JAISON DANIEL Vs. KOTHAMANGALAM MUNICIPALITY

JUDGEMENT

(1.) Petitioners hold an item of property measuring 8 cents. They have constructed a single storied building in the said property after obtaining the requisite building permit from the first respondent Municipality and have been remitting property tax in respect of the same from 2005 - 2006. Of late, the petitioners have constructed an additional floor to the existing building, without obtaining a building permit for the same. However, when the Kerala Municipality Building (Regularization of Unauthorised Construction) Rules, 2018 (the Rules) was promulgated, the petitioners preferred an application for regularization of the construction of the first floor of the building. On this application, the petitioners are now issued Ext.P9 communication informing that in terms of Rule 6(4)(iv) of the Rules, a building which does not conform to the provisions of the Kerala Conservation of Paddy Land and Wetland Act, 2008 cannot be regularized and therefore, the application preferred by the petitioners for regularization cannot be considered. The petitioners are aggrieved by the said communication.

(2.) Heard the learned counsel for the petitioners, the learned Standing Counsel for respondents 1 and 2 as also the learned Government Pleader.

(3.) True, in terms of Rule 6(4)(iv) of the Rules, a building which does not conform to the provisions of the Act cannot be regularized. The question therefore, is as to whether the building involved in this matter is one which does not conform to the provisions of the Act. It is conceded by the petitioners that the land where the building is constructed is one shown in the revenue records as paddy land. Insofar as it is seen that the petitioners have put up the building in the land after obtaining the requisite building permit prior to the coming into force of the Act, it can be certainly presumed that the land is one reclaimed prior to the Act. The general provisions of the Act would apply only to lands which were cultivable as on 12.8.2008. A land which was reclaimed for the purpose of putting up a structure prior to the Act would not, therefore, fall within the scope of the Act. True, insofar as it is conceded that the land involved in the matter is shown in the revenue records as paddy land, it would fall within the definition of "unnotified land" under the Act and the Act prohibits use of such lands for other purposes without the permission of the competent authority in terms of Section 27A. In Mahin v. Keezhmad Grama Panchayat , 2020 (2) KLT 478, this Court held that in cases where the subject land has been converted prior to the coming into force of the Act and building permit has been issued for any construction without reference to the nature of the land, after the construction of the building, the local body cannot raise any objection as regards the building constructed in the land based on the provisions of the Act. Insofar as as the petitioners have been granted a building permit by the Municipality and insofar as they have put up a building on the strength of the said building permit prior to the coming into force of the Act, I am of the view that in the light of the decision of this Court in Mahin, the Municipality is not justified in refusing to consider the application preferred by the petitioners under the Rules for regularization of the additional construction made to the building constructed on the basis of the building permit.