M/S. GECOM INTERNATIONAL PVT. LTD v. State of Kerala and Village Officer, Kunukara Village, Ernakulam District

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** **MONDAY, THE 19TH DAY OF SEPTEMBER 2016/28TH BHADRA, 1938** **WP(C).No. 23308 of 2016 (K)** **---------------------------------------------** ## **PETITIONER(S) :** **--------------------------** **M/S. GECOM INTERNATIONAL PVT. LTD, 2/3, 2ND FLOOR, JULLENA COMPLEX, OPP HOTEL CROWNE PLAZA- SURYA, NEW FRIENDS COLONY, NEW DELHI 110 025, REPRESENTED BY ITS DIRECTOR MR. FRANCIS THOMAS.** **BY SRI.DEVAN RAMACHANDRAN (SENIOR ADVOCATE) ADVS. SRI.BIJU VARGHESE ABRAHAM SRI.K.M.ANEESH** **SRI.K.SANTHOSH KUMAR (KALIYANAM) SRI.ADARSH KUMAR SRI.DILEEP CHANDRAN** **RESPONDENT(S) :** - **-----------------------------** **1. STATE OF KERALA, REPRESENTED BY ITS PRINCIPAL SECRETARY, SECRETARIAT, THIRUVANANTHAPURAM 695 001.** **2. THE VILLAGE OFFICER, KUNNUKARA VILLAGE, ERNAKULAM DISTRICT, PIN CODE 683 578.** ## **BY SR. GOVERNMENT PLEADER SRI. MANURAJ K.J** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 19-09-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** Msd. ## **WP(C).No. 23308 of 2016 (K)** ## **------------------------------------------** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS :** **EXHIBIT P1 THE TRUE COPY THE INTERIM ORDER DATED 10-12-2012.** - **EXHIBIT P2 THE TRUE COPY OF THE ORDER NO. D1-20622/2012, 21-01-2013.** - **EXHIBIT P3 THE TRUE COPY OF THE JUDGMENT DATED 21-02-2013.** - **EXHIBIT P4 THE TRUE COPY OF THE TAX RECEIPT ISSUED BY THE 2ND RESPONDENT DATED 13-02-2013, 03-12-2013 & 01-07-2015.** - **EXHIBIT P5 THE TRUE COPY OF THE CLEARANCE CERTIFICATE ISSUED BY THE VILLAGE OFFICE, KUNNUKARA DATED 11-04-2013.** - **EXHIBIT P6 THE TRUE COPY OF THE BUILDING PERMIT NO. A3- 16/2012-13 DATED 20-04-2013.** - **EXHIBIT P7 THE TRUE COPY OF THE JUDGMENT IN W.P(C).NO. 22497/2015.** - **EXHIBIT P8 THE TRUE COPY OF THE NOTICE DATED 17-02-2016 ISSUED FROM THE SPECIAL THASILDHAR (LA) NH-II, ALUVA.** - **EXHIBIT P9 THE TRUE COPY OF THE REPRESENTATION DATED 24-03-2016 SUBMITTED BEFORE THE 2ND RESPONDENT.** - **EXHIBIT P10 TRUE COPY OF THE BUILDING PERMIT DATED 11.09.2015.** - **EXHIBIT P11 TRUE COPY OF THE PHOTOGRAPH SHOWING THE STAGE OF CONSTRUCTION OF THE BUILDING IN THE PROPERTY.** - **EXHIBIT P12 TRUE COPY OF THE STOP MEMO ISSUED BY THE 2ND RESPONDENT.** ## **RESPONDENT(S)' EXHIBITS :** ## **NIL** **//TRUE COPY//** **P.A.TO JUDGE.** Msd. ## **K. VINOD CHANDRAN, J.** ## **---------------------------------W.P(C). No.23308 of 2016-K ---------------------------------Dated this the 19[th] day of September, 2016** ## **JUDGMENT** The petitioner's grievance is with respect to the assessment of tax on the property owned by the petitioner having an extent of 4 Acres 61 cents and 614 sq. links [1.86.82 Ares] comprised in Survey Nos.471/1-3 [4 Acres 30 cents 614 sq. links] and 686/1-1 [31 cents]. The property, according to the petitioner, was lying as a dry garden land for the last very many years when the petitioner purchased the same by Sale Deed Nos.1898/2012 and 1899/2012, which were executed on 23/04/2012. 2. The petitioner was before this Court _W.P.(C) No.23308 of 2016-K_ **2** seeking consideration of the rectification of the Basic Tax Register [BTR], which was granted by Ext.P1 interim order dated 10/12/2012. It is to be noticed that, at that point of time, a learned of this Court in a Single Judge decision reported in **Jalaja Dileep v. Revenue Divisional Officer [2012 (3) KLT 333]** held that description in title deed or in revenue records will not be crucial, if property is reclaimed already. The provisions of the Kerala Conservation of Paddy Land And Wet Land Act, 2008 [for brevity, the Act of 2008] was held to be inconsequential in the context of the reclamation having been effected prior to the Act of 2008 and it was held that the provisions would not come in the way of reclassification of such land as dry land in Revenue Records. _W.P.(C) No.23308 of 2016-K_ **3** This decision was upheld by a Division Bench of this Court in **Revenue Divisional Officer, Fort Kochi and others v. Jalaja Dileep and another [2015 (2) KHC 109 (SC)]** . 3. On the strength of the aforesaid decision, the Addl. Tahsildar, Paravur by Ext.P2 granted the prayer of the petitioner and changed the classification of the land as 'Nikathu purayidam' in the BTR. The said order was issued in compliance with the interim order at Ext.P1; while the writ petition itself was pending. The Addl. Tahsildar having passed Ext.P2 order, the same was taken note of by this Court and after recording the said order, closed the writ petition by Ext.P3 judgment dated 21/02/2013. The petitioner was permitted to pay tax as per the reclassification made in _W.P.(C) No.23308 of 2016-K_ **4** the BTR, which payment is also evidenced by Ext.P4 series tax receipts. 4. The petitioner then approached the Panchayat for building a compound wall, which was permitted as per Ext.P6. However, when an application for a building permit was made for construction of a building within the said property, the same was declined and the petitioner was before this Court with WP(C) No.22497 of 2015. The petitioner was intending to construct a School building in the premises, which prayer was considered as per Ext.P7 judgment dated 29/07/2015. A learned Single Judge, after referring to various decisions of this Court, including the judgment in **2012 (3) KLT 333** as also a Division Bench judgment in **Adani Infrastructure & Developers Pvt. Ltd.,** _W.P.(C) No.23308 of 2016-K_ **5** **Mumbai v. State of Kerala and Others (2014 (1) KLT 774),** allowed the writ petition and directed the respondent Panchayat to conduct a local inspection of the property and directed consideration of issuance of building permit, if the property is found to be uncultivable. The Panchayat is said to have issued a building permit at Ext.P10, on the basis of which the construction was carried on. 5. While the construction was going on, a portion of the property is said to have been acquired by the Government. For getting compensation, the petitioner had to produce the Possession Certificate and the tax receipts. For the said purpose, when the petitioner approached the 2[nd] respondent for remittance of tax, the 2[nd] respondent refused to accept the _W.P.(C) No.23308 of 2016-K_ **6** tax on the ground that the decision of this Court in **2012 (3) KLT 333** stood overruled by the Hon'ble Supreme Court in **Revenue Divisional Officer, Fort Kochi and others v. Jalaja Dileep and another [2015 (2) KHC 109 (SC)].** The petitioner hence is again before this Court, seeking a direction to the Village Officer to accept the building tax as per the change effected as to the description of the land by Ext.P2. 6. True, the Hon'ble Supreme Court reversed the decision of this Court, which directed rectification of the BTR. However, the Hon'ble Supreme Court held that with respect to the lands, which were converted prior to the Act of 2008, the proper remedy would be to approach the RDO under clause 6 of the Kerala Land _W.P.(C) No.23308 of 2016-K_ **7** Utilisation Order 1967. It was also categorically held by the Hon'ble Supreme Court that a land could be classified as a paddy land or wet land and included in the Data Bank, only if it is so remaining at the time the Act of 2008 came into force. In the case of the petitioner's property, admittedly after Ext.P2, the land has been removed from the Draft Data Bank. 7. It is to be noticed that Ext.P1 interim order was passed when **2012 (3) KLT 333** was in force. The Addl. Tahsildar, Paravur, on the basis of the said interim order, had passed Ext.P2. Subsequently, the writ petition itself was closed, recording the order passed at Ext.P2. The petitioner's property was assessed to tax as a garden land and the petitioner was _W.P.(C) No.23308 of 2016-K_ **8** paying tax on that count, which is evidenced by Ext.P4 series of receipts. Subsequently, the petitioner had applied for a building permit and had obtained the same by virtue of the directions issued in Ext.P7. Exts.P3 & P7 judgments have attained finality. Despite the fact that, later the Hon'ble Supreme Court had in **Revenue Divisional Officer v. Jalaja Dileep** held that there could be no rectification of the BTR; herein the same was carried out on the basis of the directions issued by this Court, in a judgment, inter-parties, which were not challenged. The petitioner is also said to have carried out considerable constructions in the property. The present request is only for acceptance of tax on the basis that the land is garden land for the purposes of seeking _W.P.(C) No.23308 of 2016-K_ **9** enhancement of compensation before the appropriate authority. 8. The fact remains that the petitioner's land was converted long prior to the Act of 2008 as is evidenced from Ext.P2. The Fair Value Register, according to Ext.P2, shows the classification of the land as residential plot with PWD road access. The Addl. Tahsildar also conducted inspection of the property before the orders issued were passed, changing the classification from nilam to nikathu purayidam and assessing the tax as garden land. Even going by the decision of the Hon'ble Supreme Court in **Revenue Divisional Officer v. Jalaja Dileep** if the properties have been converted prior to the Act of 2008, the petitioner could move an application before the RDO for _W.P.(C) No.23308 of 2016-K_ **10** conversion of user, upon which, it has also been held in **Local Level Monitoring Committee and Others v. Mariumma and Others [2015 (3) KHC 19]** by a Division Bench of this Court that a land owner can seek for reassessment of the land as a garden land. 9. Though the procedure as such had not been complied with, since the effect of the orders now passed by the Addl. Tahsildar is of such reassessment and also considering the fact that the factual situation as revealed from Ext.P2 indicates the land having been converted long prior, there is no reason to upset the assessment made of the petitioner's property as garden land. In such circumstances, the 2[nd] respondent/ Village Officer is directed to accept tax for the subject land as garden land _W.P.(C) No.23308 of 2016-K_ **11** as has been accepted in Ext.P4 series and issue tax receipts. With the above observations, the writ petition is allowed. No costs. Sd/- **K. VINOD CHANDRAN, JUDGE.** //True Copy// P.A. to Judge. sp/19/09/16