S. Padmanabhapillai and Partners; S. Velappan; S. Thankappan; S. Suresh v. State of Kerala, represented by Secretary to Government, Revenue Department; Revenue Divisional Officer; Tahasildar (LR); Village Officer; Thiruvananthapuram Municipal Corporation

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE MURALI PURUSHOTHAMAN** ## **THURSDAY, THE 13[TH] 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 _**v**_ **. Cheranelloor Grama Panchayath 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 3[rd] 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|