Chakos Developers Private Limited v. State of Kerala and Others

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** # **`PRESENT`** ``` THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN ``` ``` TUESDAY, THE 7[TH] DAY OF JUNE 2022 / 17TH JYAISHTA, 1944 ``` ``` WP(C) NO. 11295 OF 2021 ``` ## **`PETITIONER:`** ``` CHAKOS DEVELOPERS PRIVATE LIMITED AN INCORPORATED COMPANY HAVING REGISTERED OFFICE AT DOOR NO.43/1341-B/4, ANNEX, 2ND FLOOR, C M COMPLEX, KALAVATH ROAD, PALARIVATTOM P.O., KOCHI-682025, REPRESENTED BY ITS DIRECTOR CHACKO CHERIAN, AGED 38, S/O. DR.CHERIYAN JACOB, DOOR NO.43/1341-B/4, ANNEX, 2ND FLOOR, C M COMPLEX, KALAVATH ROAD, PALARIVATTOM P.O., KOCHI-682025. ``` ``` BY ADV G.SREEKUMAR (CHELUR) ``` ## **`RESPONDENTS:`** ``` 1THE STATE OF KERALA REP. BY THE SECRETARY TO THE GOVERNMENT, LOCAL SELF GOVERNMENT DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM DISTRICT-695001. 2THE GREATER COCHIN DEVELOPMENT AUTHORITY, REPRESENTED BY ITS SECRETARY, HAVING OFFICE AT GCDA BUILDING, KADAVANTHRA P.O., ERNAKULAM DISTRICT-682020. 3THE KOCHI MUNICIPAL CORPORATION, REPRESENTED BY ITS SECRETARY, VYTTILA ZONAL OFFICE, ENGINEERING AND TOWN PLANNING, VYTTILA P.O., ERNAKULAM DISTRICT-682019. 4THE SECRETARY, KOCHI MUNICIPAL CORPORATION, VYTTILA ZONAL OFFICE, ENGINEERING AND TOWN PLANNING, VYTTILA P.O., ERNAKULAM DISTRICT-682019. ``` **2** ## **W.P.(C).No.11295/2021** - `5 THE DISTRICT COLLECTOR, OFFICE OF THE DISTRICT COLLECTOR, COLLECTORATE, KAKKANAD P.O., ERNAKULAM DISTRICT-682030.` - `6 THE TALUK TAHSILDAR, KANAYANNUR TALUK OFFICE, NEAR BOAT JETTY, ERNAKULAM DISTRICT, PINCODE-682023.` ``` BY ADV SHRI.K.JANARDHANA SHENOY, SC, CORPORATION ``` ## **`OTHER PRESENT:`** ``` SRI.VIPIN.P.VARGHESE, SC, GCDA ``` ## **`THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 07.06.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:`** **W.P.(C).No.11295/2021** **3** ## **P.V.KUNHIKRISHNAN, J. -------------------------------W.P.(C).No.11295 of 2021 ---------------------------------------------Dated this the 07[th] day of June, 2022** ## **JUDGMENT** This writ petition is filed with following prayers: - i. Call for the records leading to Ext P10 and may be pleased to issue a writ of certiorari to quash the same. - ii. Issue a writ of mandamus or any other appropriate writ order or direction commanding the 4[th] respondent to grant the building permit by allowing the building permit application of the petitioner or putting up the construction of a go down/ ware house in the subject property, within stipulated time limits as may be specified by this Hon'ble court, in the interest of justice. - iii. To pass any such or further orders as the petitioner may seek and this Hon'ble Court deem fit to grant. ## (SIC) 2. Petitioner, which is a company, purchased the property covered by Ext.P1. The land was originally allotted by the GCDA for the permissible use to put up a warehouse. The petitioner applied for construction of a godown and this is **4** ## **W.P.(C).No.11295/2021** refused in Ext.P10 stating that since in the BTR this is included as nilam but in the data bank this is included as purayidam and therefore sanction has to be obtained under the provisions of the Kerala Conservation of Paddy Land and Wetland Act, 2008. According to the petitioner, in the light of the decision of this Court which is produced as Ext.P9, Ext.P10 will not stand. Hence this writ petition. 3. Heard the learned counsel for the petitioner, learned Government Pleader, learned Standing Counsel for the 2[nd] respondent and the learned Standing Counsel for respondents 3 and 4. 4. I perused Ext.P10 and Ext.P9 judgment of this Court. A perusal of Ext.P9 judgment of this Court will show that the point raised by the petitioner is covered in his favour in this judgment. Therefore the Corporation has to reconsider the matter in the light of Ext.P9 judgment. It will be better to extract the relevant portion of Ext.P9 judgment ( **State of Kerala and Others v. Binu Mathew Chacko and Others** [2020 (6) KHC 717]): “23. In our view these later provisions introduced into Act, 2008 will not in any **5** ## **W.P.(C).No.11295/2021** manner interfere with the building site sold to the purchasers much before the introduction of the said provisions. Moreover, as we have said earlier, rule 3A of Kerala Municipality Building Rules, 1999 have an overriding effect on the building rules and therefore, the Kochi Corporation was not competent enough to insist the permit holder to secure necessary orders as per the provisions of Act, 2008 since the plot was allotted in the Elamkulam West Town Planning Scheme. 24. The issue is also no more res integra since it was considered by a learned Single Judge of this Court in **Reliance Industries Ltd. and** **Others v. The Commissioner of Land Revenue and Others** [2007(2)KHC 346=2007(2)KLT 850] wherein it was held that no permission under the Kerala Land Utilization Order is necessary for any activity of construction or use of any land in the residential use zone or any other zone in the town planning scheme constituted as per the Town Planning Act, 1108. Also, recently in **Shaji Chacko v State of Kerala and Others** [2020 (6) KHC 420] a learned single judge of this court has held in unequivocal terms that if any Town Planning Scheme does not save the land and area for cultivation of any crops mentioned under the Land Utilisation Order **6** ## **W.P.(C).No.11295/2021** 1967, it has to be assumed that, through the process of law, power of Collector to command the holder of land to cultivate crops has been taken away. Anyhow while the judgment in **Reliance Industrie** s was holding the field the Apex Court in **Revenue Divisional Officer, Fort Kochi and others v. Jalaja Dileep and another** (supra) taking into account the provisions of the Kerala Conservation of Paddy land and Wetland Act, 2008 and the Kerala Land Utilization Order, 1967 held that the entries made in the BTR cannot be defaced, overruling the Division Bench of this Court in **Revenue Divisional Officer, Fort Kochi and others v. Jalaja Dileep and another** [2014 (1) KHC 96= 2014 (1) KLT 161]. Anyhow later a Division Bench of this Court in **LLMC Kizhakkambalam v. Mariyumma** [2015(2) KLT 516] held that without defacing the original entry in the Basic Tax Register additional entry can be made with respect to the present tenure of the land in appropriate cases and in accordance with law, which is governing the field now. We are in respectful agreement with the proposition so laid down in **Mariyumma** , supra, in the facts and circumstances of the case at hand. 25. Taking into account all the above aspects, we are of the considered opinion **W.P.(C).No.11295/2021** **7** that the appellants have not made out any case justifying interference with the judgment of the learned Single Judge so far as the basic facts are concerned. However, in view of the judgment of the Division Bench of this Court in **Mariyumma** supra, an owner of a property has to make an application before the concerned revenue authority to make additional entry in the Basic Tax Register showing the present tenure of land. Therefore, petitioner is permitted to make a suitable application before the appropriate revenue authority to make the additional entry in the BTR and if any such application is filed along with a copy of this judgment, it shall be considered and necessary addition shall be made accordingly, at the earliest and at any rate, within a month thereafter. We further make it clear that thereafter the petitioner is at liberty to make suitable application under section 6A of the Kerala Land Tax Act, 1961 to make appropriate entry and collect tax accordingly. However, we make it clear that the pendency of the said applications shall not stand in the way of Kochi Corporation to consider the pending permit application **W.P.(C).No.11295/2021** **8** taking into account the observations made above at the earliest and at any rate within a month from the date of receipt of a copy of this judgment.” 5.In the light of the same, the Corporation has to reconsider the matter. For passing fresh orders, Ext.P10 can be set aside. Therefore, this writ petition is allowed in the following manner: 1. Ext.P10 is set aside. 2. The 4[th] respondent is directed to reconsider the matter in the light of Ext.P9 judgment and pass appropriate orders in it in accordance to law, as expeditiously as possible, at any rate, within two months from the date of receipt of a copy of this judgment. JV sd/- **P.V.KUNHIKRISHNAN JUDGE** **9** ## **W.P.(C).No.11295/2021** ## APPENDIX OF WPC 11295/2021 - `PETITIONER EXHIBITS EXHIBIT P1 A TRUE COPY OF THE DOCUMENT EXECUTED IN THE NAME OF THE PETITIONER COMPANY DATED 16.1.14 AND BEARING NO.273 OF 14 OF THE ERNAKULAM S R O.` - `EXHIBIT P2 A TRUE COPY OF THE RECEIPT ISSUED BY THE VILLAGE OFFICER, ELAMKULAM IN THE NAME OF THE PETITIONER COMPANY DATED 6.8.20.` - `EXHIBIT P3 A TRUE COPY OF THE POSSESSION CERTIFICATE ISSUED BY THE ELAMKULAM VILLAGE OFFICER DATED 11.2.21.` - `EXHIBIT P4 A TRUE COPY OF THE FURTHER RECEIPT ISSUED BY THE ELAMKULAM VILLAGE OFFICER DATED 15.2.21.` - `EXHIBIT P5 A TRUE COPY OF THE SKETCH GIVEN BY THE GCDA TO THE PETITIONER DATED 4.12.12.` - `EXHIBIT P6 A TRUE COPY OF THE RELEVANT PAGE OF THE BTR ISSUED BY THE VILLAGE OFFICER, ELAMKULAM VILLAGE OFFICE DATED 16.2.21.` - `EXHIBIT P7 A TRUE COPY OF THE LAND IDENTIFICATION DETAILS IN THE DATA BANK ISSUED BY THE KRISHI BHAVAN, VYTTILA ISSUED BY THE VILLAGE OFFICER, ELAMKULAM.` - `EXHIBIT P8 A TRUE COPY OF THE COMMUNICATION BY THE GCDA, KOCHI DATED NIL.` - `EXHIBIT P9 A TRUE COPY OF THE JUDGMENT DELIVERED AND REPORTED IN 2020 (6) KHC 717 DATED 4.12.2020.` - `EXHIBIT P10 A TRUE COPY OF THE COMMUNICATION BY THE KOCHI MUNICIPAL CORPORATION SERVED ON THE PETITIONER COMPANY DATED 8.4.21.` - `EXHIBIT P11 A TRUE COPY OF THE REPRESENTATION OF THE PETITIONER COMPANY SUBMITTED BEFORE THE TAHSILDAR, KANAYANNUR TALUK OFFICE DATED 2.3.21.` - `EXHIBIT P12 A TRUE COPY OF A RECEIPT ISSUED FOR` **10** ## **W.P.(C).No.11295/2021** ``` THE PAYMENT OF PROPERTY TAX ISSUED BY THE MUNICIPAL CORPORATION DATED 7.8.2015. Exhibit P13TRUE COPY OF THE JUDGMENT IN W.P(C) 23261/2021 DATED 12/01/2022 OF THIS HONOURABLE COURT ```