 6(2) of the Kerala Land Utilisation Order, 1967 stipulates that no holder of any land who cultivates any land with any food crop for a continuous period of three years at any time after the commencement of the order shall, after the said period of three years, convert or attempt to convert or utilise or attempt to utilise such land for the cultivation of any other food crop or for any other purpose except under and in accordance with the terms of a written permission given by the Collector.
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the Act has come into force on and with effect from the aforesaid date. Therefore, it is clear that when the writ petitioner applied for the building permit, the property was not included in the data bank as a paddy field. However, by including the property in the data bank, it indicated that it was a paddy field converted five years prior to the introduction of the Act, and at the most at that point of time the consequence that could have stood in the way of securing a permit was the provisions of clause 6(2) of the Kerala Land Utilisation Order, 1967. Even though there was a restriction from conversion contained under clause 6(2) of the Kerala Land Utilisation Order, 1967, there is no provision at all under the Order 1967 to take any action against any person who has converted the land, except the power of the District Collector to direct cultivation of land with food crop that was being, cultivated three years prior to the introduction of order 1967, either directly or through conducting auction, as is provided under clause 7 of order 1967. There is no case for the appellant Panchayat that any action was initiated by the District Collector under section 7 of the Kerala Land Utilisation Order 1967. The said question was considered by a Division Bench of this Court in Aishabeevi and another v. Superintendent of Police, Ernakulam and
others [2014 (3) KHC 678], taking into account the provisions of Act, 2008 and the Kerala Land Utilisation Order, 1967 and it was held that as per Section 14 of the Act, 2008, no legal authority shall grant any licence or permit under the Kerala Panchayat Raj Act, 1994 or the Kerala Municipality Act, 1994 for carrying out any activity or construction in a paddy land or wet land converted in contravention of the provisions of the Act, 2008. It was
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further held that obviously the said power is not made applicable to the land which stood converted prior to the commencement of the Act, 2008, even if such application was made in violation of the Kerala Land Utilisation Order, 1967 and therefore, it was held that the permit granted thereunder was for a valid purpose and the same was not issued in contravention to Ext.R4(a). Paras 21 to 26 in Aishabeevi supra are relevant to the context, they read thus;
“21. Though, there is no specific pleadings in the counter affidavit, we will deal with the contention that the paddy land was converted in violation of S.6 of the Kerala Land Utilisation Order, 1967. We have already found that the property in question was not lying as a paddy land at the time when the Conservation of Paddy Land and Wet Land Act, 2008, was commenced. But it is pertinent to note that the party respondents have no specific contention pertaining to the crucial questions 'when did the petitioners or prior owners convert the paddy land?' or 'who converted it?'. Whereas, the case of the party respondents is that in the absence of specific order permitting conversion of the land under Land Utilisation Order, 1967, it can be legally presumed that the land in question is an illegally converted one, for which no permission can be granted for construction of building and such land cannot be used for any purpose other than agricultural purpose. Can such legal presumption be drawn legally, merely on the reason that no order permitting conversion under Land Utilisation Order, 1967 has been passed or produced with respect to the land in question?
Presumptions
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proved, on existence of some other facts. In Stumpf v. Montgomery (1924 (101) OKL 256), the Court concurred with the beautiful metaphor in regard to 'presumption' said by a scholarly Counsellor 'Ore Tenus', which reads as follows: “Presumptions may be looked on as the bats of the law flitting in the twilight, but disappearing in the sunshine of actual facts.” In Izhar Ahmedkhan v. Union of India (AIR 1962 SC 1052), Supreme Court held that the term presumption may be defined to be an inference, affirmative or disaffirmative of the truth or falsehood of a doubtful fact or preposition drawn by a probable reasoning from something proved or taken for granted. Put it differently, presumption would mean drawing inference from the facts proved or admitted by a process of reasoning as probable inferences of facts. The expressions “may presume” and “shall presume” are defined in S.4 of the Evidence Act, 1872. The presumption falling under the former category are compendiously known as 'factual presumptions' or 'discretionary presumptions' and those falling under the latter known as “legal presumptions” or “compulsory presumptions”. 'Presumption of fact' is the inference which is naturally and logically drawn from given facts without the help of legal direction. To put it differently, it means fact which is uncertain or doubtful may be inferred from the proof of another fact. Whereas, “legal presumptions' are arbitrary inferences which the law expressly directs the Judge to draw from particular facts”. These are nothing but deductions drawn from human experiences and observations and expressed in the form of artificial rules of law. When a provision deals with legal presumption, it is to be understood as in terrorem i.e.; in tone of command that it has to be presumed, if conditions, if any, prescribed had been satisfied. (Narasinga Rao v. State of Andhra Pradesh ((2001) 1 SCC 691). Presumption of law are obligatory and are of two kinds (a) rebutable and (b) irrebutable. The court is bound to act according to rule and cannot refuse to draw presumption.
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of law are closely allied. When presumption prevails in favour of a party, the burden of proof is on the opponent. Therefore, it can be concluded that no legal presumption can be drawn unless the statute, expressly prescribes such presumption. In short “No legal presumption unless the statute commands”.
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Act, 1955. The paramount object sought to be achieved by the Kerala Land Utilisation Order issued under Essential Commodities Act is to ensure that those lands which are put to use for the agricultural purpose of cultivation of food crops which are enumerated in Clause 2(b) of that Order are put to such use.
respect of the constructions carried out without even securing permit and in violation of the provisions of the Act, 2008 and Order, 1967, thus enabling the owners of the paddy fields to secure the constructions regularised in terms of the mandate contained under such circulars.
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On the other hand, the learned senior counsel has invited our attention to the circular of the State Government dated 13-08-2018, which
reads thus:
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petitioner to secure necessary orders under Section 27A, since the said provision has come into force only with effect from 30.12.2017 while the permit was granted to the writ petitioner on 26.10.2015. Therefore, it is clear and evident that the provisions of Section 27A will not come into play in the matter of the permit granted to the writ petitioner. This is also quite clear from sub-Section 13 of Section 27A, which stipulates that any application received for the change of nature of unnotified land from the date of commencement of the Amendment Act, 2018 incorporating section 27A to Act, 2008 shall be considered and disposed of only in accordance with the provisions of the Act.
“25. Completion certificate, development certificate and occupancy certificate. (1) Every owner shall, on completion of the development or
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redevelopment of land or construction or reconstruction or addition or alteration of building, as per the permit issued to him, submit a completion certificate certified and signed by him, to the Secretary in the form in Appendix E:
Provided that in the case of buildings, other than residential buildings up to two dwelling units, the completion certificate shall be certified and signed by the owner and registered Architect or Building Designer or Engineer or Town Planner or Supervisor also as in Appendix F.
(2) The Secretary shall, on receipt of the completion certificate and on being satisfied that the development or redevelopment of land has been effected in conformity with the requirements of these rules, issue a development certificate in the form in Appendix G, not later than 15 days from the date of receipt of the completion certificate:
Provided that if no such development certificate is received within the said fifteen days, the owner may proceed as if such a development certificate has been duly issued to him.
(3) The Secretary shall, on receipt of the completion certificate and on being satisfied that the construction or reconstruction or addition or alteration has been carried out in conformity with the requirements of these rules, issue occupancy certificate in the form in Appendix H: not later than fifteen days from the date of receipt of the completion certificate:
Provided that, in case there is deficiency as per these rules in the minimum mandatory open spaces/yards after completion of the construction, the secretary may allow a tolerance upto 5% of the minimum mandatory open spaces/yards to be provided as per these rules or 20 centimetres whichever is less for the building constructed:
Provided also that if no such occupancy certificate is issued within the said fifteen days, the owner may proceed as if such occupancy certificate has been duly issued to him.
(4) The owner of a building may if he intends to occupy the building
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before its completion, apply to the Secretary for that purpose and the Secretary shall, on being satisfied that such occupancy will not in any way endanger life, issue occupancy certificate in respect of the completed part.”
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Act or the Building Rules, apart from mentioning that the writ petitioner has to secure permission under Section 27A, which as we have already found, will not come into operation, since it has prospective operation only from 30.12.2017.
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before the 31st day of July, 2017 and which the Secretary has no power to regularise under section 235W of the Kerala Panchayat Raj Act 1994 and Chapter XXII of the Building Rules, 2011 dealing with regularisation of unpermitted constructions and deviations discussed above. That said proviso to Section 235W(1) of the Kerala Panchayat Raj Act 1994 enables the Secretary on realisation of a compounding fee as may be fixed by the Government, regularise any construction, reconstruction, or alteration of the building, commenced, carried on or completed without getting a plan approved by the Secretary or in deviation of the plan approved by him, if such construction or alteration of the building does not contravene any of the criteria or specifications mentioned in the Act or the Rules made thereunder. Apparently it was on the basis of the enabling provision contained under 235W the Secretary of the Grama Panchayat is conferred with powers under Rule 134 of Rules, 2011. Thinking so in Ext.P6 the sole defect pointed out by the Secretary is non securing of orders under Section 27A of the Act 2008 which has come into force on and w.e.f 30.12.2017 and therefore, having held that the said provision has no consequences to the case at hand, we are undoubtedly of the view that the additional construction made by the writ petitioner is susceptible to be corrected under the proviso to Section 235W read along with rule 134 of Rules, 2011.
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corrected in an appeal filed under Section 5 of the Kerala High Court Act.
Needless to say, writ appeal fails and accordingly it is dismissed.
sd/-
S. MANIKUMAR, CHIEF JUSTICE.
sd/-
SHAJI P. CHALY,
JUDGE.
Rv
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APPENDIX
APPELLANT'S ANNEXURES:NIL
RESPONDENTS' ANNEXURES:
TRUE COPY OF THE GOVERNMENT CIRCULAR NO.LSGDANNEXURE R1 406/R A1/2018-LSGD DATED 13-08-2018. ANNEXURE R2 TRUE ENGLISH TRANSLATION OF ANNEXURE-R1 CIRCULAR. ANNEXURE R3: TRUE COPY OF THE JUDGMENT IN AISHABEEVI AND ANOTHER V. SUPERINTENDENT OF POLICE, ERNAKULAM AND OTHERS, 2014 (3) KLT 1078 ANNEXURE R4: TRUE COPY OF THE G.O.(MS) NO.214/2017/LSGD DATED 1.11.2017 ANNEXURE R4(a) TRUE ENGLISH TRANSALTION OF ANNEXURE R4 G.O. ANNEXURE R5 TRUE COPY OF THE CIRCULAR NO.994733/R-A1/2016/LSGD DATED 22.12.2016. ANNEXURE R5(a) TRUE ENGLISH TRANSLATION OF ANNEXURE R5 CIRCULAR. ANNEXURRE R6 TRUE COPY OF THE CIRCULAR NO.1858832/R.A. 1/12017/LSGD DATED 6.12.2017. ANNEXURRE R6(a) TRUE ENGLISH TRANSLATION OF ANNEXURE R6 CIRCULAR. ANNEXURE R7 TRUE COPY OF THE CIRCULAR NO.96/R.A. 1/2017/LSGD DATED 19.1.2018. ANNEXURE R7(a) TRUE ENGLISH TRANSLATION OF ANNEXURE R7 CIRCULAR. ANNEXURE -I TRUE ENGLISH TRANSLATION OF ANNEXURE-R1 (CIRCULAR NO.406/RA1/2018-LSGD DATED 13-08-2018). ANNEXURE -II TRUE COPY OF THE CIRCULAR NO.4545/RA1/11/LSGD DATED 22-01-2011. ANNEXURE -11(a): ENGLISH TRANSLATION OF ANNEXURE-II
/True Copy/
P.S to Judge.
2 issues framed by the court
Could Section 27A permission be required for occupancy and regularisation where the building permit preceded that provision and the land had been converted before the 2008 Act?
Could the Secretary regularise additional construction deviating from the permit if it complied with the Panchayat Raj Act and Building Rules?
Colour shows how this judgement treated each authority
Mahin v. Keezhmad Grama PanchayatReferred¶96
(2020 (2) KLT 478)
Soumini and others v. Naduvannur Grama Panchayat, KozhikodeRelied on¶112
(2017(1) KLT 168)
Revenue Divisional Officer, Fort Kochi and others v. Jalaja Dileep and anotherRelied on¶51
[2015(2) KHC 109=2015(1) KLT 984]
Aishabeevi and another v. Superintendent of Police, Ernakulam and othersRelied on¶65
[2014 (3) KHC 678]
10 provisions across 5 enactments
CHERANELLOOR GRAMA PANCHAYATH
THE SECRETARY, CHERANALLOOR GRAMA PANCHAYATH
JOE THATTIL
S.MANIKUMAR
SHAJI P.CHALY
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
