Allowed

Jackson Raphael K. M. v. State of Kerala

Kerala HC3 Feb 2021WP(C)/13582/2020

Case brief

AI extract

What is this about?

In a writ petition, the petitioner challenged the Kochi Corporation's refusal to grant a building permit because the land was classified as 'Nilam' under the Kerala Conservation of Paddy Land Wetland Act, 2008. The Court held that the Act does not apply to lands allotted under a Town Planning Scheme for residential purposes, relying on a prior Division Bench decision. The petition was allowed with

What did the court decide?

Directed the Kochi Corporation to grant the building permit applied for by the petitioner if the application is otherwise in order within three weeks of receipt of the copy of the judgment.

Jackson Raphael K. M. Vs State of Kerala — Property and Title | Kerala HC (2021)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR

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WEDNESDAY, THE 03RD DAY OF FEBRUARY 2021 / 14TH MAGHA,1942

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WP(C).No.13582 OF 2020(W)

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PETITIONER/S:

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JACKSON RAPHAEL K. M., AGED 44 YEARS, S/O. K.X. MATHEW, KONOTH HOUSE, MUNDAMVELI, PALLURUTHY, KOCHI - 682 507.

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BY ADVS. SRI.BABU JOSEPH KURUVATHAZHA SMT.K.S.ARCHANA

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RESPONDENT/S:

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1 STATE OF KERALA, REPRESENTED BY ITS SECRETARY TO GOVERNMENT, DEPARTMENT OF REVENUE, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM - 695 001.

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2 DISTRICT COLLECTOR, ERNAKULAM, CIVIL STATION, KAKKANAD, KOCHI - 682 030.

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3 REVENUE DIVISIONAL OFFICER, FIRST FLOOR, K. B. JACOB ROAD, FORT KOCHI, KOCHI - 682 001.

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W.P.(C) No.13582 of 2020

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4 TAHSILDAR, KOCHI TALUK, FORT KOCHI, KOCHI - 682 001.

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5 VILLAGE OFFICER PALLURUTHY VILLAGE, PALLURUTHY P. O., KOCHI - 682 006.

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6 GREATER COCHIN DEVELOPMENT AUTHORITY (GCDA), KADAVANTHRA, ERNAKULAM, KOCHI - 682 020, REPRESENTED BY ITS SECRETARY.

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7 COCHIN CORPORATION,

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KOCHI - 682 011, REPRESENTED BY ITS SECRETARY.

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R6 BY ADV. SRI.JIMMY GEORGE R7 BY SMT.SAREENA GEORGE, STANDING COUNSEL, COCHIN CORPORATION BY SRI.VIPIN P.VARGHESE, STANDING COUNSEL, GCDA

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BY SMT.G.RANJITA, GOVERNMENT PLEADER

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THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 03.02.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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WP(C).No.13582 OF 2020

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W.P.(C) No.13582 of 2020

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J U D G M E N T

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Petitioner purchased an item of property measuring 2.60 Ares situated in Palluruthy Village, Ernakulam District in terms of Ext.P2 assignment deed. The petitioner proposes to put up a building in the said land. He, therefore, preferred an application for building permit before the seventh respondent, the Kochi Municipal Corporation (the Corporation). It is stated by the petitioner that the application of the petitioner for building permit is not being entertained by the Corporation since the land of the petitioner is shown in the revenue records as 'Nilam'. It is also stated by the petitioner that the Corporation is taking the stand that the petitioner has to change the classification of the land as provided for under Sections 27A and 27C of the Kerala Conservation of Paddy Land Wetland Act, 2008 (the Act) for the purpose of seeking building permit in respect of the said land. The case of the petitioner is that the land covered by Ext.P2 assignment deed is one allotted to the vendor of the petitioner by the sixth respondent after acquiring the same for residential purposes, in terms of a Town Planning Scheme framed under the Town Planning Act 1108 and therefore, the provisions of the Act cannot have any application to the said land. Th e petitioner, therefore, seeks appropriate directions in this regard in the writ petition.

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Heard the learned counsel for the petitioner, the

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WP(C).No.13582 OF 2020

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learned Government Pleader as also the leaned counsel for the Corporation.

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Ext.P1 is the title deed of the vendor of the petitioner in Ext.P2 document. Ext.P1 indicates that the land covered by Ext.P2 assignment deed is one allotted to the vendor of the petitioner by the sixth respondent for residential purposes after acquiring the same in terms of a Town Planning Scheme framed under the Town Planning Act 1108. In State of Kerala and others v. Binu Mathew Chacko and others, 2020 (6) KHC 717, a Division Bench of this court h eld that the provisions of the Act will not have any application to the lands acquired, developed and allotted for residential or other purposes by Governmental agencies under development schemes framed under the Town Planning legislation. It is also held by the Division Bench in the said case that permission is deemed to have been granted for such lands under the Kerala Land Utilization Order. In the light of the said decision of the Division Bench, the Corporation cannot insist compliance of the provisions of the Act for considering application for building permit in such lands, even if the said lands are shown in the revenue records as 'Nilam'. In Iype Varghese v. Revenue Divisional Officer, 2020 (5) KLT 403, this Court held that where statutory permission for change of user of land is granted for conversion of a paddy land to a garden land, then it is the obligation of the competent authority under the Land Tax Act to make a fresh assessment of the land so as to collect the higher land tax for such converted land and to issue appropriate directions to the officers concerned to make additional entries in the Basic Tax

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WP(C).No.13582 OF 2020

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The writ petition, in the circumstances, is disposed of directing the Corporation to grant the building permit applied for by the petitioner, if the application is otherwise in order. This shall be done within three weeks from the date of receipt of a copy of this judgment. It is made cle ar that the petitioner would be free to prefer appropriate application before the competent authority under the Kerala Land Tax Act for re-assessment of the land. Needless to say that if the petitioner prefers application for re-assessment under the Kerala Land Tax Act, the land of the petitioners shall be re-assessed as dry land and appropriate additional entries shall be made in the Basic Tax Register indicating the present classification of the land.

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Sd/- P.B.SURESH KUMAR, JUDGE.

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WP(C).No.13582 OF 2020

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APPENDIX

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PETITIONER'S/S EXHIBITS:

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EXHIBIT P1 TRUE COPY OF THE DOCUMENT NO.682/04 DATED 23.01.2004 OF THE SUB REGISTRY, KOCHI. EXHIBIT P2 TRUE COPY OF THE DOCUMENT NO.2871/18 DATED 05.09.2018 OF THE SUB REGISTRY, KOCHI. EXHIBIT P3 TRUE COPY OF THE RECEIPT DATED 05.11.2018 ISSUED BY THE 5TH RESPONDENT IN FAVOUR OF THE PETITIONER. EXHIBIT P4 TRUE COPY OF THE JUDGMENT DATED 28.10.2019 IN W.P.(C) NO.24364/2019 OF THIS HON'BLE COURT. EXHIBIT P5 TRUE COPY OF THE PETITION DATED 1.7.2019 SUBMITTED BY THE PETITIONER FOR PLACING THE SAME IN THE ADALATH PROPOSED BY THE HON'BLE MINISTER FOR LSGD ON 15.07.2019. EXHIBIT P6 TRUE COPY OF THE RELEVANT PAGE OF THE DECISION OF THE ADALATH HELD ON 16.07.2019 AT THE TOWN HALL, ERNAKULAM. EXHIBIT P7 TRUE COPY OF THE REPRESENTATION DATED 29.08.2019 SUBMITTED BY THE PETITIONER BEFORE THE 3RD RESPONDENT. EXHIBIT P8 TRUE COPY OF THE PROCEEDING NO.K1/4285/2019 DATED 02.11.2019 OF THE 3RD RESPONDENT. EXHIBIT P8 (a) TRUE COPY OF THE REPORT NO.198/19 DATED 02.11.2019 SUBMITTED BY THE 5TH RESPONDENT. EXHIBIT P9 TRUE COPY OF THE REPRESENTATION DATED 19.12.2019 SUBMITTED BY THE PETITIONER BEFORE THE 4TH RESPONDENT.

Jackson Raphael K. M. v. State of Kerala

Case brief

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Jackson Raphael K. M. v. State of Kerala

Case brief

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