George Joseph v State of Kerala and Others

## **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.**| 2 W.P.(C) No.17504 of 2020 - **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:** 3 W.P.(C) No.17504 of 2020 ## **W.P.(C) No.17504 of 2020** ## **-----------------------------------------------** ## **J U D G M E N T** 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 4 W.P.(C) No.17504 of 2020 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. W.P.(C) No.17504 of 2020 5 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, 6 W.P.(C) No.17504 of 2020 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 W.P.(C) No.17504 of 2020 7 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 8 W.P.(C) No.17504 of 2020 ## **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 1906-2018, 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** 9 W.P.(C) No.17504 of 2020 ## **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 1612-2019 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** 10 W.P.(C) No.17504 of 2020 ## **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**