Kerala High Court
S.Padmanabhapillai vs State Of Kerala on 13 April, 2023
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE MURALI PURUSHOTHAMAN
THURSDAY, THE 13TH DAY OF APRIL 2023 / 23RD CHAITHRA, 1945
WP(C) NO. 16734 OF 2022
PETITIONERS:
1 S.PADMANABHAPILLAI
PARTNER, VIJAYALAKSHMI STORES, ATTAKULANGARA BYEPASS
ROAD, CHALAI, MANACAUD P.O, THIRUVANANTHAPURAM, PIN -
695009
2 S.VELAPPAN
PARTNER, VIJAYALAKSHMI STORES, ATTAKULANGARA BYEPASS
ROAD, CHALAI, MANACAUD P.O, THIRUVANANTHAPURAM, PIN -
695009
3 S.THANKAPPAN
PARTNER, VIJAYALAKSHMI STORES, ATTAKULANGARA BYEPASS
ROAD, CHALAI, MANACAUD P.O, THIRUVANANTHAPURAM, PIN -
695009
4 S.SURESH
PARTNER, VIJAYALAKSHMI STORES, ATTAKULANGARA BYEPASS
ROAD, CHALAI, MANACAUD P.O, THIRUVANANTHAPURAM, PIN -
695009
BY ADV UNNI. K.K. (EZHUMATTOOR)
RESPONDENTS:
1 STATE OF KERALA,REPRESENTED BY SECRETARY TO GOVERNMENT,
REVENUE DEPARTMENT , GOVT. SECRETARIAT,
THIRUVANANTHAPURAM, PIN - 695001
2 REVENUE DIVISIONAL OFFICER
REVENUE DIVISIONAL OFFICE, CIVIL STATION, KUDAPPANAKUNNU
THIRUVANATHAPURAM, PIN - 695043
3 TAHASILDAR (LR)
TALUK OFFICE, THIRUVANANTHAPURAM TALUK EAST FORT,
THIRUVANATHAPURAM, PIN - 695023
4 VILLAGE OFFICER
MANACAUD VILLAGE, THIRUVANATHAPURAM, PIN - 695009
5 THIRUVANANTHAPURAM MUNICIPAL CORPORATION
REPRESENTED BY ITS SECRETARY, VIKAS BHAVAN,
THIRUVANATHAPUARAM, PIN - 695033
BY ADVS.
SRI.P.K.MANOJKUMAR,SC,TVPM CORPORATION
WP(C) No 16734 Of 2022 :2:
SRI.SUMAN CHAKRAVARTHY, SC, THIRUVANANTHAPURAM
CORPORATION
OTHER PRESENT:
SRI. SYAMANTAK B S-G.P
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
13.04.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C) No 16734 Of 2022 :3:
JUDGMENT
The petitioners are the owners of 15.49 Ares of land in survey
No.7/71 and 6.94 Ares in survey No.7/42 (total 55.5 cents) in Manacuad
Village in Thiruvananthapuram Taluk. They purchased the said properties
along with 3 commercial buildings from S. Perumal and G. Vijayanathan
Nair, vide Exts. P2 and P3 sale deeds of the year 2016.
2. When the entire extent of 55.5 cents of land was in the
ownership of Sri. S.Perumal, he made an application to the Government
for exemption from Kerala Building Rules and Zoning Regulations as per
Town Planning Act 1108 (Travancore) to construct a saw mill in the
property and the Government, vide Ext. P4 order dated 30.11.1996,
exempted the property from Zoning Regulations of sanctioned master plan
for Thiruvananthapuram. Pursuant thereto, the Trivandrum Development
Authority (TRIDA) issued Ext. P5 commencement certificate as per
Section 15 (1) of the Town Planning Act and the Thiruvananthapuram
Corporation issued Ext. P6 building permit dated 10.07.1998 for
construction of a saw mill having an area of 216m 2. The petitioners have
produced Ext.P7 site plan issued by TRIDA to contend that there were 5
WP(C) No 16734 Of 2022 :4:
commercial buildings in the property prior to 1996 which were
demolished for construction of the saw mill and its allied sheds. Sri
S.Perumal was running the saw mill namely Ravi Timbers till 2015. In
2015, Sri. Perumal sold 39 cents from the above extent of land to
Vijayanathan Nair and the petitioners purchased the entire extent of 55.5
cents of land from Vijayanathan Nair and Perumal vide Exts. P2 and P3
deeds. After purchasing the property with buildings, the petitioners
converted it as textile shop and was running the same. In the year 2019,
petitioners connected the existing 3 buildings with additional constructions
and the Corporation regularized the constructions. According to the
petitioners, these facts and materials would show that there were
commercial buildings in the property even prior to 1996 and the
Corporation numbered the buildings and accepted the tax and issued
necessary permissions to run the saw mill and shops and the nature of
property is commercial even prior to the commencement of Kerala
Conservation of Paddy Land and Wetland Act, 2008 ('Paddy Land and
Wetland Act', for short). Besides that, as per the provisions of Town
Planning Act 1108 (Travancore) and Kerala Town Planning Act,
Government passed Ext.P4 order and issued sanction to construct the saw
WP(C) No 16734 Of 2022 :5:
mill. The petitioners state that the present approved master plan also
shows the area as mixed residential zone-1.
3. The petitioners state that, in order to obtain loan from the
bank, they obtained copies of revenue records of the property and
submitted the same to the bank. However, the bank returned the
application stating that the nature of property is shown as paddy land in
the revenue records. In Ext. P9 Basic Tax Register and Ext. P10 A-
Register, the nature of the property is shown as paddy land. According to
the petitioners, the property is not included in the data bank published by
the Corporation and since Ext. P4 sanction was issued by the Government
as per the provisions of Town Planning Act even prior to the introduction
of the Paddy land and Wet Land Act, there is no need to obtain permission
as per S.27A of the Paddy Land and Wetland Act, introduced in 2017. The
petitioners, therefore, submitted Ext. P11 application before the Tahasildar
(LR) to re-assess the property as per Section 6A of the Kerala Land Tax
Act along with Form A and produced the copies of building permit and
other documents in support. Ext. P11 application was forwarded by the
Tahasildar (LR) to the Village officer and Village officer submitted Ext.
P14 report stating that as per the certificate of the Revenue officer of the
WP(C) No 16734 Of 2022 :6:
Corporation, there were two buildings in the property in the year 1998-99,
but in the revenue records, it is shown as paddy land. However, the
Tahasildar (LR), without considering the same, by Ext. P15 letter,
forwarded the application to the Revenue Divisional Officer (RDO) for
further action and served a copy to the petitioners. According to the
petitioners, since the property was converted as commercial plot with
buildings, the Tahasildar (LR) is duty bound to re-assess the tax
considering the property as commercial plot and ought not to have
forwarded the application under the Kerala Land Tax Act to the RDO to
obtain permission under S.27A of the Paddy Land and Wetland Act and
that Ext.P15 is illegal. The petitioners rely on decisions of this Hon'ble
Court in Global Education Trust v. State of Kerala [2020 (6) KLT 738]
and Cheranelloor Grama Panchayath v. Joy Thattil [2020 (5) KLT
763] and contend that no permission under Section 27A is required for
new building permit on a property, in which already a building was
constructed with approved permission from the authority. The petitioners
also relied on the decisions in State of Kerala and Others v. Binu
Mathew Chacko and other [2021(1) KLT 232], Reliance Industries
Ltd v. Commissioner of Land Revenue [2007(2) KLT 850] and Shaji
WP(C) No 16734 Of 2022 :7:
Chacko v. State of Kerala [2020(6) KHC 420] to contend that there is no
need to obtain permission under KLU order, on a property which was
already notified as residential/commercial area in the Master plan
published as per the provisions of Kerala Town Planning Act. According
to the petitioners, there is no paddy land in the vicinity and all the
surrounding properties are pure commercial plots and one portion of the
property was earlier acquired by the Government to construct a bye pass
road. Accordingly, the petitioners have sought to quash Ext.P15 and to
declare that the Tahasildar (LR) is duty bound to make an addition in the
BTR and to re-asses the property as residential/commercial plot as per the
provisions of the Kerala Land tax Act and for a declaration that there is no
need to obtain permission under S.27A of Paddy Land and Wetland Act for
the land in view of Ext. P4 Government order and the notified master plan.
4. A counter affidavit is filed by the 3 rd respondent, the Tahasildar
(LR), stating that the properties are described as 'Nilam' in the BTR and
the contention of the petitioners that since their properties fall within the
area earmarked as mixed Residential zone-1 as per the approved plan, the
authorities cannot insist to obtain permission under Section 27 A of the
Paddy Land and Wetland Act, is untenable and misconceived and the
WP(C) No 16734 Of 2022 :8:
petitioners have to obtain permission under Section 27 A of the Paddy
Land and Wetland Act before approaching the authorities under the Kerala
Land Tax Act seeking reassessment of tax.
5. A Statement has been filed on behalf of the 5 th respondent
Corporation stating that the property is included in the Detailed Town
Planning Scheme and is reserved for parks and open space.
6. Heard Sri. Unni K.K., the learned counsel for the petitioners and
Sri.Syamanthak B.S, the learned Government Pleader for respondents 1 to
4 and the learned standing counsel for Thiruvananthapuram Corporation.
7. Sri. Unni submits that Ext. P15 communication of the Tahasildar
(LR) cannot be sustained for the following reasons:
(i) The Government vide Ext. P4 order dated 30.11.1996 exempted
the property from Zoning Regulations of sanctioned master plan
for Thiruvananthapuram.
(ii) TRIDA issued Ext. P5 commencement certificate as per Section
15 (1) of Town planning Act and the Thiruvananthapuram
Corporation issued Ext. P6 building permit for construction of saw
mill in the property in the year 1998. Buildings were constructed
and tax was paid.
WP(C) No 16734 Of 2022 :9:
(iii). Even as per Ext. P15, there were two buildings in the property
constructed as per valid building permits.
(iv) The area is mixed residential zone.
8. Relying on the decision of this Court in Global Education Trust
(supra), Sri. Unni contends that if the land has been converted prior to the
enactment of Paddy Land and Wetland Act and utilized by obtaining
building permit, such land need not undergo the guidelines prescribed
under Section 27 A for regularisation. According to Sri. Unni, since the
petitioners have obtained valid permissions from the Government as per
the Town Planning Act and permits from TRIDA and the Corporation and
utilised the land before 2008, the petitioners need not apply for
regularisation under Section 27A and the authorities are bound to reassess
the tax by making an additional entry. Relying on the decision in
Cheranelloor Grama Panchayath (supra), Sri. Unni contends that
Section 27A cannot apply to a building permit granted prior to 30.12.2017.
The decisions in Reliance Industries Ltd., Shaji Chacko and Binu
Mathew Chacko (supra) were relied on to contend that no permission
under the Kerala Land Utilisation Order is necessary for any activity of
construction or use of any land in the residential zone or any other zone in
WP(C) No 16734 Of 2022 :10:
the Town Planning Scheme constituted as per the Town Planning Act
1108. Sri. Unni submits that in view of Ext. P4 Government order, there
was no need to forward Ext. P11 application submitted by the petitioners,
to the RDO, for permission under S.27A of the Paddy Land and Wetland
Act and the Tahasildar (LR) ought to have reassessed the property as
commercial plot/residential plot. Sri. Unni also relied on the decision in
LLMC Kizhakkambalam v. Mariyumma [2015 (3) KHC 19] wherein a
Division Bench of this Court held that without defacing the original entry
in the BTR, additional entry can be made with respect to the present tenure
of the land in appropriate cases and in accordance with law, governing the
field now.
Ext. P15 is cryptic order passed by the 3 rd respondent without any
application of mind. The Tahasildar (LR), after having found from records
that there existed two buildings in the property during the period 1998-99,
constructed on the basis of permits issued by the Corporation, ought not
have forwarded the application under the Kerala Land Tax Act to the RDO
to obtain permission under S.27A of the Paddy Land and Wetland Act,
without recording reasons. Though Ext. P6 building permit was produced
by the petitioners along with Ext. P11 application and Ext. P6 refers to
WP(C) No 16734 Of 2022 :11:
Ext. P4 Government order, the same was also not adverted to by the
Tahasildar (LR) while issuing Ext. P15. The 3rd respondent has not
considered the relevant materials while considering Ext. P11 application
and has not exercised the statutory duty under the Kerala Land Tax Act
while considering Ext. P11. Accordingly, Ext. P15 is set aside. The 3 rd
respondent, the Tahasildar (LR), is directed to reconsider Ext. P11
application and Exts. P12 and P13 forms afresh, in accordance with law
and after hearing the petitioners and adverting to the decisions referred
above within a period of six weeks from the date of receipt of a certified
copy of this judgment. The petitioners are free to furnish any documents in
support of the application, however, the same shall be furnished at the time
of production of the certified copy of the judgment.
Writ petition is disposed of.
Sd/-
MURALI PURUSHOTHAMAN
JUDGE
spc/
WP(C) No 16734 Of 2022 :12:
APPENDIX OF WP(C) 16734/2022
PETITIONER EXHIBITS
Exhibit P1 TRUE COPY OF THE TAX RECEIPT DATED 23.02.2022
ISSUED BY THE VILLAGE OFFICER, MANACAUD
Exhibit P2 TRUE COPY OF THE SALE DEED NO.466/2016 DATED
17.02.2016
Exhibit P3 TRUE COPY OF THE SALE DEED NO.513/2016 DATED
18.02.2016
Exhibit P4 TRUE COPY OF THE G.O(RT)4293/96/LAD DATED
30.11.1996
Exhibit P5 TRUE COPY OF THE COMMENCEMENT CERTIFICATE DATED
24.4.1998 ISSUED BY THE TRIDA
Exhibit P6 TRUE COPY OF THE BUILDING PERMIT DATED 10.7.1998
ISSUED BY THE THIRUVANATHAPURAM CORPORATION
Exhibit P7 TRUE COPY OF THE SITE PLAN DATED 24.4.1998 APPROVED
BY THE TRIDA
Exhibit P8 TRUE COPY OF THE REGULARIZATION ORDER WITH APPROVED
COMPLETION PLAN
Exhibit P9 TRUE COPY OF THE BASIC TAX REGISTER ISSUED BY THE
VILLAGE OFFICER
Exhibit P10 TRUE COPY OF THE A-REGISTER ISSUED BY VILLAGE
OFFICER
Exhibit P11 TRUE COPY OF THE APPLICATION DATED 23.03.2022
Exhibit P12 TRUE COPY OF THE FORM-A WITH REGARD TO SURVEY
NO.7/42
Exhibit P13 TRUE COPY OF THE FORM-A WITH REGARD TO SURVEY
NO.7/71
Exhibit P14 TRUE COPY OF THE REPORT DATED 23.3.2022 OF THE
VILLAGE OFFICER
Exhibit P15 TRUE COPY OF THE LETTER DATED 18.4.2022 OF THE 3RD
RESPONDENT
Exhibit P16 TRUE COPY OF THE APPROVED MASTER PLAN FOR
THIRUVANANTHAPURAM
