Kasturba English Medium Trust v The Secretary, Eloor Municipality; The District Collector; The Tahsildar, North Paravur (WP(C) No. 20087 of 2020)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR** **THURSDAY, THE 08TH DAY OF OCTOBER 2020 / 16TH ASWINA, 1942** **WP(C).No.20087 OF 2020(I)** ## **PETITIONER:** **KASTURBA ENGLISH MEDIUM TRUST KASTURBA ENGLISH MEDIUM SCHOOL, KADAVU ROAD, MANJUMMEL, UDYOGAMANDAL, REP.BY ITS MANAGING TRUSTEE, SUNDARI LAKSHMAN, AGED 71, W/O.LAKSHMANA IYER, ASHTAPATI, UDYOGAMANDAL P.O.** **BY ADVS. SRI.DINESH R.SHENOY SRI.V.SUBHASH BHAT SRI.EBIN MATHEW SRI.P.ROHIT PREMANANDAN SHENOY** ## **RESPONDENTS:** **1 THE SECRETARY, ELOOR MUNICIPALITY ELOOR, PIN-683 501 2 THE DISTRICT COLLECTOR CIVIL STATION, KAKKANAD, COCHIN-682030 ADDL.R ADDL R3 THE TAHSILDAR, 3 NORTH PARAVUR, TALUK OFFICE, NORTH PARAVUR, PIN 683513. IS IMPLEADED AS PER ORDER DATED 08.10.2020 IN I.A. NO. 1/2020. R1 BY SRI.K.S.ARUNKUMAR, SC, ELOOR MUNICIPALITY R1 BY ADV. SRI.JUSTINE JACOB** W.P.(C) No. 20087 of 2020 ..2.. ## **OTHER PRESENT:** **GP. K.J.MANURAJ** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 08.10.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** W.P.(C) No. 20087 of 2020 ..3.. ## **W.P.(C) No.20087 of 2020** **-------------------------------------Dated this the 8[th] day of October, 2020** ## **JUDGMENT** Petitioner is a Trust running a school affiliated to the Central Board of Secondary Education (CBSE). Some of the buildings of the school are constructed in the lands covered by Exts.P1 and P2 documents. Since the lands covered by Exts.P1 and P2 documents were originally paddy lands, the petitioner applied for and obtained permission of the competent authority under the Land Utilisation Order (Kerala), 1967 for making use of the lands for other purposes. Ext.P11 is the order obtained by the petitioner in this regard. It is seen that even before Ext.P11 order, the petitioner had constructed a building in the lands covered by the said documents, after obtaining the requisite building permits from the erstwhile Eloor Grama Panchayat. After Ext.P11, the petitioner has made a few additional structures also in the land on the strength of the W.P.(C) No. 20087 of 2020 ..4.. building permits obtained from the Panchayat. During September, 2019, the petitioner applied for a building permit to replace the roof of the school building constructed by them during 2009 in the lands covered by Exts.P1 and P2 documents. On the said application, the petitioner was issued Ext.P23 communication by the first respondent stating that as the lands over which the building is put up are shown in the revenue records as paddy lands, the petitioner has to get their lands reclassified as dry lands in the revenue records and get the building constructed therein regularised in order to obtain the building permit sought for. In the meanwhile, the petitioner preferred an application before the third respondent for change of classification of the land as dry land. In response to the said application, the petitioner was issued Ext.P20 communication by the third respondent stating, among others, that in order to seek change of classification of the land, the petitioner has to obtain orders in terms of the provisions of the Kerala Conservation of Paddy Land and Wetland Act, 2008 (the Act). The writ petition, in the circumstances, is filed challenging W.P.(C) No. 20087 of 2020 ..5.. Ext.P23 communication issued by the first respondent and for a direction to the first respondent to grant the building permit sought for by the petitioner for change of the roof of the building without reference to the revenue records of the land and the provisions of the Act. 2. Pending disposal of the writ petition, the petitioner preferred I.A. No.2 of 2020 for amendment of the writ petition for incorporating a few additional reliefs. One of the reasons for seeking amendment of the writ petition is that the application preferred by the petitioner during the pendency of the writ petition for a fitness certificate of the school building was also declined on the grounds mentioned in Ext.P23. Another reason for seeking amendment of the writ petition is that Ext.P27 application preferred by the petitioner for reassessment of the lands covered by Ext.P11 order during the pendency of the writ petition was not attended to by the competent authority under the Kerala Land Tax Act, viz, the additional third respondent. 3. Heard the learned counsel for the petitioner as W.P.(C) No. 20087 of 2020 ..6.. also the learned Government Pleader. 4. Three issues have been raised by the petitioner in the writ petition; one pertains to the refusal of the first respondent Municipality in granting the building permit sought by them for changing the roof of the building, the other pertains to the change of classification of the lands covered by Ext.P11 order in the revenue records and the third one pertains to their right to get fitness certificate in respect of the building constructed based on the building permits obtained by them. 5. As noted, the building referred to in Ext.P23 is one constructed in the land covered by Ext.P11 order issued by the competent authority under the Land Utilisation Order. The construction of the building in the lands covered by Ext.P11 order cannot be said to be illegal in any manner. As such, according to me, the first respondent ought not have insisted the petitioner to change the classification of lands, for the purpose of considering the application for building permit. The stand of the first respondent that the petitioner had to seek regularisation of the building already constructed is also W.P.(C) No. 20087 of 2020 ..7.. unsustainable. Ext.P23 communication, in the circumstances, is liable to be set aside. The first respondent is bound to consider and grant the building permit applied for by the petitioner, if the building is one constructed in the land covered by Ext.P11 order and if the application of the petitioner is otherwise in order. 6. Coming to Ext.P20 communication, as noted, the stand taken by the third respondent is that the petitioner has to obtain necessary permission from the authorities under the Act for the purpose of seeking change of classification. In **Renji K Paul v** . **Revenue Divisional Officer,** 2019 (2) KLT 262, this court held that if the holder of a land which is not liable to be included in the data bank prepared under the Act prefers an application for permission to make use of the land for other purposes under the Land Utilization Order before the coming into the force of Act 29 of 2018, the provisions in the Act cannot be pressed into service in respect of the said land. Insofar as the petitioner has obtained permission under the Land Utilization Order in respect of the land involved in this W.P.(C) No. 20087 of 2020 ..8.. matter long prior to the coming into the force of the Act, the land of the petitioner was not liable to be included in the data bank prepared under the Act. In the said view of the matter, Ext.P20 communication is also liable to be set aside. 7. In **Iype Varghese v. Revenue Divisional Officer,** 2020 (5) KLT 403, this Court held that where statutory permission for change of user of land has been obtained for conversion of a paddy land to a dry land in terms of the provisions contained in Kerala Land Utilisation Order, 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 dry land in the said Register. In the light of the said decision, the third respondent ought to have reassessed the land of the petitioner under the Kerala Land Tax Act and issued appropriate directions to the authority concerned to make appropriate changes in the revenue records W.P.(C) No. 20087 of 2020 ..9.. as regards its classification. In the light of the said judgment, the competent authority under the Land Tax Act ought to have considered Ext.P27 application preferred by the petitioner for reassessment of the lands. In the result, the writ petition is allowed. Ext.P23 communication of the first respondent and Ext.P20 communication of the third respondent are set aside. The first respondent is directed to consider the application for building permit submitted by the petitioner irrespective of the classification of the land as also the provisions of the Act, and grant the building permit sought for by the petitioner, if the application is otherwise in order. The third respondent is directed to consider Ext.P27 application preferred by the petitioner after ensuring that the same is preferred in respect of the land covered by Ext.P11 order and re-assess the land as dry land. The third respondent shall also issue appropriate orders directing the officers concerned to change the classification of the land of the petitioner in the Basic Tax Register and other revenue records as dry land. The directions W.P.(C) No. 20087 of 2020 ..10.. aforesaid shall be complied withi, within two months from the date of receipt of a copy of this judgment. The issue relating to the fitness certificate raised by the petitioner in the writ petition is left open. **Sd/P.B.SURESH KUMAR JUDGE** ds 09.10.2020 W.P.(C) No. 20087 of 2020 ..11.. ## **APPENDIX** **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 TRUE PHOTOCOPY OF SALE DEED NO.1296/2003, ALANGAD SRO.** **EXHIBIT P2 TRUE PHOTOCOPY OF GIFT DEED NO.1554/2003, ALANGAD SRO.** **EXHIBIT P3 TRUE PHOTOCOPY OF SALE DEED NO.6149/1999, ALANGAD SRO.** **EXHIBIT P4 TRUE PHOTOCOPY OF STOP MEMO DATED 10/9/2004 ISSUED BY THE VILLAGE OFFICER, ELOOR VILLAGE.** **EXHIBIT P5 TRUE PHOTOCOPY OF RESOLUTION NO.26 WAS PASSED BY ELOOR GRAMA PANCHAYATH DATED 9/12/2004.** **EXHIBIT P6 TRUE PHOTOCOPY OF JUDGMENT DATED 19/11/2004 IN W.P.(C).NO.26854/2004.** **EXHIBIT P7 TRUE PHOTOCOPY OF REPORT OF THE ADDITIONAL TAHSILDAR, NORTH PARUR DATED 1/4/2005.** **EXHIBIT P8 TRUE PHOTOCOPY OF FORWARDING LETTER DATED 21/2/2005 ISSUED BY ELOOR GRAMA PANCHAYATH.** **EXHIBIT P9 TRUE PHOTOCOPY OF REPORT OF SENIOR TOWN PLANNER, ERNAKULAM DATED 21/3/2005 EXHIBIT P10 TRUE PHOTOCOPY OF PROCEEDINGS OF THE CHIEF TOWN PLANNER COLLECTOR, DATED 25/5/2005** W.P.(C) No. 20087 of 2020 ..12.. - **EXHIBIT P11** - **TRUE PHOTOCOPY OF PROCEEDINGS OF THE DISTRICT COLLECTOR, DATED 17/1/2006** - **EXHIBIT P12** - **TRUE PHOTOCOPY OF BA NO.270/2005 - 2006 DATED 12/2/2007 ISSUED BY THE ELOOR GRAMA PANCHAYATH.** - **EXHIBIT P13** - **TRUE PHOTOCOPY OF BA.NO.67/2010 - 2011 DATED 1/6/2010 ISSUED BY THE ELOOR GRAMA PANCHAYATH.** - **EXHIBIT P14 TRUE PHOTOCOPY OF ORDER DATED 23/3/2009 IN NO.243/2008 -2009** - **EXHIBIT P15 TRUE PHOTOCOPY OF LETTER ISSUED BY THE MANAGING TRUSTEE OF THE PETITIONER TO THE SECRETARY, ELOOR MUNICIPALITY DATED NIL.** - **EXHIBIT P16 TRUE PHOTOCOPY OF TAX RECEIPT DATED 8/8/2018 ISSUED TO THE PETITIONER.** - **EXHIBIT P17 TRUE PHOTOCOPY OF APPLICATION DATED 26/11/2019 SUBMITTED BY THE PETITIONER BEFORE THE VILLAGE OFFICER, ELOOR.** - **EXHIBIT P18 TRUE PHOTOCOPY OF REPORT OF THE VILLAGE OFFICER DATED 30/11/2019.** - **EXHIBIT P19 TRUE PHOTOCOPY OF APPLICATION DATED 7/1/2020 SUBMITTED BY THE PETITIONER BEFORE THE TAHSILDAR (LR) NORTH PARUR.** - **EXHIBIT P20 TRUE PHOTOCOPY OF LETTER DATED 24/1/2020.** - **EXHIBIT P21 TRUE PHOTOCOPY OF APPLICATION DATED 26/2/2020 FILED BEFORE THE RDO, FORT KOCHI.** W.P.(C) No. 20087 of 2020 ..13.. **EXHIBIT P22 TRUE PHOTOCOPY OF REMINDER LETTER DATED 22/6/2020 ISSUED BY THE PETITIONER TO THE 2ND RESPONDENT. EXHIBIT P23 TRUE PHOTOCOPY OF LETTER DATED 14/8/2020 B.A.NO.206/19-20 ISSUED BY THE 1ST RESPONDENT TO THE PETITIONER. EXHIBIT P24 TRUE PHOTOCOPY OF REPLY DATED 26/8/2020 ISSUED BY THE PETITIONER TO THE 1ST RESPONDENT. EXHIBIT P25 TRUE PHOTOCOPY OF APPLICATION DATED 19/06/2020 SUBMITTED BY THE PETITIONER BEFORE THE FIRST RESPONDENT TOGETHER WITH APPLICATION IN PROFORMA, CHALAN, RECEIPT AND THE FITNESS CERTIFICATE ISSUED BY THE ASST. EXECUTIVE ENGINEER, LSGD SUB DIVISION, ALANGAD FOR THE YEAR 2019-2010. EXHIBIT P26 TRUE PHOTOCOPY OF FITNESS CEERTIFICATE FOR SCHOOL BUILDING DATED 22/07/2020 ISSUED BY THE FIRST RESPONDENT. EXHIBIT P27 TRUE PHOTOCOPY OF APPLICATION DATED 01/10/2020 WITH FORM A SUBMITTED BY THE PETITIONER BEFORE THE 3RD RESPONDENT.**