Dismissed

State of Kerala v. Binu Mathew Chacko

Kerala HC4 Dec 2020WA/1419/2020

Case brief

AI extract

What is this about?

Writ appeal by the State against a Single Judge's order on a plot allotted decades ago as a building site under a town planning scheme but still shown as paddy field in the Basic Tax Register. The appeal was dismissed with modifications, the owner being permitted to seek an additional entry in the Basic Tax Register and the Corporation being free to consider the building permit.

What did the court decide?

Writ appeal dismissed with modifications; petitioner permitted to apply for an additional entry in the Basic Tax Register and thereafter under Section 6A of the Kerala Land Tax Act, 1961; Kochi Corpor

State of Kerala Vs Binu Mathew Chacko — Environment and Pollution | Kerala HC (2020)

¶1

IN THE HIGH COURT OF KERALA AT ERNAKULAM

¶2

PRESENT

¶3

THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR

¶4

¶5

THE HONOURABLE MR. JUSTICE SHAJI P.CHALY

¶6

FRIDAY, THE 04TH DAY OF DECEMBER 2020 / 13TH AGRAHAYANA, 1942

¶7

WA.No.1419 OF 2020

¶8

AGAINST THE JUDGMENT IN WP(C) 25347/2019(P) OF HIGH COURT OF KERALA

¶9

APPELLANTS/RESPONDENTS 1 TO 3 IN W.P.(C):

¶10

1 STATE OF KERALA

¶11

REPRESENTED BY SECRETARY TO GOVERNMENT, REVENUE DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM-695001.

¶12

2 THE REVENUE DIVISIONAL OFFICER,

¶13

O/O. THE REVENUE DIVISIONAL OFFICER, FORT KOCHI-682001.

¶14

3 THE LOCAL LEVEL MONITORING COMMITTEE, KRISHI BHAVAN, VYTTILA, ERNAKULAM-682019, REPRESENTED BY ITS CONVENER.

¶15

BY SENIOR GOVERNMENT PLEADER SRI.TEK CHAND RESPONDENTS/PETITIONER & RESPONDENTS 4 & 5 IN W.P.(C):

¶16

1 BINU MATHEW CHACKO

¶17

AGED 52 YEARS

¶18

S/O.A.M.CHACKO, KULANGARA HOUSE, G-170, PANAMPILLY

¶19

NAGAR, PERUMANOOR, KOCHI-682016.

¶20

2 KOCHI MUNICIPAL CORPORATION, REPRESENTED BY ITS SECRETARY, PARK AVENUE ROAD, ERNAKULAM, KOCHI-682011.

¶21

3 THE GREATER COCHIN DEVELOPMENT AUTHORITY, KADAVANTHRA POST OFFICE, COCHIN, ERNAKULAM, PIN-682020, REPRESENTED BY ITS SECRETARY.

¶22

SMT.K.P.SANTHI FOR R1, SRI.P.FAZIL FOR R2, SRI.ARUN ANTONY FOR R3

¶23

THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 04.12.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

WA.No.1419 OF 2020

JUDGMENT

SHAJI P. CHALY, J.

¶29

Respondents 1 to 3 in W.P.(C) No.25347/2019 i.e., the State and its officials, are the appellants challenging the judgment of the learned Single Judge dated 29.10.2019, whereby the learned Single Judge having found that, since the property in question still continues as a paddy field in the Basic Tax Register and revenue records directed the petitioner to approach the competent Tahsildar with an application under Section 6A of the Kerala Land Tax Act, 1961; and if this is done within a period of one month from the date of receipt of a copy of the judgment, the same shall be considered by the said authority and necessary orders will be issued at the earliest. However, made it clear that the Corporation of Kochi will deal with the application of the petitioner seeking building permit as expeditiously as possible but not later than one month from the date of receipt of a copy of the judgment without waiting for the orders from the Tahsildar and the resultant order shall be communicated to the petitioner without any avoidable delay. It is thus challenging the correctness and legality of the findings and directions issued by the learned Single Judge, the appeal is preferred. Basic material facts for the disposal of the writ appeal are as follows;

¶30

WA.No.1419 OF 2020

¶31

¶32

Writ petitioner is now the owner in possession and enjoyment of an extent of 2.64 Ares of land in Sy.No.922/2-10 of Elamkulam Village, Kanayannur Taluk, Ernakulam District originally allotted to his father under the Panampilly Nagar Housing Scheme of the Elamkulam West Town Planning Scheme, by the Cochin Town Planning Trust constituted as per the provisions of The Town Planning Act IV of 1108, hereinafter called Act, 1108, an Act constituted to regulate the development of towns to secure to their present and future inhabitants sanitary conditions, amenity and convenience, passed by His Highness the Maharaja of Travancore under date the 17^th Dhanu, 1108, corresponding to the 31^st December 1932 .

¶33

An agreement for sale and lease was also executed between Sri.Chacko and the Cochin Town Planning Trust on 6.3.1975 permitting construction of residential buildings in the property. Apparently, the Greater Cochin Development Authority, created by the State Government, by virtue of the powers conferred under section 53A of Act, 1108, and the Madras Town Planning Act 1920 had obtained development charges and cost for amenities from the allottee at the time of execution of the deed. These are all undisputed facts and the documents relating to the same were produced by the petitioner in the writ petition as Exts.P1 and P2.

¶34

In fact Cochin Town Planning Trust was thereafter re-constituted as Greater Cochin Development Authority. In 1982, Greater Cochin Development

¶35

WA.No.1419 OF 2020

¶36

¶37

Authority, Ernakulam - 5^th respondent executed a sale deed in favour of Smt.Annamma, mother of the petitioner. A double storied building was constructed in the property and house Nos.27/270, 27/270A were allotted by the Kochi Municipal Corporation - 4^th respondent, which was successively being changed on enumeration conducted. Building tax was being paid by the owner of the building, evident from Exts.P3 and P4 receipts. Later petitioner's mother executed Ext.P5 settlement deed in favour of the petitioner. Apparently on introduction of the Kerala Conservation of Paddy land and Wetland Act, 2008, hereinafter called, 'Act 2008', the property was included in the data bank classifying as “converted as dry land” by the Agricultural Officer, Krishi Bhavan, Ernakulam, evident from Ext.P6.

¶38

According to the petitioner, the entire area is covered with buildings, however, when the petitioner submitted an application seeking building permit, objection was raised by the Corporation of Kochi that the property is remaining in the Basic Tax Register as 'Nilam' (paddy field). Thereupon, petitioner has submitted Exts.P7 and P8 representations before the Revenue Divisional Officer, Fort Kochi, seeking Non Objection Certificate for construction of building after demolishing the existing building and for issuance of permit, respectively, but no action was taken, which persuaded the petitioner to approach the writ court. Learned Single Judge taking into account the facts and figures and the fact that the property was sold to the predecessor in

¶39

WA.No.1419 OF 2020

¶40

¶41

interest of the title of the petitioner as a buildable site decades ago, it was not legal on the part of the authorities to apply the provisions of the Kerala Land Utilization Order, 1967 and the Kerala Conservation of Paddy land and Wetland Act, 2008 issued the directions as specified above to the statutory authorities to do the needful.

¶42

The State Government and its officials have now preferred this appeal basically contending that by virtue of the introduction of section 27A and other consequential provisions into the Act, 2008, petitioner has to submit proper application in order to secure permission for conversion of paddy field in order to enable the petitioner to make necessary consequential changes in the Basic Tax Register. It is also pointed out that the Tahsildar is not competent to change the classification of land in the Basic Tax Register invoking the power under section 6A of the Kerala Land Tax Act as directed by the learned Single Judge.

¶43

It was predominantly contended that consequent to the proposition of law laid down by the Apex Court in Revenue Divisional Officer, Fort Kochi v. Jalaja Dileep [2015(1)KLT 984(SC)], the petitioner had to seek necessary changes either under the Kerala Land Utilisation Order or under the provisions of the Kerala Conservation of Paddy land and Wetland Act, 2008. That apart it was contended that Ext.P7 submitted to the Revenue Divisional Officer is not a statutory application for grant of Non Objection Certificate and

¶44

WA.No.1419 OF 2020

¶45

¶46

therefore, the petitioner has to make suitable applications in accordance with section 27A of the Act, 2008.

¶47

We have heard learned Senior Government Pleader Sri.Tek Chand for appellants, learned counsel Smt.K.P.Santhi for writ petitioner/1^st respondent, learned standing counsel Sri.P.Fazil for Kochi Municipal Corporation & Sri.Arun Antony for Greater Cochin Development Authority - 2^nd and 3^rd respondents respectively, and perused the pleadings and materials on record.

¶48

The question emerges for consideration is whether any interference is warranted to the judgment of the learned Single Judge. Since many writ petitions are pending before this Court in regard to the allotment of building sites under various schemes formulated as per Act, 1108 vis-a-vis the provisions of Act, 2008 and the Land Utilisation Order, 1967, we thought it fit to consider the relevant provisions of the respective statutes in order to arrive at a safe and logical conclusion. As we have pointed out earlier, the Town Planning Act, 1108 was brought into force since it was found expedient that the development of towns should be regulated to secure to their present and future inhabitants, sanitary conditions, amenity and convenience. Scheme was defined thereunder to mean a town planning scheme and includes a plan relating to a town planning scheme. Chapter II deals with Town Planning Schemes and section 3 thereto takes care of the matters that may be dealt within the scheme, which specifies that the town planning scheme may

¶49

WA.No.1419 OF 2020

¶50

¶51

provide for; the laying out or re-laying out of land, either vacant or already vacant or already built upon as building sites, or for any of the purposes mentioned under section 3; the construction, diversion, extension, alteration, improvement or closure or streets, roads and communication; the construction, alteration, removal or demolition of buildings, bridges and other structures; the acquisition by purchase, exchange or otherwise, of any land or other immovable property within the area included in the scheme whether required immediately or not; the redistribution of boundaries and the reconstitution of plots, belonging to owners of property comprised in the scheme; the disposal by sale, exchange, lease or otherwise of land acquired or owned by the council constituted under the Act or Municipal Corporation, and among various other aspects and for public amenities, it intended construction of houses.

¶52

That apart it also vested with powers to advance to the owners of land or buildings comprised within the scheme, upon such terms and conditions as may be provided by the scheme of the whole or part of the amount required for the erection of buildings or for the carrying out of the works, alterations or improvements in accordance with the scheme. Section 4 deals with reconstituted plots, which specifies that the size and shape of every reconstituted plot shall be so determined as to render it, so far as may be, suitable for building purposes. Section 6 deals with a scheme to determine

¶53

WA.No.1419 OF 2020

¶54

¶55

lines to improvement and development of towns in the areas included in the scheme and it shall proceed and provide for such matters referred to in section 3 and to such extent as may be prescribed.

¶56

Section 6 conferred power to the Government to require the Council under Act, 1108 or the Municipality to make schemes. Once the draft scheme is prepared as per section 11, it shall contain the plan showing the lines of existing and proposed streets; the ownership of all lands and buildings in the area to which the scheme relates, the area of all such lands whether public or private; a full description of all details of the scheme under such clauses of section 3 as may be applicable; an estimate of the cost of the scheme; regulations for enforcing and defining the responsible authority and the period for which such responsible authority shall function; and any other particulars or plans that may be prescribed or specially required by the Government. Sub (2) of section 11 clearly specifies that every draft scheme which includes a housing scheme shall also contain (i) the approximate number and the nature of the houses to be provided by the responsible authority (ii) the approximate extent of land to be acquired and the localities in which land is acquired (iii) the average number of houses per acre (iv) all matters incidental to the housing scheme.

¶57

Section 12 empowers the Government for sanctioning of the scheme within 60 days from the date of publication of the draft scheme. Section 16

¶58

WA.No.1419 OF 2020

¶59

¶60

obligates owners to comply with the scheme after sanction from the date of the notification issued by the Government sanctioning the scheme under section 12, which clearly specifies that all owners of lands and buildings in the area affected by the scheme who propose to construct or reconstruct or in any way alter or add to buildings shall conform in every particular with the requirements of such scheme; and no building shall be constructed or reconstructed in any area in which building is expressly forbidden in the scheme, or which is reserved in the scheme for any purpose incompatible with building.

¶61

Section 17 empowers the responsible authority under Act, 1108 to enforce the scheme and the modalities prescribed thereunder. The Government was vested with powers to revoke, vary or modify the scheme on any application filed by the Council or Municipal Council. Section 32 empowered the authority under Act, 1108 to acquire properties for the purpose of implementation of the scheme.

¶62

Among various other provisions Chapter IX-A was introduced to deal with development authorities and section 53A was introduced specifically to deal with creation of development authorities. It was accordingly that the Greater Cochin Development Authority was constituted by the present Kerala State Government with the avowed object and intention of developing the areas included in the Greater Cochin Development area in the year 1976 by

¶63

WA.No.1419 OF 2020

¶64

¶65

virtue of S.R.O Nos.124/76 and 238/76 published in gazette dated 23-011976 and 25-02-1976 respectively. The authority consisted of a Chairman, the General Council and the Executive Committee, to take appropriate decisions.

¶66

Therefore, on a proper analysis of these provisions, it is clear, Act, 1108 was introduced with a specific intention of developing towns, selling/leasing buildable sites to the public and also to the earmark landed properties for the purpose of public amenities. It was accordingly that property in the instant case was sold to the predecessor in title of the writ petitioner. Admittedly construction was carried out by the property owner after securing permit from the Corporation of Kochi, building number was assigned and tax was being collected by the Corporation of Kochi. When the writ petitioner applied for a new building permit to reconstruct the building, apparently Kochi Corporation raised the objection that in the Basic Tax Register the property in question is shown as paddy field. The Town Planning Act, 1108 was in force till the Kerala Town Planning Act, 2016 came into force, and by virtue of section 113 of Act, 2016, the Town Planning Act, 1108 and other Town Planning Acts which were in existence in the State of Kerala were repealed.

¶67

Anyhow by virtue of sub-section 2 thereto all schemes introduced as per the erstwhile acts in force were kept in tact. In fact Kerala Municipality Building Rules, 1999 was introduced in accordance with the provisions of the Kerala Municipality Act, 1994 replacing the Kerala Municipality Building Rules,

¶68

WA.No.1419 OF 2020

¶69

¶70

Section 3A was introduced in the Kerala Municipality Building Rules, 1999 on and w.e.f.16.12.2009 to deal with the provisions of town planning scheme and which stipulates that notwithstanding anything contained in the Rules, 1999, provisions or regulations in any Town Planning Scheme (in force) under Town Planning Acts shall prevail over the respective provisions of the rules wherever such schemes exist.

¶71

It is an admitted fact that the Elamkulam West Town Planning Scheme exists and the building in question is situated at Panampilly Nagar Housing Colony introduced by the trustee committee under Act 2008. Ext.P1 makes it clear that allotment was made on 31.10.1974 by the Executive Trustees of the Cochin Town Planning Trust, in favour of the father of the petitioner fixing a total cost of the plot as Rs.16347.50 and permitting the allottee to pay the amount in 59 consecutive monthly instalments starting from 19.1.1975. Later, Ext.P2 draft Lease and sale agreement was executed in favour of the father of the petitioner from where it is clear that the property was agreed to be sold as building sites and permitted the allottee to occupy the plot.

¶72

It also makes it clear that the allottee was permitted by the Board of Trustees of the Cochin Town Planning Trust to construct at his own cost a residential building for himself, and other constructions. Later as per Ext.P3 a sale deed was executed by the Greater Cochin Development Authority, from

¶73

WA.No.1419 OF 2020

¶74

¶75

where also it is clear that the owner of the building was permitted to carry out construction of buildings in terms of the scheme existing then. The mother of the petitioner later settled the property in favour of the petitioner. Therefore, it is evident and clear that the property was allotted by the Authority under the Town Planning Act, 1108 and later sold by Greater Cochin Development Authority in accordance with the scheme constituted, to develop the areas earmarked under the Town Planning Act, 1108 and to carry out construction of buildings in accordance with the scheme.

¶76

As we have pointed out above, by virtue of the section 3A of the Kerala Municipality Building Rules, 1999, wherever there is a scheme it has predominance and precedence over the provisions of the Rules, 1999. That apart when the authorities have acquired the land for the development of towns/cities and other areas, and sold/allotted to the purchasers as building sites, it can only be presumed under law and fact that whatever inhibitions and prohibitions remained to the property was rectified by the Government/ statutory authorities to make it as a building site. It is true at that point of time guiding provisions in respect of utilisation of paddy field was the provisions of the Land Utilisation Order, 1967 whereby, as per section 6(2) without securing permission from the statutory authority constituted therein a paddy field could not have been used for any other purposes other than for paddy cultivation. When the statutory authority has allotted the plot to the

¶77

WA.No.1419 OF 2020

¶78

¶79

intending purchasers as building sites, as per the scheme sanctioned by the Government, it can only be presumed that the Government has issued necessary orders enabling the statutory authority under Act, 1108 to proceed to sell the properties acquired as building sites. The allottees/purchasers paid the purchase value to the statutory authority under the firm belief that it is a building site enabling him to carry out building construction, of course in accordance with law. Moreover, section 114 of the Evidence Act enables the Court to presume existence of facts which makes it clear that the court may presume existence of any fact which it thinks likely to have happened regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case, and by virtue of illustrations (e) and (f) thereto a court may presume that the official acts have been regularly performed and that the common course of business has been followed in particular cases. Which thus means in the facts and circumstances discussed above the presumption is absolutely in favour of the writ petitioner and it is presumed by us that the Government exercising its sovereign power has permitted to use the paddy field for other purposes other than paddy cultivation invoking the powers conferred under clause 6(2) of the Land Utilisation Order,1967 .

¶80

Therefore after analysing the provisions of law and the facts and

¶81

figures that took place in respect of allotment of land, this court could

¶82

WA.No.1419 OF 2020

¶83

¶84

presume that as per the scheme, the plot in question was allotted to the predecessor in title of the petitioner as a building site and that whatever inhibition remained in the property on the date of the allotment in respect of the usage of the plot as a building was removed by the State Government and the statutory authority. That said and so understood, at the time of allotment and sale of the property it never had any adverse circumstances so as to rectify any defect in the plot to be used as a building site. At the most it could be seen that the Government/ statutory authority have failed to make necessary corrections in the Basic Tax Register and the village records in respect of the tenure of the property. The Kerala Conservation of Paddy land and Wetland Act, 2008 was introduced only w.e.f.12.8.2008 with the object to conserve the paddy land and wetland and to restrict the conversion or reclamation thereof, in order to promote growth in the agricultural sector and to sustain the ecological system, in the State of Kerala.

¶85

The facts discussed above would make it clear that the property was converted by the authorities under The Town Planning Act, 1108 and sold to the purchasers several decades before the introduction of Act, 2008. It is an admitted fact that in the data bank constituted as per the provisions of Act, 2008 the property in question is shown as “converted dry land”. Which thus means the authorities under Act, 2008 have understood properly that the land was already converted as a dry land before the introduction of Act, 2008.

¶86

WA.No.1419 OF 2020

¶87

¶88

Anyhow section 27A was introduced into Act, 2008 on and w.e.f. 30.12.2017 only by which certain conditions are introduced in respect of unnotified lands under the Act,2008, which reads thus:

¶89

“27A. Change of nature of unnotified land .-- (1) If any owner of an unnotified land desires to utilise such land for residential or commercial or for other purpose, he shall apply to the Revenue Divisional Officer for permission in such manner as may be prescribed.

¶90

(2) Notwithstanding anything contained in any judgment, decree or order of any Court or Tribunal or any other authority, the Revenue Divisional Officer may, after considering the reports of the Village Officer concerned, pass such orders as deemed fit and proper on such applications, ensuring that there is no disruption to the free flow of water to the neighbouring paddy lands, if any, through such water conservancy measures as is deemed necessary.

¶91

Provided that, if the area of such parcel of land where the application is allowed is more than 20.2 Ares, ten per cent of such land shall be set apart for water conservancy measures.

¶92

(3) If the application is allowed, the applicant shall be liable to pay a fee at such rate as may prescribed:

¶93

Provided that, no such fee shall be collected if the applicant proves that the land where the application is allowed is, filled up or naturally filled up before the 4th day of July, 1967, the date of commencement of the Kerala Land Utilisation Order, 1967, after completing such procedure, as may be prescribed.

¶94

(4) If the application is allowed, the Revenue Divisional Officer shall ensure that the reclamation of the unnotified land shall not adversely affect the cultivation of paddy or any other crops, if any, in the adjoining land and shall specify such water conservancy measures as is necessary

¶95

WA.No.1419 OF 2020

¶96

¶97

to ensure such cultivation:

¶98

Provided that in specifying such water conservancy measures, the Revenue Divisional Officer may, if he deems fit, refer to satellite maps of the area maintained by Government agencies.

¶99

(5) No permission under this section shall be necessary where the purpose for which the unnotified land is converted or attempted to be converted or utilized or attempted to be utilized is for paddy cultivation.

¶100

(6) Notwithstanding anything contained in the Kerala Panchayat Raj Act, 1994 (13 of 1994) or in the Kerala Municipality Act, 1994 (20 of 1994), no permission under this section shall be necessary for constructing a residential building having a maximum area of 120 square meters in a maximum extent of 4.04 ares of land or a commercial building having a maximum area of 40 square meters in a maximum extent of 2.02 ares of land:

¶101

Provided that the construction of a housing complex or complexes or flats or multi-storied residential complexes shall not come within the meaning of residential building specified in this sub-section:

¶102

Provided further that this exemption shall be granted only once.

¶103

(7) The exemption under sub-section (6) shall be applicable only to owners unnotified lands under the Kerala Conservation of Paddy Land and Wetland (Amendment) Act, 2018:

¶104

Provided that if the area of the residential building or commercial building exempted under sub-section (6) is subsequently increased by new extension the exemption under sub-section (6) shall cease to have effect and the owner of the land as on the date of detection of the new extension shall be liable to pay fee as sub-section (3).

¶105

(8) Where conversion of an unnotified land is required for any public purpose, the Revenue Divisional Officer shall submit a report to Government outlining the measures to be adopted to ensure that the

¶106

WA.No.1419 OF 2020

¶107

¶108

reclamation shall not disrupt the free flow of water to the neighbouring paddy lands, if any, and shall suggest such water conservancy measures as is necessary to ensure this.

¶109

(9) The Government may, on receipt of a report under sub-section (8), issue permission to reclaim unnotified land for public purpose:

¶110

Provided that where permission is granted, the Government may make necessary modifications to the recommendations of the Revenue Divisional Officer as deemed fit:

¶111

Provided further that, if the area of such parcel of land where the application is allowed is more than 20.2 Ares, ten per cent of such land shall be set apart for water conservancy measures.

¶112

(10) The order issued under sub-section (2) and (9) shall clearly indicate the survey number of the lands and the extent of the land in each survey number for which sanction has been accorded, the extent of the land in which water conservancy measures are to be adopted by the applicant and a sketch of such land indicating the aforementioned details shall be appended to the order.

¶113

(11) The Revenue Divisional Officer may, either suo motu or on the application of any aggrieved party, cancel any order issued under subsection (2) if the conditions specified in the order issued therein are not complied by the applicant, either fully or partially.

¶114

(12) No order of cancellation under sub-section (11) shall be made by the Revenue Divisional Officer unless the applicant thereof has been given an opportunity of being heard in the matter.

¶115

(13) Any application received for the change of nature of unnotified land from the date of commencement of the Kerala Conservation of Paddy Land and Wetland (Amendment) Act, 2018 shall be considered and disposed of only in accordance with the provisions of the Act.”

¶116

WA.No.1419 OF 2020

¶117

¶118

22.That apart section 27C is introduced on and w.e.f. 30.12.2017 in order to make changes in the village records, which reads thus:

¶119

“ 27C. Change in records .- (1) Notwithstanding anything contained in any other law for the time being in force or in any judgment, decree or order of any Court, Tribunal or any other Authority, wherever a part of a survey number or subdivision is permitted to be converted under Sections 8,9,10 or 27A of this Act, a new subdivision shall be created for the extent for which such orders for conversion are issued.

¶120

(2) Where the paddy land or unnotified land is duly converted as per the provisions of this Act, the Tahsildar shall reassess the land tax under Section 6A of the Kerala Land Tax Act, 1961 (13 of 1961) and make necessary entries in revenue records relating to such lands.

¶121

(3) Where such changes are recorded in revenue records, the number and date of the order and the authority granting sanction, the survey number of the lands for which sanction has been accorded, extent of the land in each survey number for which sanction has been accorded and the revised land tax shall be clearly recorded ensuring that the old entries are legible.

¶122

(4) Tahsildar shall conduct periodical inspection to ensure that changes in revenue records are in accordance with sub-section (3).

¶123

(5) No attempt shall be made to alter or change or modify the revenue records relating to the paddy land or wetland or unnotified land otherwise than in accordance with sub-section(3).”

¶124

In our view these later provisions introduced into Act, 2008 will not in any manner interfere with the building site sold to the purchasers much before the introduction of the said provisions. Moreover, as we have said earlier, rule 3A of Kerala Municipality Building Rules, 1999 have an overriding effect on the building rules and therefore, the Kochi Corporation was not

¶125

WA.No.1419 OF 2020

¶126

¶127

competent enough to insist the permit holder to secure necessary orders as per the provisions of Act, 2008 since the plot was allotted in the Elamkulam West Town Planning Scheme.

¶128

The issue is also no more res integra since it was considered by a learned Single Judge of this Court in Reliance Industries Ltd. and Others v. The Commissioner of Land Revenue and Others [2007(2)KHC 346=2007(2)KLT 850] wherein it was held that no permission under the Kerala Land Utilization Order is necessary for any activity of construction or use of any land in the residential use zone or any other zone in the town planning scheme constituted as per the Town Planning Act, 1108. Also, recently in Shaji Chacko v State of Kerala and Others [2020 (6) KHC 420] a learned single judge of this court has held in unequivocal terms that if any Town Planning Scheme does not save the land and area for cultivation of any crops mentioned under the Land Utilisation Order 1967, it has to be assumed that, through the process of law, power of Collector to command the holder of land to cultivate crops has been taken away. Anyhow while the judgment in Reliance Industries was holding the field the Apex Court in Revenue Divisional Officer, Fort Kochi and others v. Jalaja Dileep and another

¶129

(supra) taking into account the provisions of the Kerala Conservation of Paddy land and Wetland Act, 2008 and the Kerala Land Utilization Order , 1967 held that the entries made in the BTR cannot be defaced, overruling the Division

¶130

WA.No.1419 OF 2020

¶131

¶132

Bench of this Court in Revenue Divisional Officer, Fort Kochi and others v. Jalaja Dileep and another [2014 (1) KHC 96= 2014 (1) KLT 161] . Anyhow later a Division Bench of this Court in LLMC Kizhakkambalam v. Mariyumma [2015(2) KLT 516] held that without defacing the original entry in the Basic Tax Register additional entry can be made with respect to the present tenure of the land in appropriate cases and in accordance with law, which is governing the field now. We are in respectful agreement with the proposition so laid down in Mariyumma , supra, in the facts and circumstances of the case at hand.

¶133

Taking into account all the above aspects, we are of the considered opinion that the appellants have not made out any case justifying interference with the judgment of the learned Single Judge so far as the basic facts are concerned. However, in view of the judgment of the Division Bench of this Court in Mariyumma supra, an owner of a property has to make an application before the concerned revenue authority to make additional entry in the Basic Tax Register showing the present tenure of land. Therefore, petitioner is permitted to make a suitable application before the appropriate revenue authority to make the additional entry in the BTR and if any such application is filed along with a copy of this judgment, it shall be considered and necessary addition shall be made accordingly, at the earliest and at any rate, within a month thereafter. We further make it clear that thereafter the

¶134

WA.No.1419 OF 2020

¶135

¶136

petitioner is at liberty to make suitable application under section 6A of the Kerala Land Tax Act, 1961 to make appropriate entry and collect tax accordingly. However, we make it clear that the pendency of the said applications shall not stand in the way of Kochi Corporation to consider the pending permit application taking into account the observations made above at the earliest and at any rate within a month from the date of receipt of a copy of this judgment.

¶137

Resultantly, the writ appeal is dismissed but with the modifications made as above .

Sd/-

S.MANIKUMAR

CHIEF JUSTICE

Sd/-

SHAJI P.CHALY