The Institute of Company Secretaries of India (ICSI) v. State of Kerala & Others

W.P.(C).No.4123/21 1 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN** **MONDAY, THE 17[TH] DAY OF JANUARY 2022 / 27TH POUSHA, 1943** ## **WP(C) NO. 4123 OF 2021** ## **PETITIONER:** THE INSTITUTE OF COMPANY SECRETARIES OF INDIA (ICSI) ICSI HOUSE, 22 INSTITUTIONAL AREA, LODHI ROAD, NEW DELHI - 110003., REPRESENTED BY MR. SREEKUMAR T. S., OFFICE IN CHARGE, KOCHI CHAPTER OF ICSI. BY ADVS. M.GOPIKRISHNAN NAMBIAR SRI.K.JOHN MATHAI SRI.JOSON MANAVALAN SRI.KURYAN THOMAS SRI.PAULOSE C. ABRAHAM SRI.RAJA KANNAN SRI.JAI MOHAN ## **RESPONDENTS:** 1 STATE OF KERALA REPRESENTED BY THE CHIEF SECRETARY TO GOVERNMENT, SECRETARIAT, THIRUVANANTHAPURAM - 695 001, KERALA. 2 DISTRICT COLLECTOR, ERNAKULAM CIVIL STATION, KAKKANAD, ERNAKULAM - 682030, KERALA. 3 REVENUE DIVISIONAL OFFICER OFFICE OF THE REVENUE DIVISIONAL OFFICER, FORT KOCHI, ERNAKULAM DISTRICT - 682001, KERALA. 4 TAHSILDAR KANAYANNUR TALUK, ERNAKULAM - 682011, KERALA. W.P.(C).No.4123/21 2 5 KOCHI MUNICIPAL CORPORATION PARK AVENUE, MARINE DRIVE, ERNAKULAM, KOCHI - 682011, KERALA, REPRESENTED BY ITS SECRETARY. BY ADV SRI.K.B.ARUNKUMAR ## **OTHER PRESENT:** APPU.P.S-GP THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 9.11.2021, THE COURT ON 17.01.2022 DELIVERED THE FOLLOWING:- W.P.(C).No.4123/21 3 ## **ANU SIVARAMAN, J.** **= = = = = = = = = = = = = = = W.P.(c).No.4123 of 2021 = = = = = = = = = = = = = = = = Dated this the 17[th] day of January, 2022** ## **JUDGMENT** 1.Heard the learned counsel for the petitioner, the learned Government Pleader and the learned Standing Counsel appearing for the 5[th] respondent. 2.This writ petition is filed challenging Exhibit P12 notice issued by the 3[rd] respondent requiring the petitioner to pay an amount of Rs.67,26,938/- for the consideration of an application submitted by the petitioner for use of the property for purposes other than paddy cultivation. It is submitted that the petitioner is a statutory body which had purchased 6.43 Ares of property in Survey No.339/1 and 342/1 of Ernakulam village, Kanayannur Taluk. It is contended that the properties had originally been acquired by the Government of Kerala for the 'Kaloor Town Planning Scheme' of the GCDA. The property was described as Nilam in the revenue records, but was shown converted dry land in the data bank. It is submitted that the W.P.(C).No.4123/21 4 petitioner had earlier approached this Court and by Exhibit P9 judgment this Court had found that the property was a part of a Town Planning Scheme promoted by the GCDA and that the land had been acquired specifically for the said purpose. Referring to the affidavit filed in the earlier writ petition, this Court had set the petitioner at liberty to approach the competent authority for correction of revenue records, which was directed to be considered in accordance with law. It is submitted that pursuant thereto, the petitioner had submitted Exhibit P10 representation before the RDO seeking change of the nature of land in the revenue records. By Exhibit P10(a), the petitioner was required to submit an application under Section 27A of the Kerala Conservation of Paddy Land and Wetland Act, 2008 (2008 Act for short). Thereafter, by Exhibit P12 dated 10.7.2020, the petitioner was required to pay the fees. - 3.The learned counsel for the petitioner submits that the petitioner is not required to file any application under Section 27A of the 2008 Act in view of the fact that Exhibit P9 ## W.P.(C).No.4123/21 5 judgment specifically covers the issue and directs the consideration of the petitioner's request for change of the nature of the land in the revenue records. It is submitted that a permission, as contemplated under Section 27A is, therefore, absolutely unnecessary in the petitioner's case, in view of the fact that the property stands acquired by the Government for a Town Planning Scheme and that there is a deemed conversion of the land as dry land as is evident from Exhibit P9. 4.Though the matter was repeatedly adjourned for instructions, no statement/counter affidavit had been placed on record by the learned Government Pleader. 5.A Division Bench of this Court in **State of Kerala v. Binu Mathew Chacko** [2021 (1) KLT 232] had specifically considered the effect of an acquisition for a Town Planning Scheme of the GCDA and had held that after such acquisition, the property cannot be said to be paddy land. In Exhibit P9 judgment also, this Court had held that since the property was a part of a Town Planning Scheme promoted by the GCDA and W.P.(C).No.4123/21 6 the land had been acquired for the purpose of developing and allotting to individuals and entities under the said Scheme, the property cannot be construed to be wetland and all that is required is a change in the revenue records. - 6.In the above view of the matter, the stand taken in Exhibit P10 and P12 that an application under Section 27A of the 2008 Act is called for in the petitioner's case is completely unjustified. In view of the fact that a circular dated 23.7.2021 stands set aside by a Division Bench of this Court in **Baby v. District Collector,** [2021(6) KLT 316], I am of the opinion that the demand for fees is completely unjustifiable, even in the case of an application under Section 27A. - 7.The writ petition is, therefore, allowed. Exhibits P10 and P12 are set aside. There will be a direction to the respondents to effect the changes in the revenue records in respect of the property without insisting on the payment of any fees. Appropriate steps shall be taken by the respondents for effecting the corrections in the revenue records within a 7 W.P.(C).No.4123/21 period of two months from the date of receipt of a copy of this judgment. sd/- **Anu Sivaraman, Judge** sj W.P.(C).No.4123/21 8 ## **APPENDIX OF WP(C) 4123/2021** PETITIONER EXHIBITS EXHIBIT P1 TRUE COPY OF THE EXTRACTS OF THE KALOOR TOWN PLANNING SCHEME INCORPORATING THE SURVEY NUMBERS OF THE PETITIONER'S PROPERTIES. - EXHIBIT P2 TRUE COPY OF THE CERTIFICATE ISSUED BY THE KOCHI MUNICIPAL CORPORATION DATED 30.11.2016. - EXHIBIT P3 TRUE COPY OF THE POSSESSION CERTIFICATE ISSUED BY VILLAGE OFFICE, ERNAKULAM DATED 05.04.2018 TO THE PETITIONER. - EXHIBIT P4 TRUE COPY OF THE RELEVANT EXTRACT OF THE 'THANDAPER' REGISTER OF ERNAKULAM VILLAGE, KANAYANNUR TALUK, ISSUED BY THE VILLAGE OFFICER, ERNAKULAM DATED 29.05.2018. - EXHIBIT P5 TRUE COPY OF THE LOCATION SKETCH ISSUED BY VILLAGE OFFICER, ERNAKULAM DATED 11.01.2017. - EXHIBIT P6 TRUE COPY OF THE RELEVANT EXTRACTS OF THE DATA BANK. - EXHIBIT P7 TRUE COPY OF THE ORDER DATED 02.09.2018 ISSUED BY THE 2ND RESPONDENT. - EXHIBIT P8 TRUE COPY OF THE ADDITIONAL AFFIDAVIT FILED BY THE 3RD RESPONDENT REVENUE DIVISIONAL OFFICER ON 15.10.2019 IN WRIT PETITION (CIVIL) NO.4489 OF 2019. - EXHIBIT P9 TRUE COPY OF THE JUDGMENT OF THIS HON'BLE COURT DATED 18.10.2019 IN WRIT PETITION (CIVIL) NO.4489 OF 2019. 9 ## W.P.(C).No.4123/21 EXHIBIT P10 - TRUE COPY OF THE PETITIONER'S REPRESENTATION DATED 18.11.2019 TO THE 3RD RESPONDENT REVENUE DIVISIONAL OFFICER, FORT KOCHI. EXHIBIT P10(a) TRUE COPY OF THE LETTER DATED 23.01.2020 SENT BY THE SUB COLLECTOR, FORT KOCHI TO THE PETITIONER. EXHIBIT P11 TRUE COPY OF THE BUILDING PERMIT DATED 30.01.2020 ISSUED BY THE KOCHI MUNICIPAL CORPORATION. EXHIBIT P12 TRUE COPY OF THE NOTICE OF THE 3RD RESPONDENT REVENUE DIVISIONAL OFFICE DATED 10.07.2020 TO THE PETITIONER. EXHIBIT P13 TRUE COPY OF THE PETITIONER'S LETTER DATED 30.09.2020 TO THE 3RD RESPONDENT REVENUE DIVISIONAL OFFICER. EXHIBIT P14 TRUE COPY OF THE PETITIONER APPLICATION UNDER SECTION 6(A) OF THE KERALA LAND TAX ACT DATED 28.12.2020 SUBMITTED TO THE TAHSILDAR, KANAYANNUR TALUK, ERNAKULAM.