Ker HC | “Area of the building is extraneous for grant permission for residential/commercial use”; HC holds Rule 12(9) of Conservation of Paddy Land and Wetland Rules ultra vires the Act

Kerala High Court

Kerala High Court: The Bench of P.B.Suresh Kumar, J., held that the Rule 12(9) of the Kerala Conservation of Paddy Land and Wetland Rules to the extent it provides for levy of a fee for the area of buildings exceeding 3000 square feet proposed in un-notified lands is prima facie ultra vires the provisions of the Conservation of Paddy Land and Wetland Act, 2008.

Factual Matrix of the Case

The petitioner was a builder who owned a land within the limits of Kochi Corporation (the Corporation) measuring 17.62 Ares, of which 6.93 Ares was “un-notified land” in terms of the provisions of the Act. The predecessors of the petitioner had applied for permission under Section 27A(1) of the Act to utilise the said land for other purposes, and the application had been allowed by the competent authority by the order Ext.P2. Later, pursuant to the said order, the said extent of land had been reclassified in the revenue records as ‘purayidom’ as provided for under Section 27C of the Act. It was submitted by the petitioner that since a portion of the land where the petitioner had proposed to put up the building was un-notified land and since the petitioner was using the said land for construction of the building after prior approval of the authority, the petitioner was obliged to pay fee at the rate of Rs.100 per square foot for the area of the building exceeding 3000 square feet in terms of Rule 12(9) of the Rules.

It was also stated by the petitioner that earlier for obtaining Ext.P2 order, his predecessors had paid the fee payable in terms of the said rule for the land covered by the application as there was no proposal then to put up any building in the land. It was alleged by the petitioner that the Corporation was now insisting the petitioner to pay fee for the area of the building exceeding 3000 square feet. The petitioner argued that Section 27A being a provision in the Act empowering the competent authority to grant permission to utilize un-notified lands for other purposes, which levy a fee on the basis of the area of the building proposed in the land could not be construed as one consistent with Section 27A and one contemplated by the legislature. Therefore, the same should be declared ultra vires to the provisions of the Act.

Opinion and Findings of the Court

Rule 12(9) is the provision that prescribes fee payable for grant of permission under Section 27A (1) of the Act to utilize lands falling under the definition of ‘un-notified land’ for residential, commercial or other purpose. The schedule to the Rules provides that fee shall be payable for the extent of the land covered by the application at the rates prescribed therein and at the rate of Rs.100/- per square foot for the area of building exceeding 3000 square feet proposed in the land. The Bench opined that the long title of the Act indicate beyond doubt that the Act was brought into force with a view to promote growth in the agricultural sector and to sustain ecological system. Similarly, the grant of permission under Section 27A to utilise un-notified land for residential or commercial or other purposes levy of a fee for the same which could not be said to be ultra vires the provisions of the Act.

On the pointed question as to whether such a fee could be levied having regard to the area of the building proposed in such lands, the Bench opined that,

“The permission being one for utilisation of un-notified lands for residential or commercial or other purposes, after ensuring that user of the same would not in any manner undermine the object of the Act, the area of the building, if any, proposed by the applicant in the land is irrelevant and extraneous in the context of the statute, and levy of a fee for such permission on the basis of the area of the building proposed in the land cannot therefore be construed as one consistent with Section 27A and one contemplated by the legislature.”

Placing the reliance on Bharathidasan University v. All-India Council for Technical Education, (2001) 8 SCC 676, wherein it was held by the Supreme Court that when the power to make regulations is confined to certain limits, the courts are bound to ignore those  found to be not made within its confines but outside them, when the question of their enforcement arises; the Bench held that the Rule, to the extent it provides for levy of a fee for the area of buildings exceeding 3000 square feet proposed in un-notified lands, appears to be prima facie ultra vires the provisions of the Act and hence, is void and unenforceable.

Opining that it is true that every rule is presumed to be intra vires and in a challenge against the rule on the ground an interim order is normally not issued, the Bench said, but it is also settled that if the Court finds that the rule is ex facie ultra vires the provisions of the Act, there cannot be an impediment in granting an interim relief in the matter as held by the Supreme Court in Health for Millions v. Union of India, (2014) 14 SCC 496. For the reasons aforesaid, the petitioner was held to be entitled to the interim relief and the Corporation was directed to process his application without insisting payment of the fee in terms of the Rule which was impugned in the writ petition.

[Abad Builders Pvt. Ltd. v. State of Kerala, 2021 SCC OnLine Ker 2308, decided on 17-05-2021]


Kamini Sharma, Editorial Assistant has put this report together 

Appearance before the Court by:

Counsel for the Petitioner: B.G.Harindranath

Counsel For The State: Additional Advocate General

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