Allowed

Sebu Paul, v. the State of Kerala

Kerala HC10 Nov 2020WP(C)/12498/2020

Case brief

AI extract

What is this about?

Petitioner sought building permit for land rehabilitated after acquisition, denied on grounds of wetland classification. Court held acquired land classification obsolete and directed Corporation to treat land as dry for permit.

What did the court decide?

Ext.P4 communication set aside; Corporation directed to consider application treating land as garden/dry land and grant permit if otherwise in order within one month.

Sebu Paul, Vs the State of Kerala — Land Acquisition | Kerala HC (2020)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR

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TUESDAY, THE 10TH DAY OF NOVEMBER 2020 / 19TH KARTHIKA, 1942

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WP(C).No.12498 OF 2020(J)

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PETITIONER:

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SEBU PAUL, AGED 50 YEARS S/O. PAUL, RESIDING AT KADAVI HOUSE, OLLUR, THRISSUR680306.

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BY ADVS. SRI.A.JAYASANKAR SRI.MANU GOVIND SRI.ASHWIN SETHUMADHAVAN SRI.RAHUL SURENDRAN

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RESPONDENTS:

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1 THE STATE OF KERALA, REPRESENTED BY PRINCIPAL SECRETARY, REVENUE DEPARTMENT, MAIN BLOCK, SECRETARIAT, THIRUVANANTHAPURAM-695001.

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2 THE THRISSUR CORPORATION, CORPORATION OFFICE, MUNICIPAL OFFICE ROAD, THRISSUR680001, REPRESENTED BY ITS SECRETARY.

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3 THE DISTRICT COLLECTOR, THRISSUR DISTRICT, CIVIL STATION, CIVIL LINES RD, KALYAN NAGAR, AYYANTHOLE, THRISSUR-680003.

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4 THE REVENUE DIVISIONAL OFFICER, THRISSUR DISTRICT, CIVIL STATION, CIVIL LINES ROAD, KALYAN NAGAR, AYYANTHOLE, THRISSUR-680003.

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5 THE TAHSILDAR, THRISSUR TALUK, GOVERNMENT OFFICE, TOWN HILL, W PALACE RD, CHEMBUKKAV, THRISSUR, KERALA-680020.

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R2 BY SRI. SANTHOSH P.PODUVAL, SC, THRISSUR CORPORATION

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SRI.PAUL ABRAHAM VAKKANAL – GOVERNMENT PLEADER

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THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 23-102020, THE COURT ON 10-11-2020 DELIVERED THE FOLLOWING:

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WP(C).No.12498 OF 2020(J)

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P.B.SURESH KUMAR, J.

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W.P.(C) No.12498 of 2020

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Dated t his the 10 th day of N ovember, 2020

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J U D G M E N T

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Petitioner owns an item of land measuring 1.21 Ares within the limits of the second respondent, the Thrissur Corporation. During late 1980s, a few items of lands were acquired for Thrissur Corporation and consequent on the said acquisition, a few people became landless. In order to rehabilitate them, another land was acquired and people who became land less were rehabilitated in the acquired land. The predecessor in interest of the petitioner is one of such persons. It is seen that the predecessor of the petitioner accordingly put up a residential building in the said land and was residing there. Petitioner intends to put up a new building in the land. He, therefore, applied for a building permit from the Corporation. The application submitted by the petitioner for the said purpose is turned down by the Corporation in terms of Ext.P4 communication stating that since the land of the petitioner is shown in the revenue records as wetland,

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WP(C).No.12498 OF 2020(J) 3

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he can put up constructions in the land only upto 120 square meters and since the petitioner proposes to put up a building in the land having a larger area, he is not entitled to building permit. The petitioner is aggrieved by Ext.P4 communication and hence this writ petition.

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Heard the learned counsel for the petitioner as also the learned Standing Counsel for the second respondent.

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The reason, on the basis of which the request of

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the petitioner for building permit was declined by the Corporation, which was communicated to the petitioner in terms of Ext.P4 reads thus:

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"അപപേക്ഷപയയോടടയോപപ്പം സമര്‍പപ്പിചപ്പിട്ടുള്ള possession certificate ല്‍ സ്ഥലതപ്പിടന തരപ്പം "wet" എനയോണണ് പരഖടപടുതപ്പിയപ്പിട്ടുള്ളതണ്. ടപ്പി സ്ഥലപ്പം നപ്പികന ഭൂമപ്പിയയോയപ്പി കയോണടപടുന. ടപ്പി സ്ഥലതണ് വളര്‍ന നപ്പില്‍ക്കുന വൃക്ഷങ്ങപളയോ ടകടപ്പിടങ്ങപളയോ ഇലയോതതയോണ. കരടണ് ഡയോറയോ ബയോങപ്പില്‍ ടപ്പി സ്ഥലപ്പം ഉള്‍ടപടുനപ്പില .ഇതരപ്പം സ്ഥലങ്ങളപ്പില്‍ പേരമയോവധപ്പി 120.00 ച മമീ . വപ്പിസമീര്‍ണ്ണമുള്ള Residential building /40 ച മമീ. വപ്പിസമീര്‍ണ്ണമുള്ള വയോണപ്പിജജ്യ ടകടപ്പിടപ്പം നപ്പിര്‍മപ്പിക്കുനതപ്പിനണ് മയോത്രപമ നപ്പിലവപ്പിലുള്ള ചടങ്ങള്‍ അനുവദപ്പിക്കുനള്ളൂ എന വപ്പിവരപ്പം അറപ്പിയപ്പിക്കുന.”

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In terms of the provisions contained in the Kerala Conservation of Paddy land and Wetland Act, 2008 (the Act), lands which have been included as paddy land or wetland in the Basic Tax Register maintained in the Village Office, but are not notified as paddy land or wetland u nder sub-section (4) of Section 5 ca n be used for other purposes only after obtaining permission of the competent authority under Section 27A of the Act. Sub-section (6) of Section

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WP(C).No.12498 OF 2020(J) 4

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27A of the Act, however, provides that such permission is not necessary for constructing a residential building having a maximum area of 120 square meters in a maximum extent of 4.04 Ares of land or a commercial building having a maximum area of 40 square meters in a maximum extent of 2.02 Ares. Sub-section (6) of section 27A reads thus:

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(6) Notwithstanding anything contained in the Kerala Panchayat Raj Act, 1994(13 of 1994) or in the Kerala Municipality Act, 1994(20 of 1994), no permission under this section shall be necessary for constructing a residential building having a maximum area of 120 square meters in a maximum extent of 4.04 ares of land or a commercial building having a maximum area of 40 square meters in a maximum extent of 2.02 ares of land:

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Provided that the construction of a housing complex or complexes or flats or multi-storied residential complexes shall not come within the meaning of residential building specified in this sub-section:

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Provided further that this exemption shall be granted only once.”

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It is seen that it is in the light of sub-section (6) of section 27A that the Corporation has issued Ext.P4 communication to the petitioner. In other words, the stand of the Corporation is that the land of the petitioner is a land for which permission of the competent authority is required under Section 27A of the Act.

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WP(C).No.12498 OF 2020(J)

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Going by the provisions contained in the Act, permission is required under Section 27A of the Act for lands which are defined in the Act as un-notified lands. The definition of ‘unnotified land’ contained in the Act reads thus:

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[xviiA) “unnotified land” means the lands within the area of jurisdiction of the Committee which have been included as paddy land or wetland in the basic tax register maintained in Village Offices, but are not notified as paddy land or wetland under sub-section (4) of Section 5 or where data bank has not been published under the provisions of clause (i) of sub-section (4) of Section 5, the lands which have already been filled up on the date of commencement of this Act and are not paddy land according to the report of the Kerala State Remote Sensing Centre and the Local Level Monitoring Committee or where the report of the Kerala State Remote Sensing Centre is not available, lands which are not paddy land according to the report of the Local Level Monitoring Committee;

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The specific case of the petitioner is that the land of the petitioner being one acquired by the Corporation for the purpose of rehabilitating those who became landless on account of acquisition of their land, such lands would not fall within the definition of ‘unnotified land’ under the Act. The short question, therefore, is as to whether the land of the petitioner which is shown in the revenue records as wetland, but acquired in terms of the provisions of the Land Acquisition Act for rehabilitating a few landless to put up

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WP(C).No.12498 OF 2020(J)

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residential houses, would fall within the scope of the definition of ‘un-notified land’. When a land is acquired for a public purpose, its classification in the revenue records would become obsolete and superfluous. Going by the Scheme of Kerala Land Tax Act and the rules made thereunder, acquired lands are to be reassessed having regard to the purpose for which the acquisition is made, for if the incidents of the classification of the acquired land is held to be continuing even after acquisition, the same would defeat the purpose of acquisition. In the said view of the matter, according to me, since the land in question was acquired for rehabilitating the landless for the purpose of putting up residential buildings, it is obligatory for the competent authority under the Kerala Land Tax Act to reassess the land having regard to the purpose for which the land is acquired, and make appropriate corrections in the revenue rec ords pertaining to the classification of the land.

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In the said view of the matter, according to me, the classification of the land in question in the revenue records shall not be a hindrance at all for the Corporation to consider the application for building permit submitted by the petitioner.

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In the result, Ext.P4 communication is set aside and the Corporation is directed to consider the application for building permit submitted by the petitioner referred to in Ext.P4 afresh,

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WP(C).No.12498 OF 2020(J)

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treating the land as a garden land/dry land and grant the building permit, if the application of the petitioner is otherwise in order. This shall be done within one month.

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Sd/P.B.SURESH KUMAR, JUDGE.

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WP(C).No.12498 OF 2020(J)

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APPENDIX

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PETITIONER'S EXHIBITS:

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EXHIBIT P1 A COPY OF SALE DEED NO.1315 DATED 24/05/2017 OF SUB REGISTRAR OFFICE, THRISSUR.

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EXHIBIT P2 TRUE COPY OF ENCUMBRANCE CERTIFICATES ISSUED BY THE REGISTRATION DEPARTMENT BEARING ID P5487531 DATED 04/05/2017 SHOWING THE ENCUMBRANCES ON PROPERTY BEARING SY. NO.925/3 FOR THE PERIOD 01/01/2002 TO 29/04/2017.

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EXHIBIT P2(A) TRUE COPY OF ENCUMBRANCE CERTIFICATES ISSUED BY THE REGISTRATION DEPARTMENT BEARING ID P6290709 DATED 25/07/2017 SHOWING THE ENCUMBRANCES ON PROPERTY BEARING SY NO.925/3 FOR THE PERIOD 01/01/2017 TO 24/07/2017. EXHIBIT P3 A COPY OF THE SALE DEED NO.4696 DATED 12/06/1995 OF SUB REGISTRAR OFFICE, THRISSUR. EXHIBIT P4 A TRUE COPY OF ORDER NO. DWA-BA-422/17-18 DATED 30/04/2018 ISSUED BY THE 2ND RESPONDENT.

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EXHIBIT P5 A TRUE COPY OF THE FORM OF REQUISITION OF LAND ISSUED BY THE OFFICE OF THE CORPORATION ENGINEER, THRISSUR CORPORATION, TO THE PETITIONER UNDER THE RTI.

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EXHIBIT P6	A COPY OF COUNCIL DECISION NO.76 DATED
	28/10/1985 OF THE THRISSUR MUNICIPAL COUNCIL,
	ISSUED TO THE PETITIONER UNDER RTI.

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EXHIBIT P7 A COPY OF ORDER NO.PW13-14519/81 DATED 12/09/1994 OF THE THRISSUR MUNICIPAL COMMISSIONER ISSUED TO THE PETITIONER UNDER RTI.

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RESPONDENTS' EXHIBITS: NIL

Sebu Paul, v. the State of Kerala

Case brief

What is this about?

What did the court decide?

Sebu Paul, v. the State of Kerala

Case brief

What is this about?

What did the court decide?

What the court decided

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