S.V. Aravind v. State of Kerala and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE N.NAGARESH** **MONDAY, THE 5[TH] DAY OF JULY 2021 / 14TH ASHADHA, 1943** **WP(C) NO. 5940 OF 2021** ## **PETITIONER:** **S.V. ARAVIND AGED 59 YEARS S/O.S.S. VISWANATHAN, 780, VINAYAKA, PANAMPILLY NAGAR, KOCHI-682036.** **BY ADVS. A.D.RAVINDRA PRASAD SRI.ALEX VARGHESE** ## **RESPONDENTS:** - **1 STATE OF KERALA, REPRESENTED BY SECRETARY TO GOVERNMENT, REVENUE DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM-695001.** - **2 THE REVENUE DIVISIONAL OFFICER, FORT KOCHI-682001.** - **3 THE TAHSILDAR, KANAYANNUR TALUK, PARK AVENUE ROAD, KOCHI-682011.** - **4 THE VILLAGE OFFICER, ELAMKULAM VILLAGE, ELAMKULAM, KOCHI-682020.** - **5 GREATER COCHIN DEVELOPMENT AUTHORITY, REPRESENTED BY ITS SECRETARY, KADAVANTHRA, KOCHI-682020.** **R5, BY ADV SRI.JIMMY GEORGE, SC GOVT. PLEADER SMT. RANJITA G.** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 05.07.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** WP(C) No.5940/2021 : 2 : ## **J U D G M E N T** ~ ~ ~ ~ ~ ~ ~ ~ ~ _**Dated this the 5[th] day of July, 2021**_ The petitioner, who is owner in possession of certain land in Kochi, has filed this writ petition seeking to set aside Ext.P5 possession certificate and to direct respondents 2 to 4 to issue fresh possession certificate describing the property as dry land or _purayidom_ as recorded in Ext.P6 Data Bank and Ext.P11 Field Inspection Report. 2. The petitioner states that he is the owner of 1.155 cents and 1.187 cents of land, together with residential houses. The land is situated at Panampilly Nagar in Survey No.725/1 of Elamkulam Village, Kanayannur Taluk of Ernakulam District. The petitioner states that the Greater Cochin Development Authority (GCDA) framed Panampilly WP(C) No.5940/2021 : 3 : Nagar Housing Scheme under the provisions of the Town Planning Act. The GCDA developed that land into dry land and constructed residential houses under the Town Planning Scheme. Thereafter, the GCDA sold houses to various persons. One plot was allotted to the petitioner's sister and another to the petitioner's father. The father bequeathed his plot to the petitioner and the petitioner's sister executed a Settlement Deed in respect of her plot, in favour of the petitioner. 3. The petitioner wanted to give the houses as collateral security to a bank for availing loan/advance. The bank stated that Ext.P5 possession certificate produced by the petitioner is not acceptable since it was stated therein that the land in question is wetland. The petitioner therefore approached the Agricultural Officer who is the Convenor of the Local Level Monitoring Committee. The Committee informed the petitioner that the property in question is _purayidom_ in Ext.P6 Data Bank and that it was converted before the year 2008. WP(C) No.5940/2021 : 4 : 4. The petitioner states that the GCDA admittedly had converted the wetland into dry land. The Data Bank correctly recorded the land as dry land. The Revenue authorities ought to have carried out necessary corrections in revenue records. As the revenue records were not corrected, the 4[th] respondent has recorded in the possession certificate that the said land is 'Nilam'. There is no justification for showing dry land as 'Nilam'. The petitioner therefore submitted Ext.P9 petition to the 2[nd] respondent seeking to correct the Basic Tax Register, showing the petitioner's property as dry land. 5. The 2[nd] respondent directed the Agricultural Officer to conduct a physical inspection. The Agricultural Officer conducted site inspection and submitted Ext.P11 report. Ext.P11 report noted the existence of buildings in the plot and stated that the land is dry land in the draft Data Bank. In such circumstances, the petitioner seeks to set aside Ext.P5 possession certificate issued by the 4[th] respondent and to direct respondents 2 to 4 to issue fresh possession certificate describing the property as dry land. WP(C) No.5940/2021 : 5 : 6. I have heard the learned counsel for the petitioner, the learned Government Pleader representing respondents 1 to 4 and the learned Standing Counsel for the 5[th] respondent. 7. In the Division Bench judgment of this Court in _**State of Kerala v. Binu Mathew Chacko** [2021 (1) KLT 232)]_ has held as follows: “That apart when the authorities have acquired the land for the development of towns/cities and other areas, and sold/allotted to the purchasers as building sites, it can only be presumed under law and fact that whatever inhibitions and prohibitions remained to the property was rectified by the Government/statutory authorities to make it as a building site. It is true at that point of time guiding provisions in respect of utilisation of paddy field was the provisions of the Land Utilisation Order, 1967 whereby, as per S.6(2) without securing permission from the statutory authority constituted therein a paddy field could not have been used for any other purposes other than for paddy cultivation. When the statutory authority has allotted the plot to the intending purchasers as building sites, as per the scheme sanctioned by the Government, it can only be presumed that the Government has issued necessary orders enabling the statutory authority under Act, 1108 to proceed to sell the properties acquired as building sites. The allottees/purchasers paid the purchase value to the statutory authority under the firm belief that it is a building site enabling him to carry out building construction, of course in accordance with law. Moreover, S.114 of the Evidence Act enables the Court to presume existence of facts which makes it clear that the court may presume existence of any fact which it thinks likely to have happened regard being WP(C) No.5940/2021 : 6 : had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case, and by virtue of illustrations (e) and (f) thereto a court may presume that the official acts have been regularly performed and that the common course of business has been followed in particular cases. Which thus means in the facts and circumstances discussed above the presumption is absolutely in favour of the writ petitioner and it is presumed by us that the Government exercising its sovereign power has permitted to use the paddy field for other purposes other than paddy cultivation invoking the powers conferred under clause 6(2) of the Land Utilisation Order, 1967.” The facts of the case herein appear to be similar to the facts of the aforesaid judgment. 8. However, this Court does not propose to pronounce the issue on merits in this case, since the petitioner has filed Ext.P13 application before the 3[rd] respondent for reassessment of tax and also has filed Ext.P13(a) application for fixation of the rate of basic tax, invoking Section 6(3) of the Kerala Land Tax Act. It will suffice if the 3[rd] respondent is directed to consider Exts.P13 and P13(a) applications in accordance with law. In the circumstances, the writ petition is disposed of directing the 3[rd] respondent to consider Ext.P13 and WP(C) No.5940/2021 : 7 : Ext.P13(a) applications filed by the petitioner and pass appropriate orders thereon, in accordance with law, within a period of two months. Sd/- **N. NAGARESH, JUDGE** aks/29.07.2021 WP(C) No.5940/2021 : 8 : ## **APPENDIX OF WP(C) 5940/2021** ## **PETITIONER'S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF UO NOTE DATED 30/04/1980 ISSUED BY 5TH RESPONDENT -GFDA. EXHIBIT P1(A) TRUE COPY OF UO NOTE DATED 30/04/1980 ISSUED BY 5TH RESPONDENT -GFDA. EXHIBIT P2 TRUE COPY OF SALE DEED DATED 20/05/1995 BETWEEN GFDA AND FATHER OF PETITIONER S.S.VISWANATHAN. EXHIBIT P2(A) TRUE COPY OF SALE DEED DATED 02/06/1997 BETWEEN GFDA AND SISTER OF S.V.CHITHRA. EXHIBIT P3 TRUE COPY OF WILL DATED 15/11/2001 EXECUTED BY PETITIONER'S FATHER S.S. VISWANATHAN. EXHIBIT P4 TRUE COPY OF SETTLEMENT DEED DATED 02/03/2013 EXECUTED BY S.V.CHITHRA. EXHIBIT P5 TRUE COPY OF POSSESSION CERTIFICATE DATED 08/02/2021 ISSUED BY 4TH RESPONDENT. EXHIBIT P6 TRUE COPY OF RELEVANT PAGES OF DATA BANK ISSUED BY KRISHI BHAVAN, VYTTILA. EXHIBIT P7 TRUE COPY OF APPLICATION DATED 12/02/2021 SUBMITTED BY PETITIONER TO 3RD RESPONDENT. EXHIBIT P8 TRUE COPY OF REPLY DATED 22/02/2021 ISSUED BY 3RD RESPONDENT TO PETITIONER. EXHIBIT P9 TRUE COPY OF PETITION DATED 22/02/2021 SUBMITTED BY PETITIONER TO 2ND RESPONDENT. EXHIBIT P10 TRUE COPY OF FORM 5 AND ENDORSEMENT DATED 22/02/2021 OF 2ND RESPONDENT. EXHIBIT P11 TRUE COPY OF REPORT DATED 23/02/2021 OF AGRICULTURAL FIELD OFFICER, KRISHI BHAVAN, VYTTILA. EXHIBIT P12 TRUE COPY OF GO(RT) NO.1166/2021/REV. DATED 25/02/2021 ISSUED BY 1ST RESPONDENT. EXHIBIT P13 TRUE COPY OF LETTER DT 10.3.2021 BY PETITIONER BEFORE 3RD RESPONDENT TAHSILDAR** WP(C) No.5940/2021 : 9 : **EXHIBIT P13(A)** **TRUE COPY OF APPLICATION DT 10.3.2021 SUBMITTED BY PETITIONER BEFORE 3RD RESPONDENT IN FORM A UNDER SECTION 6 OF KERALA LAND TAX ACT AND RULE 5(ii) OF KERALA LAND TAX RULES.**