George Joseph vs State Of Kerala
2021 Latest Caselaw 3862 Ker

          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.17504 OF 2020(K)


PETITIONER:

              GEORGE JOSEPH,
              AGED 66 YEARS, S/O.LATE JOSEPH,
              REPRESENTED BY POWER OF ATTORNEY HOLDER,
              MRS.BABY JOSEPH, RESIDING AT FLAT NO.B-6, GCDA
              HIG FLATS, KARSHAKA ROAD, COCHIN-16.

              BY ADVS.
              SRI.GEORGE VARGHESE (MANACHIRACKEL)
              SMT.PRIYA ELIZABETH BABU

RESPONDENTS:

     1        STATE OF KERALA
              REPRESENTED BY ITS PRINCIPAL SECRETARY,
              DEPARTMENT OF REVENUE, SECRETARIAT,
              THIRUVANANTHAPURAM-695001.

     2        SECRETARY,
              LOCAL SELF GOVERNMENT, 4TH FLOOR,
              SECRETARIAT ANNEXE,
              THIRUVANANTHAPURAM-695001.

     3        THE SECRETARY,
              GCDA, OFFICE OF GREATER COCHIN DEVELOPMENT
              AUTHORITY, KADAVANTHRA,
              COCHIN-20.
 W.P.(C) No.17504 of 2020       2



       4      DISTRICT COLLECTOR,
              COLLECTORATE, KAKKANAD,
              ERNAKULAM-682030.

       5      REVENUE DIVISIONAL OFFICER,
              FORT KOCHI, COCHIN-682001.

       6      THE TAHSILDAR,
              TALUK OFFICE, KANAYNNUR, ERNAKULAM-682018.

       7      THE VILLAGE OFFICER,
              ELAMKULAM VILLAGE, ERNAKULAM-682020.

              R3 BY ADV. SRI.VIPIN P.VARGHESE
              R3 BY ADV. SRI.ADARSH MATHEW
              R3 BY ADV. SMT. DHANYA T MALLAR
              R3 BY ADV. SMT.ATHIRA ANTONY A.
              SMT.G.RANJITA GP

     THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD
ON 03.02.2021, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
 W.P.(C) No.17504 of 2020               3




                     W.P.(C) No.17504 of 2020
               -----------------------------------------------


                            JUDGMENT

Petitioner obtained a land measuring 5.08 Ares situated

in Elamkulam Village as per Ext.P1 exchange deed from the Greater

Cochin Development Authority (the GCDA). The said land is one

acquired and developed by the GCDA for residential purpose under a

Town Planning Scheme sanctioned by the Government under the

Town Planning Act 1108 for residential purpose. The land obtained by

the petitioner, however, is shown in the revenue records as 'Nilam'.

It is alleged by the petitioner 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 petitioner as a dry

land, the petitioner preferred an application for reassessment of the

land under the Kerala Land Tax Act and also for changing the

classification of the land in the revenue records as dry land. Ext.P12

is the application preferred by the petitioner in this regard before the

sixth respondent. It appears that the petitioner has, in the

meanwhile, preferred an application for permission to make use of

the land for other purposes under Section 27A of the Kerala

Conservation of Paddy Land and Wetland Act, 2008 (the Act) and on

the said application, the fifth respondent has called upon the

petitioner to pay a sum of Rs.27,61,634/- by way of fees. Ext.P14 is

the communication issued by the fifth respondent to the petitioner in

this regard. The case of the petitioner is that in so far as the land is

one allotted to the petitioner as a dry land, he is not liable to pay

any fee for the purpose of changing the classification of the land. It

is also the case of the petitioner that in so far as he has not remitted

the fee which he was called upon to pay as per Ext.P14

communication, Ext.P12 application is not being considered. The

petitioner, therefore challenges Ext.P14 communication in the writ

petition. He also seeks appropriate directions to the authorities

concerned to change the classification of the land as dry land.

2. Heard the learned counsel for the petitioner as also

the learned Government Pleader.

3. Ext.P1 title deed indicates that the land covered by

the said document is one is acquired and developed by the GCDA

and allotted for residential purpose under a Town Planning Scheme

sanctioned by the Government 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

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 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.P14 order calling upon the petitioner to

pay the fees payable for the application preferred by the petitioner

under Section 27A is unsustainable in law.

In the result, the writ petition is allowed, Ext.P14

communication of the fifth respondent is quashed and the sixth

respondent is directed to re-assess the land of the petitioner covered

by Ext.P1 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 petitioner shall

submit an application for re-assessment of the land in the prescribed

form before the sixth respondent. The direction aforesaid shall be

complied with, within one month from the date of submission of the

application in the prescribed form by the petitioner.

Sd/-

P.B.SURESH KUMAR, JUDGE.

YKB

APPENDIX PETITIONER'S/S EXHIBITS:

EXHIBIT P1 TRUE COPY OF THE EXCHANGE DEED DATED 30.09.1993 EXECUTED BY GCDA IN FAVOUR OF THE PETITIONER

EXHIBIT P2 TRUE COPY OF THE 'THANDAPER ACCOUNT' OF THE PETITIONER SHOWING THE BTR ENTRY.

EXHIBIT P3 TRUE COPY OF THE RELEVANT PAGE OF THE 'DATA BANK'.

EXHIBIT P3-A TRUE COPY OF THE APPLICATION DATED 19-

06-2018, SUBMITTED TO THE DISTRICT COLLECTOR

EXHIBIT P4 TRUE COPY OF THE CERTIFICATE DATED 19.07.2018 ISSUED BY AGRICULTURAL OFFICER,CONVENOR OF LLMC

EXHIBIT P5 TRUE COPY OF THE JUDGMENT DATED 19TH DECEMBER 2018 IN WP(C)NO.41483 OF 2018

EXHIBIT P6 TRUE COPY OF THE APPLICATION DATED 15.01.2029 SUBMITTED BY THE PETITIONER TO THE 5TH RESPONDENT(RDO)

EXHIBIT P7 TRUE COPY OF THE LETTER DATED 27.11.2019 ADDRESSED TO THE SECRETARY,GCDA,COCHIN BY THE PETITIONER

EXHIBIT P8 TRUE COPY OF THE LETTER DATED 05.08.2019 ADDRESSED TO THE R.D.O,FROM GCDA,GIVING DETAILS OF THE LAYOUT OF THE RESIDENTIAL PLOTS ASSIGNED BY GCDA

EXHIBIT P9 TRUE COPY OF THE LETTER DATED 28.11.2019 ADDRESSED TO THE SECRETARY,LOCAL SELF GOVERNMENT, THIRUVANANTHAPURAM FROM GCDA

EXHIBIT P10 TRUE COPY OF THE LETTER DATED 09.12.2019 ISSUED BY THE ESTATE OFFICER,GCDA TO THE VILLAGE OFFICER,ELAMKULAM VILLAGE

EXHIBIT P11 TRUE COPY OF THE LETTER DATED 09.12.2019 ISSUED BY THE ESTATE OFFICER,GCDA TO THE R.D.O.

EXHIBIT P12 TRUE COPY OF THE APPLICATION DATED 16-

12-2019 ADDRESSED TO THE TAHSILDAR,ELAMKULAM VILLAGE BY THE PETITIONER.

EXHIBIT P13 TRUE COPY OF THE ACKNOWLEDGEMENT DATED 16-12-2019 ISSUED BY THE OFFICE OF TAHSILDAR.

EXHIBIT P14 TRUE COPY OF THE NOTICE DATED 28.02.2020 ISSUED FROM THE OFFICE OF THE R.D.O.DEMANDING PAYMENT OF RS,27,61,634/-AS CONVERSION FEES

EXHIBIT P15 TRUE COPY OF THE LETTER DATED 05.03.2020,ADDRESSED TO THE CHAIRMAN,GCDA TO THE PETITIONER.

RESPONDENT'S/S EXHIBITS:

NIL

//TRUE COPY//

PA TO JUDGE