Kerala High Court
A.T.Abdurahiman vs Unknown on 17 February, 2021
Author: Shaji P.Chaly
Bench: S.Manikumar, Shaji P.Chaly
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR
&
THE HONOURABLE MR. JUSTICE SHAJI P.CHALY
WEDNESDAY, THE 17TH DAY OF FEBRUARY 2021 / 28TH MAGHA,1942
WA.No.1673 OF 2020
AGAINST THE JUDGMENT IN WP(C) 12940/2019(N) OF HIGH COURT OF
KERALA
APPELLANTS/PETITIONERS IN WPC:
1 A.T.ABDURAHIMAN
AGED 54 YEARS
S/O. AMMED, AVALATH THAZHEKUNI HOUSE,
MEPPAYUR AMSOM, PIN - 673524, KAYALAD,
KOYILANDY TALUK, KOZHIKODE.
2 A.T. RAHIM
AGED 56 YEARS
S/O. AMMED, AVALATH THAZHEKUNI HOUSE, MEPPAYUR AMSOM,
PIN - 673524, KAYALAD, KOYILANDY TALUK, KOZHIKODE.
BY ADVS.
SRI.SANTHARAM.P
SMT.REKHA ARAVIND
SRI.PAUL P. ABRAHAM
SRI.P.K.SURESH KUMAR (SR.)
RESPONDENTS/RESPONDENDS IN WPC
1 MEPPAYUR GRAMA PANCHAYATH
REPRESENTED BY ITS SECRETARY, MEPPAYUR P.O,
PIN - 673524, KOZHIKODE DISTRICT.
2 THE SECRETARY
MEPPAYUR GRAMA PANCHAYATH,
REPRESENTED BY ITS SECRETARY, MEPPAYUR P.O,
PIN - 673524, KOZHIKODE DISTRICT.
3 THE VILLAGE OFFICER,
MEPPAYUR P.O, PIN - 673524, KOZHIKODE DISTRICT.
4 THE TAHSILDAR,
KOYILANDY , PIN - 673305, KOZHIKODE DISTRICT.
W.A.No. 1673/2020 : 2:
5 REVENUE DIVISIONAL OFFICER,
COLLECTORATE BUILDING, WAYANAD ROAD,
CALICUT CIVIL STATION, PIN - 673020,
KOZHIKODE DISTRICT.
6 REVENUE DIVISIONAL OFFICER,
REVENUE DIVISIONAL OFFICE, PWD REST HOUSE,
PIN - 673101, VADAKARA.
R1 & R2 BY ADV. ADV.M.G.SREEJITH,SC(B/O)
R3-R6 BY SRI.ARAVINDAKUMAR BABU,SENIOR
GOVERNMENT PLEADER AND SRI.SURIN GEORGE IPE,
SENIOR GOVERNMENT PLEADER
THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON
17.02.2021, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
W.A.No. 1673/2020 : 3:
JUDGMENT
SHAJI P.CHALY, J.
This appeal is preferred by the petitioners in W.P.(C). No.12940/2019 challenging the judgment dated 17.07.2020, whereby the learned Single Judge disposed of the writ petition as follows:-
"28 Having considered the submissions made by the learned counsel on both sides, this writ petition is disposed of with the following directions;
(1) Within one month from the date of receipt of a certified copy of this judgment, the petitioners shall submit an application before the additional 6th respondent Revenue Divisional Officer, invoking the provisions of Section 27A of the Act, for change of nature of their land, after complying with the statutory requirements and remitting the requisite fee for obtaining satellite image and report from the Kerala State Remote Sensing and Environment Centre and the attested copy of F.M.B sketch from the concerned Village Officer. (2) If any such application is received within the time limit stipulated above and the petitioners have complied with the statutory requirements, the additional 6th respondent shall consider the same and pass appropriate orders thereon, in exercise of his powers under Section 27A of the Act, taking into consideration the satellite image and report obtained from the Kerala State Remote Sensing and Environment Centre, as expeditiously as possible,at any rate, within a period of four months from the date of receipt of that application, along with a certified copy of this judgment, after affording the petitioners an opportunity of being heard."
2. The basic facts required for the disposal of the appeal are as W.A.No. 1673/2020 : 4: follows :
On 04.02.2016, the appellants were granted with a building permit by the Meppayur Grama Panchayath, Kozhikode District, to construct a building admeasuring 1575.27 m 2 in the property situated in Re-survey Nos. 6/3, 19/2, 6/2, 6/12, 6/5 and 6/14 of Meppayur Village, Meppayur Taluk, Kozhikode District, apparently a paddy field as per the village records, however claimed to be converted before the introduction of the Kerala Conservation of Paddyland and Wetland Act, 2008, (hereinafter called 'Act, 2008'). According to the appellants, the said property was converted as a dryland 30 years before and it was or is not included in the data bank constituted as per Act, 2008.
In accordance with the permit, the construction of the building was completed and an application for occupancy certificate was submitted on 04.04.2018; but the Secretary of the Panchayath directed the appellants to regularise the property in accordance with the provisions of Section 27A of Act, 2008 introduced with prospective effect from 30.12.2017.
3. It is significant to note that the learned Single Judge was also of the opinion that the appellants have to make an application under Section 27A of Act, 2008 and unless that is done, the Panchayath cannot be directed to issue occupancy certificate. In fact, Section 27A W.A.No. 1673/2020 : 5: of Act, 2008 deals with change of nature of unnotified land under Act, 2008. An unnotified land is defined under Section 2 (xviiA) of Act, 2008 also to mean not notified as paddyland or wetland under Section 5(4) of the Act. The paramount contention advanced is that the judgment of the learned single Judge directing to file application under Section 27A of Act, 2008 is in violation of the dictum laid down by our Division Bench in Cheranalloor Grama Panchayath Vs. Joe Thattil [2020 (5) KHC 669] that, Section 27A has no application to a case where a converted land was utilised for construction on the basis of building permit issued prior to the introduction of Section 27A into Act,2008. It is, thus, seeking interference and issuing appropriate directions this appeal is preferred.
4. We have heard learned senior counsel for the appellants Sri.P.K.Suresh Kumar assisted by Advocate Santharam P, learned Senior Government Pleader, Sri.Surin George Ipe for the State Government and Sri.M.G.Sreejith for the Grama Panchayath and its Secretary and perused the pleadings and materials on record.
5. It is true, taking into account the consequences of Section 27A of Act, 2008 introduced on and with effect from 30.12.2017 vis-a- vis the provisions of the Kerala Panchayat Raj Act, 1994 and the Kerala Panchayath Building Rules, 2011, the Division Bench in Joe Thattil W.A.No. 1673/2020 : 6: (supra) has considered the question of conversion of a paddy field prior to the introduction of Section 27A of Act, 2008 on and with effect from 30-12-2017, also taking into account clauses 6 and 7 of the Kerala Land Utilisation Order, 1967 dealing with the requirement of permission for utilisation of a paddy field for other purposes other than paddy cultivation. It is an admitted fact that the appellants in the instant appeal have not secured any permission from the statutory authority under the Land Utilisation Order, 1967 as in the case of Joe Thattil (supra).
6. However, after assimilating the factual situations and taking note of the judgment of a Division Bench of this Court in Aishabeevi and another Vs. Superintendent of Police, Ernakulam and others [2014 (3) KHC 678] that, if permit was secured prior to the introduction of Section 27A of Act, 2008, there can be no adverse consequences in regard to securing the occupancy certificate in terms of the Kerala Panchayath Building Rules, 2011. In Joe Thattil (supra), we have also held that since Section 27A of Act, 2008 has only prospective effect from 30-12-2017, with regard to a construction carried out on a building permit secured prior to the said provision, the secretary of the Panchayat cannot insist for regularisation of construction as per Section 27A of Act, 2008. Therefore, we are of the considered opinion that, the facts and circumstances of the case at W.A.No. 1673/2020 : 7: hand also shows that, there is no dispute that the paddy field was converted by the appellants prior to the introduction of Act,2008, that it is not included in the data bank and that the building permit was secured prior to the introduction of Section 27A to Act, 2008.
7. In that view of the matter, we are justified in concluding that the principles of law laid down by us in the case of Joe Thattil (supra) squarely apply to the facts and circumstances in the appeal at hand. However, learned Senior Government Pleader Sri.Surin George Ipe referring to the reliefs sought for in the writ petition has pointed out that, the construction in accordance with Ext.P6 permit can only be covered in an area of 39 cents of property, however the total extent of the property mentioned in the survey numbers is extending to more than 118 cents, and therefore, if any favourable orders are passed by this Court in favour of the appellants on account of the judgment in Joe Thattil (supra), it may be limited to the 39 cents in which the building was constructed and to meet with the requirements of the Kerala Panchayat Raj Act,1994 and the Kerala Panchayath Building Rules, 2011.
8. Having considered the issues and evaluating the factual and legal situations as above, we are also of the considered opinion that there is force in the submission made by the learned Senior W.A.No. 1673/2020 : 8: Government Pleader in that regard. Therefore, the appeal is allowed in part in terms of the judgment in Joe Thattil (supra), however, making it clear that the benefits in regard to the construction carried out by the petitioner on the basis of Ext.P6 permit dated 04.02.2016 bearing No.A2/333/14-BL 331/14-15 vis-a-vis the provisions of Section 27A of Act, 2008 would be confined to 39 cents of property and other extents of property required to satisfy the mandatory requirements of the Kerala Panchayat Raj Act, 1994 in regard to the provisions of building construction and the Kerala Panchayath Building Rules, 2011. We further make it clear that, if regularisation is required for the rest of the properties other than as mentioned above and situated in the survey numbers specified in the impugned judgment,the appellants shall comply with the directions contained in the judgment of the learned Single Judge, and if so it shall be considered as directed, in accordance with law.
Sd/-
S. MANIKUMAR, CHIEF JUSTICE.
Sd/-
SHAJI P. CHALY, JUDGE.
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