Saju Varghese and Biju Varghese v. State of Kerala and Others

## **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.24319 OF 2020(L)** ## **PETITIONERS:** - **1 SAJU VARGHESE, S/O. LATE C.V. VARGHESE, CHAZHOOR HOUSE, PANAMPILLY NAGAR, ERNAKULAM - 682036.** - **2 BIJU VARGHESE, S/O. LATE C.V. VARGHESE, CHAZHOOR HOUSE, PANAMPILLY NAGAR, ERNAKULAM - 682036.** **BY ADVS. SRI.PHILIP T.VARGHESE SRI.THOMAS T.VARGHESE SMT.ACHU SUBHA ABRAHAM SMT.V.T.LITHA SMT.K.R.MONISHA SMT.SHRUTHI SARA JACOB** ## **RESPONDENTS:** - **1 STATE OF KERALA REPRESENTED BY THE SECRETARY, REVENUE DEPARTMENT, GOVERNMENT OF KERALA, THIRUVANANTHAPURAM - 695001.** **2 THE DISTRICT COLLECTOR, ERNAKULAM - 682028.** 2 W.P.(C) No.24319 of 2020 - **3 THE REVENUE DIVISIONAL OFFICER, FORT KOCHI - 682001.** - **4 THE TAHSILDAR(LR) TALUK OFFICE, KANAYANNUR - 682011.** - **5 THE VILLAGE OFFICER, ERNAKULAM - 682011.** - **6 CORPORATION OF COCHIN REPRESENTED BY ITS SECRETARY, CORPORATION OFFICE, PARK AVENUE ROAD, ERNAKULAM - 682011.** - **7 GREATER COCHIN DEVELOPMENT AUTHORITY REPRESENTED BY ITS SECRETARY, SAHODARAN AYYAPPAN ROAD, KADAVANTHRA, ERNAKULAM - 682020.** - **R6 BY ADV. SRI.JIBU P THOMAS R7 BY ADV. SRI.VIPIN P.VARGHESE R7 BY ADV. SRI.ADARSH MATHEW R7 BY ADV. SMT. DHANYA T MALLAR R7 BY ADV. SMT.ATHIRA ANTONY A. SRI.K.J. MANURAJ GOVERNMENT PLEADER** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 03.02.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 3 W.P.(C) No.24319 of 2020 ## **W.P.(C) No.24319 of 2020** ## **-----------------------------------------------** ## **J U D G M E N T** Petitioners obtained a land measuring 4.386 cents situated in Ernakulam Village as per Ext.P9 assignment deed from the Greater Cochin Development Authority (the GCDA) for residential purpose under a Town Planning Scheme sanctioned by the Government under the Town Planning Act 1108. The land obtained by the petitioners, however, is shown in the revenue records as 'Nilam'. It is alleged by the petitioners that the aforesaid wrong entry of the land in the revenue records is affecting the convenient enjoyment of the land. Since the land is one allotted to the petitioners as a dry land for construction of a residential building, the petitioners preferred an application for changing the classification of the land in the revenue records. Ext.P10 is the application preferred by the petitioners in this regard. Ext.P10 application has now been 4 W.P.(C) No.24319 of 2020 rejected by the fourth respondent stating that an appeal has been preferred against Ext.P11 judgment on the basis of which Ext.P10 application is filed and that the petitioners have to obtain permission under Section 27A of the Kerala Conservation of Paddy Land Wetland Act, 2008 (the Act) for the purpose of seeking change of classification of the land. Ext.P12 is the communication issued in this regard by the fourth respondent. Ext.P12 is under challenge in the writ petition. 2. Heard the learned counsel for the petitioners as also the learned Government Pleader. 3. Ext.P9 title deed of the petitioners indicates that the land covered by the said document is one allotted to the petitioners by the GCDA for residential purposes in terms of a Town Planning Scheme framed under the Town Planning 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 W.P.(C) No.24319 of 2020 5 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 fourth respondent cannot insist compliance of the provisions of Act for considering the application submitted by the petitioner for change of classification of the land, even if the said land is 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. In the light of the said judgment of the Division Bench, Ext.P12 order rejecting Ext.P10 application 6 W.P.(C) No.24319 of 2020 preferred by the petitioners for change of classification of the land is unsustainable in law. In the result, the writ petition is allowed, Ext.P12 communication of the fourth respondent is quashed and the fourth respondent is directed to re-assess the land of the petitioners covered by Ext.P9 assignment deed as a dry land and make appropriate additional entry in the Basic Tax Register relating to the land indicating the present classification of the land. The petitioners shall submit application for re-assessment of the land in the prescribed form before the fourth respondent. The direction aforesaid shall be complied with, within two months from the date of receipt of the application for re-assessment. **Sd/-** **P.B.SURESH KUMAR, JUDGE.** YKB W.P.(C) No.24319 of 2020 7 ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** - **EXHIBIT P1** **TRUE COPY OF LETTER NO.4869/E AND RBI/93/GCDA ISSUED BY THE 7TH RESPONDENT TO MR.C.V. VARGHESE, DATED 07.04.1993.** - **EXHIBIT P2** - **TRUE COPY OF LETTER NO. 4869/E AND R/B1/93/GCDA ISSUED BY THE 7TH RESPONDENT TO MR.C.V. VARGHESE DATED 07.05.1993.** - **EXHIBIT P3 TRUE COPY OF RECEIPT ISSUED BY THE 7TH RESPONDENT TO MR. C.V. VARGHESE DATED 27.07.1993.** - **EXHIBIT P3(a) TRUE COPY OF RECEIPT ISSUED BY THE 7TH RESPONDENT TO MR. C.V. VARGHESE DATED 04.09.1993.** - **EXHIBIT P3(b) TRUE COPY OF RECEIPT ISSUED BY THE 7TH RESPONDENT TO MR. C.V. VARGHESE DATED 10.09.1993.** - **EXHIBIT P4 TRUE COPY OF LETTER NO.4869/E AND RBI/93/GCDA ISSUED BY THE 7TH RESPONDENT TO MR.C.V. VARGHESE DATED 18.09.1993.** - **EXHIBIT P4(a) TRUE COPY OF THE DRAFT SALE DEED ATTACHED ALONG WITH EXHIBIT P4.** - **EXHIBIT P5** **TRUE COPY OF LETTER NO. 4869/E AND R/B1/93/GCDA ISSUED BY THE 7TH** 8 W.P.(C) No.24319 of 2020 **RESPONDENT TO MR.C.V. VARGHESE DATED 03.12.1996.** - **EXHIBIT P6** **TRUE COPY OF THE DEATH CERTIFICATE OF MR.C.V.VARGHESE, ISSUED BY THE 6TH RESPONDENT DATED 08.06.2006.** - **EXHIBIT P7** - **TRUE COPY OF THE JUDGMENT IN WP(C) NO.19180/2006 DATED 08.08.2006.** - **EXHIBIT P8** - **TRUE COPY OF GO(MS) NO.03/07/RD ISSUED BY THE 1ST RESPONDENT DATED 06.01.2007.** - **EXHIBIT P9** - **TRUE COPY OF THE SALE DEED NO. 4506/2008 OF SRO ERNAKULAM DATED 05.11.2008.** - **EXHIBIT P10 TRUE COPY OF THE APPLICATION SUBMITTED BY THE PETITIONERS TO THE 5TH RESPONDENT DATED 08.06.2020.** - **EXHIBIT P11** - **TRUE COPY OF THE JUDGMENT IN WP(C) NO.24364/2019 DATED 28.10.2019.** - **EXHIBIT P12** - **TRUE COPY OF LETTER NO.H3-9120/2020 ISSUED BY THE 5TH RESPONDENT DATED 04.08.2020.** ## **RESPONDENT'S/S EXHIBITS:** ## **NIL** ## **//TRUE COPY//** ## **PA TO JUDGE**