State of Kerala and Revenue Divisional Officer, Fort Kochi v. Dinesan P.S., Kochi Corporation, The Secretary, Corporation of Kochi, and The Greater Cochin Development Authority

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR & THE HONOURABLE MR. JUSTICE SHAJI P.CHALY TUESDAY, THE 30TH DAY OF MARCH 2021 / 9TH CHAITHRA, 1943 ## WA.No.212 OF 2020 AGAINST THE JUDGMENT DATED 28.10.2019 IN WP(C) 24364/2019(U) OF HIGH COURT OF KERALA ## APPELLANTS/RESPONDENTS 1 & 2 IN W.P.(C): - 1 STATE OF KERALA, REPRESENTED BY SECRETARY, DEPARTMENT OF REVENUE, SECRETARIAT, THIRUVANANTHAPURAM-695 001. - 2 THE REVENUE DIVISIONAL OFFICER, O/O.THE REVENUE DIVISIONAL OFFICER, FIRST FLOOR, K.B.JACOB ROAD, FORT KOCHI-682 001. BY SRI. ARAVINDAKUMAR BABU T.K., SR. GOVERNMENT PLEADER ## RESPONDENTS/PETITIONER & RESPONDENTS 3 TO 5 IN W.P.(C): - 1 DINESAN P.S., S/O.SREEDHARAN, PULPAYIL RESIDING AT KEECHERIPARAMBIL, PONOTH ROAD, KALOOR, KOCHI-682 017. - 2 THE CORPORATION OF KOCHI, MAIN OFFICE, PARK AVE ROAD, MARINE DRIVE, KOCHI, KERALA-682 011, REPRESENTED BY ITS SECRETARY. - 3 THE SECRETARY, CORPORATION OF KOCHI, MAIN OFFICE, PARK AVE RD., MARINE DRIVE, ERNAKULAM, KOCHI, KERALA-682 011. - 4 THE GREATER COCHIN DEVELOPMENT AUTHORITY, SAHODARAN AYYAPPAN ROAD, KADAVANTHRA, KOCHI-20, REPRESENTED BY ITS SECRETARY. R1 BY ADV. SRI.VARGHESE KURIAKOSE(BY ORDER) R2-3 BY ADV. SRI.S.SUDEESH KUMAR(BY ORDER) R4 BY ADV. SMT.SABEENA P.ISMAIL THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 30.03.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.A.No. 212/2020 : 2 : ## **Dated this the 30[th] day of March, 2021.** ## **JUDGMENT** ## **SHAJI P. CHALY,J.** This appeal is filed by the State and the Revenue Divisional Officer, Fort Kochi, who were respondents 1 and 2 in the writ petition, challenging the judgment dated 28.10.2019 in W.P.(C) No. 24364 of 2019. 2. The subject issue was in relation to a plot allotted to the writ petitioner/first respondent in the appeal by the Greater Cochin Development Authority in its Thevara-Perandoor scheme, and _vis-a-vis_ the provisions of the Kerala Conservation of Paddy Land and Wetland Act, 2008, especially Section 27A of the said Act, which came into force with effect from 30.12.2017. In fact, it is an admitted fact that the property in question was handed over to the writ petitioner as a building site, though in the revenue records it is remaining as paddy field. The subject issue _vis-a-vis_ detailed Town Planning Scheme was considered by us in _**State of Kerala and others v. Binu Mathew Chacko and others**_ [2020 (6) KHC 717 (DB), in which it was held as follows: 21. The facts discussed above would make it clear that the W.A.No. 212/2020 : 3 : property was converted by the authorities under The Town Planning Act, 1108 and sold to the purchasers several decades before the introduction of Act, 2008. It is an admitted fact that in the data bank constituted as per the provisions of Act, 2008 the property in question is shown as "converted dry land". Which thus means the authorities under Act, 2008 have understood properly that the land was already converted as a dry land before the introduction of Act, 2008. Anyhow S.27A was introduced into Act, 2008 on and w.e.f.30/12/2017 only by which certain conditions are introduced in respect of unnotified lands under the Act, 2008, which reads thus: _"_ _**27A. Change of nature of unnotified land. -** (1) If any owner of an unnotified land desires to utilise such land for residential or commercial or for other purpose, he shall apply to the Revenue Divisional Officer for permission in such manner as may be prescribed._ _(2) Notwithstanding anything contained in any judgment, decree or order of any Court or Tribunal or any other authority, the Revenue Divisional Officer may, after considering the reports of the Village Officer concerned, pass such orders as deemed fit and proper on such applications, ensuring that there is no disruption to the free flow of water to the neighbouring paddy lands, if any, through such water conservancy measures as is deemed necessary._ _Provided that, if the area of such parcel of land where the application is allowed is more than_ W.A.No. 212/2020 : 4 : _20.2 Ares, ten per cent of such land shall be set apart for water conservancy measures._ _(3) If the application is allowed, the applicant shall be liable to pay a fee at such rate as may prescribed:_ _Provided that, no such fee shall be collected if the applicant proves that the land where the application is allowed is, filled up or naturally filed up before the 4th day of July, 1967, the date of commencement of the Kerala Land Utilisation Order, 1967, after completing such procedure, as may be prescribed._ _(4) If the application is allowed, the Revenue Divisional Officer shall ensure that the reclamation of the unnotified land shall not adversely affect the cultivation of paddy or any other crops, if any, in the adjoining land and shall specify such water conservancy measures as is necessary to ensure such cultivation:_ _Provided that in specifying such water conservancy measures, the Revenue Divisional Officer may, if he deems fit, refer to satellite maps of the area maintained by Government agencies._ _(5) No permission under this section shall be necessary where the purpose for which the unnotified land is converted or attempted to be converted or utilized or attempted to be utilized is for paddy cultivation._ _(6) Notwithstanding anything contained in the Kerala Panchayat Raj Act, 1994 (13 of 1994) or in the Kerala Municipality Act, 1994 (20 of 1994), no_ W.A.No. 212/2020 : 5 : _permission under this section shall be necessary for constructing a residential building having a maximum area of 120 square meters in a maximum extent of 4.04 ares of land or a commercial building having a maximum area of 40 square meters in a maximum extent of 2.02 ares of land:_ _Provided that the construction of a housing complex or complexes or fiats or multi - storied residential complexes shall not come within the meaning of residential building specified in this sub-section:_ _Provided further that this exemption shall be granted only once._ _(7) The exemption under sub-section (6) shall be applicable only to owners unnotified lands under the Kerala Conservation of Paddy Land and Wetland (Amendment) Act, 2018:_ _Provided that if the area of the residential building or commercial building exempted under sub-section (6) is subsequently increased by new extension the exemption under sub-section (6) shall cease to have effect and the owner of theland as on the date of detection of the new extension shall be liable to pay fee as sub-section (3)._ _(8) Where conversion of an unnotified land is required for any public purpose, the Revenue Divisional Officer shall submit a report to Government outlining the measures to be adopted to ensure that the reclamation shall not disrupt the free flow of water to the neighbouring paddy lands, if any, and shall suggest such water_ W.A.No. 212/2020 : 6 : _conservancy measures as is necessary to ensure this._ _(9) The Government may, on receipt of a report under sub-section (8), issue permission to reclaim unnotified land for public purpose:_ _Provided that where permission is granted, the Government may make necessary modifications to the recommendations of the Revenue Divisional Officer as deemed fit:_ _Provided further that, if the area of such parcel of land where the application is allowed is more than 20.2 Ares, ten per cent of such land shall be set apart for water conservancy measures._ _(10) The order issued under sub-section (2) and (9) shall clearly indicate the survey number of the lands and the extent of the land in each survey number for which sanction has been accorded, the extent of the land in which water conservancy measures are to be adopted by the applicant and a sketch of such land indicating the aforementioned details shall be appended to the order._ _(11) The Revenue Divisional Officer may, either suo motu or on the application of any aggrieved party, cancel any order issued under sub-section (2) if the conditions specified in the order issued therein are not complied by the applicant, either fully or partially._ _(12) No order of cancellation under subsection (11) shall be made by the Revenue Divisional Officer unless the applicant thereof has been given_ W.A.No. 212/2020 : 7 : _an opportunity of being heard in the matter._ _(13) Any application received for the change of nature of unnotified land from the date of commencement of the Kerala Conservation of Paddy Land and Wetland (Amendment) Act, 2018 shall be considered and disposed of only in accordance with the provisions of the Act."_ 22. That apart S.27C is introduced on and w.e.f.30/12/2017 in order to make changes in the village records, which reads thus: _"_ _**27C. Change in records. -** (1) Notwithstanding anything contained in any other law for the time being in force or in any judgment, decree or order of any Court, Tribunal or any other Authority, wherever a part of a survey number or subdivision is permitted to be converted under S.8, S.9, S.10 or 27A of this Act, a new subdivision shall be created for the extent for which such orders for conversion are issued._ _(2) Where the paddy land or unnotified land is duly converted as per the provisions of this Act, the Tahsildar shall reassess the land tax under S.6A of the Kerala Land Tax Act, 1961 (13 of 1961) and make necessary entries in revenue records relating to such lands._ _(3) Where such changes are recorded in revenue records, the number and date of the order and the authority granting sanction, the survey number of the lands for which sanction has been accorded, extent of the land in each survey number for which sanction has been accorded and the revised land tax shall be clearly_ W.A.No. 212/2020 : 8 : _recorded ensuring that the old entries are legible._ _(4) Tahsildar shall conduct periodical inspection to ensure that changes in revenue records are in accordance with sub-section (3)._ _(5) No attempt shall be made to alter or change or modify the revenue records relating to the paddy land or wetland or unnotified land otherwise than in accordance with sub-section (3)."_ _23. In our view these later provisions introduced into Act, 2008 will not in any manner interfere with the building site sold to the purchasers much before the introduction of the said provisions. Moreover, as we have said earlier, R.3A of Kerala Municipality Building Rules, 1999 have an overriding effect on the building rules and therefore, the Kochi Corporation was not competent enough to insist the permit holder to secure necessary orders as per the provisions of Act, 2008 since the plot was allotted in the Elamkulam West Town Planning Scheme._ 24. The issue is also no more _res integra_ since it was considered by a learned Single Judge of this Court in _Reliance Industries Ltd. and Others v. The Commissioner of Land Revenue and Others_ (2007 (2) KHC 346 : ILR 2007 (2) Ker. 193 : 2007 (2) KLT 850) wherein it was held that no permission under the Kerala Land Utilization Order is necessary for any activity of construction or use of any land in the residential use zone or any other zone in the town planning scheme constituted as per the Town Planning Act, 1108. Also, recently in _Shaji Chacko v. State of Kerala and_ W.A.No. 212/2020 : 9 : _Others_ (2020 (6) KHC 420 : 2020 KHC OnLine 843) a learned Single Judge of this Court has held in unequivocal terms that if any Town Planning Scheme does not save the land and area for cultivation of any crops mentioned under the Land Utilisation Order, 1967, it has to be assumed that, through the process of law, power of Collector to command the holder of land to cu _cultivate crops has been taken away. Anyhow while the judgment in Reliance Industries_ was holding the field the Apex Court in _Revenue Divisional Officer, Fort Kochi and others v. Jalaja Dileep and another (supra)_ taking into account the provisions of the Kerala Conservation of Paddy land and Wetland Act, 2008 and the Kerala Land Utilization Order, 1967 held that the entries made in the BTR cannot be defaced, overruling the Division Bench of this Court in _Revenue Divisional Officer, Fort Kochi and others v. Jalaja Dileep and another_ (2014 (1) KHC 96 : 2014 (1) KLT 161 : ILR 2014 (1) Ker. 492 : 2014 (1) KLJ 586). Anyhow later a Division Bench of this Court in _LLMC Kizhakkambalam v. Mariyumma_ (2015 (3) KHC 19 : 2015 (2) KLT 516 : 2015 (1) KLD 915 : 2015 (2) KLJ 861) held that without defacing the original entry in the Basic Tax Register additional entry can be made with respect to the present tenure of the land in appropriate cases and in accordance with law, which is governing the field now. We are in respectful agreement with the proposition so laid down in _Mariyumma, supra_ , in the facts and circumstances of the case at hand. W.A.No. 212/2020 : 10 : 25. Taking into account all the above aspects, we are of the considered opinion that the appellants have not made out any case justifying interference with the judgment of the learned Single Judge so far as the basic facts are concerned. However, in view of the judgment of the Division Bench of this Court in _Mariyumma supra_ , an owner of a property has _to make an application before the concerned revenue authority to make additional entry in the Basic Tax Register showing the present tenure of land. Therefore, petitioner is permitted to make a suitable application before the appropriate revenue authority to make the additional entry in the BTR and if any such application is filed along with a copy of this judgment, it shall be considered and necessary addition shall be made accordingly, at the earliest and at any rate, within a month thereafter. We further make it clear that thereafter the petitioner is at liberty to make suitable application under S.6A of the Kerala Land Tax Act, 1961 to make appropriate entry and collect tax accordingly. However, we make it clear that the pendency of the said applications shall not stand in the way of Kochi Corporation to consider the pending permit application taking into account the observations made above at the earliest and at any rate within a month from the date of receipt of a copy of this judgment._ Resultantly, the writ appeal is dismissed but with the modifications made as above.” 3. The learned single Judge has found that the writ petitioner W.A.No. 212/2020 : 11 : was entitled to get the relief and accordingly directed the Tahsildar under the Kerala Land Tax Act, 1961 to do necessary on receiving application from the petitioner. 4. In our considered opinion, the issue raised in the appeal is squarely covered by the decision in _**Binu Mathew Chacko**_ and the appeal has no sustenance and accordingly, it is dismissed. However, we make it clear that the directions and findings contained in the aforesaid judgment would apply to the facts of this case also. sd/- **S. MANIKUMAR, CHIEF JUSTICE.** sd/- **SHAJI P. CHALY, JUDGE.** _Rv_