Partly allowed

Aalamullathil Chandran v. State of Kerala

Kerala HC16 Dec 2020WP(C)/34216/2019

Case brief

AI extract

What is this about?

The Court held that Section 27A of the Kerala Conservation of Paddy Land and Wetland Act, 2008 does not apply to land already utilised through the process of law prior to the Act's incorporation. Consequently, the direction to pay Rs.13,26,600/- was set aside.

What did the court decide?

The order directing the petitioner to pay Rs.13,26,600/- is set aside and the application for building permit shall be considered in accordance with law.

Aalamullathil Chandran Vs 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 A.MUHAMED MUSTAQUE

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WEDNESDAY, THE 16TH DAY OF DECEMBER 2020 / 25TH AGRAHAYANA, 1942

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WP(C).No.34216 OF 2019(B)

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PETITIONER:

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AALAMULLATHIL CHANDRAN AGED 59 YEARS

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S/O.NARAYANAN, SHINCY NIVAS, P.O.CHOKKLI, KAVIYOOR, KANNUR DISTRICT, PIN-670672.

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BY ADV. SRI.C.P.PEETHAMBARAN

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RESPONDENTS:

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

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2 THE SECRETARY TO GOVERNMENT, STATE OF KERALA, DEPARTMENT OF LOCAL SELF GOVERNMENT INSTITUTIONS, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695001.

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3 THE REVENUE DIVISIONAL OFFICER/SUB COLLECTOR, THALASSERY, KANNUR-670101.

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4 THALASSERY MUNICIPALITY, REPRESENTED BY ITS SECRETARY, THALASSERY, KANNUR670101.

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SRI. S GOPINATHAN SR GP

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THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 16.12.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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WP(C).No.34216 OF 2019(B)

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JUDGMENT

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Dated this the 16th day of December 2020

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Petitioner purchased a land having an extent of 18.01 Ares in Kodiyeri Amsom, Wayalam Desom in the year 2015.

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As per BTR, description of the land is shown as “Nilam”.

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However, it was a converted land long before. It is not included in data bank.

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Admittedly, there was a talkies in the land namely Pankaj

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talkies. The owner of the talkies demolished the building and thereafter, sold the land to the petitioner.

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The learned standing counsel for the Municipality does not dispute those facts. He fairly admits the existence of the Pankaj talkies.

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The petitioner submitted an application for construction of a commercial complex. The Municipality is of the view that without regularising the land under Section 27A of the Kerala Conservation of Paddy Land and Wetland Act, 2008, the petitioner cannot be permitted to

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WP(C).No.34216 OF 2019(B)

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construct a commercial building in a converted land. The petitioner, accordingly, approached the Sub Collector, Thalassery with an application under Section 27A of Act 28 of 2008. Accordingly, the Sub Collector passed Ext.P8 order and the petitioner was asked to remit Rs.4,90,322/-(Rupees four lakhs ninety thousand three hundred and twenty two only). The petitioner remitted the amount.

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Thereafter, the petitioner received another order from the Municipality directing the petitioner to remit Rs.13,26,600/- (Rupees thirteen lakhs twenty six thousand six hundred only) as the proposed construction of the petitioner exceeds 3000 square feet. This direction was to effect the payment in terms of Rule 12(9) of the Kerala Conservation of Paddy Land and Wetland Rules, 2008. This order is under challenge in this writ petition.

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The petitioner relying upon the judgment of this Court in Global Education Trust vs. State of Kerala [ 2020 (6) KLT 738] submitted that the petitioner even need not require to apply for regularisation under Section 27 A of Act 28 of 2008 in respect of a land which has been already utilised through process of law. In Global

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Education Trust's Case (Supra), this Court in paragraph 9 held as

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WP(C).No.34216 OF 2019(B)

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follows:-

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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 such circumstances, I am of the view that the petitioner

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was not even require to apply under Section 27A of Act 28 of 2008. However, the learned counsel for the petitioner fairly submitted that the petitioner does not seek refund of the amount already paid Rs.4,90,322/-. The petitioner cannot be penalised for the ill advice action resulting in filing an application under Section 27A of Act 28 of 2008. The petitioner, under law, is not required to regularise a land which has been already utilised through the process of law. In such circumstances,

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WP(C).No.34216 OF 2019(B)

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in Ext.P9 directing the petitioner to pay a sum of Rs.13,26,600/- is set aside. The petitioner's application for building permit shall be

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considered in accordance with law.

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Ordered accordingly.

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Sd/-

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A.MUHAMED MUSTAQUE

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SAS/16/12/2020

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JUDGE

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WP(C).No.34216 OF 2019(B)

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APPENDIX

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PETITIONER'S EXHIBITS:

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EXHIBIT P1	TRUE COPY OF THE ASSIGNMENT DEED NO.1265/2015 OF SRO, THALASSERY.
EXHIBIT P2	TRUE COPY OF THE LATEST LAND TAX RECEIPT DATED 13.5.2019 ISSUED FROM VILLAGE OFFICER, KODIYERI.
EXHIBIT P3	TRUE COPY OF THE CERTIFICATE DATED 17.9.2018 ISSUED BY THE VILLAGE OFFICER, KODIYERI.
EXHIBIT P4	TRUE COPY OF THE PROPERTY TAX RECEIPT DATED 2.5.2003 ISSUED FROM THALASSERY MUNICIPALITY.
EXHIBIT P5	TRUE COPY OF PROPERTY TAX RECEIPT DATED 31.10.2012 ISSUED FROM THALASSERY MUNICIPALITY.
EXHIBIT P6	TRUE COPY OF THE RECEIPT DATED 15.10.2013 ISSUED BY THE THALASSERY MUNICIPALITY.
EXHIBIT P7	TRUE COPY OF THE RELEVANT PART OF THE PERMIT.
EXHIBIT P8	TRUE COPY OF THE ORDER DATED 14.10.2019 BY THE 3RD RESPONDENT.
EXHIBIT P9	TRUE COPY OF THE NOTICE DATED 4.12.2019 ISSUED BY THE 4TH RESPONDENT.
RESPONDENTS' EXHIBITS:-	NIL //TRUE COPY// P.A. TO JUDGE

Aalamullathil Chandran v. State of Kerala

Case brief

What is this about?

What did the court decide?

Aalamullathil Chandran v. State of Kerala

Case brief

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