Saju Varghese vs State Of Kerala
2021 Latest Caselaw 3895 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.24319 OF 2020(L)


PETITIONERS:

     1       SAJU VARGHESE,
             S/O. LATE C.V. VARGHESE, CHAZHOOR HOUSE,
             PANAMPILLY NAGAR, ERNAKULAM - 682036.

     2       BIJU VARGHESE,
             S/O. LATE C.V. VARGHESE, CHAZHOOR HOUSE,
             PANAMPILLY NAGAR, ERNAKULAM - 682036.

             BY ADVS.
             SRI.PHILIP T.VARGHESE
             SRI.THOMAS T.VARGHESE
             SMT.ACHU SUBHA ABRAHAM
             SMT.V.T.LITHA
             SMT.K.R.MONISHA
             SMT.SHRUTHI SARA JACOB

RESPONDENTS:

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

     2       THE DISTRICT COLLECTOR,
             ERNAKULAM - 682028.
 W.P.(C) No.24319 of 2020       2



       3      THE REVENUE DIVISIONAL OFFICER,
              FORT KOCHI - 682001.

       4      THE TAHSILDAR(LR)
              TALUK OFFICE, KANAYANNUR - 682011.

       5      THE VILLAGE OFFICER,
              ERNAKULAM - 682011.

       6      CORPORATION OF COCHIN
              REPRESENTED BY ITS SECRETARY, CORPORATION
              OFFICE, PARK AVENUE ROAD, ERNAKULAM - 682011.

       7      GREATER COCHIN DEVELOPMENT AUTHORITY
              REPRESENTED BY ITS SECRETARY, SAHODARAN
              AYYAPPAN ROAD, KADAVANTHRA,
              ERNAKULAM - 682020.

              R6 BY ADV. SRI.JIBU P THOMAS
              R7 BY ADV. SRI.VIPIN P.VARGHESE
              R7 BY ADV. SRI.ADARSH MATHEW
              R7 BY ADV. SMT. DHANYA T MALLAR
              R7 BY ADV. SMT.ATHIRA ANTONY A.
              SRI.K.J. MANURAJ GOVERNMENT PLEADER

     THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD
ON 03.02.2021, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
 W.P.(C) No.24319 of 2020               3




                      W.P.(C) No.24319 of 2020
               -----------------------------------------------


                            JUDGMENT

Petitioners obtained a land measuring 4.386 cents

situated in Ernakulam Village as per Ext.P9 assignment deed 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 obtained

by the petitioners, however, is shown in the revenue records as

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

of the land in the revenue records is affecting the convenient

enjoyment of the land. Since the land is one allotted to the

petitioners as a dry land for construction of a residential building, the

petitioners preferred an application for changing the classification of

the land in the revenue records. Ext.P10 is the application preferred

by the petitioners in this regard. Ext.P10 application has now been

rejected by the fourth respondent stating that an appeal has been

preferred against Ext.P11 judgment on the basis of which Ext.P10

application is filed and that the petitioners have to obtain permission

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

Act, 2008 (the Act) for the purpose of seeking change of

classification of the land. Ext.P12 is the communication issued in this

regard by the fourth respondent. Ext.P12 is under challenge in the

writ petition.

2. Heard the learned counsel for the petitioners as

also the learned Government Pleader.

3. Ext.P9 title deed of the petitioners indicates that

the land covered by the said document is one allotted to the

petitioners by the GCDA for residential purposes 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 fourth respondent cannot

insist compliance of the provisions of Act for considering the

application submitted by the petitioner for change of classification of

the land, 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 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. In the light of the said judgment

of the Division Bench, Ext.P12 order rejecting Ext.P10 application

preferred by the petitioners for change of classification of the land is

unsustainable in law.

In the result, the writ petition is allowed, Ext.P12

communication of the fourth respondent is quashed and the fourth

respondent is directed to re-assess the land of the petitioners

covered by Ext.P9 assignment deed as a dry land and make

appropriate additional entry in the Basic Tax Register relating to the

land indicating the present classification of the land. The petitioners

shall submit application for re-assessment of the land in the

prescribed form before the fourth respondent. The direction

aforesaid shall be complied with, within two months from the date of

receipt of the application for re-assessment.

Sd/-

P.B.SURESH KUMAR, JUDGE.

YKB

APPENDIX PETITIONER'S/S EXHIBITS:

EXHIBIT P1 TRUE COPY OF LETTER NO.4869/E AND RBI/93/GCDA ISSUED BY THE 7TH RESPONDENT TO MR.C.V. VARGHESE, DATED 07.04.1993.

EXHIBIT P2 TRUE COPY OF LETTER NO. 4869/E AND R/B1/93/GCDA ISSUED BY THE 7TH RESPONDENT TO MR.C.V. VARGHESE DATED 07.05.1993.

EXHIBIT P3 TRUE COPY OF RECEIPT ISSUED BY THE 7TH RESPONDENT TO MR. C.V. VARGHESE DATED 27.07.1993.

EXHIBIT P3(a) TRUE COPY OF RECEIPT ISSUED BY THE 7TH RESPONDENT TO MR. C.V. VARGHESE DATED 04.09.1993.

EXHIBIT P3(b) TRUE COPY OF RECEIPT ISSUED BY THE 7TH RESPONDENT TO MR. C.V. VARGHESE DATED 10.09.1993.

EXHIBIT P4 TRUE COPY OF LETTER NO.4869/E AND RBI/93/GCDA ISSUED BY THE 7TH RESPONDENT TO MR.C.V. VARGHESE DATED 18.09.1993.

EXHIBIT P4(a) TRUE COPY OF THE DRAFT SALE DEED ATTACHED ALONG WITH EXHIBIT P4.

EXHIBIT P5 TRUE COPY OF LETTER NO. 4869/E AND R/B1/93/GCDA ISSUED BY THE 7TH

RESPONDENT TO MR.C.V. VARGHESE DATED 03.12.1996.

EXHIBIT P6 TRUE COPY OF THE DEATH CERTIFICATE OF MR.C.V.VARGHESE, ISSUED BY THE 6TH RESPONDENT DATED 08.06.2006.

EXHIBIT P7 TRUE COPY OF THE JUDGMENT IN WP(C) NO.19180/2006 DATED 08.08.2006.

EXHIBIT P8 TRUE COPY OF GO(MS) NO.03/07/RD ISSUED BY THE 1ST RESPONDENT DATED 06.01.2007.

EXHIBIT P9 TRUE COPY OF THE SALE DEED NO.

4506/2008 OF SRO ERNAKULAM DATED 05.11.2008.

EXHIBIT P10 TRUE COPY OF THE APPLICATION SUBMITTED BY THE PETITIONERS TO THE 5TH RESPONDENT DATED 08.06.2020.

EXHIBIT P11 TRUE COPY OF THE JUDGMENT IN WP(C) NO.24364/2019 DATED 28.10.2019.

EXHIBIT P12 TRUE COPY OF LETTER NO.H3-9120/2020 ISSUED BY THE 5TH RESPONDENT DATED 04.08.2020.

RESPONDENT'S/S EXHIBITS:

NIL

//TRUE COPY//

PA TO JUDGE