Back
HIGH COURT OF KERALA
CHERANELLOOR GRAMA PANCHAYATH, – Appellant
Versus
JOE THATTIL, – Respondent
WA/1007/2020
Paddy - Building Regulations - Kerala Conservation of Paddy Land and Wetland Act 2008, Section 27A; Kerala Panchayat Building Rules 2011 - The court clarified that Section 27A does not apply retroactively to permits issued prior to its enactment, thus allowing for the regularization of construction contrary to existing norms.
Fact of the Case:
The respondents appealed a ruling that quashed their notice denying an occupancy certificate for additional construction carried out without a permit. The construction was permitted before relevant regulations came into effect; thus, the issue centered on adherence to these regulations post-construction.
Finding of the Court:
The court found that the permit for construction was issued before the relevant provisions of the Act came into effect, and thus, the Secretary of the Grama Panchayat was required to comply with the Building Rules in force during the permit's issuance, rather than the later regulations.
Issues: The issue was whether the Secretary of the Grama Panchayat could deny an occupancy certificate based on Section 27A of the Act, which came into force after the permit was granted, thereby questioning the applicability of retrospective regulation on previously approved construction.
Ratio Decidendi: The court determined that the provisions of Section 27A did not retroactively affect the validity of the building permit granted to the writ petitioner, as it requires adherence to regulations in place at the time of the permit's issuance.
Final Decision: The appeal was dismissed, affirming the right to regularize construction as per the applicable rules at the time of permit issuance.
Certainly. Based on the provided legal document, here are the key points:
The court clarified that regulations enacted after the issuance of a construction permit cannot impose restrictions retroactively, thereby protecting the property owner's rights based on the rules in force at the time of permit issuance (!) (!) .
The permit granted to the property owner was issued prior to the relevant regulations coming into effect; thus, the authority was required to adhere to the building rules in force at that time, not subsequent regulations (!) (!) .
The issue centered on whether the authority could deny an occupancy certificate based on regulations introduced after the permit was granted, specifically questioning the retroactive applicability of such regulations (!) .
The court held that provisions introduced after the permit was issued do not affect the validity of that permit, affirming the property owner’s right to regularize construction based on the rules in force at the time of permit issuance (!) (!) .
The permit was granted with specific conditions, and there was no indication that any of the subsequent regulations or restrictions were incorporated as conditions at the time of permit issuance (!) .
The property in question was included in a data bank indicating it was converted prior to the introduction of the relevant legislation, but such inclusion does not automatically imply illegal conversion or restrict the permit granted earlier (!) (!) .
The court emphasized that the relevant regulations and amendments, such as Section 27A and related provisions, have prospective effect only and do not apply to permits issued before their commencement (!) (!) .
The powers of the local authorities to regularize unauthorized constructions are governed by the applicable rules and regulations in force at the time of the construction, and subsequent regulations cannot be used to penalize or restrict constructions made earlier (!) (!) (!) .
The court reaffirmed that the authorities must act in accordance with the building rules in effect at the time of permit issuance and that retrospective application of new restrictions is not permissible (!) .
Ultimately, the court dismissed the appeal, upholding the decision that the property owner’s rights, as established at the time of permit issuance, should be protected against retroactive restrictions or regulations (!) (!) .
JUDGMENT
Shaji. P. Chaly, J.
The appeal is preferred by the respondents in W.P.(C) No. 7007 of
2020 i.e., the Cheranalloor Grama Panchayat and its Secretary challenging the judgment of the learned single Judge dated 26.02.2020, whereby the learned Single Judge allowed the writ petition and quashed Ext.P6 notice issued by the Secretary of the Grama Panchayat dated 15.12.2018 declining to issue, the occupancy certificate and building number due to the additional construction carried out by the writ petitioner/respondent against Ext.P3 permit dated 26.10.2015 granted by the Secretary of the Grama Panchayat. Consequently, the writ petitioner was directed to secure necessary orders from the Revenue Divisional Officer concerned under Section 27A of the Kerala Conservation of Paddy Land and Wetland Act, 2008 ('the Act, 2008' for short). Thereby, the Secretary was directed to consider the grant of occupancy certificate afresh without any reference to the nature of land in revenue records as paddy field, in accordance with the provisions of the Kerala Panchayat Building Rules, 2011 ('Rules, 2011' for brevity), which was in force at the time of grant of Ext.P3 building permit dated 26.10.2015 and not on the basis of the subsequent Building Rules that has come into force, after providing an opportunity of hearing to the writ petitioner and within a period of one month from the date of production of a copy of the judgement. It is, thus, challenging the legality and correctness of the said judgment, this appeal is filed.
2. The material facts for the disposal of the appeal are as follows:
The writ petitioner is the owner in possession of 5.66 Ares of property comprised in re-Survey No. 306/4, Block No.4 of Cheranalloor Village in Kanayannur Taluk, Ernakulam District, which is an undisputed fact. The said property was included in the data bank prepared by the Local Level Monitoring Committee of the Cheranalloor Grama Panchayat under the provisions of the Act, 2008 as converted before 5 years. The writ petitioner submitted an application for building permit before the Secretary of the Grama Panchayat, the second appellant herein, for the construction of the residential house in the property, against which Ext.P3 permit was granted for the construction of 240.77 square meters of residential building in two floors. Admittedly, over and above the plinth area permitted to be constructed as per the permit, the writ petitioner carried out additional constructions and it was completed on 28.12.2017. Thereafter, in accordance with Rules, 2011, the writ petitioner has submitted a completion plan, and an application seeking occupancy certificate before the Secretary on 30.01.2018. Since the application was not considered, the writ petitioner approached this Court by filing W.P.(C) No. 31405 of 2018 seeking appropriate directions for consideration of the application. The said writ petition was disposed of directing the writ petitioner to file an application for regularisation in the prescribed format and thereupon, directed the respondents therein to consider and dispose of the application within three months. It was thereafter that Ext.P6 impugned notice was issued by the Secretary of the Grama Panchayat dated 15.12.2018 stating that since the land owned by the writ petitioner is classified as 'nilam' in the revenue records, permission should be obtained from the Revenue Divisional Officer as per Section 27A of the Act, 2008, with a further direction that a proper application should be submitted for regularisation of additional portion of building constructed deviating from the approved plan. The case of the writ petitioner is that since the writ petitioner was abroad, the application for regularisation of the additional construction could be furnished only on 29.02.2020, produced as Ext.P7 along with the writ petition and the Secretary of the Grama Panchayat has issued Ext.P8 receipt for the same.
3. No counter affidavit is seen filed by the appellants
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
