Allowed

V.v.Brijit v. State of Kerala

Kerala HC21 Dec 2021WP(C)/4093/2021

Case brief

AI extract

What is this about?

Petitioner sought a building permit for land allotted as rehabilitation for father upon land acquisition. Court held that land classified as 'purayidam' and allotted as rehabilitation is exempt from floor area restrictions and the Conservation Act procedures, directing revenue correction.

What did the court decide?

Petitioner allowed. Petitioner granted building permit without restrictions under Section 27A. Revenue authorities directed to correct revenue records.

V.v.Brijit Vs State of Kerala — Land Acquisition | 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 T.R.RAVI

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TUESDAY, THE 21^ST DAY OF DECEMBER 2021/30TH AGRAHAYANA, 1943

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WP(C) NO. 4093 OF 2021

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PETITIONER:

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V.V.BRIJIT AGED 50 YEARS W/O. K.V.MANOJ, VIKRAMATHU HOUSE, KADAVANTHRA PO, COCHIN-682020, ERNAKULAM DISTRICT.

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BY ADV A.P.SAMAL KUMAR

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RESPONDENTS:

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1 STATE OF KERALA REPRESENTED BY THE SECRETARY TO THE GOVERNMENT, REVENUE DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM-695001.

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2 THE REVENUE DIVISIONAL OFFICER, OFFICE OF THE REVENUE DIVISIONAL OFFICER, FORTKOCHI-682001.

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

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

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5 THE TAHSILDAR, TALUK OFFICE, KANAYANUR, ERNAKULAM-682011.

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6 VILLAGE OFFICER, ELAMKULAM VILLAGE OFFICE, ELAMKULAM, KOCHIN-682020. R4 BY ADV SRI. JANARDHANA SHENOY SRI SOBHAN GEORGE

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R1 TO 3, 5 & 6 BY SRI.B.S.SYAMANTHAK, GOVT.PLEADER

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THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 21.12.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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W.P.(C)No.4093 of 2021

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T.R. RAVI, J.

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-------------------------------------------- W.P.(C)No.4093 of 201

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Dated this the 21^st day of December, 2021

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JUDGMENT

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Properties belonging to the petitioner's father were acquired

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for the purpose of the Cochin Shipyard. As a measure of rehabilitation, the petitioner's father was put in possession of 1.42 Ares (3.5 cents) of land comprised in Sy.No.709/41 of Elamkulam Village with a residential building having door number alloted by the Cochin Corporation with electricity and water connection. The petitioner's father made necessary renovations to the residential building and continued in possession and enjoyment of the same. On the demise of the petitioner's father, the petitioner and other legal heirs obtained Ext.P1 'patta' (No.L1-2997/81) from Tahsildar, Kanayannur Taluk on 10.3.2002. The said document shows the category of land as dry land. The other legal heirs released their share in favour of the petitioner as per release deed No.4642/2006 of SRO, Ernakulam on 17.9.2006. Since the building was very old, the petitioner with intention to reconstruct the building applied to the Municipal Corporation for building permit. Ext.P3 building permit was issued on 8.5.2019 which was to be valid for three

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W.P.(C)No.4093 of 2021

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years. However, the floor area of the building was restricted on the ground that under Section 27A(6), the maximum area that can be approved for construction is only 120 sq.metres. Ext.P4 which is the relevant page of the draft data bank will show that the property is classified as 'purayidam'. The only reason for restricting the building permit to less than 120 sq.metres is that the land is shown as 'nilam' in the revenue records. The petitioner applied for correction of the entry in the revenue records. The petitioner has filed this writ petition seeking for a direction to the 4 th respondent to grant a fresh building permit without any restriction regarding the floor area of construction and for a declaration that the petitioner is to be granted the building permit without insisting that he should go through the process under the Kerala Conservation of Paddy Land and Wetland Act, 2008 (the Act for short). There is also a prayer for a direction to the 6 th respondent to make necessary changes in the revenue records as per the provisions of the Land Tax Act, 1961 with regard to the changes in the nature of land. The petitioner relied on the judgment of this Court in State of Kerala v. Binu Mathew Chacko reported in [2021 (1) KLT 232] wherein it has been held that when authorities have acquired the land for the development of towns/cities and other areas, and

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W.P.(C)No.4093 of 2021

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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.

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2 . Heard the learned counsel for the petitioner, Sri B.S.Syamanthak, the learned Government Pleader for respondents 1 to 3, 5 and 6 and Sri K.Janardhana Shenoy, learned Standing Counsel for the 4 th respondent Corporation.

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3 . I find considerable force in the contentions raised by the petitioner. The land belonging to the petitioner's father was acquired and it is as a measure of rehabilitation that the petitioner's father had been put in possession of lands which were already filled up and having a building with a number allotted by the Corporation. The documents relating to the allotment of the land to the petitioner's father as well as the 'patta' issued in favour of the petitioner and other legal heirs of the petitioner's father show the land as dry land. The 'patta' has been issued as early as in 2003, much before the coming into force of the Act. The entry in the data bank also shows that the property is 'purayidam'. In the above circumstances, there is absolutely no justification for directing the petitioner to go through the procedure prescribed in

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W.P.(C)No.4093 of 2021

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the Act, which can have no application in the case of the petitioner. When the petitioner or his predecessor did not have any role in the conversion of the land and the same had been done by the Government themselves and allotted as a process of rehabilitation, there can be no justification for making further demand from the petitioner to get the Government records corrected. Such corrections ought to have been made by the Government themselves at the time of allotment of the lands to persons from whom the properties were acquired.

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In the result, the writ petition is allowed. The 4 th respondent is directed to consider the application for building permit filed by the petitioner treating the nature of land as 'purayidam', within two months from the date of receipt of a copy of this judgment. For the purpose of issuance of fresh building permit, Ext.P3 building permit dated 8.5.2019 is kept in abeyance. The 2 nd respondent is directed to pass necessary orders for correction of the revenue records in tune with the allotment of the property granted to the petitioner's father and Ext.P1 'patta' issued in favour of the petitioner and other legal heirs of the petitioner's father who was the original allottee of the land, within two months from the date of receipt of a copy of this judgment. The

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W.P.(C)No.4093 of 2021

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restrictions regarding the construction, contained in Section 27A(6) cannot be imposed on the petitioner having regard to the fact that

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the property on which the petitioner intends to make the

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construction was 'purayidam' even before 1967.

Sd/-

T.R. RAVI JUDGE

dsn

W.P.(C)No.4093 of 2021

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APPENDIX OF WP(C) 4093/2021

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PETITIONER EXHIBITS

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EXHIBIT P1	TRUE PHOTOSTAT COPY DATED 10.3.2003.	OF PATTAYAM NO.L.2997/81
EXHIBIT P2	TRUE PHOTOSTAT COPY NO.4642/2006 IN FAVO	OF RELEASE DEED UR OF THE PETITIONER.
EXHIBIT P3	TRUE PHOTOSTAT COPY NO.KRP1/366/18/COC/K 8.5.2019.	OF BUILDING PERMIT RP/5167/18 DATED
EXHIBIT P4	TRUE PHOTOSTAT COPY DRAFT DATABANK CONSI	OF RELEVANT PAGE OF THE STING OF SURVEY NO.709/4.
EXHIBIT P5	TRUE PHOTOSTAT COPY NO.40792.	OF BUILDING TAX RECEIPT
EXHIBIT P6	TRUE PHOTOSTAT COPY DATED 23.11.2020.	OF BASIC TAX REGISTER
EXHIBIT P7	TRUE PHOTOSTAT COPY SUBMITTED BEFORE 5TH	OF REPRESENTATION RESPONDENT ON 1.8.2019.
EXHIBIT P8	REPORT SUBMITTED BY 14.9.2019.	5TH RESPONDENT ON

V.v.Brijit v. State of Kerala

Case brief

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V.v.Brijit v. State of Kerala

Case brief

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