Shida Mol Saidu Muhammed vs State Of Kerala
2021 Latest Caselaw 3858 Ker

                IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                 PRESENT

               THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR

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

                        WP(C).No.34374 OF 2019(V)


PETITIONER:

                SHIDA MOL SAIDU MUHAMMED,
                W/O.MUJEEB V.M., VALIYARA HOUSE, EDAVANAKKAD P.O.,
                PAZHANGAD KARA, EDVANAKKAD VILLAGE, KOCHI TALUK,
                ERNAKULAM DISTRICT, KOCHI - 682 502, REP. BY HER
                POWER OF ATTORNEY HOLDER SHRI.SAIDUMUHAMMED ESMAIL,
                AGED 67, S/O.LATE ESMAIL, MOONALIYIL, ELAMAKKARA
                P.O., KOCHI - 682 026.

                BY ADVS.
                SRI.VARGHESE C.KURIAKOSE
                SHRI.SUSANTH SHAJI

RESPONDENTS:

      1         STATE OF KERALA,
                REP. BY SECRETARY, DEPARTMENT OF REVENUE SECRETARIAT,
                CENTRAL STADIUM, MAHATMA GANDHI ROAD,
                THIRUVANANTHAPURAM - 695 001.

      2         THE REVENUE DIVISIONAL OFFICER,
                O/O.THE RDO, FIRST FLOOR, KB JACOB ROAD, FORT KOCHI,
                KOCHI - 682 001.

      3         THE TAHSILDAR,
                (THE PRESCRIBED AUTHORITY UNDER THE LAND TAX ACT,
                1961), KANAYANNUR TALUK, TALUK OFFICE, ERNAKULAM -
                682 011.

      4         THE VILLAGE OFFICER,
                ERNAKULAM VILLAGE OFFICE, MARINE DRIVE, KOCHI, KERALA
                - 682 011.

      5         THE CORPORATION OF KOCHI,
                MAIN OFFICE, PARK AVENUE ROAD, MARINE DRIVE, KOCHI,
                KERALA - 682 011, REP. BY ITS SECRETARY.
 W.P.(C) No.34374 of 2019        2




        6       THE GREATER COCHIN DEVELOPMENT AUTHORITY,
                SAHODARAN AYYAPPAN ROAD, KADAVANTHRA, KOCHI - 682
                020, REP. BY ITS SECRETARY.

                R5 BY ADV. SHRI.S.SUDHEESH KUMAR, SC, KOCHI MUNICIPAL
                CORPORATION
                R5 BY ADV. SRI.K.JANARDHANA SHENOY
                R6 BY ADV. SMT.MINI.V.A.
                R1-R4 BY ADV.SMT.G.RANJITA, GP

     THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD           ON
03.02.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 WP(C).No.34374 OF 2019(V)

                                         3




                         W.P.(C) No.34374 of 2019
                   -----------------------------------------------


                                JUDGMENT

Petitioner purchased a land measuring 2.44 Ares in Ernakulam

Village as per Ext.P1 assignment deed. The vendor of the petitioner obtained

the said land by way of an allotment from the Greater Cochin Development

Authority (the GCDA) for residential purpose under a Town Planning Scheme

sanctioned by the Government under the Town Planning Act 1108. The land

purchased by the petitioner, however, is shown in the revenue records as

'Nilam'. It is alleged by the petitioner that the aforesaid wrong entry of the

land in the revenue records is affecting the convenient enjoyment of the

land. The petitioner, therefore preferred an application for reassessment of

the land under Section 6A of the Kerala Land Tax Act. Ext.P5 is the

application preferred by the petitioner in this regard before the third

respondent. It is alleged by the petitioner that Ext.P5 is not being considered

by the third respondent taking the stand that the petitioner has to obtain

orders under Section 27A of the Kerala Conservation of Paddy Land Wetland

Act, 2008 (the Act) for the said purpose. The case of the petitioner is that

since the land covered by Ext.P1 assignment deed is one allotted to the

vendor of the petitioner by the GCDA after acquiring the same for residential

purposes in terms of a Town Planning Scheme framed under the Town

Planning Act 1108, the provisions of the Act cannot have any application to

the said land. The petitioner, therefore, seeks appropriate directions in this WP(C).No.34374 OF 2019(V)

regard in the writ petition.

2. Heard the learned counsel for the petitioner as also the

learned Government Pleader.

3. Ext.P2 is the title deed of the vendor of the petitioner.

Ext.P2 indicates that the land covered by Ext.P1 assignment deed in favour

of the petitioner is one allotted to the vendor of the petitioner by the GCDA

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 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 third respondent cannot insist compliance

of the provisions of Act for considering the application for re-assessment of

land submitted by the petitioner, even if the said land is 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 WP(C).No.34374 OF 2019(V)

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 third respondent to consider Ext.P5 application, re-assess the land of the

petitioner as dry land and make appropriate additional entry in the Basic Tax

Register relating to the property indicating the present classification of the

land. The petitioner shall submit an application for re-assessment of the land

in the prescribed form also before the third respondent. The direction

aforesaid shall be complied with within one month from the date of

submission of the application in the prescribed form by the petitioner.

Sd/-

                                               P.B.SURESH KUMAR

Mn                                                   JUDGE
 WP(C).No.34374 OF 2019(V)





                                APPENDIX
PETITIONER'S EXHIBITS:

EXHIBIT P1                  TRUE PHOTOSTAT COPY OF THE SALE DEED
                            NO.3596/2016 SRO ERNAKULAM DATED
                            09/09/2016.

EXHIBIT P2                  TRUE PHOTOSTAT COPY OF SALE DEED
                            NO.3886/1984 SRO ERNAKULAM.

EXHIBIT P3                  TRUE PHOTOSTAT COPY OF THE DATA BANK ENTRY
                            PERTAINING TO THE PROPERTY.

EXHIBIT P4                  TRUE PHOTOSTAT COPY OF THE JUDGMENT DATED

28/10/2019 IN W.P.(C) NO.24364/2019 PASSED BY THIS HONOURABLE COURT.

EXHIBIT P5 TRUE PHOTOSTAT COPY OF THE REPRESENTATION DATED 19/11/2019 BEFORE THE 3RD RESPONDENT FOR RE-ASSESSMENT AND PAYMENT OF TAX AS DRY LAND.

EXHIBIT P6 TRUE PHOTOSTAT COPY OF THE ACKNOWLEDGMENT CARD DATED 21/11/2019 SIGNED BY 3RD RESPONDENT.

EXHIBIT P7 TRUE PHOTOSTAT COPY OF THE REPRESENTATION DATED 19/11/2019 BEFORE THE 2ND RESPONDENT.

EXHIBIT P8 TRUE PHOTOSTAT COPY OF THE ACKNOWLEDGMENT CARD SIGNED BY 2ND RESPONDENT.

EXHIBIT P9 TRUE PHOTOSTAT COPY OF THE COMMUNICATION DATED 06/12/2019 ISSUED BY THE 6TH RESPONDENT TO THE 4TH RESPONDENT.

//TRUE COPY// PA TO JUDGE