Kerala High Court
M/S.Arya Bhangy Builders Pvt Ltd vs Kochi Municipal Corporation on 3 February, 2021
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.22950 OF 2019(P)
PETITIONER:
M/S.ARYA BHANGY BUILDERS PVT LTD
DOOR 1/176, PALACHUVADU, MAMALA P.O., PIN-682305,
THIRUVANIYOOR VILLAGE, ERNAKULAM DISTRICT,
HAVING ITS REGISTERED OFFICE AT ARYABHANGY PINNACLE,
7TH FLOOR, SA ROAD, ELAMKULAM,
KOCHI-682020, REPRESENTED BY ITS MANAGING DIRECTOR,
JIBI THOMAS @ GEORGE THOMAS.
BY ADVS.
SRI.K.C.ELDHO
SRI.MALLENATHAN.M.
SMT.K.SINDHU ELIAS
SMT.HARITHA JAYAN
SHRI.AVINASH K KRISHNAN
RESPONDENTS:
1 KOCHI MUNICIPAL CORPORATION
REPRESENTED BY ITS SECRETARY, PARK AVENUE,
MARINE DRIVE, ERNAKULAM, KOCHI-682011.
2 THE EXECUTIVE ENGINEER-II,
KOCHI MUNICIPAL CORPORATION (HEAD OFFICE),
PARK AVENUE, MARINE DRIVE, ERNAKULAM, KOCHI-682011.
3 THE ASSISTANT EXECUTIVE ENGINEER,
ZONAL OFFICE, KOCHI MUNICIPAL CORPORATION, VYTILLA,
KOCHI-682019.
4 GREATER COCHIN DEVELOPMENT AUTHORITY,
REPRESENTED BY ITS SECRETARY, KADAVANTHRA,
KOCHI-682020.
5 REVENUE DIVISIONAL OFFICER,
JACOB ROAD, FORT KOCHI, KOCHI-682001.
6 AGRICULTURAL FIELD OFFICER,
KRISHI BHAVAN (COCHIN CORPORATION), VYTILLA,
KOCHI-682019.
7 KERALA STATE REMOTE SENSING AND ENVIRONMENT CENTRE,
WP(C).No.22950 OF 2019(P)
2
REPRESENTED BY ITS DIRECTOR, VIKAS BHAVAN,
THIRUVANANTHAPURAM-695033.
8 STATE OF KERALA,
REPRESENTED BY THE CHIEF SECRETARY TO
GOVERNMENT, SECRETARIAT, THIRUVANANTHAPURAM-
695001.
9 THE VILLAGE OFFICER,
ELAMKULAM VILLAGE, KADAVANTHRA, ERNAKULAM-
682020.
R1-3 BY SRI.K.ANAND, SC, COCHIN CORPN.
R4 BY ADV. SRI.ARUN ANTONY
R5-6, R8-9 BY SRI.MOHAMMED ANZAR K.J.,
SPL.G.P. FOR REVENUE
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD
ON 03.02.2021, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
WP(C).No.22950 OF 2019(P)
3
W.P.(C) No.22950 of 2019
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JUDGMENT
Petitioner purchased an item of property measuring
8.99 Ares and a building therein situated in Elamkulam Village,
Ernakulam District in terms of Ext.P1 assignment deed. The
petitioner proposes to put up a new building in the said land. They
therefore preferred an application for building permit before the
first 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 accepted by the Corporation since a
portion of the land covered by Ext.P1 assignment deed namely,
4.99 Ares 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.P1 assignment
deed is one acquired by the State Government for allotment as
residential plots by the fourth respondent in terms of a Town
WP(C).No.22950 OF 2019(P)
Planing Scheme framed under the Town Planing Act 1108 and
therefore, the provisions of the Act cannot have any application to
the said land. The petitioner, therefore, seeks appropriate
directions in this regard in the writ petition.
2. Heard the learned counsel for the petitioner, the
learned Government Pleader as also the leaned counsel for the
Corporation.
3. Ext.P9 is the title deed of the vendors of the
petitioner in Ext.P1 document. Ext.P9 indicates that the land
covered by Ext.P1 assignment deed is one allotted to the vendors
of the petitioner by the fourth respondent after constructing
buildings for residential purposes in terms of a Town Planing
Scheme framed under the Town Planing 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 Corporation cannot
WP(C).No.22950 OF 2019(P)
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
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 to accept the application for building
permit from the petitioner and grant the building permit, if the
application of the petitioner is otherwise in order. This shall be
done within three weeks from the date of submission of the
application. It is made clear 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 an application for re-
assessment under the Kerala Land Tax Act, the land of the
WP(C).No.22950 OF 2019(P)
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
WP(C).No.22950 OF 2019(P)
APPENDIX
PETITIONER'S EXHIBITS:
EXHIBIT P1 A TRUE COPY OF THE SALE DEED NO.2523
OF 2011 OF SRO ERNAKULAM.
EXHIBIT P2 A TRUE COPY OF THE TAX PAID RECEIPT
DATED 7.05.2018 PERTAINING TO EXHIBIT
P1 PROPERTY.
EXHIBIT P3 A TRUE COPY OF THE POSSESSION
CERTIFICATE DATED 26.12.2018 ISSUED IN
FAVOUR OF THE PETITIONER.
EXHIBIT P4 A TRUE COPY OF THE LOCATION
CERTIFICATE ISSUED IN THE FAVOUR OF
THE PETITIONER.
EXHIBIT P5 A TRUE COPY OF THE LAND OWNERSHIP
CERTIFICATE ISSUED IN THE FAVOUR OF
THE PETITIONER.
EXHIBIT P6 A TRUE COPY OF THE TAX RECEIPT
REFLECTING THE PAYMENT OF TAX FOR THE
BUILDING SITUATED IN EXHIBIT P1
PROPERTY.
EXHIBIT P7 THE TRUE PHOTOGRAPHS OF THE BUILDING
SITUATED IN EXHIBIT P1 PROPERTY.
EXHIBIT P8 A TRUE COPY OF THE REPRESENTATION
SUBMITTED BY THE PETITIONER BEFORE THE
9TH RESPONDENT VILLAGE OFFICER.
EXHIBIT P9 A TRUE COPY OF THE SALE DEED VIDE
NO.5962 OF 2005 OF SRO ERNAKULAM.
EXHIBIT P10 A TRUE COPY OF THE REPRESENTATION
DATED 29.03.2019 SUBMITTED BY THE
PETITIONER BEFORE THE DISTRICT
COLLECTOR, ERNAKULAM THE COPY TO THE
RESPONDENTS.
EXHIBIT P11 A TRUE COPY OF THE JUDGMENT IN WPC NO-
4489 OF 2019 DATED 18.10.2019
WP(C).No.22950 OF 2019(P)
EXHIBIT P12 A TRUE COPY OF THE REPORT OF THE
AGRICULTURAL OFFICER AND THE MINUTES
OF THE MEETING OF THE LOCAL LEVAL
MONITORING COMMITTEE DATED 18.5.2020
EXHIBIT P13 A TRUE COPY OF THE JUDGMENT IN WPC NO
351/2019 DATED 2.11.2020
EXHIBIT P14 A TRUE COPY OF THE COMMUNICATION DATED
1.11.2019 ISSUED BY THE 1ST RESPONDENT
EXHIBIT P15 A TRUE COPY OF THE OBJECTION OF THE
1ST RESPONDENT CORPORATION DATED
09.01.2017
EXHIBIT P16 A TRUE COPY OF THE FIRE AND SAFETY
CLEARANCE FOR EXHIBIT 1 PROPERTY
