Sreekumaran B. v Palakkad Municipality and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **THURSDAY, THE 04TH DAY OF JUNE 2020 / 14TH JYAISHTA, 1942** ## **WP(C).No.10568 OF 2020(U)** ## **PETITIONER :** ## **SREEKUMARAN .B, AGED 54 YEARS** **S/O.LATE BALAKRISHNAN SANKARANKANDATH HOUSE, 16/161, THAREKKAD, PALAKKAD DISTRICT 678 001.** **BY ADVS.** **SRI.JACOB SEBASTIAN SRI.K.V.WINSTON SMT.ANU JACOB** ## **RESPONDENTS :** - **1 THE PALAKKAD MUNICIPALITY, REPRESENTED BY ITS SECRETARY, MUNICIPAL OFFICE, PALAKKAD 678 001.** - **2 THE DISTRICT TOWN PLANNING OFFICER, PALAKKAD, CIVIL STATION, PALAKKAD 678 001.** - **3 THE REVENUE DIVISIONAL OFFICER, OFFICE OF THE REVENUE DIVISIONAL OFFICER, COLLEGE ROAD, PALAKKAD DISTRICT 678 001.** - **4 THE LOCAL LEVEL MONITORING COMMITTEE FOR PALAKKAD MUNICIPALITY CONSTITUTED UNDER THE CONSERVATION OF PADDY AND WETLAND ACT REPRESENTED BY TIS CONVENOR, THE AGRICULTURAL OFFICER, PALAKKAD PALAKKAD, 678 001.** - **5 KERALAL STATE REMOTE SENSING AND ENVIRONMENT CENTRE, 1ST FLOOR, VIAKS BHAVAN, NEAR LEGISLATIVE ASSEMBLY, UNIVERSITY OF KERALA SENATE HOUSE CAMPUS, PMG, THIRUVANANTHAPURAM KERALA, 695 033, REP. BY ITS DIRECTOR.** - **6 THE STATE OF KERALA, REPRESENTED BY ITS SECRETARY, DEPARTMENT OF LOCAL SELF GOVERNMENT, THIRUVANANTHAPURAM 695 001.** W.P(C) No.10568 of 2020 2 **R1 BY ADV. SHRI.BINOY VASUDEVAN, SC, PALAKKAD MUNICIPALITY** **SRI.BINOY VASUDEVAN,SC** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 04.06.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** W.P(C) No.10568 of 2020 3 ## **ALEXANDER THOMAS, J. =========================== W.P(C) No.10568 of 2020** **===========================** Dated this the 04[th] day of June, 2020 ## **JUDGMENT** The case set up in this Writ Petition (Civil) is as follows: Petitioner owns a commercial plot having an extent of 21.7 cents in survey number 1477/1C and 1478/3, Block 2/35 of Palakkad-II village in Palakkad Taluk within the limits of the Palakkad Municipality. The property originally belonged to late C.K.Balakrishnan, petitioner's father, is having an order in terms of clause 6(2) of the Kerala Land Utilization order for the construction of a commercial building. The property stood completely converted prior to the coming into force of the Conservation of Paddy Land and Wet Land Act, 2008. After the death of late Balakrishnan and his wife Kamalam, the property devolved upon their children and the plot was allotted to the petitioner. The property stood wrongly included as nilam in the land data bank prepared in terms of the Conservation of Paddy Land and Wet Land Act, 2008. Petitioner submitted an application to remove the plot from the land data bank. The fourth respondent by his proceedings dated October 20, 2018 sought for satellite image and report from the fifth respondent. The matter is pending at that stage and has not W.P(C) No.10568 of 2020 4 progressed despite the petitioner approaching respondents three and four several times. When the petitioner applied for building permit, the Municipality rejected the application stating that the plot falls in a Paddy Zone in terms of the master plan; that the Municipality require a portion of the plot for road widening; it is also stated that the plot falls in the land data bank and that the plot has a KLU order for commercial purpose in the name of its previous owner. 1[st] respondent rejected the application saying that area for the proposed building is located at the spot zoned as Paddy zone under a DTP scheme. All the surrounding properties consist of buildings and the area is a pucca dry land. Most of the buildings around the petitioner's plot are about 15 to 20 years old. Petitioner is seriously prejudice by above order. In the light of these averments and contentions, the petitioner has filed the instant Writ Petition (Civil) with the following prayers: - “ _I. issue a writ in the nature of mandamus directing the 1[st] respondent to issue a building permit to the petitioner as applied for;_ - _II. call for the Detailed Town Planning Scheme and approved Master plan of the first respondent and quash it in so far as it relates to the property of the petitioner by the issue of a writ of certiorari;_ - _III. call for the records leading to issue of Ext.P6 by the first respondent and quash it of a writ of certiorari or other appropriate writ or order; and_ - _IV. issue such other writ, order or direction as this Hon'ble Court deems fit and proper in the circumstances of the case._ ” W.P(C) No.10568 of 2020 5 2. Heard Sri.Jacob Sebastian, learned counsel appearing for the petitioner, Sri.Binoy Vasudevan, learned Standing Counsel for the Palakkad Municipality appearing for the 1[st] respondent and Sri.Saigi Jacob Palatty, learned Senior Government Pleader appearing for respondent Nos.2 to 6. 3. In the instant case, it appears that though the subject property has been classified as 'Nilam/paddy land' in the Basic Tax Register (BTR) entries, the same was converted as garden land or purayidam, much prior to 12.08.2008 (date of coming into force of the Kerala Conservation of Paddy Land and Wetland Act, 2008). As a matter of fact, in the instant case, the petitioner's predecessor has indeed secured Ext.P-2 order dated 28.10.1997 issued by the 3[rd] respondent-Revenue Divisional Officer under Rule 6(2) of the Kerala Land Utilization Order, 1967, whereby necessary permission has already been given for change of use of the land for any purpose including for construction of a residential building or for a commercial building. However, it appears that the subject property has been formally included in the land data bank and therefore, the petitioner has also filed the requisite application for exclusion of the subject property and the said application is pending before the 4[th] respondent-Local Level Monitoring Committee, as can be seen from Ext.P-5 proceedings dated 20.10.2018 (serial No.5 thereof) issued by the Agricultural Officer W.P(C) No.10568 of 2020 6 concerned, who is the ex-officio convenor of the LLMC addressed to the Director of the Kerala State Remote Sensing and Environment Centre requesting the latter to make available the satellite pictures of the property, etc. The petitioner's application for grant of building permit has been rejected as per the impugned Ext.P-6 order by the Secretary of the 1[st] respondent-Palakkad Municipality citing the ground that the property has been included in the land data bank and that Ext.P-2 order under the Kerala Land Utilization Order has been issued not in favour of the petitioner, but in favour of his predecessor and further that there is a pending district town planning scheme and that the property is within the agricultural zone and that the municipality also intends to widen the road in the nearby area, etc. It is in the light of these aspects, the petitioner has sought for reliefs in the above writ proceedings. 4. There does not appear to be any dispute that Ext.P-2 order dated 28.10.1997 has been issued by the 3[rd] respondent-Revenue Divisional Officer in exercise of the statutory power under Rule 6(2) of the Kerala Land Utilization Order granting necessary permission to the property holder to use the land for any purpose including for construction of the residential building or commercial purpose. If the subject property covered by Ext.P-2 is the same as the one covered by the building permit referred to in Ext.P-6, then the statutory permission given to the predecessor-in- W.P(C) No.10568 of 2020 7 interest of the petitioner could also be equally invoked by the petitioner. Therefore, the said objection that the petitioner will have to get fresh permission under the Kerala Land Utilization Order is absolutely untenable and the same will stand overruled. However, since the property has been formally classified as 'Nilam/Paddy Land' in the Basic Tax Register as well as in the data bank, the petitioner will have to secure formal orders for excluding the property from the land data bank and should also thereafter obtain orders from the Tahsildar concerned for reassessment of the subject property in terms of Sec.6A of the Kerala Land Tax Act, for securing additional entries in the BTR to show the changed nature of land as 'garden land or purayidam'. Those formalities will have to be strictly adhered to by the petitioner. But since the Kerala Land Utilization permission as per Ext.P-2 has already been issued much prior to 30.12.2017 has been issued on 28.10.1997, which is much prior to the cut off date of 30.12.2017 (date of coming into force of the amended provisions of the 2008 Act, which has introduced Sec.27A thereof). The petitioner is entitled to seek for reassessment of the subject property under Sec.6A Kerala Land Tax Act, without having to pay the higher amounts as per the amended provisions of the 2008 Act, including Sec.27A thereof as well as the amended provisions and the Rules framed thereunder, etc. W.P(C) No.10568 of 2020 8 5. It is by now well settled by a series of rulings of this Court that where the subject property has been converted as Garden Land or Purayidam prior to 12.08.2008 (date of coming into force of the Kerala Conservation of Paddy Land and Wetland Act, 2008) and where the property holder has filed the requisite application under Rule 6(2) of the Kerala Land Utilization Order for change of user of the land, before 30.12.2017 (date of coming into force of the amended provisions of the 2008 Act, which has introduced Sec.27A thereof, then in such a case, the property holder is entitled to get his request is considered I terms of Rule 6(2) of the KLU Order and in such a case none of the adverse provisions contained in the amended provisions of the 2008 Act, including Sec.27A thereof and the amended Rule framed thereunder cannot be enforced as against such a property holder. In other words, the application under Rule 6(2) of the KLU Order has to be considered strictly in terms of that provision and without insisting for the amounts conceived as per the amended provisions of the 2008 Act including Sec.27A thereof and the amended provisions of the Rules (refer _**Geo Peter v. Revenue Divisional Officer**_ [2019 (3) KLT 838], _**Renjith K.Paul v. Revenue Divisional Officer**_ [2019 (2) KLT 262], _**Tahsildar, Thodupuzha Taluk and another v. Renjth George**_ [2020 (1) KHC 865 (DB)] _**LLMC, Kizhakkambalam Grama Panchayath and others v.**_ W.P(C) No.10568 of 2020 9 ## _**Mariumma and another**_ [2015 (2) KLT 516 (DB), etc.]. 6. It has also been held by this Court in judgment in W.P(C) No.8645/2020 that in such case, where the Kerala Land Utilization application has been filed before the cut off date, then the party cannot be mulcted to pay the amounts as per the amended provisions of the 2008 Act and the amended provisions of the Rules, including Rule 12(17) of the Amended Rules. That aspect of the matter is ordered and declared in this case as well. 7. As regards the objection that the subject property is lying within an agricultural zone, as per zoning norms, etc., it has been borne in mind that the subject property has already secured necessary permission under Rule 6(2) of the Kerala Land Utilization Order for any purpose including construction of a residential building or commercial building. The property has been converted as 'garden land or purayidam', much prior to the coming into force of the 2008 Act. Since that is the position, the said objection may not be tenable. However, as regards the issue regarding the pendency of the town planning scheme, this Court has held in various decisions as in _**District Town Planner, Maappuram and others v. Vinod and others**_ [2019 (3) KHC 673] and _**Thalassery Municipality v. Puthalath Balakrishnan**_ [2019 (3) KLT 154] that in such cases, the owners of the property have the statutory right to offer the land to be W.P(C) No.10568 of 2020 10 purchased by the municipality under Sec.67 of the Kerala Town and Country Planning Act, 2016 and if the municipality refuses to do so, then within the statutory outer time limit of 60 days conceived as per Sec.67(6) of the said Act, then the building owners are entitled to seek grant of building permit in accordance with the applicable Building Rules. Those aspects of the matter has also been dealt with in Ext.P-8 judgment rendered by this Court on 22.11.2019 in W.P(C)No.30841/2017. The petitioner would urge that he has already filed Ext.P-7 statutory purchase notice dated 15.05.2020 before the Secretary of the 1[st] respondent-Palakkad Municipality in terms of the provisions contained in Sec.67(6) of the Kerala Town and Country Planning Act and that if the said municipal authority does not take a positive decision to acquire the land within 60 days from the receipt of such statutory notice, then the land owner like the petitioner will get the indefatigable right to seek for permission for the building construction and for issuance of the building permit in terms of the applicable Building Rules and the objections regarding the pending town planning scheme will not have any tenability thereafter. 8. Accordingly, the following directions and orders are passed: (i)It is ordered and declared that the benefit of Ext.P-2 statutory permission granted under Rule 6(2) of the Kerala Land Utilization Order in favour of the petitioner's predecessor would W.P(C) No.10568 of 2020 11 also be equally claimed by the petitioner as well and therefore, the aforesaid objection noted in Ext.P-6 rejection order will stand rescinded. (ii) The 4[th] respondent-Local Level Monitoring Committee will take up for consideration the matters raised in the application filed by the petitioner for exclusion of the subject property from the land data bank as referred to as per serial No.5 of Ext.P-5 and after affording reasonable opportunity of being heard to the petitioner and taking note of the statutory permission of conversion already secured in respect of the subject property by the petitioner as per Ext.P-2 dated 28.10.1997 issued by the 3[rd] respondent-Revenue Divisional Officer under Rule 6(2) of the Kerala Land Utilization Order, should pass orders on the said plea of the petitioner for exclusion of the subject property from the land data bank, without any further delay, at any rate within six weeks from the date of production of a certified copy of this judgment. (iii)In this regard, the specific contention of the petitioner that since Ext.P-2 permission has already been granted, the orders of exclusion from the land data bank is only formal and nature and that therefore, the 4[th] respondent-Local Level Monitoring W.P(C) No.10568 of 2020 12 Committee is bound to pass such orders for formal exclusion of the land from the land data bank, should also be duly taken note of the 2[nd] respondent. (iv)After the petitioner obtains orders from the 4[th] respondentLocal Level Monitoring Committee for exclusion of the subject property from the land data bank, the petitioner may approach the Tahsildar concerned by filing appropriate representation seeking for re-assessment/fresh assessment of the subject property covered by Ext.P-2, in terms of Sec.6A of the Kerala Land Tax Act and such application may be filed along with the certified copy of this judgment. On filing of such application, the Tahsildar will afford reasonable opportunity of being heard to the petitioner and then should pass orders on the said plea for fresh assessment/re-assessment of the subject property in terms of Sec.6A of the Kerala Land Tax Act, so as to secure additional entries in the BTR to show the changed nature of the land as 'garden land or purayidam' instead of the earlier BTR entries as 'paddy land or Nilam', without much delay, preferably within a period of one month from the date of filing of such application, along with a certified copy of this judgment as well as the copy of the proceedings issued by the 4[th] respondent-LLMC excluding W.P(C) No.10568 of 2020 13 the subject property from the land data bank. While doing so, since the requisite KLU application and KLU permission has already been secured much before the cut off date of 30.12.2017, the petitioner cannot be mulcted to pay any amounts conceived as per the amended provisions of the 2008 Act and the amended provisions of the Rules and such orders may be passed strictly in terms of the dictum laid down by the judgments of the Division Bench of this Court in cases as in **Mariumma's** case (supra) and _**Renjith K.Paul's**_ case (supra), etc. 9. Further it is ordered that in case, the competent authority among the 1[st] respondent-Palakkad Municipality does not take a positive decision to acquire the subject property covered by Ext.P-6 purchase notice dated 15.05.2020 within the statutory outer time limit of 60 days, as conceived in Sec.67 of the Kerala Town and Country Planning Act, etc., then the petitioner will get the indefatigable right to seek for permission for construction of building in the subject property, in accordance with the applicable building rules and such a scenario, it will not be open to the 1[st] respondent-Municipality to refuse such consideration merely on the ground of pendency of the town planning scheme. 10. Further it is ordered that the objections that the subject property is the agricultural zone, etc., will not also be tenable for the W.P(C) No.10568 of 2020 14 reasons already dealt with hereinabove. 11. The petitioner will produce certified copies of this judgment, along with copies of the memorandum of this W.P(C) before the 4[th] respondent-Local Level Monitoring Committee as well as before the Secretary of the 1[st] respondent-Palakkad Municipality for necessary information and further action. With these observations and directions, the above Writ Petition (Civil) will stand finally disposed of. Sd/- **ALEXANDER THOMAS JUDGE** vgd W.P(C) No.10568 of 2020 15 ## **APPENDIX** **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 A TRUE COPY OF THE PROCEEDINGS OF THE SUB COLLECTOR PALAKKAD DATED OCTOBER 25, 1997 ACCEPTING THE RELINQUISHMENT AND OF LAND BY BALAKRISHNAN.** - **EXHIBIT P2 A TRUE COPY OF THE PROCEEDINGS/ORDER IN TERMS OF CLAUSE 6 (2) OF THE KLU ISSUED BY THE REVENUE DIVISIONAL OFFICER, PALAKKAD DATED OCTOBER 28, 1997.** - **EXHIBIT P3 A TRUE COPY OF REGISTERED PARTITION DEED NUMBER 3493/2013 OF THE SRO, PALAKKAD DATED DECEMBER 7, 2013.** - **EXHIBIT P4 A TRUE COPY OF POSSESSION CERTIFICATE DATED DECEMBER 18, 2019 ISSUED IN THE NAME OF THE PETITIONER.** - **EXHIBIT P5 A TRUE COPY OF THE LETTER DATED OCTOBER 20, 2018 ISSUED BY THE FOURTH RESPONDENT.** - **EXHIBIT P6 A TRUE COPY OF THE ORDER DATED FEBRUARY 27, 2020 ISSUED BY THE SECRETARY, PALAKKAD MUNICIPALITY.** - **EXHIBIT P7 A TRUE COPY OF THE PURCHASE NOTICE DATED MAY 15, 2020 ISSUED BY THE PETITIONER ALONG WITH ACKNOWLEDGEMENT.** **EXHIBIT P8 A TRUE COPY OF THE JUDGMENT DATED 22.11.2019 IN WPC NO. 30841 OF 2017 OF THIS HONOURABLE COURT.**