Kerala High Court
Babu Sunny vs The State Of Kerala on 11 March, 2020
Author: Alexander Thomas
Bench: Alexander Thomas
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS
WEDNESDAY, THE 11TH DAY OF MARCH 2020 / 21ST PHALGUNA, 1941
WP(C).No.7328 OF 2020(M)
PETITIONER:
BABU SUNNY
AGED 58 YEARS
S/O. ABRAHAM SUNNY, ELENJICKAL HOUSE, KUTHUKUZHI
P.O., KOTHAMANGALAM-686 691.
BY ADVS.
SRI.RINNY STEPHEN CHAMAPARAMPIL
SMT.ASHA ELIZABETH MATHEW
RESPONDENTS:
1 THE STATE OF KERALA
REPRESENTED BY THE SECRETARY, REVENUE DEPARTMENT,
GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695 001.
2 THE THAHASILDAR (LAND RECORDS)
TALUK OFFICE, KOTHAMANGALAM P.O. 686 691.
3 THE VILLAGE OFFICER
THRIKKARIYOOR VILLAGE OFFICE (P.O.)
THRIKKARIYOOR (P.O) 686 692
SRI.SAIGI JACOB PALATTY, SR.GOVT.PLEADER
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
11.03.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C).No.7328 OF 2020(M)
2
ALEXANDER THOMAS, J.
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WP(c) NO. 7328/2020
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Dated this the 11th day of March 2020
JUDGMENT
The case set up in this WP(C) are as follows: That the petitioner is constrained to approach this Court aggrieved by the non-consideration of an application submitted by the him under Section 6A of the Kerala Land Tax Act, 1961 for reassessment of Land Tax and consequent corrections in the BTR on the basis of an Order dated 30/11/2015 issued by the RDO, Muvatupuzha under Clause 6 (2) of the KLU Order, 1967. The Petitioner is the title holder in possession of 35.18 Area of land comprised in Survey Nos. 587/1-4, & 587/2-2 of Thrikariyoor Village in Kothamangalam Taluk. As on the date of the coming into force the Kerala Conservation of Paddy Land and Wet Land Act, 2008, it was lying as Purayidom seeking permission for different utilization of his Land, the Petitioner submitted an application an application on 18/03/2014 before the RDO, Muvattupuzha under Clause m of the KLU Order, 1967. After conducting, an enquiry and obtaining Report dated 21/08/2014 from the 2 nd Respondent, by Ext. P3 Order No.A9-5055/2014/K.Dis dated 30/11/2015 issued by the RDO, Muvattupuzha, Ext P2 Application was allowed by permitting the Petitioner to make use of the land for non agricultural WP(C).No.7328 OF 2020(M) 3 purposes. For conduction reassessment and for making consequent corrections in the Revenue Records by classifying the land as Purayidom, the Petitioner submitted Ext P4 Respondent. Application in Form No.A before the 2nd respondent. But the 2nd Respondent has not so far taken up the said application for consideration. It appears that the 2 nd Respondent is not considering Ext P4 for the reason that the Petitioner has not paid the amount prescribed under the Paddy Land Act as amended by Act 29 of 2018 & the Rules made there under especially Rule 12 (17) thereof. It is submitted that the 2nd Respondent is bound to consider Exhibit P4 application de hors the provisions of the Kerala Conservation of Paddy Land and Wet Land Act, 2008 as amended by Act 29 of 2018 as the reassessment is sought on the basis of Ext. P3 Order issued under the KLU Order issued on 30/11/2015 much prior to the coming into force of the Paddy Land Amendment Act w.e.f 30/12/2017. The 1st Respondent is bound to consider Ext.P4 Application on the basis of Ext P3 Order in the light of the Judgment in LLMC Kizhakkambalam Grama Panchayat Vs. Mariumma & Anr. (2015 (3) KHC 19 DB) and Tahisldar, Thodupuzha Taluk & Anr. Vs. Renjith George (2020(1) KHC 865 DB).
2. It is in the light of these averments and contentions that the petitioner has filed this instant WP(c) with the following prayers:
(i) Issue an appropriate Writ, Order or direction declaring that WP(C).No.7328 OF 2020(M) 4 Rule 12(17) of the Kerala Conservation of Paddy Land and Wet Land Rules, 2008 is beyond the legislative competence of the Government of Kerala and is in excess of the legislative delegation and it is ultra vires of the Kerala Conservation of Paddy Land and Wet Land Act, 2008 and it is unconstitutional.
(ii) Issue a Writ of Mandamus, or any other appropriate Writ, Order or Direction commanding the 2nd respondent to consider Exhibit P4 application and to pass orders thereon expeditiously within a time frame to be fixed by this Court as provided under Section 6 A of the Kerala Land Tax Act, 1961 and to order to carry out consequent corrections in the revenue records by classifying the Petitioner's 33.18 Ares of land comprised in Survey Nos. 587/1-4, & 587/2-2 of Thrikkariyoor Village in Kothamangalam Taluk as Purayidom' on the basis of Exhibit P3 Order in the light of the Judgment in LLMC Kizhakkambalam Grama Panchayat Vs. Mariumma & Anr. (2015 (3) KHC 19 DB) and Tahisldar, Thodupuzha Taluk & Anr. Vs. Renjith George (2020(1) KHC 865 DB) without insisting for payment of any amount prescribed under Section 27A of the Kerala Conservation of Paddy Land and Wet Land Act, 2008 or under Rule 12(17) of the Kerala Conservation of Paddy Land and Wet Land Rules, 2008.
(iii) Issue a Writ of Mandamus, or any other appropriate Writ, WP(C).No.7328 OF 2020(M) 5 Order or Direction commanding the 3d respondent to make consequent corrections in the revenue records including the Basic Tax Register to the effect that the Petitioner's 33.18 Ares of land comprised in Survey Nos.587/1-4, & 587/2-2 of Thrikkariyoor Village in Kothamangalam Taluk is Purayidom and to accept land tax for the said Tand in the category of Purayidom and to show the classification of the said land in the Possession Certificate and Land Tax Receipt as Purayidom.
(iv) Issue an appropriate Writ, Order or Direction declaring that the 2nd respondent is bound to consider Exhibit P4 application and pass orders thereon as provided under Section 6A of the Kerala Land Tax Act, 1961 and to make consequent corrections in the revenue records by classifying the Petitioner's 33.18 Ares of land comprised in Sy. Nos. 587/1-
4 & 587 / 2-2 of ThrikariyoorVillage in Kothamangalam Taluk as Purayidom on the basis of Ext.P3 order in the light of the judgment in LLMC Kizhakkambalam Gramapanchayat Vs. Mariumma & Anr. (2015 (3) KHC 19 DB) and Tahasildar, Thodupuzha Taluk & Anr. Vs. Renjith George (2020 (1) KHC 865 DB) without insisting for payment of any amount prescribed under section 27A of the Kerala Conservation of Paddy Land and Wet Land Rules, 2008.
3. Heard Sri. Renny Stephen Chamapparambil, learned counsel appearing for the petitioner and Sri. Saigi Jacob Paletty, learned Sr. WP(C).No.7328 OF 2020(M) 6 Government Pleader appearing for the respondents.
4. It is beyond any dispute that the subject property involved in this case has been converted as garden land or purayidom much prior to 12/08/2008, the date of coming into force of the Kerala Conservation of Paddy Land and Wet Land Act 2008. It is also not beyond dispute that the petitioner has filed the requisite application under Rule 6(2) of the Kerala Land Utilization Order 1967 for getting formal order for conversion of subject property as garden land or purayidom and for its use for any nonagricultural purposes, much prior to (date of coming into force of the amended provisions of the 2008 Act introducing Section 27A thereof). It is also common ground that as a matter of fact, petitioner has already secured Ext.P2 application dated 18/02/2014, which has been submitted much prior to 13/12/2017 which is the date of coming into force of the amended provisions of the 2008 Act. It is also common ground that the petitioner has in fact secured Ext.P3 order dated 30/11/2015 as issued by the RDO, Muvattuppuzha, where formal permission under Rule 6(2) of the KLU order has been obtained for conversion of the property as garden land or purayidom for its use for any non-agricultural purposes has as conferred in Rule 6(2) of the KLU Order, 1967.
5. Petitioner has now submitted Ext.P4 application dated 10/02/2020 before the 2nd respondent Tahasildar seeking for the WP(C).No.7328 OF 2020(M) 7 consequential action for re-assessment/fresh assessment of the subject property, so as to secure additional entries in the BTR, to show the property as garden land / purayidom, instead of the early BTR entries as paddy land or Nilam.
6. It is now well settled by a series of Rulings by this Court that, where the property has been converted as garden land or purayidom, prior to the date of coming into force of the 2008 Act and where the property holder has filed the requisite application under Rule 6(2) of the KLU Order for formal conversion of property as garden land or purayidom prior to 13/12/2017 (date of coming into force of the amended provisions of the 2008 Act introducing Section 27A thereof), then in such a case, the property holder is entitled to get his case considered strictly in terms of the provisions contained in the Rule 6 of the Kerala Land Acquisition Order, 1967 and he shall not be mulcted with any adverse conditions flowing out from the amended provisions of the 2008 Act, introducing section 27A thereof and in such a case, he cannot be forced to pay higher amounts in terms of section 27A(1) for getting such orders of conversion. In such a scenario, it is also now well settled that, once the orders under Rule 6(2) of the KLU orders are obtained, then the property holder is equally entitled to legally maintain a formal application before the competent Revenue Officials like the 2nd respondent Tahasildar, seeking fresh assessment/re- WP(C).No.7328 OF 2020(M) 8 assessment of the subject property, in terms of section 6A of the Kerala Land Tax Act in order to secure additional entries in the BTR to show the property as garden land or purayidom instead of the earlier BTR entries as Nilam or paddy land. This aspect of the matter has been categorically so declared and held by judgments of the Division Bench of this Court, as in Local Level Monitoring Committee, Kizhakkambalam Gramapanchayat Vs. Muriyumma 2015 (2) KLT 516 (DB), Tahasildar, Todupuzha Taluk Vs. Renjit 2020 (1) KHC 865 (DB) etc. Accordingly it is ordered that the 2 nd respondent Tahasildar is also obliged to take consequential action in the light of the above said dictum settled by the Division Bench of this Court as afore cited and since the petitioner has in fact filed Ext.P2 KLU application dated 18/03/2014, which is prior to 13/12/2017 and has already secured Ext.P3 order in that regard. Accordingly it is ordered that the 2 nd respondent Tahasildar will immediately take up the plea made by the petitioner in Ext.P4 application and after affording reasonable opportunity of being heard to the petitioner, should make fresh assessment / re-assessment of the subject property in terms of Section 6(A) of the Kerala Land Tax Act, so as to make additional entries in the BTR to show the subject property as garden land or purayidom, instead of the earlier BTR entries as Nilam or paddy land and orders in that regard should be duly passed by the 2 nd respondent WP(C).No.7328 OF 2020(M) 9 Tahasildar after affording reasonable opportunity of being heard to the petitioner and within one month from the date of production of a certified copy of this judgment.
With these observations, the above WP(C) will stand finally disposed of.
Sd/-
ALEXANDER THOMAS
Nsd JUDGE
//true copy//
PA to Judge
WP(C).No.7328 OF 2020(M)
10
APPENDIX
PETITIONER'S/S EXHIBITS:
EXHIBIT P1 TRUE COPY OF THE LAND TAX RECEIPT OF THE
PETITIONER'S LAND IN SURVEY NOS.587/1-4, &
587/2-2 OF THRIKKARIYOOR VILLAGE.
EXHIBIT P2 A TRUE COY OF THE KLU APPLICATION SUBMITTED
BY THE PETITIONER ON 18.3.2014 BEFORE THE
REVENUE DIVISIONAL OFFICER, MUVATTUPUZHA.
EXHIBIT P3 A TRUE COPY OF ORDER NO.A9-5055/2014/K.DIS
DATED 30.11.2015 ISSUED BY THE RDO,
MUVATTUPUZHA.
EXHIBIT P4 A TRUE COPY OF THE APPLICATION SUBMITTED BY
THE PETITIONER IN FORM NO.A BEFORE THE 2ND
RESPONDENT ON 10.2.2020.
EXHIBIT P5 A TRUE COPY OF THE ACKNOWLEDGEMENT RECEIPT
ISSUED FROM THE OFFICE OF THE 2ND
RESPONDENT.