J U D G M E N T

Petitioner holds a land within the limits of the second respondent Corporation. There exists a single storied building in the said land having a plinth area of 106.39 square meters. Petitioner intends to put up a new building in the place of the existing building. He preferred an application before the Corporation for building permit for the said purpose. The proposal of the petitioner is for construction of a multi storied building exceeding 120 square meters in area. On the said application, the petitioner was issued Ext.P5 communication by the competent authority of the Corporation. It is stated in Ext.P5 communication that since the land of the petitioner is classified as 'Nilam' in the revenue records, the petitioner is entitled to construct only a building having a plinth area less than 120 square meters. Ext.P5 is under challenge in the writ petition.

2. Heard the learned counsel for the petitioner as also the learned Standing Counsel for the second respondent.

3. The relevant portion of Ext.P5 reads thus:

"ടട സലല അലഗഗകത മമസർ പമനടൽ Residential Zoneൽ ഉൾപപടന. കകൈവശമവകൈമശ രരഖയടൽ നടലല എന കൈമണന. സ.ഉ .(പട) നമർ 85/2018/റവനᩗ᪏ തഗയതട 15/12/2018 ്ᩚകൈമരല 4.04ആർ ഭമടയടൽ 120ച.മഗ വടസതടയള വഗടട നടർമടകനതടരനമ പനർ നടർമടകനതടരനമ വടപലഗകൈരടകനതടരനമ സമധടകകൈയള. ആയതടനമൽ area നടജപപടതട പമൻ സമർപടകകൈരയമ RDO യടൽ നടനള തരല മമറടയ ഉതരവട ഹമജരമകകൈരയമ പചരയണതമണട. അലമത പകല തമങൾ സമർപടച അരപകയടൽ തടർനടപടടകൈൾ സസഗകൈരടകമൻ കൈഴടയമതതടനമൽ ഇനടപയമരറടയടപടലമപത തമങളപട അരപക നടരപമധടകൈല നടരസടകനതമപണന ഇതടനമൽ അറടയടകന.”

It is evident from the extracted portion of the order that the stand of the Corporation is that as the land of the petitioner is classified as 'Nilam' in the revenue records, he is entitled to put up in the said land only a building having a plinth area less than 120 square meters. The said restriction is one imposed in terms of Section 27A of the Kerala Conservation of Paddy Land and Wetland Act, 2008(the Act). In other words, the stand of the Corporation is that if the petitioner wants to construct a building exceeding a plinth area of 120 square meters, he has to obtain permission under Section 27A of the Act.

4. As noted, there is no dispute to the fact that there exists a building in the land. The certificate issued by the Corporation in this regard is part of the records as Ext.P6(A). The question as to whether the provisions of Section 27A could be pressed into service in respect of such a land has been considered by this court in Global Education Trust v. State of Kerala, 2020(6) KLT 738 and it was held that if the area of the proposed construction does not exceed the area utilised for construction of the existing building, compliance of the provisions of Section 27A of the Act cannot be insisted. Paragraph 9 of the judgment reads thus:

“9. Therefore, I am of the considered view that S.27A of Act 28 of 2008 cannot be insisted in respect of a land already utilised by constructing building prior to incorporation of 27A of Act 28 of 2008 even without obtaining permission under the Kerala Land Utilisation Order. However, it has to be verified from such application for building permit whether the proposed construction or reconstruction exceeds the appurtenant land covered by existing construction. If any construction or reconstruction is proposed beyond the utilisation of the land already done, that has to be regularised by submitting application under S.27A of Act 28 of 2008. The rigor of S.27A of Act 28 of 2008 cannot be insisted upon the land which has been utilised by constructing buildings with valid permit or through the process of law before incorporation of S.27 A of Act of 28 of

2008.”

In the light of the decision aforesaid, Ext.P5 is quashed and the writ petition is disposed of directing the competent authority of the second respondent Corporation to consider the application of the petitioner for building permit referred to in Ext.P5 afresh and grant the building permit sought by the petitioner, if the application is otherwise in order and if the a