Allowed

Dr.K.P.Ayyappan v. Secretary to Government

Kerala HC1 Jul 2022WP(C)/25950/2021

Case brief

AI extract

What is this about?

This court allowed a writ petition filed by a hospital owner seeking building permit for a first floor. The court directed respondents to issue the permit without insisting on an application under Section 27 A of the Kerala Conservation of Paddy Land and Wetland Act, 2008, relying on previous jurisprudence regarding pre-1917 nilam land.

What did the court decide?

Exhibit P6, P7, P9, P11 set aside; 2nd defendant directed to issue building permit for 1st floor without insisting on Section 27 A application within one month.

Dr.K.P.Ayyappan Vs Secretary to Government — Labour and Industrial Disputes | Kerala HC (2022)

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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.V.KUNHIKRISHNAN

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FRIDAY, THE 1ST DAY OF JULY 2022 / 10TH ASHADHA, 1944
WP(C) NO. 25950 OF 2021

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PETITIONER:

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DR.K.P.AYYAPPAN
AGED 77 YEARS
S/O.PADMANABHAN, MANAGING DIRECTOR, VENAD
HOSPITAL, NEDUMANGAD, THIRUVANANTHAPURAM-695541.
BY ADVS.
G.RANJU MOHAN
M.SANTHI (K/868/2011)

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RESPONDENTS:

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1 SECRETARY TO GOVERNMENT LOCAL SELF GOVERNMENT DEPARTMENT, SECRETARIAT, TRIVANDRUM-695001.

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2 NEDUMANGAD MUNICIPALITY REPRESENTED BY ITS SECRETARY, NEDUMANGAD, TRIVANDRUM-695541.

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3 THE REVENUE DIVISIONAL OFFICER, CIVIL STATION, KUDAPPANAKUNNU, THIRUVANANTHAPURAM-695043.

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4 VILLAGE OFFICER VILLAGE OFFICE, NEDUMANGAD, THIRUVANANTHAPURAM-695541. BY ADV SHRI.R.B.RAJESH, SC, NEDUMANGAD MUNICIPALITY

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OTHER PRESENT:

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SMT.DEEPA NARAYANAN, SR.GP

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THIS WRIT PETITION (CIVIL) HAVING COME UP FOR
ADMISSION ON 01.07.2022, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:

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W.P.(C).No.25950/2021

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P.V.KUNHIKRISHNAN, J.

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-------------------------------W.P.(C).No.25950 of 2021

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---------------------------------------------Dated this the 01^st day of July, 2022

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JUDGMENT

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This writ petition is filed with following prayers:

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i. A Issue a writ of Certiorari or other appropriate writ order or direction to quash Ext.P6, Ext.P7, Ext.P9 & Ext P11.

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ii. Issue a writ of Mandamus or other appropriate writ order or direction directing the 2^nd respondent to issue building permit for the construction of 1^st Floor of the building of the petitioner without insisting for an application under section 27 A of the Kerala Conservation of Wetland and Paddy land Act, 2008.

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iii. Declare that an application u/s Section 27 A of the Conservation of Wetland and Paddy land Act, 2008 is not necessary for granting Ext.P3 building permit.

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W.P.(C).No.25950/2021

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iv. Such other or further orders as their Lordships may deem fit and proper in the interest of justice.

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The petitioner is the absolute owner in possession of 28.90 Ares of property comprised in resurvey no.791/13 and Re Sy.No.791/14 in Block No.36 of Karipoor Village, Thiruvananthapuram. It is the case of the petitioner that the property of the petitioner was converted from Nilam to Purayidam much before the purchase of the property. But the category of the above property is shown as Nilam in the BTR. The above property is not included in the data bank and remains as unnotified land. During the year 2002, the petitioner obtained building permit from the 2^nd respondent municipality for the construction of a hospital building as evident by Ext.P1. The petitioner obtained extension of Ext.P1 permit for a period of 3 years. But as the petitioner could not start the work of first floor within that time, the permit for the work of first floor was again extended further for a period of 3 years. But due to huge financial stringency, the petitioner could not complete the work of first floor within that extended

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W.P.(C).No.25950/2021

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period. It is the case of the petitioner that he is conducting the said hospital for the past 20 years and now due to the lack of space, the petitioner is constrained to extend the hospital building further. So the petitioner approached the 2^nd respondent Municipality seeking permit for construction of first floor in the existing building which was actually included in the initial Ext.P1 permit for construction itself. The 2^nd respondent issued a communication stating that as the petitioner's property is shown as Nilam in the Revenue Records and not included in the data bank, the petitioner should approach the 3^rd respondent and submit an application under Section 27(A) of the Kerala Conservation of Wetland and Paddy land Act, 2008 (for short, the Act 2008). The Act 2008 came into force only in the year 2011 and the land in question was converted much prior to the enactment. Hence this writ petition is filed seeking an order to quash Ext.P6, Ext.P7, Ext.P9 and Ext.P11 and for a declaration that an application u/s Section 27 A of the Act 2008 is not necessary for granting Ext.P3 building permit.

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Heard the learned counsel for the petitioner and

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W.P.(C).No.25950/2021

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the learned Government Pleader.

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Admittedly the petitioner submitted an application for building permit much prior to the date on which the Act 2008 came into force. Ext.P1 is the initial building permit which is dated 23.11.2002. Ext.P3 is the application for fresh building permit submitted by the petitioner. In Cheranelloor Grama Panchayat v. Jose Thattil [2020 (5) KHC 669] , this Court observed that the land described as nilam in BTR and not included in the data bank and the building permit issued prior to 30.12.2017, Section 27A of the Act 2008 which came into force on 30.12.2017 is not applicable to building permits granted prior to the said date. In the light of the same, prayers in the writ petition are to be allowed.

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Therefore, this writ petition is allowed in the following manner:

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Exts.P6, P7, P9 and P11 are set aside.

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The 2^nd respondent is directed to issue building permit for the construction of the first floor of the building of the petitioner without insisting for an application under Section 27A of the

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Kerala Conservation of Paddy Land and

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W.P.(C).No.25950/2021

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Wetland Act, 2008, as expeditiously as possible, at any rate, within one month from the date of receipt of a copy of this judgment.

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sd/-

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P.V.KUNHIKRISHNAN JUDGE

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W.P.(C).No.25950/2021

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APPENDIX OF WP(C) 25950/2021

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PETITIONER EXHIBITS
Exhibit P1TRUE COPY OF THE BUILDING PERMIT DATED
23.11.2002.
Exhibit P2TRUE COPY OF THE COMPLETION
CERTIFICATE OF THE BUILDING SHOWING
PARTIAL COMPLETION DATED 25.11.02.
Exhibit P3TRUE COPY OF THE APPLICATION FOR
BUILDING PERMIT FILED BY THE
PETITIONER AS TP 1/12668/2020 DATED
01.12.2020.
Exhibit P4TRUE COPY OF THE NOTICE DATED
29.01.2021 ISSUED BY THE 2ND
RESPONDENT.
Exhibit P5TRUE COPY OF THE REVISED APPLICATION
SUBMITTED BY THE PETITIONER.
Exhibit P6TRUE COPY OF THE COMMUNICATION DATED
31.03.2021.
Exhibit P7TRUE COPY OF THE COMMUNICATION DATED
17.04.2021.
Exhibit P8TRUE COPY OF THE REPLY SUBMITTED BY
THE PETITIONER DATED 30.04.2021.
Exhibit P9TRUE COPY OF THE REPLY SUBMITTED BY
THE 2ND RESPONDENT TO EXT.P8 DATED
14.05.2021.
Exhibit P10TRUE COPY OF THE REFERENCE FILED BY
THE PETITIONER DATED 24.06.2021.
Exhibit P11TRUE COPY OF THE ORDER DISMISSING
EXT.P10 REFERENCE, DATED 30.09.2021.
Exhibit P12TRUE COPY OF THE CIRCULAR
NO.994733/R.A 1/2016 ISSUED BY THE
LSGD(R.A) DATED 22.12.2016.

Dr.K.P.Ayyappan v. Secretary to Government

Case brief

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Dr.K.P.Ayyappan v. Secretary to Government

Case brief

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