Allowed

Aysha Beevi v. State of Kerala

Kerala HC18 Dec 2020WP(C)/23837/2020

Case brief

AI extract

What is this about?

Petitioner challenges rejection of building permit on section 27A of Kerala Conservation of Paddy Land and Wetland Act, 2008, citing prior construction. Court quashes notice and directs reconsideration based on Global Education Trust precedent regarding pre-Act utilization.

What did the court decide?

Communication issued by the fifth respondent is quashed and he is directed to reconsider the application afresh within two weeks in light of the cited decision.

Aysha Beevi Vs State of Kerala — Constitutional and Fundamental Rights | 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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FRIDAY, THE 18TH DAY OF DECEMBER 2020 / 27TH AGRAHAYANA, 1942

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WP(C).No.23837 OF 2020(D)

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PETITIONER/S:

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AYSHA BEEVI, AGED 66 YEARS, W/O A.A.PAREETH, AMBADIYIL VALIYAPARAMBIL HOUSE, KUTTIKKATTUKARA P.O., ALAPURAM, ERNAKULAM DISTRICT-683 501.

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BY ADVS. SRI.P.K.SOYUZ SRI.E.V.BABYCHAN

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RESPONDENT/S:

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1 STATE OF KERALA REPRESENTED BY THE PRINCIPAL SECRETARY, REVENUE DEPARTMENT, GOVERNMENT SECRETARIAT, STATUE, THIRUVANANTHAPURAM, PIN-695 001.

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2 THE REVENUE DIVISIONAL OFFICER/SUB COLLECTOR, RDO OFFICE, FORT KOCHI, ERNAKULAM, PIN-682 001.

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3 THE AGRICULTURAL OFFICER/CONVENER LLMC, ELOOR MUNICIPALITY, KRISHI BHAVAN, ELOOR, UDHOGAMANDAL P.O., ERNAKULAM DISTRICT, PIN-683 503.

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4 THE VILLAGE OFFICER, KADUNGALLOOR VILLAGE, MUPPATAHDAM P.O., ERNAKULAM DISTRICT, PIN-683 110.

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W.P.(C)No.23837 of 2020

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5 THE SECRETARY, ELOOR MUNICIPALITY, UDHOGAMANDAL P.O., ERNAKULAM DISTRICT, PIN-683 503.

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R1-4 BY SRI.K.J.MANURAJ, GOVERNMENT PLEADER R5 BY ADV. SRI.K.S.ARUN KUMAR

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THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 18.12.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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W.P.(C)No.23837 of 2020

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W.P.(C)No.23837 of 2020

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JUDGMENT

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An application preferred by the petitioner for building permit has been rejected by the fifth respondent stating that the classification of the land on which the building is proposed being “Nilam” in the Basic Tax Register, buildings exceeding a plinth area of 120 square meters cannot be permitted. Ext.P8 is the communication issued by the fifth respondent to the petitioner in this regard.

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The case of the petitioner is that the stand of the fifth respondent is that the petitioner has to obtain change of classification of the land in terms the Kerala Conservation of Paddy Land and Wetland Act, 2008 (the Act), for the purpose of constructing building in the land. According to the petitioner, a building constructed by her in the year 1979 is existing in the land and change of classification of the land in terms of the Act cannot be insisted for granting new building permits for such lands.

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Heard the learned counsel for the petitioner, the learned Government Pleader as also the learned counsel for the fifth respondent.

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W.P.(C)No.23837 of 2020

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The learned counsel for the fifth respondent does not dispute the case of the petitioner that the stand of the fifth respondent is that the petitioner has to obtain change of classification of the land in terms of the Act for the purpose of constructing building in the land.

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In Global Education Trust v. State of Kerala,

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2020 (6) KLT 738, this court held that compliance of the provisions of the Act cannot be insisted, if the land is already utilized for constructing building prior to the coming into force of the Act. Paragraph 9 of the judgment reads thus:

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Therefore, I am of the considered view that S.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 S.27A of Act 28 of 2008. The rigor of S.27A of Act 28 of 2008 cannot be insisted upon the land which has been utilised by constructing buildings with valid permit or through the process of law before incorporation of S.27 A of Act of 28 of 2008.

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In the light of the judgment aforesaid, Ext.P8

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communication is quashed and the fifth respondent is directed to

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W.P.(C)No.23837 of 2020

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reconsider the application of the petitioner afresh in the light of the decision aforesaid, within two weeks.

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Sd/-

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P.B.SURESH KUMAR, JUDGE

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rkj

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W.P.(C)No.23837 of 2020

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APPENDIX

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PETITIONER'S/S EXHIBITS:

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EXHIBIT P1	TRUE COPY OF THE 1978 DATED 24.5.1	SALE DEED NO 2166 OF 978
EXHIBIT P2	CERTIFIED COPY OF 1166 OF 1961 DATE	THE SETTLEMENT DEED NO D 7.3.1961
EXHIBIT P3	TRUE COPY OF THE 8.9.2020	LAND TAX RECEIPT DATED
EXHIBIT P4	TRUE COPY OF THE BANK	RELEVANT PAGES OF DATA
EXHIBIT P5	TRUE COPY OF THE THE 5TH RESPONDEN	CERTIFICATE ISSUED BY T DATED 23.9.2020
EXHIBIT P6	TRUE COPY OF THE DATED 8.9.2020	PROPERTY TAX RECEIPT
EXHIBIT P7	TRUE COPY OF THE PETITIONER'S PROP	PHOTOGRAPH OF ERTY
EXHIBIT P8	TRUE COPY OF THE ISSUED BY THE 5TH	NOTICE DATED 15.12.2018 RESPONDENT

Aysha Beevi v. State of Kerala

Case brief

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Aysha Beevi v. State of Kerala

Case brief

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