Kerala High Court
M.B.Rajagopal vs State Of Kerala on 2 February, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR
TUESDAY, THE 02ND DAY OF FEBRUARY 2021 / 13TH MAGHA,1942
WP(C).No.21962 OF 2020(U)
PETITIONERS:
1 M.B.RAJAGOPAL
AGED 65 YEARS
S/O. AYYAPPAN PILLAI, STATE COMMITTEE MEMBER,
BHARATHIYA JANATHA PARTY (BJP) KERALA, RESIDING AT
MULLASSERY SRUTHIYIL HOUSE, VAZHAPPALLI (W) VILLAGE,
VAZHAPPALLI (W) P.O.
PIN-686 103.
2 S.JAYAKRISHNAN,
S/O. SANAKARA WARRIYER,
ERNAKULAM DISTRICT PRESIDENT,
BHARATHIYA JANATHA PARTY (BJP),
RESIDING AT SREEDHALAM, MANNAM, NORTH PARAVUR,
ERNAKULAM
BY ADVS.
SRI.N.ANILKUMAR
SRI.SINU.G.NATH
RESPONDENTS:
1 STATE OF KERALA
REPRESENTED BY CHIEF SECRETARY,
GOVT OF KERALA,SECRETARIAT,
TRIVANDRUM-695 001.
2 KOCHI MUNICIPAL CORPORATION,
REPRESENTED BY SECRETARY, PARK AVENUE,
MARINE DRIVE ERNAKULAM, KOCHI-682 011.
3 THE SECRETARY,
KOCHI MUNICIPAL CORPORATION, PARK AVENUE, MARINE DRIVE,
ERNAKULAM, KOCHI-682 011.
W.P.(C) No.21962 of 2020 2
4 THE ASSISTANT EXECUTIVE ENGINEER,
EXTENSION OFFICE, CORPORATION OF KOCHI,
VYTTILA, COCHIN-682 019
5 REVENUE DIVISIONAL OFFICE (RDO)
OFFICE OF THE RDO, FORT KOCHI,
ERNAKULAM-682 011.
6 THE DISTRICT COLLECTOR,
ERNAKULAM, CIVIL STATION,
KAKKANAD-682 030.
7 THE LOCAL LEVEL MONITORING COMMITTEE (LLMC)
FOR COCHIN CORPORATION, REPRESENTED BY ITS
CONVENER, THE AGRICULTURAL OFFICER,
KRISHI BHAVAN, VYTTILA, ERNAKULAM, PIN-682 019
8 ADDL.R8- GREATER COCHIN DEVELOPMENT AUTHORITY,
REPRESENTED BY SECRETARY, P.B.NO.2012,
KOCHI-682 020.
ADDITIONAL RESPONDENT NO.8 IS IMPLEADED AS PER
ORDER DATED 02.02.2021 IN IA NO.2/2020 IN WP(C)
NO.21962/2020.
BY ADV.
SMT.SAREENA GEORGE,SC,COCHIN CORPORATION
SRI.ADARSH MATHEW
SMT. DHANYA T MALLAR
SRI.SUDHISH KUMAR, SC
SMT.RANJITA.G, GP
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD
ON 18-01-2021, THE COURT ON 02-02-2021 DELIVERED THE
FOLLOWING:
W.P.(C) No.21962 of 2020 3
W.P.(C) No.21962 of 2020
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JUDGMENT
Second petitioner is the Ernakulam District President of
Bharathiya Janatha Party and the first petitioner is a State Committee
member of the said political party. A land was purchased by the said
political party in the name of the first petitioner on 08.06.2018 as per
Ext.P1 assignment deed. The land covered by Ext.P1 assignment deed
was acquired by the vendor in Ext.P1 assignment deed in terms of
exchange deed No.5498 of 2000 of Ernakulam Sub Registry and
assignment deed No.5571 of 2000 of the very same Sub Registry. After
the purchase of the land, petitioners have applied for a building permit
to construct a building in the land for the requirement of the political
party. It is alleged by the petitioners that the application preferred by
the petitioners for building permit is not being considered by the
Corporation, taking the stand that the petitioners need to obtain
permission under Section 27A of the Kerala Conservation of Paddy
Land and Wetland Act, 2008 ('the Act') since the land is shown in the
revenue records as 'Nilam'. The case of the petitioners is that since
the land covered by Ext.P1 assignment deed is part of the land
acquired, developed and allotted by the Greater Cochin Development
Authority(GCDA) for residential purposes under a development
scheme, Section 27A of the Act cannot have any application to the
said land. The petitioners, therefore, seek appropriate directions in
this regard in the writ petition.
2. Heard the learned counsel for the petitioners, the
learned Government Pleader as also the leaned counsel for the Kochi
Corporation.
3. As noted, the land covered by Ext.P1 assignment
deed was acquired by the vendor therein in terms of exchange deed
No.5498 of 2000 of Ernakulam Sub Registry and assignment deed
No.5571 of 2000 of the very same Sub Registry. Ext.P7 is the
communication issued by the GCDA to the vendor in Ext.P1
assignment deed. Ext.P7 indicates that the land covered by exchange
deed No.5498 of 2000 is one assigned by the GCDA to the vendor in
Ext.P1 assignment deed in exchange of the land surrendered by him
to the GCDA for development of a road. Similarly, Ext.P7 indicates
that the land obtained by the vendor in Ext.P1 assignment deed as per
Assignment deed No.5571 of 2000 is one assigned by the GCDA to
another person in exchange of the land surrendered by him to the
GCDA for development of a road. Ext.P7 also indicates that both the
said items are lands in an area acquired, developed and allotted by
the GCDA for residential purposes in terms of a development scheme.
In State of Kerala and others v. Binu Mathew Chacko and
others, 2020 (6) KHC 717, a Division Bench of this court held 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 Section 27A 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 Register so as to
reflect the nature of the land as garden land/Purayidam in the said
Register.
The writ petition, in the circumstances, is disposed of
directing the Corporation of Kochi to grant the building permit applied
for by the petitioners, if the application of the petitioners is otherwise
in order. This shall be done within three weeks. It is made clear that
the petitioners 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 petitioners prefer
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.
Sd/-
P.B.SURESH KUMAR, JUDGE.
PV
APPENDIX
PETITIONERS'EXHIBITS:
EXHIBIT P1 THE TRUE COPY OF THE SALE DEED NO
2315/18
EXHIBIT P2 THE TRUE COPY OF THE LOCATION SKETCH
SHOWING THE LAYING OF THE PROPERTY
EXHIBIT P3 THE TRUE COPY OF THE RECEIPT SHOWING
PAYMENT OF LAND TAX
EXHIBIT P4 TRUE COPY OF THE PHOTOGRAPH
EXHIBIT P4 (A) TRUE COPY OF THE PHOTOGRAPH
EXHIBIT P4 (B) TRUE COPY OF THE PHOTOGRAPH
EXHIBIT P5 THE TRUE COPY OF THE JUDGMENT IN WPC NO
4489/2019 DATED 8.10.2019
EXHIBIT P6 TRUE COPY OF APPLICATION FILED BY THE
DISTRICT PRESIDENT OF BJP DATED
13.6.2019
EXHIBIT P7 TRUE COPY OF LETTER
NO.4126/PL/3/2018/GCDA DATED
29/05/2018.
EXHIBIT P8 TRUE COPY JUDGMENT IN WRIT APPEAL
NO.1419/2020 DATE 04.12.2020
