Kerala High Court
M/S Aster Dm Health Care Ltd vs Cheranelloor Grama Panchayat on 3 July, 2024
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE MOHAMMED NIAS C.P.
WEDNESDAY, THE 3RD DAY OF JULY 2024 / 12TH ASHADHA, 1946
WP(C) NO. 34493 OF 2023
PETITIONER:
1 M/S ASTER DM HEALTH CARE LTD,
KUTTISAHIB ROAD, NEAR KOTHAD BRIDGE,
SOUTH CHITTOOR P.O, CHERANELLOOR,
KOCHI, REP. BY ITS AUTHORISED SIGNATORY
FARHAN YASIN, AGED 41 YEARS,
S/O.YASIN SAIT, 1D, SEIKEN CRESTWOOD,
CHEVAYOOR, THONDAYAD,
KOZHIKODE, PIN - 673017
2 M/S DM MED CITY HOSPITALS (INDIA) PVT LTD,
KUTTISAHIB ROAD, NEAR KOTHAD BRIDGE,
SOUTH CHITTOOR P.O,CHERANELLOOR,
KOCHI, REP. BY ITS AUTHORISED SIGNATORY
FARHAN YASIN, AGED 41 YEARS,
S/O.YASIN SAIT, 1D, SEIKEN CRESTWOOD,
CHEVAYOOR, THONDAYAD,
KOZHIKODE, PIN - 673017
3 M/S AMBADY INFRASTRUCTURE PVT.LTD,
SOUTH CHITTOOR, P.O.CHERANELLOOR,
KOCHI,REP. BY ITS AUTHORISED SIGNATORY
FARHAN YASIN, AGED 41YEARS,
S/O.YASIN SAIT, 1D, SEIKEN CRESTWOOD,
CHEVAYOOR, THONDAYAD, KOZHIKODE, PIN - 673017
BY ADVS.
V.SREEJITH (K/1398/2000)
MANSOOR.B.H.
SAKEENA BEEGUM
SAIBY JOSE KIDANGOOR
RESPONDENTS:
1 CHERANELLOOR GRAMA PANCHAYAT,
SOUTH CHITTOOR ROAD, SOUTH CHITTOOR,
-2-
WP(C)Nos.34493 of 2023 and 8845 of 2024
ERNAKULAM, KERALA,
REPRESENTED BY ITS SECRETARY, PIN - 682027
2 SECRETARY,
CHERANELLOOR GRAMA PANCHAYAT,
SOUTH CHITTOOR ROAD, SOUTH CHITTOOR,
EMAKULAM, KERALA, PIN - 682027
3 CHIEF TOWN PLANNER,
SWARAJ BHAVAN, 2ND AND 3RD FLOOR,
NANTHANCODE, THIRUVANATHAPURAM, PIN - 695003
SMT.K.R.DEEPA, SPL.GP
THIS WRIT PETITION (CIVIL) HAVING FINALLY HEARD ON
19.06.2024, ALONG WITH WP(C).8845/2024, THE COURT ON
03.07.2024 DELIVERED THE FOLLOWING:
-3-
WP(C)Nos.34493 of 2023 and 8845 of 2024
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE MOHAMMED NIAS C.P.
WEDNESDAY, THE 3RD DAY OF JULY 2024 / 12TH ASHADHA, 1946
WP(C) NO. 8845 OF 2024
PETITIONERS:
1 M/S ASTER DM HEALTH CARE LTD.,
KUTTISAHIB ROAD, NEAR KOTHAD BRIDGE,
SOUTH CHITTOOR P.O,CHERANELLOOR,
KOCHI, REP. BY ITS AUTHORISED SIGNATORY
FARHAN YASIN, AGED 41 YEARS,
S/O.YASIN SAIT, 1D, SEIKEN CRESTWOOD,
CHEVAYOOR,THONDAYAD,
KOZHIKODE, PIN - 673017
2 M/S DM MEDICITY HOSPITALS (INDIA) PVT LTD. ,
KUTTISAHIB ROAD, NEAR KOTHAD BRIDGE,
SOUTH CHITTOOR P.O, CHERANELLOOR,
KOCHI,REP. BY ITS AUTHORISED SIGNATORY
FARHAN YASIN, AGED 41 YEARS,
S/O.YASIN SAIT, 1D, SEIKEN CRESTWOOD,
CHEVAYOOR, THONDAYAD,
KOZHIKODE, PIN - 673017
3 M/S AMBADY INFRASTRUCTURE PVT.LTD.,
SOUTH CHITTOOR, P.O.CHERANELLOOR,
KOCHI,REP. BY ITS AUTHORISED SIGNATORY
FARHAN YASIN, AGED 41YEARS,
S/O.YASIN SAIT, 1D, SEIKEN CRESTWOOD,
CHEVAYOOR,THONDAYAD,
KOZHIKODE, PIN - 673017
BY ADVS.
V.SREEJITH (K/1398/2000)
SAIBY JOSE KIDANGOOR
MANSOOR.B.H.
SAKEENA BEEGUM
-4-
WP(C)Nos.34493 of 2023 and 8845 of 2024
RESPONDENTS:
1 STATE OF KERALA,
REPRESENTED BY THE SECRETARY,
LOCAL SELF GOVT DEPARTMENT, SECRETARIAT,
THIRUVANANTHAPURAM, PIN - 695001
2 THE CHIEF TOWN PLANNER,
OFFICE OF THE CHIEF TOWN PLANNER,NANTHANCODU,
THIRUVANANTHAPURAM, PIN - 695003
3 SENIOR TOWN PLANNER,
LSGD DEPARTMENT, PLANNING OFFICE,
OFFICE OF THE DISTRICT TOWN PLANNER,
4 TH FLOOR, CIVILSTATION, KAKKANAD,
ERNAKULAM, PIN - 682030
4 CHERANELLOOR GRAMA PANCHAYAT,
SOUTH CHITTOOR ROAD,
SOUTH CHITTOOR,ERNAKULAM,
REPRESENTED BY ITS SECRETARY, PIN - 682027
5 SECRETARY,
CHERANELLOOR GRAMA PANCHAYAT,
SOUTH CHITTOOR ROAD, SOUTH CHITTOOR, ERNAKULAM,
KERALA, PIN - 682027
SMT.K.R.DEEPA, SPL.GP
THIS WRIT PETITION (CIVIL) HAVING FINALLY HEARD ON
19.06.2024, ALONG WITH WP(C).34493/2023, THE COURT ON
03.07.2024 DELIVERED THE FOLLOWING:
-5-
WP(C)Nos.34493 of 2023 and 8845 of 2024
"C.R."
MOHAMMED NIAS C.P., J.
-----------------------------------------------
WP(C)Nos.34493 of 2023 and 8845 of 2024
---------------------------------------------
Dated this the 3rd day of July, 2024
JUDGMENT
These writ petitions are filed by M/s.Aster DM Health Care Ltd.
2. WP(C)No.34493/2023 is filed challenging the cancellation of the building permit issued by the second respondent, the Secretary of the Panchayath concerned.
3. WP(C)No.8845/2024 is filed challenging Ext.P11 order passed by the Chief Town Planner, Thiruvananthapuram, rejecting the appeal preferred by the petitioners challenging the conditions imposed by the Senior Town Planner, Ernakulam.
4. The relevant facts necessary for disposing of the writ petitions are as follows:
-6-
WP(C)Nos.34493 of 2023 and 8845 of 2024 The petitioners are companies under the provisions of the Company's Act and are stated to be the owners in possession of an extent of 15.5904 Hectares of land in Resurvey Nos.198/1, 2, 3, 4, 5, 6, 7, 8, 9, 199/1,2,3,4,5,7,8,9,10,11,12,13,14,15,16,17,18,19,22,200/1,2,204/5,6,7,8,9, 10,11,12,13,20,205/4,6,8,9,12,211/6,15,212/1,2,3,4,5,6,7,8,9,10,11,12,13,14 ,15,16,17,18,19,20,21,22,23,213/1,2,4,5,6,7,8,9,10,11,12,13,14,15,214/1,2,3, 4,6,7,215/1, 2, 3, 4, 5, 6, 7,216/4, 5, 217/7, 219/1, 2, 3, 7, 220/7, 8 and 9 of Cheranalloor Village, Kanayannur Taluk, Ernakulam District. It is stated that the above properties were purchased for a Medicity Project, the first phase of which has already been completed. The layout approval and the usage of the plot for the construction of Phase 1 of the Medicity Project was approved by the Chief Town Planner based on a decision taken by the Special Committee constituted by the Government of Kerala for a project comprised of Hospital Phase 1 / Hotel/ Medical convention centre, low-income housing/staff accommodation having a total built-up area of 83928.41 sq. metres. The minutes of the Special Committee meeting dated 23.11.2010 is produced as Ext.P1 and the order issued by the Chief Town Planner granting approval for the project dated 11.3.2011 is produced as Ext.P2. -7-
WP(C)Nos.34493 of 2023 and 8845 of 2024
5. Thereafter, in the year 2012, the petitioners preferred an application for further construction in the project by incorporating land covered by additional survey numbers and the same was also approved by the Special Committee by its meeting dated 23.9.2013, Ext.P3, for which also the Chief Town Planner granted layout approval and usage of the plot subject to the conditions mentioned therein as per order dated 17.6.2014, marked as Ext.P4. It is submitted that the first phase of the Medicity project was completed and started functioning in 2013. The fifth respondent Panchayath had issued another building permit with respect to the properties comprised in Sy/Re Sy.Nos.198, 199, 200, 204, 205, 211, 212, 213, 214, 215, 217, 219 and 220 of Cheranalloor Village Kanayannur Taluk under Group C Medical / Hospital purpose subject to the conditions mentioned therein as per the building permit dated 10.02.2020, marked as Ext.P5. The petitioners applied for renewal of the said building permit and the same was renewed up to 09.02.2026 as per Ext.P6. It is stated that construction activities are in progress and the same is taking place near the existing building bearing No.12/348A.
-8-WP(C)Nos.34493 of 2023 and 8845 of 2024
6. As regards the 2nd Phase of the Medicity Project, the petitioners preferred WP(C)No.101/2022 challenging the conditions imposed by the Senior Town Planner, Ernakulam, challenging the directions to correct the BTR records and making applicable the provisions of the Kerala Conservation of Paddy Land and Wet Land Act, 2008 (hereinafter referred as the 'Paddy Act and Rules') by communication dated 9.4.2021 issued by the Senior Town Planner, Ernakulam, marked as Ext.P7. The said writ petition was allowed directing the Chief Town Planner to consider the appeal preferred by the petitioners challenging the order of the Senior Town Planner by judgment dated 27.7.2022, in WP(C)No.101/2022, marked as Ext.P8. The State had preferred WA No.1639/2023, and the same was dismissed as per Ext.P9 judgment dated 26.05.2023. Thereafter, the State preferred RP No.697/2023 against the said judgment, whereby, this Court in its order dated 10.7.2023 clarified that all the legal and factual contentions are left open for consideration, by Ext.P10 order. It is consequent to Ext.P10 order, the Chief Town Planner passed an order dismissing the appeal preferred by the petitioners challenging the order of the Senior Town Planner, Ernakulam, imposing the -9- WP(C)Nos.34493 of 2023 and 8845 of 2024 conditions. The said order dated 26.09.2023, Ext.P11, is challenged in this writ petition.
7. WP(C)No.34493/2023 as stated earlier challenges the order passed by the Panchayath concerned, which issued Ext.P8 order in the said writ petition dated 7.10.2023 cancelling Ext.P1 building permit granted on 10.02.2020. The main ground in the writ petition is that the same order was passed without issuing notice or hearing the petitioners and without considering any of the relevant materials.
8. The petitioner relies on the judgment passed in WP(C)No.19635/2013 dated 15.01.2015, a writ petition filed challenging the construction of the hospital. In that case, it was found that there was no violation of the provisions of the Kerala Conservation of Paddy Land and Wetland Act or the Coastal Zonal Regulations, and therefore, the petitioner's essential contention is that the matter is covered by the said judgment.
9. A counter affidavit has been filed by the State contending that the petitioners were given permission by the Special Committee constituted as per Section 4.13(ix) of Zoning Regulations of Structure Plan for Central City, Kochi, concerned on 23.11.2010 with specific -10- WP(C)Nos.34493 of 2023 and 8845 of 2024 conditions subject to eight conditions, which included conditions that "all other statutory approval/ clearances applicable shall be obtained from concerned authorities both at the level of the State Government and from Government of India before issuing permit". The Chief Town Planner, acting on the above decision of the Special Committee granted layout approval and usage of the plot for the construction of Phase 1 of the proposal subject to 16 conditions. The total built-up area of Phase 1 of the project was 83928.41 sq. metres. Conditions 14 to 16 of the Special Committee specifically stated that "separate layout approval shall be obtained for any construction in future and approval of the Special Committee shall be obtained if there is addition of new survey numbers to that approved by the Special Committee on 23.11.2010. The building permit for Phase 1 of the project was issued by the Cheranalloor Grama Panchayath on 11.5.2011 for a total built-up area of 87627.27 sq. metres which included an additional building having a built-up area of 3698 sq.m, which was not part of the layout approval and usage of plot granted by the Chief Town Planner dated 11.3.2011. In the year 2012, the petitioners preferred an application for further constructions including a low-cost apartment/nursing quarters and -11- WP(C)Nos.34493 of 2023 and 8845 of 2024 laundry block having a total built-up area of 16931.44 sq. metres. This application included additional survey numbers not covered by the earlier layout approval. The said application was placed before the Special Committee that met on 23.09.2013, which recommended the proposal subject to the condition that "necessary action was to be taken for the corrections in the BTR records which are under consideration of the authorities for processing the data bank and the applicant shall approach the District Collector for change of nature of land". It is stated that based on a decision taken by the Special Committee on 23.09.2013, the Chief Town Planner granted layout approval and usage of the plot vide order dated 17.06.2014 subject to 9 conditions. The 4th among the conditions stated "The permit shall be granted only after ensuring that the construction is in accordance with the Kerala Conservation of Paddy Land and Wet Land Act, 2008 and the Coastal Zone regulations. The Chief Town planner contends that the Panchayath had issued a building permit without insisting on the conditions stated in the layout approval and usage of the plot issued by the Chief Town Planner and in violation of the decision of the Special Committee dated 23.09.2013.
-12-WP(C)Nos.34493 of 2023 and 8845 of 2024
10. The petitioners preferred an appeal challenging the conditions imposed by the Senior Town Planner, Ernakulam, in respect of the 2nd Phase of the hospital construction which stipulated that the Secretary shall grant permit only after obtaining required approval as per the Kerala Conservation of Paddy Land and Wetland (Amendment) Act, 2008, and in particular, Section 27(A) of the Kerala Conservation of Paddy Land and Wetland (Amendment) Act, 2018, as the majority of land comes under paddy as per the Act. The petitioners filed WP(C)No.22781/2021, and by the judgment of this Court dated 01.11.2021, the Chief Town Planner was directed to pass orders on the appeal preferred by the petitioners after hearing the parties. It is stated that the Senior Town Planner, Ernakulam, had granted layout approval and usage of plot for the construction of LINAC Tower vide order dated 24.09.2019 subject to 11 conditions as per Ext.R2(c) and the 10th condition read "that the Secretary shall grant permit only after obtaining required approval as per the Kerala conservation of Paddy Land and Wetland Act 2008 and 27(A) of the Kerala Conservation of Paddyland and Wet Land (Amendment) Act, 2018. It is stated that this condition was insisted upon by the Senior Town Planner, Ernakulam, -13- WP(C)Nos.34493 of 2023 and 8845 of 2024 based on the 3rd condition of the minutes of the Special Committee held on 23.09.2013. It is submitted that the petitioners did not approach the revenue authorities to make corrections in the BTR records after the enactment of Rule 27A in the Kerala Conservation of Paddyland and Wet Land (Amendment) Act, 2018. The Chief Town Planner, accordingly, directed the petitioners to approach the revenue authorities for converting the nature of the land from 'nilam' as per the prevailing provisions of the Kerala Conservation of Paddy Land and Wetland (Amendment) Act, 2018, for complying with the conditions insisted by the Special Committee which approved the proposal in 2010 and 2013 and to approach the Senior Town Planner, Ernakulam, after changing the nature of the land in the BTR for getting the layout approval and usage of the plot for the remaining building as approved by the Special Committee. The order of the Chief Town Planner was intimated to the petitioners vide proceedings dated 20.12.2021.
11. After hearing the petitioners as directed by this Court, the appeal was rejected primarily finding that the petitioner was bound by the provisions of the Amendment Act, 2018, which came into force from 30.12.2017 and also based on the conditions imposed in the -14- WP(C)Nos.34493 of 2023 and 8845 of 2024 Special Committee stated earlier. Since the conditions were not under challenge at any point of time at the instance of the petitioners, and since the Amendment Act is applicable for all applications preferred after 30.12.2017, the stand of the Senior Town Planner and the insistence on compliance with the Amendment Act was legal, accordingly, rejected the appeal, through Ext.P11 dated 26.9.2023 which is impugned in the writ petition.
12. Heard Sri. Saiby Jose Kidangoor, Sri.Mansoor B.H. and V.Sreejith, the learned counsel for the petitioners and Sri.T.K.Ajithkumar, the learned counsel appearing for the Panchayath and Smt.K.R.Deepa, the learned Special Government Pleader for the State.
13. Learned counsel for the petitioners Sri. Saiby Jose Kidangoor argued that the issue is covered by the judgment of the Division Bench in WP(C)No.19635/2013 dated 15.01.2015, wherein, it was held that there was no violation of provisions of the Paddy Act or CRZ Regulations. The essential contention of the learned counsel is that after the said judgment in which the State and its officials were parties, the directions of the Senior Town Planner, Ernakulam, in the order -15- WP(C)Nos.34493 of 2023 and 8845 of 2024 which was affirmed by the Chief Town Planner are against the directions in the said judgment. It was also argued that the applicability of Section 27A of the Act, 2008, is unsustainable in view of the above judgment and that there is no material before the respondents to hold that the property is included in the data bank as 'nilam' to attract the provisions of the Paddy Act and it is also stated that the impugned order is against the dictum laid down in Thomas V.J. v. State of Kerala and others [2020 KHC 728], Cheranalloor Grama Panchayath and another v. Joe Thattil [2020 (5) KHC 669], Seal Land Builders Pvt. Ltd. v. Revenue Divisional Officer, Fort Kochi and others [2020 (4) KHC 764] and District Collector Ernakulam and others v. Fr. Jose Uppani and others [2020 (4) KHC 394]. He prays for the quashing of Ext.P11 and for directing the respondents to proceed with the application for layout approval submitted by the petitioner and grant the same without insisting on the provisions of the KLU order and Paddyland Amendment Act concerning the land owned by them. As regards the cancellation of the permit, the learned counsel submits that it was passed without hearing the petitioners and on the short ground it is liable to be quashed. -16- WP(C)Nos.34493 of 2023 and 8845 of 2024
14. Learned Special Government Pleader appearing for the State Smt.K.R.Deepa argued that the Amendment Act came on 30.12.2017 and for all constructions to be made in an unnotified land or on lands where the Act applies, the provision will apply in view of the non- obstante clause in the Amendment Act. It is also argued that the petitioners could not have gone ahead with the proposal, because of the decision of the Special Committee, as the property otherwise was included in the agricultural/industrial zone in the master plan. It is only because of the provision that enabled a large-scale construction, permission was granted by the Special Committee on conditions the petitioners were bound to follow, and which remains unchallenged, including the conditions for future constructions. The grant of the permit by the Panchayath without taking note of the conditions imposed or without considering the Amendment Act, 2018, was illegal. An explanation was called for from the Secretary of the Panchayath concerned. It is also argued that the judgment in WP(C)No.19635/2013 dated 15.01.2015 was rendered prior to the Amendment Act, and therefore cannot apply to those applications made after the commencement of the Amendment Act, 30.12.2017. -17- WP(C)Nos.34493 of 2023 and 8845 of 2024
15. The learned Government Pleader also places reliance on the judgment of this Court in Cheranalloor Grama Panchayath, Ernakulam and another v. Joe Thattil [2020(5) KHC 669] and Global Education Trust v. State of Kerala and others [2020(6) KHC 538].
16. After having heard the learned counsel on either side and considering the documents on record, the undisputed facts are that the petitioners were granted a building permit based on the layout approval of the Chief Town Planner which in turn was passed on the decision of the Special Committee. The petitioners carried out the construction and completed Phase 1. The construction so done was challenged in WP(C)No.19635/2013 and by judgment dated 15.01.2015, this Court found no violation of the provisions of the Paddyland Act or that of the Coastal Zone Regulations. It has to be straight away noticed that the judgment was rendered on 15.01.2015 in WP(C)No.19635/2013 at a time when the Paddy Land Act was in existence.
17. Paddyland Act was amended with effect from 31.12.2017 as per Amendment Act, 2018. The unnotified land was defined as "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 -18- WP(C)Nos.34493 of 2023 and 8845 of 2024 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 on the date of commencement of this Act'. Thus, if any owner of an unnotified land desires to utilise such land for residential or commercial or any other purposes, he shall apply to the Revenue Divisional Officer for permission in such manner as may be prescribed.
18. The specific case of the State is that the majority of the land on which construction was made was a paddy field as defined in the Paddy Act, and therefore the provisions of Section 27A apply from the date on which the Amendment Act took effect. There cannot be any doubt that the provisions of the Amendment Act are prospective and that it applies to every application made for land described as unnotified land from 30.12.2017. The vires of the Act have not been challenged, the conditions imposed by the Special Committee were never challenged except the last order of the Senior Town Planner that insisted the conditions, mentioned above to be complied. A beneficiary of the order of relaxation, as in the instant case, should comply with -19- WP(C)Nos.34493 of 2023 and 8845 of 2024 every condition based on which the approvals were granted and in case he feels aggrieved by any of the conditions imposed, he had to challenge the same in a manner known to law. No orders/ permission granted to the petitioners by the Special Committee or by the Town Planner was challenged up to the one issued on 15.01.2017. As a matter of fact, the conditions imposed by the Senior Town Planner are in continuation of the earlier conditions imposed by the Special Committee and the Town Planner and he was not imposing the same for the first time. Conditions of the Special Committee took care of even the future constructions and the contention of the petitioners that they are not bound by the provisions of the Amendment Act cannot be sustained and is hereby rejected.
19. That said, the impact of the judgment of this Court in WP(C)No.19635/2013 dated 15.01.2015 is to be considered. It was a case where the construction was challenged and this Court in its judgment held that the provisions of the Paddy Act and the Coastal Zone Regulations do not apply. This can only mean that the provisions of the Paddy Act as it stood on the date of the judgment did not apply to the petitioners. Since the Amendment Act came only on 30.12.2017, this -20- WP(C)Nos.34493 of 2023 and 8845 of 2024 Court could not have said anything about the applicability of the Amendment Act, which was not in existence at that time. The argument on behalf of the petitioners that in view of the earlier finding that the Paddy Act does not apply, the provisions of the Amendment Act also will not apply has to be straightaway rejected as the legislation is not challenged and also given the non-obstante clause in the Amendment Act. When even the substratum of a judgment can be taken away by a subsequent legislation, the applicability of the Amendment Act, cannot be questioned in the absence of challenge to the same.
20. However, the building was put up based on the permissions granted and the challenge to the said construction was held in favour of the petitioners. Neither the Town Planner nor the State had challenged the judgment in WP(C)No.19635/2013 dated 15.01.2015 and it is therefore binding of all the parties to the litigation. It is therefore, declared that no steps can be taken against the construction which has already been effected, whose legality has been found in favour of the petitioners and the Act or the provisions cannot now be made -21- WP(C)Nos.34493 of 2023 and 8845 of 2024 applicable to such construction before the amending Act, given the binding nature of the judgment.
21. As regards the proposed construction on the rest of the property not utilised by constructing a building or making an application for change of user, prior to 30-12-2017, the Amendment Act would squarely apply. As regards the properties in survey numbers that were not included in the earlier Phases of the project and where a permit was not granted prior to the coming into force of the Amendment Act namely 30.12.2017, the provisions of the Amendment Act apply and the petitioners have to take necessary steps to comply with the same. This direction equally applies to the Panchayat as it is also bound by the provisions of the Paddy Act and the Amendment Act while granting building permits, in view of Section 14 of the Act. The judgments in Global Education Trust (supra), Cheranalloor Grama Panchayath (supra) as well as in Deepu D. v. District Collector, Kollam and others [2022 (5) KHC 90] and others also reached the same conclusion that for constructions effected prior to 30.12.2017, even if they were effected without taking recourse to the provisions of the KLU Order, it must be held that there is already a change in the nature of -22- WP(C)Nos.34493 of 2023 and 8845 of 2024 the land which meant that the nature of an unnotified land is changed or has been changed irreversibly and in such a manner that it cannot be reverted back to the original condition by ordinary means. and therefore the amended provisions cannot apply.
As a result of the above findings, the orders impugned in the writ petitions are quashed and the following directions are issued:
1) The Chief Town Planner will reconsider the appeal preferred by the petitioners by finding out the survey numbers on which the construction has been carried out. He shall also ascertain the permits/permissions granted for construction prior to the issuance of the Amendment Act, namely, 30.12.2017. The petitioners shall not be insisted to comply with the provisions of the Paddy Act for the constructions/permission/application filed for a change of user if any pending as of 30.12.2017.
2) For the rest of the survey numbers for which permission was sought for putting up construction and for which applications were made after 30.12.2017, the provisions of the Amendment Act would apply. It is also made clear that if the petitioners have made any application for correction in the data bank or made any application -23- WP(C)Nos.34493 of 2023 and 8845 of 2024 before coming into force of the Amendment Act, namely 30.12.2017, and the same is pending, the petitioners cannot be made liable to pay the fee or the charges as per the Amendment Act.
3) The Panchayat, thereafter will pass orders on the applications for building permits, if any, pending based on the directions of the Chief Town Planner as directed above. The decision on the restoration of the permit will also depend on the decision of the Town Planner as directed above. It is made clear that the Panchayat cannot cancel any permits issued prior to 30.12.2017 in view of the findings rendered above.
4) The Town Planner will take a decision as directed above within six weeks from today. The Panchayat will take the consequent decision within a month thereafter.
The writ petitions are disposed of as above.
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MOHAMMED NIAS C.P. JUDGE dlk/22.06.2024 -24- WP(C)Nos.34493 of 2023 and 8845 of 2024 APPENDIX OF WP(C) 8845/2024 PETITIONERS EXHIBITS EXHIBIT P1 TRUE COPY OF THE MINUTES OF THE SPECIAL COMMITTEE MEETING DATED 23/11/2010 EXHIBIT P2 TRUE COPY OF THE ORDER DATED 11/3/2011 BEARING NO:C1- 10667/2010 D IS ISSUED BY THE SECOND RESPONDENT EXHIBIT P3 TRUE COPY OF THE MINUTES OF THE SPECIAL COMMITTEE MEETING DATED 23/9/2013 EXHIBIT P4 TRUE COPY OF THE ORDER DATED 17/6/2014 BEARING NO:C11/9339/12/D IS ISSUED BY THE SECOND RESPONDENT EXHIBIT P5 TRUE COPY OF THE BUILDING PERMIT NO. C4- 883/2017 DATED 10-02-2020, ISSUED BY THE 5 TH RESPONDENT EXHIBIT P6 TRUE COPY OF THE ORDER NO. SC4-257/2023 DATED 21-03-2023 ISSUED BY THE 5TH RESPONDENT EXHIBIT P7 TRUE COPY OF THE COMMUNICATION DATED 09.04.2021 ISSUED BY THE SENIOR TOWN PLANNER, ERNAKULAM EXHIBIT P8 TRUE COPY OF THE JUDGMENT DATED 27-07-2022 IN W.P (C) NO:101/2022 EXHIBIT P9 TRUE COPY OF THE JUDGMENT IN WA 1639/2023 DATED 26-05-2023 EXHIBIT P10 TRUE COPY OF THE JUDGMENT DATED 10/07/2023 IN R P NO: 697/2023 EXHIBIT P11 TRUE COPY OF THE ORDER NO.
LSGD/PD/37345/2023-TCPA4 DATED 26-09-2023 -25- WP(C)Nos.34493 of 2023 and 8845 of 2024 ISSUED BY 2ND RESPONDENT EXHIBIT P12 TRUE COPY OF THE JUDGMENT DATED 15/01/2015 IN WPC 19635/2013 EXHIBIT P13 TRUE COPY OF THE ORDER DATED 07/10/2023 BEARING NO. SC3.10070/2023 EXHIBIT P14 TRUE COPY OF THE ORDER DATED 18/10/2023 IN W.P (C) NO:34493/2023 EXHIBIT P15 TRUE COPY OF THE APPLICATION PREFERRED BY THE APPLICANT, TO THE THASILDAR OBTAINED UNDER THE RIGHT TO INFORMATION ACT, 2005 DATED 30.07.2016 EXHIBIT P16 TRUE COPY OF THE APPLICATION PREFERRED BY THE APPLICANT TO THE THASILDAR OBTAINED UNDER THE RIGHT TO INFORMATION ACT, 2005 DATED 30.07.2016 EXHIBIT P17 TRUE COPY OF THE APPLICATION PREFERRED BY THE APPLICANT TO THE THASILDAR OBTAINED UNDER THE RIGHT TO INFORMATION ACT, 2005 DATED 30.07.2016 EXHIBIT P18 TRUE COPY OF THE REPLY NO:H.3-13037/16- 13038,13039/16DATED 20.09.2016 ISSUED BY THE ADDITIONAL THASILDAR OF KANAYANNUR RESPONDENTS EXHIBITS EXHIBIT R2(A) TRUE COPY OF THE MINUTES OF THE SPECIAL COMMITTEE HELD ON 23.11.2010 EXHIBIT R2(B) A TRUE COPY OF THE MINUTES OF THE SPECIAL COMMITTEE HELD ON 23.09.2013 EXHIBIT R2(C) A TRUE COPY OF THE ORDER NO.C/1749/19 D.DIS DATED 24.09.2019 ISSUED BY THE SENIOR TOWN PLANNER,ERNAKULAM EXHIBIT R2(D) A TRUE COPY OF THE ORDER NO.C1-
10667/2010/D.DIS DATED 11.03.2011 ISSUED -26- WP(C)Nos.34493 of 2023 and 8845 of 2024 BY THE CHIEF TOWN PLANNER EXHIBIT R2(E) TRUE COPY OF THE EXTRACT OF THE DATA BANK OF THE PROPERTIES IN QUESTION IN THE CHERANELLOOR VILLAGE,ERNAKULAM DISTRICT(PAGE NO.1 AND PAGES 12 TO 28 EXHIBIT R5(A) THE TRUE PHOTO COPY OF THE LETTER DATED 8- 4-2021 ISSUED BY THE SENIOR TOWN PLANNER, ERNAKULAM EXHIBIT R5(B) THE TRUE PHOTO COPY OF THE LETTER DATED 20-4-2021 ISSUED BY THE 5TH RESPONDENT EXHIBIT R5(C) THE TRUE PHOTO COPY OF THE LETTER DATED 6- 2-2018 ISSUED BY THE 5TH RESPONDENT EXHIBIT R5(D) THE TRUE PHOTO COPY OF THE JUDGMENT IN WP(C) NO.1785/2018 DATED 13-10-2022 ANNEXURE R3(A) TRUE COPY OF THE LETTER NO. TCP EKM/127/2021-C DATED 08.04.2021 ANNEXURE R3(B) TRUE COPY OF THE LETTER NO. C4/3098/21 DATED 20.04.2021 ANNEXURE R3(C) TRUE COPY OF THE LETTER NO. TCP EKM/127/2021-C DATED 24.06.2021 ANNEXURE R3(D) TRUE COPY OF THE LETTER NO. C4/3098/21 DATED 02.08.2021 ANNEXURE R3(E) TRUE COPY OF THE LETTER NO. TCP EKM/127/2021-C DATED 08.04.2021 ANNEXURE R3(F) TRUE COPY OF THE LETTER NO. TCP EKM/127/2021-C DATED 20.09.2021 ANNEXURE R3(G) TRUE COPY OF THE LETTER NO.
TCPCTP/2226/2021-E1 DATED 20.12.2021ISSUED BY THE CHIEF TOWN PLANNER ANNEXURE R3(H) TRUE COPY OF THE LETTER NO. TCP EKM/127/2021-C DATED 04.01.2022 -27- WP(C)Nos.34493 of 2023 and 8845 of 2024 APPENDIX OF WP(C) 34493/2023 PETITIONERS EXHIBITS EXHIBIT P1 TRUE COPY OF THE BUILDING PERMIT NO. C4- 883/2017 DATED 10-02-2020, ISSUED BY THE 2ND RESPONDENT EXHIBIT P2 TRUE COPY OF THE ORDER NO. SC4- 157/2023 DATED 21-03-2023 ISSUED BY THE 2ND RESPONDENT EXHIBIT P3 THE TRUE COPY OF THE JUDGMENT DATED 27-07- 2022 IN W.P.(C).NO.101/2022 OD THIS HON'BLE COURT EXHIBIT P4 TRUE COPY OF THE JUDGMENT DATED 26-05-2023 IN W.A.1639/2022 OF THIS HON'BLE COURT EXHIBIT P5 TRUE COPY OF JUDGMENT DATED 10..7.2023 IN RP NO. 697/2023 OF THIS HONBLE COURT EXHIBIT P6 TRUE COPY OF THE ORDER NO.
LSGD/PD/37345/2023-TCPA4 DATED 26-09-2023 ISSUED BY THE 3RD RESPONDENT EXHIBIT P7 TRUE COPY OF THE JUDGMENT DATED 15/01/2015 IN WPC 19635/2013 OF THIS HON'BLE COURT EXHIBIT P8 TRUE COPY OF THE ORDER DATED 07/10/2023 BEARING NO. SC3.10070/2023 ISSUED BY THE 2ND RESPONDENT EXHIBIT P9 TRUE COPY OF THE REPLY SUBMITTED BY THE PETITIONER DATED 13-10-2023 BEFORE THE 2ND RESPONDENT