High Court of KeralaSingle Judge2021-02-03Disposed of with directions to grant building p...

M/S Arya Bhangy Builders Pvt Ltd v. Kochi Municipal Corporation and Others

Case / Petition Number:WP(C).No.22950 OF 2019(P)

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: P. B. Suresh Kumar
Judgment Date: 2021-02-03
Court Decision / Holding: The writ petition is disposed of directing the Kochi Municipal Corporation to accept the applicant’s building-permit application and grant the permit if the application, on other counts, is in order, within three weeks from the date of submission. The petitioner is free to file an appropriate application under the Kerala Land Tax Act for re-assessment of the land to reflect its current classification as dry land, with the Basic Tax Register updated accordingly.
Final Disposition: Disposed of with directions to grant building permit if otherwise in order; petitioner may pursue reassessment under the Kerala Land Tax Act to reflect dry-land classification with appropriate entries in the Basic Tax Register.

Parties to the Case

Appellants / Petitioners

M/S Arya Bhangy Builders Pvt Ltd

Respondents

Kochi Municipal Corporation
Executive Engineer-II, Kochi Municipal Corporation (Head Office)
Assistant Executive Engineer, Zonal Office, Kochi Municipal Corporation, Vytilla
Greater Cochin Development Authority
Revenue Divisional Officer, Jacob Road, Fort Kochi
Agricultural Field Officer, Krishi Bhavan (Cochin Corporation), Vytilla
Kerala State Remote Sensing and Environment Centre
State of Kerala, represented by Chief Secretary
Village Officer, Elamkulam Village, Kadavanthra

Legal Representation & Advocates

Counsels for Petitioners

• K.C. Eldho
• Mallenathan M.
• Smt. K. Sindhu Elias
• Smt. Haritha Jayan
• Shri. Avinash K. Krishnan

Counsels for Respondents

• Sri K. Anand, SC, Kochi Corporation
• Adv. Arun Antony
• Sri Mohammed Anzar K.J., Spl.G.P. for Revenue

Case Synopsis & Summary

The petitioner, M/S Arya Bhangy Builders Pvt Ltd, sought a building permit from the Kochi Municipal Corporation to construct a new building on land measuring 8.99 ares at Elamkulam Village, Ernakulam district, acquired by the State Government for residential plots under a Town Planning Scheme framed under the Town Planning Act. The Ext.P1 assignment deed is the basis for construction, but a portion of the land (4.99 ares) is shown as Nilam in revenue records. The Corporation refused to grant the permit unless the land-use is altered under Sections 27A and 27C of the Kerala Conservation of Paddy Land Wetland Act, 2008. The petitioner contends that the land is controlled by a Town Planning Scheme and thus the Act cannot apply; the land’s status should be governed by development schemes and, as such, permission is deemed to have been granted under the Kerala Land Utilization Order. The petitioner relies on State of Kerala v. Binu Mathew Chacko and others (2020) 6 KHC 717 and Iype Varghese v. Revenue Divisional Officer (2020) 5 KLT 403 to support this position. The Court disposed of the petition by directing the Corporation to accept the building-permit application if otherwise in order, within three weeks, and allowed reassessment under the Kerala Land Tax Act to reflect the current classification as dry land with appropriate Basic Tax Register entries. The decision also cites related judgments (WPC 4489/2019; WPC 351/2019) in the Appendix exhibits.

Provisions of Law Cited

Kerala Conservation of Paddy Land Wetland Act, 2008 – Sections 27A, 27CTown Planning Act, 1108Kerala Land Tax ActKerala Land Utilization Order

Legal Doctrines & Maxims

Permission is deemed to have been granted for such lands under the Kerala Land Utilization Order.

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioner submits that the land is part of a Town Planning Scheme framed under the Town Planning Act and that the 4.99 acres (Nilam) shown in revenue records should not attract the Kerala Conservation of Paddy Land Wetland Act, 2008. Relying on the Division Bench decision in State of Kerala v. Binu Mathew Chacko and others (2020) 6 KHC 717 and on Iype Varghese v. Revenue Divisional Officer (2020) 5 KLT 403, the petitioner contends the Act does not apply to lands acquired, developed, and allotted by Governmental Agencies under development schemes framed under Town Planning legislation, and that permission for change of user can be deemed under the Kerala Land Utilization Order. The petitioner seeks directions to permit building and for reassessment under the Kerala Land Tax Act if required. Respondents: The Corporation contends that the Act is applicable to Paddy Land Wetlands and that a change of user is required for granting a building permit. They rely on statutory provisions in the Act to justify ensuring compliance, at least to adjust land use and tax records per the Nilam classification until proper reassessment is effected.

Contentions of Respondents

The Kochi Municipal Corporation maintains that the relevant provisions of the Act apply and that a change of land use is necessary for building permits. The Respondents argue that lands acquired under Town Planning Schemes cannot be exempt from due procedure, and a proper classification and tax treatment must be made, including potential reassessment under the Land Tax Act.

Cited Precedents (4)

Case Name	Citation	Treatment	Explanation
State of Kerala and others v. Binu Mathew Chacko and others	2020 (6) KHC 717	Positive	Division Bench held that the Kerala Conservation of Paddy Land Wetland Act, 2008 does not apply to lands acquired, developed, and allotted by Government agencies under Town Planning schemes; permission deemed under Kerala Land Utilization Order.
Iype Varghese v. Revenue Divisional Officer	2020 (5) KLT 403	Positive	Court held that where statutory permission for change of use is granted, the Land Tax Act requires a fresh assessment reflecting the land-use change.
WPC 4489 of 2019	WPC No.4489 of 2019	Mentioned Only	Judgment referenced as an exhibit; not discussed in detail in the body of the judgment.
WPC 351 of 2019	WPC No.351 of 2019	Mentioned Only	Judgment referenced as an exhibit; not discussed in the body of the judgment.

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Extracted Judgment Text

Exact text extracted from official judgment records.

# **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, THIRUVANANTHAPURAM695001.** - **9 THE VILLAGE OFFICER, ELAMKULAM VILLAGE, KADAVANTHRA, ERNAKULAM682020.** **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** ## **-----------------------------------------------** ## **J U D G M E N T** 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)** **4** 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)** **5** 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 reassessment under the Kerala Land Tax Act, the land of the **WP(C).No.22950 OF 2019(P)** **6** 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 **7** ## **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 NO4489 OF 2019 DATED 18.10.2019** **8** ## **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**