Kerala HC Sets Aside Rule To Levy Additional Fee For Buildings Exceeding 3000 Sq Feet On Land Falling Under Conservation Of Paddy Land & Wetland Act

Justice Mohammed Nias C. P. directed that no such fee shall be demanded from the petitioners while considering the building permits of the petitioners. The Court added that if any such fee is already collected, it shall be refunded to the petitioners within 4 months.

The Court held that the Government has no power to make such a rule when Section 27A(3) contemplates only levying fees according to the area of the land and not based on the area of the construction. The Court observed that the rule-making body cannot exceed the preview of the parent Act and declared the law ultra vires.

The Court further observed that the levy is contrary to Article 265 of the Constitution as no statutory provision enabled the Government to levy the fee.

The Court further said that this cannot be considered as a 'fee' as 'fee' implies that a service should be done in return. The Court observed that the fee under the Rule is not tied to any specific service and the levy is bad on that count as well.

The Court observed that Section 27A (3) of the Act provides for regularization of conversions that occurred before the Act came into force provided that an application is made and required fees is paid. The Court observed that once this is done, the conversion is legitimized and no further restriction can be placed on the lands. The Court observed that once the process under Section 27A is completed, the Act does not apply to them anymore.

The Court observed that the levy of the fees after a land owner has completed the procedure under the Act is contrary to Right of Property guaranteed under Article 300A of the Constitution. The Court said that the right of the petitioner to enjoy the property fully by effecting a construction is restricted by imposing an unreasonable fee.

Section 27A not applicable when a building permit was issued before 2018

The Court noted that the State Government had itself issued a circular saying that the building permits issued before 30.12.2017 shall be exempted from compliance of Section 27A.

The Court said that once a land is converted under Kerala Land Utilization Order, 1967 and is registered as a purayidom/ garden land in the Basic Tax Register the Government cannot levy a fee under Section 27A of the Act. The Court also noted that Section 27A would not apply to conversions which were approved or application were made before 30.12.2017. The Court noted that the High Court in Mohammed Ashraf v State of Kerala (2021) had observed that those landowners had a legitimate expectation that the 2008 Act or its amendments would not bind them further.

Counsel for the Petitioners: Advocates B. G. Harindranath (Sr.), Santhosh Mathew (Sr.), Amith Krishnan H., Gowri Dev, P. Devikrishna, Ahanaa Muhammed, P. K. Soyuz, K. C. Voncent, Jacob Sebastian, P. Sathishan, Shanavas Khan

Counsel for the Respondents: Advocates K. B. Arunkumar, K. P. Jayachandran, S. Renjith, K. Janardhana Shenoy

Case No: WP(C) 2785 of 2001 & Other Connected mattes

Case Title: Abad Builders Private Limited v State of Kerala and Others & other connected cases

Citation: 2025 LiveLaw (Ker) 16