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2020 Supreme(Ker) 1094
IN THE HIGH COURT OF KERALA AT ERNAKULAM
P.B. SURESH KUMAR, J.
Sebu Paul, S/o. Paul - Petitioner
Versus
The State of Kerala, Represented by Principal Secretary, Revenue Department & Ors. - Respondents
WP(C) No. 12498 of 2020(J)
Decided On : 10-11-2020
For the Petitioner: Sri. A. Jayasankar, Sri. Manu Govind, Sri. Ashwin Sethumadhavan, Sri. Rahul Surendran.
For the Respondents: Sri. Santhosh P. Poduval, SC, Thrissur Corporation, Sri. Paul Abraham Vakkanal – Government Pleader.
The purpose of land acquisition should determine its classification, and the competent authority should reassess the land's classification based on the purpose of acquisition.
Headnote:
Kerala Conservation of Paddy land and Wetland Act - Land Classification - Section 27A
Fact of the Case:
Petitioner's building permit application was rejected by the Corporation based on the land being classified as wetland in revenue records, subject to the Kerala Conservation of Paddy land and Wetland Act, 2008.
Finding of the Court:
The Court held that the land, acquired for rehabilitating the landless, should not be hindered by its classification in revenue records, and directed the Corporation to consider the building permit application afresh.
Issues: Classification of acquired land under the Kerala Conservation of Paddy land and Wetland Act, 2008.
Ratio Decidendi: The purpose of land acquisition should supersede its previous classification in revenue records, and the competent authority should reassess the land's classification based on the purpose of acquisition.
Final Decision: The Court set aside the communication rejecting the building permit application and directed the Corporation to consider the application afresh, treating the land as garden land/dry land.
JUDGMENT :
Petitioner owns an item of land measuring 1.21 Ares within the limits of the second respondent, the Thrissur Corporation. During late 1980s, a few items of lands were acquired for Thrissur Corporation and consequent on the said acquisition, a few people became landless. In order to rehabilitate them, another land was acquired and people who became land less were rehabilitated in the acquired land. The predecessor in interest of the petitioner is one of such persons. It is seen that the predecessor of the petitioner accordingly put up a residential building in the said land and was residing there. Petitioner intends to put up a new building in the land. He, therefore, applied for a building permit from the Corporation. The application submitted by the petitioner for the said purpose is turned down by the Corporation in terms of Ext.P4 communication stating that since the land of the petitioner is shown in the revenue records as wetland, he can put up constructions in the land only upto 120 square meters and since the petitioner proposes to put up a building in the land having a larger area, he is not entitled to building permit. The petitioner is aggrieved by Ext.P4 communication and hence this writ petition.
2. Heard the learned counsel for the petitioner as also the learned Standing Counsel for the second respondent.
3. The reason, on the basis of which the request of the petitioner for building permit was declined by the Corporation, which was communicated to the petitioner in terms of Ext.P4 reads thus :
In terms of the provisions contained in the Kerala Conservation of Paddy land and Wetland Act, 2008 (the Act), lands which have been included as paddy land or wetland in the Basic Tax Register maintained in the Village Office, but are not notified as paddy land or wetland under sub-section (4) of Section 5 can be used for other purposes only after obtaining permission of the competent authority under Section 27A of the Act. Sub-section (6) of Section 27A of the Act, however, provides that such permission is not necessary for constructing a residential building having a maximum area of 120 square meters in a maximum extent of 4.04 Ares of land or a commercial building having a maximum area of 40 square meters in a maximum extent of 2.02 Ares. Sub-section (6) of section 27A reads thus :
(6) Notwithstanding anything contained in the Kerala Panchayat Raj Act, 1994(13 of 1994) or in the Kerala Municipality Act, 1994(20 of 1994), no permission under this section shall be necessary for constructing a residential building having a maximum area of 120 square meters in a maximum extent of 4.04 ares of land or a commercial building having a maximum area of 40 square meters in a maximum extent of 2.02 ares of land:
Provided that the construction of a housing complex or complexes or flats or multi-storied residential complexes shall not come within the meaning of residential building specified in this sub-section:
Provided further that this exemption shall be granted only once.”
It is seen that it is in the light of sub-section (6) of section 27A that the Corporation has issued Ext.P4 communication to the petitioner. In other words, the stand of the Corporation is that the land of the petitioner is a land for which permission of the competent authority is required under Section 27A of the Act.
4. Going by the provisions contained in the Act, permission is required under Section 27A of the Act for lands which are defined in the Act as un-notified lands. The definition of ‘unnotified land’ contained in the Act reads thus :
[xvii-A) “unnotified land” means 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 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 bee
