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2021 Supreme(Online)(KER) 18657
HIGH COURT OF KERALA
P. B. Suresh Kumar, J
M/S MELMONT CONSTRUCTIONS PVT. LTD NO 41/199A, – Appellant
Versus
THE STATE OF KERALA – Respondent
WP(C)/6495/2021
SANTHOSH MATHEW, SRI. ARUN THOMAS, SRI. JENNIS STEPHEN, SRI. VIJAY V. PAUL, SMT. KARTHIKA MARIA, SRI. ANIL SEBASTIAN PULICKEL, SMT. DIVYA SARA GEORGE, SMT. JAISY ELZA JOE, SHRI. ABI BENNY AREECKAL, SMT. LEAH RACHEL NINAN, SMT. NANDA SANAL, SRI. G.G. MANOJ, SRI. S. SARATH PRASAD, SRI. RENJITH THAMPAN
The ruling establishes that existing land classifications and previous permissions govern construction permits, overriding subsequent legislative restrictions that lack retroactive effect.
Headnote:
Land Use - Real Estate Development - Kerala Conservation of Paddy Land and Wetland Act, 2008 (Sections 27A, 27C) - Summary of the court's decision emphasizes that the Municipality cannot impose compliance under the KLU order for building permits when the land is classified otherwise and has no historical paddy or wetland designation.
Fact of the Case:
Petitioners, real estate developers, sought to utilize lands classified as 'Nilam' for construction. They had previously secured a No Objection Certificate and commenced construction, but faced a stop memo due to alleged KLU order violations, which was challenged successfully in court.
Finding of the Court:
The court clarified that the KLU order was inapplicable to areas designated as residential zones. It affirmed that the construction was legally permissible based on existing permissions and prior court rulings, thereby supporting the petitioners' right to proceed with their project.
Issues: Whether the Municipality could insist on compliance with the KLU order and Section 27A of the Kerala Conservation of Paddy Land and Wetland Act for a building permit on lands classified as 'Nilam' yet not included in the data bank as paddy or wetland.
Ratio Decidendi: The court determined that Section 27A's restrictions do not retroactively apply to lands already utilized for construction prior to its enactment, thus invalidating the Municipality's insistence on additional permits under that section.
Final Decision: The writ petitions are allowed, quashing the Municipality's notice and requiring consideration of the building permit application without further KLU compliance.
J U D G M E N T
Issues arising for consideration in these matters are closely interlinked and they are, therefore, disposed of by this common judgment. Parties and documents are referred to in this judgment, as they appear in W.P.(C) No.3381 of 2021.
2. The facts relevant for adjudication of the issues are the following : Petitioners are real estate developers. They own lands in Vazhakkala Village within the limits of Thrikkakkara Municipality (the Municipality). A portion of the lands owned by the petitioners is shown in the revenue records as 'Nilam' and the rest as 'Purayidom'. The lands were purchased by the petitioners for the purpose of promoting jointly a residential/commercial project prior to the implementation of the Kerala Municipality Building Rules, 1999 within the limits of the Thrikkakkara Panchayat, which was later upgraded as Thrikkakkara Municipality. As such, after acquiring the lands, the first petitioner applied to the Panchayat for a No Objection Certificate for the project proposed by the petitioners and on the said application, Ext.P2 certificate was issued by the then Thrikkakkara Panchayat on 23.8.2006 stating that since the Kerala Municipality Building Rules, 1999(wrongly shown as Kerala Building Rules, 1984) have not been enforced within the limits of the Panchayat, permission of the Panchayat is not necessary for the construction proposed by the petitioners. It was, however, stated in the certificate that there shall not be any construction within three meters from the boundaries of the adjoining public roads and that there shall be adequate drainage facilities for the building. It is stated by the petitioners that on the strength of Ext.P2 certificate, they have commenced construction of the building and completed the piling works and a portion of the columns of the building. While so, on 1.9.2008, the Village Officer issued Ext.P6 stop memo to the petitioners stating that the construction undertaken by the petitioners is contrary to the provisions of the Kerala Land Utilization Order, 1967 (KLU order) and therefore, they shall not proceed with the construction without obtaining orders from the competent authority under the KLU order. According to the petitioners, the lands owned by them fall under residential zone in terms of the structural plan of Central Cochin City sanctioned by the Government under the Town Planning Act, 1108 M.E. and therefore, permission under the KLU order is not necessary for utilizing the same for constructing a building for residential purpose. The petitioners, therefore, challenged Ext.P6 stop memo before this court in W.P.(C) No.9156 of 2010 and the said writ petition was allowed and Ext.P6 stop memo was quashed holding that KLU order is inapplicable to the area to which the Town Planning Scheme has been implemented. Ext.P11 is the judgment in the said case. It was however, made clear by this court in Ext.P11 judgment that the petitioners shall obtain building permit in terms of the Kerala Municipality Building Rules for resuming the work as the Kerala Municipality Building Rules, 1999 have been implemented within the limits of the erstwhile Thrikkakkara Grama Panchayat with effect from
6.11.2006.
3. It is stated by the petitioners that though there was no impediment for the petitioners to proceed with the construction proposed by them in the light of Ext.P11 judgment after obtaining building permit from the Panchayat, with a view to avoid further legal issues in the course of construction, they have preferred an application before the District Collector requesting orders for construction of the building in the lands which are classified in the revenue records as 'Nilam'. The said application was disposed of by the District Collector holding that if the lands owned by the petitioners are not included in the data bank prepared under the Kerala Conservation of Paddy Land and Wetland Act , 2008 (the Act), they are at liberty to carry on the construction subject to other
