A.X. Leslie and others v. State of Kerala and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN THURSDAY, THE 28[TH] DAY OF OCTOBER 2021 / 6TH KARTHIKA, 1943 WP(C) NO. 18599 OF 2021** ## **PETITIONER/S:** 1 A.X. LESLIE AGED 77 YEARS S/O. LATE XAVIER AND VICTORIA, RESIDING AT ANJIPARAMBIL HOUSE, CBI ROAD, KALOOR P.O., COCHIN 682 017. 2 A.X. EDWIN, AGED 67 YEARS S/O. LATE XAVIER AND VICTORIA, RESIDING AT ANJIPARAMBIL HOUSE, CBI ROAD, KALOOR P.O., COCHIN 682 017. 3 A.X. GILBERT, AGED 57 YEARS S/O. LATE XAVIER AND VICTORIA, RESIDING AT ANJIPARAMBIL HOUSE, CBI ROAD, KALOOR P.O., COCHIN 682 017. 4 BAIJU ANTONY, AGED 44 YEARS S/O. LATE ANTONY & PATSY XAVIER , RESIDING AT PARAMBALOTH HOUSE, CBI ROAD, KALOOR P.O., COCHIN 682 017. 5 BINU ANTONY, AGED 51 YEARS D/O. LATE ANTONY & PATSY XAVIER , RESIDING AT PARAMBALOTH HOUSE, CBI ROAD, KALOOR P.O., COCHIN 682 017. WP(C) NO. 18599 OF 2021 2 6 BINDU ANTONY, AGED 49 YEARS D/O. LATE ANTONY & PATSY XAVIER , RESIDING AT PARAMBALOTH HOUSE, CBI ROAD, KALOOR P.O., COCHIN 682 017. 7 P.J XAVIER, AGED 84 YEARS H/O. LATE IVY XAVIER, RESIDING AT PULIYANATH HOUSE, MUNDAMVELI P.O., COCHIN 682 507. 8 SATHOSH XAVIER, AGED 44 YEARS S/O. LATE P.J. XAVIER AND IVY XAVIER, RESIDING AT PULIYANATH HOUSE, MUNDAMVELI P.O., COCHIN 682 507. 9 JUDE XAVIER, AGED 42 YEARS S/O. LATE P.J. XAVIER AND IVY XAVIER, RESIDING AT PULIYANATH HOUSE, MUNDAMVELI P.O., COCHIN 682 507. 10 FRANKLIN CHELLATH, AGED 80 YEARS S/O. LATE P.J. XAVIER AND VICTORIA XAVIER, RESIDING AT CHELLATH HOUSE, GANDHI NAGAR KALOOR P.O., COCHIN 682 507. BY ADV FRANKLIN CHELLATH ## **RESPONDENT/S:** 1 STATE OF KERALA, REPRESENTED BY REVENUE DIVISIONAL OFFICER, FORT COCHIN, COCHIN 682 001. 3 WP(C) NO. 18599 OF 2021 - 2 TAHSILDAR, (LR), KANAYANNOOR TALUK, TALUK OFFICE KANAYANNOOR, COCHIN 682 011. - 3 VILLAGE OFFICER, ELAMKULAM VILLAGE, ELAMKULAM VILLAGE OFFICE, COCHIN 682 020. - 4 GRATER COCHIN DEVELOPMENT AUTHORITY, REPRESENTED BY SECRETARY, GCDA OFFICE, KADAVANTHARA, COCHIN 682 016. BY ADV ARUN ANTONY APPU.P.S-GP THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 28.10.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C) NO. 18599 OF 2021 4 ## **JUDGMENT** This writ petition is filed with the following prayers:- _“(i) Issue a writ of mandamus or other writ or order or direction to change the classification of the land entered in the BTR Register of Elamkulam Village relating to Sy. No. 330/3 extending 7.388 cents (2.97 Ares) from wet land into dry land._ _(ii) To issue a writ of certiorari or other writ order or direction to call for the records leading to Ext.P6 and quash the same._ _(iii) To issue direction to R2, R3 to receive the Revenue Tax of the land as dry land relating to property under Sy. No. 330/3 extending 7.388 cents (2.97 Ares).”_ 2. Heard the learned counsel for the petitioners, learned standing counsel for the GCDA and the learned Government Pleader. 3. It is submitted that the petitioners are owners in possession of 7.338 cents of land in Sy.No.330/3 of Elamkulam village, Kanayannur taluk, Ernakulam district. The property WP(C) NO. 18599 OF 2021 5 belonging to the petitioners is a portion of the property which was taken possession of on behalf of the 4[th] respondent on 25.04.1979 for the implementation of the Elamkulam Road Scheme. It is submitted that Section 4(1) notification was issued on 11.8.1987 and a declaration was published on 16.8.1988. There was no declaration relating to Survey No.330/3 of the Elamkulam village. However, the entire land including Survey No.330/3 was reclaimed by the GCDA. Subsequently, the GCDA took a decision to grant NOC for the properties included in Survey No.330/3 in Elamkulam village to the petitioners. 4. It is submitted that, since the Kerala Conservation of Paddy Land and Wet Land Act has came into force only in the year 2008 and since the petitioners' properties were residential in nature long prior to the said date, the petitioners had submitted representations seeking the change of classification of the land in the basic tax register as per Ext.P5. It is submitted that the said applications are liable to be considered in accordance with law. It is submitted that Ext.P6 would show WP(C) NO. 18599 OF 2021 6 that basic tax is received from the petitioners, but the nature of the property is recorded as 'Nilam' in the Basic Tax Register. 5. The learned counsel for the petitioners' submits that appropriate applications seeking the change of the nature of the property in the basic tax register will be submitted by the petitioners and that the same are liable to be considered in accordance with law. 6. The learned counsel also relies on the judgment of this Court in W.A.No.212/2020 and contends that since the property of the petitioners was a part of a Town Planning Scheme and since the property was residential in character long prior to the introduction of the Kerala Conservation of Paddy Land and Wet Land Act, 2008 (hereinafter referred to as 'the 2008 Act'), the further proceedings have to be taken under the provisions of Section 6A of the Kerala Land Tax Act, 1961. 7. The Division Bench of this Court has also considered the application of Section 27A of the 2008 Act _vis a vis_ a detailed town planning Scheme in **State of Kerala and others** WP(C) NO. 18599 OF 2021 7 ## **v. Binu Mathew Chacko and others** [2020 (6) KHC 717 (DB). It was held that where the property was converted by the authorities under the Town Planning Act, 1108 and so on to the purchases decades before the introduction of the 2008 Act, there is no requirement for an application under Section 27A of the 2008 Act, which was incorporated in the statue only with effect from 30.12.2017. A Division Bench of this Court in W.A. No. 212 of 2020 **State of Kerala v. Dinesan P.S. & Othrs.** , had also considered the identical question and had held that the amended provisions of the 2008 Act which came into effect in 2017 will not interfere with the building site sold to the purchasers much before the introduction of the said provisions. The direction of the learned single judge in W.P.C. No. 24364/2019 by which the Tahsildar Land Records had been directed to receive an application submitted by the petitioners under Section 6A of the Kerala Land Tax Act, 1961 and to consider and take necessary action on the same was therefore upheld by the Hon'ble Division Bench. In the instant case also, the petitioners specifically contend that their properties had WP(C) NO. 18599 OF 2021 8 been acquired for the implementation of a town planning scheme and NOC had been granted long prior to the 2008 Act for the construction of residential buildings in the property. It is submitted that the residential building had been constructed in the property long prior to the introduction of the 2008 Act and that there is therefore no requirement for an application under Section 27A. 8. Having considered the contentions advanced, I am of the opinion that in case the petitioners approach the 2[nd] respondent with proper applications under Section 6A of the Kerala Land Tax Act, the same shall be considered by the 2[nd] respondent in accordance with law without insisting on submission of applications under Section 27A of the 2008 Act. In case the petitioners submit such an application within a period of three weeks from today, the same shall be considered and appropriate orders shall be passed within two months thereafter. It is made clear that the classification of land in the Basic Tax Register is to be entered only as paddy land/garden land/dry land/purayidam as the case may be, in view of the fact WP(C) NO. 18599 OF 2021 9 that the petitioner's properties had been converted and used as residential plots long prior to the 2008 Act, the additions/ alterations in the Basic Tax Register shall be as garden land/dry land/purayidam. Appropriate reassessment shall also be carried out by the respondents. This Writ Petition is disposed of accordingly. Sd/- **ANU SIVARAMAN JUDGE** avs WP(C) NO. 18599 OF 2021 10 ## **APPENDIX OF WP(C) 18599/2021** PETITIONER EXHIBITS Exhibit P1 TRUE PHOTO COPY OF THE ORDER ISSUED BY 2ND RESPONDENT ORDERING TRANSFER OF REGISTRY IN FAVOUR OF PETITIONERS. DATED 04.12.2020. Exhibit P2 TRUE PHOTO COPY OF THE SKETCH FORWARDED BY TALUK SURVEYOR SHOWING THE EXTENT OF SY.NO. 330/3 AS 2.97 ARE EQUAL TO 7.338 CENTS IN ELAMKULAM VILLAGE. DTD. NIL. Exhibit P3 TRUE PHOTO COPY OF THE DISPOSAL JACKET FROM GRATER COCHIN DEVELOPMENT AUTHORITY REGARDING THE RECLAMATION FILE NO. E3/16286/80/D DIS. RELATING TO SY. NO. 330/3 ALSO. DTD 04.02.1982. Exhibit P4 TRUE PHOTOCOPY OF THE EXECUTIVE COMMITTEE, DECISION OF GCDA EXECUTIVE BOARD TO ISSUE NOC RELATING TO SY.NO. 330/3 TAKEN POSSESSION BY GCDA ABOUT WHICH THERE WAS NO ACQUISITION PROCEEDINGS. DATED 19.03.2005 Exhibit P5 TRUE PHOTOCOPY OF THE REPRESENTATION SUBMITTED BEFORE R1 TO R3 BY THE PETITIONERS. DATED 05.03.2021. Exhibit P6 TRUE PHOTO COPY OF LAND REVENUE RECEIPT ISSUED FROM ELAMKULAM VILLAGE OFFICE RELATING TO SY.NO. 330/3 AS WET LAND.