Point of Law: An order under Section 27A cannot be insisted upon in respect of land already utilized by constructing a building prior to incorporation of the said provision.

JUDGMENT :

ANU SIVARAMAN, J.

1. This writ petition is filed seeking the following prayers:

“(i) To declare that Act 29 of 2017, which amended Act 28 of 2008 will not affect the right of the petitioners to put up additional rooms on the first floor of the building of the petitioners constructed in pursuance of Ext.P5.

(ii) To declare that nature of the land has no relevance while considering application for permit for constructing two rooms over an existing building.

(iii) In the alternative, to declare that the petitioner is entitled to get the benefit of Section 27A(6) of Act 28 of 2008.

(iv) To issue a writ of certiorari calling for the originals of Exhibit P8 and to quash the same.

(v) To issue a writ of mandamus, order or direction to the 7th respondent to allow the application referred to in Ext.P8 without much delay.”

2. Heard the learned counsel for the petitioners, the learned Government Pleader as well as the learned counsel appearing for respondents 6 and 7.

3. It is submitted by the learned counsel for the petitioners that the petitioners are the owners in possession of a total extent of 3.15 Ares of property comprised in Survey Nos. 480/2-12 and 480/2-13 of Kunnukara Village of North Paravur Taluk of Ernakulam district. It is submitted that they had constructed a residential house in the property on the basis of Ext.P5 permit issued by the 7th respondent. It is submitted that when the property had been included in the data bank as nilam, they had approached this Court and Ext.P6 judgment had been issued directing the exclusion of the property from the data bank.

4. It is submitted that the petitioners require a further construction over the residential building which is already constructed pursuant to Ext.P5 and the petitioners had approached the 7th respondent with an application for Building permit showing the construction over the already existing building. It is submitted that the said request has been rejected by Ext.P8 stating that since the property is shown as nilam in the Basic Tax Register, the petitioners have to obtain orders from the RDO under Section 27A of the Kerala Conservation of Paddy Land and Wet Land Act, 2008 (for short ‘2008 Act’). The learned counsel for the petitioners submits that the provisions of Section 27A of the 2008 Act are not applicable to the situation in hand due to the fact that the petitioners had already made constructions on the property with due permissions and since the petitioners requires only a construction of another floor over the already existing building, the said insistence cannot be legally possible. The learned counsel for the petitioners places reliance on the decisions of this Court in Global Education Trust vs. State of Kerala, 2020 (6) KLT 738 and Soumini vs. Naduvannur Grama Panchayat, 2017 (1) KLT 168.

5. The learned Government Pleader submits that in the guise of the construction over the existing building, the petitioners cannot be permitted to utilize any further extent of property since the direction of this Court as evident from the judgment in Global Education Trust vs. State of Kerala (supra) specifically held that an order under Section 27A cannot be insisted upon in respect of land already utilized by constructing a building prior to incorporation of the said provision. It was specifically directed that it has to be verified from the application for the building permit whether the proposed construction or reconstruction exceeds the appurtenant land covered by the existing construction and if the construction exceeds such earlier construction, then, the application under Section 27A of the 2008 Act would be required.

6. Having considered the contentions advanced, I am of the opinion that in view of the fact that the petitioners seek a reconstruction of the building not exceeding the area of the existing building, the application is liable to be considered, in accordance with law, after verifying all factual aspects. The contention that an order under Section 27A