Kerala High Court
Martin Sunny vs The Revenue Divisional Officer on 17 March, 2020
Author: Alexander Thomas
Bench: Alexander Thomas
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS
TUESDAY, THE 17TH DAY OF MARCH 2020 / 27TH PHALGUNA, 1941
WP(C).No.7679 OF 2020(H)
PETITIONER:
MARTIN SUNNY
AGED 48 YEARS
S/O.ABRAHAM SUNNY, ELENJICKAL HOUSE, RAMALLOOR KARA,
KOTHAMANGALAM P.O-686691.
BY ADVS.
SRI.RINNY STEPHEN CHAMAPARAMPIL
SMT.ASHA ELIZABETH MATHEW
RESPONDENTS:
1 THE REVENUE DIVISIONAL OFFICER,
MUVATTUPUZHA R.D.O. OFFICE,
PATTIMATTOM-MUVATTUPUZHA ROAD,
MUVATTUPUZHA (P.O)-686673.
2 THE TAHASILDAR,
(LAND RECORDS), THALUK OFFICE, KOTHAMANGALAM-686691.
3 THE VILLAGE OFFICER,
VILLAGE OFFICE, KOTHAMANGALAM-686691.
BY ADVS.
SRI.K.J.MANU RAJ, GOVT.PLEADER
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
17.03.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
W.P(C). No. 7679 of 2020
2
ALEXANDER THOMAS, J.
------------------------------------
W.P(C). No. 7679 of 2020
------------------------------------
Dated this the 17th day of March, 2020
JUDGMENT
The case set up in this writ petition (C) is as follows:
The petitioner is constrained to approach this Court seeking direction for consideration of an application submitted under Sec.6A of the Kerala Land Tax Act without insisting for payment of any amount and aggrieved by Ext. P9 order issued by the 1 st respondent requiring the Petitioner to pay the amount prescribed under Sec.27 A of the Paddy Land Act in-spite of the fact that the petitioner is armed with Ext.P8 KLU Order on an application submitted on 18/03/2014.
The petitioner is the title holder of 03.24 Ares of land comprised in Survey No.1230/9 of Kothamangalam Village. As on the date of the coming into force of the Paddy Land Act, the Petitioner's land was lying as Purayidom. But the land was described in the revenue records as 'Nilam'. Hence, a formal permission had to be obtained under Rule 6 (2) of the KLU Order. Therefore, the petitioner submitted Ext. P2 KLU application before the 1 st respondent on 18/03/2014. On Ext. P2 application, the 1 st respondent obtained Ext.P3 report dated 02/04/2014 from the Agricultural Officer, W.P(C). No. 7679 of 2020 3 Kothamangalam and Ext.P4 Report dated 07/06/2014 from the 3 rd Respondent. But no orders were passed and Ext.P2 was kept pending for a long period of time. Hence, the petitioner filed W.P.(C) No.32540/2017 and by Ext.P5 Judgment dated 12/10/2017, the above W.P.(C) was disposed of by directing the 1 st respondent to take a decision on Ext.P2 KLU application and the petitioner was directed to obtain a Certificate from the Convenor of LLMC and to produce it before the 1st respondent pursuant to which the petitioner obtained Ext.P6 Certificate dated 21/12/2017 of the Agricultural Officer, Kothamangalam and produced the same before the 1 st respondent as per covering Letter dated 12/02/2018. Thereafter the 1 st respondent issued Ext.P8 KLU order imposing condition No.3 that the petitioner shall pay the prescribed amount. The said condition is illegal as Ext.P8 was issued on Ext.P2 KLU Application submitted on 18/03/2014. When the petitioner approached the Officials for correcting the revenue records, he was made to believe that for validating Ext.P8 KLU Order, a formal application in a printed Form has to be submitted and the petitioner was made to submit a form based on which Ext.P9 order was issued by the 1 st respondent requiring the petitioner to pay 20% of the fair value. The petitioner is W.P(C). No. 7679 of 2020 4 not bound to pay any amount as he submitted KLU Application on 18/03/2014. Even though, the petitioner submitted Ext.P11 application for reassessment, he was told by the 2 nd respondent that as long as the condition in Ext.P8 KLU Order and Ext.P9 Order remains in force, reassessment is not possible.
2. The main contentions urged by the petitioner are as follows:
a) Condition No.3 in Ext.P8 KLU Order and the stipulation therein that Revenue Records have to be corrected as per the existing provisions are illegal as it was issued on Ext.P2 KLU application submitted on 18-03-2014.
b) Ext.P9 is illegal as the petitioner is not bound to pay any amount as per the Paddy Land Act & the Rules made there under as the petitioner submitted Ext.P2 KLU application submitted on 18-03-2014.
c) The 2nd respondent is bound to reassess and reclassify the petitioner's land as purayidam in the BTR based on Ext.P8 Order issued under Clause 6(2) of the KLU Order without insisting for any payment & de hors condition No.3 in Ext.P8 KLU Order & the requirement in Ext.P9 order.
It is in the light of these averments and contentions, that the petitioner has filed this Writ Petition (C) seeking the following prayers:
W.P(C). No. 7679 of 20205
i) Issue a Writ of Certiorari, or any other appropriate Writ, Order or Direction calling for all the records leading to Ext.P8 Order and quash the stipulation in it that it could be made use of only after making corrections in the revenue records as per the existing statutory provisions and Condition No.3 to pay the prescribed amount as per the Kerala Conservation of Paddy Land and Wet Land Act, 2008.
ii) Issue a Writ of Certiorari, or any other appropriate Writ, Order or Direction calling for all the records leading to Ext.P9 Order and quash the original of the same as illegal and opposed to law.
iii) Issue a Writ of Mandamus, or any other appropriate Writ, Order or Direction commanding the 2nd respondent to consider Ext. P11 application under Section 6 A of the Kerala Land Tax Act, 1961 and to pass orders thereon expeditiously within a time frame to be fixed by this Hon'ble Court as provided under Section 6A of the Kerala Land Tax Act, 1961 and to order to carry out consequent corrections in the revenue records by classifying the Petitioner's 3.24 Ares of land comprised in Survey No. 1230/9 of Kothamangalam Village as 'Purayidom' on the basis of Ext. P8 Order in the light of the Judgment in LLMC Kizhakkambalam Grama Panchayat Vs. Mariumma & Anr. (2015 (3) KHC 19 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 and de hors Condition No.3 in Ext.P8 Order and the requirement to pay the prescribed amount in Ext.P9 Order.
iv) Issue an appropriate Writ, Order or Direction declaring that the 2nd respondent is bound to consider Exhibit P11 application and pass orders thereon as provided under Section 6 A of the Kerala Land Tax Act, and to make consequent corrections in the revenue records by classifying the Petitioner's 3.24 Ares of land comprised in Survey No. 1230/9 of Kothamangalam Village as 'Purayidom' on the basis of Ext. P8 Order in the light of the Judgment in LLMC Kizhakkambalam Grama Panchayat Vs.Mariumma & Anr. (2015 (3) KHC 19 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 W.P(C). No. 7679 of 2020 6 Conservation of Paddy Land and Wet Land Rules, 2008 and de hors Condition No.3 in Ext.P8 Order and the requirement to pay the prescribed amount in Ext.P9 Order.
v) Pass such other appropriate Writs, Orders or Directions as this Hon'ble Court may deem just and proper to issue in the circumstances of the case.
3. It is beyond any factual controversy that the subject property owned and possessed by the petitioner was converted as garden land or purayidam long prior to 12-08-2008 (the date of coming into force of the of the Kerala Conservation of Paddy Land and Wetland Act, 2008). The subject property has been thereafter included in the land data bank prepared as per the amended provisions of the 2008 Act., wherein the property has been shown therein as "converted land". The petitioner had filed Ext.P2 application dated 18-03-2014 under Rule 6(2) of the Kerala Land Utilisation Order (KLU Order), 1967 before the 1st respondent RDO taking formal orders for conversion of the property as garden land or purayidam and use for any non-agricultural purposes including the construction of building. The petitioner had also filed formal application before the Statutory Local Level Monitoring Committee for exclusion of the property from the land data bank.
4. Since no action has been taken on the abovesaid applications, the petitioner was constrained to approach this Court W.P(C). No. 7679 of 2020 7 by filing W.P(C) No.32540/2017 before this Court, in which this Court has rendered Ext.P5 judgment dated 12-10-2017, wherein this Court had directed the Local Level Monitoring Committee to consider and pass orders on the request of the petitioner for deletion of the subject property from the land data bank. Further it is also directed that the respondent RDO should also consider and pass orders on the abovesaid application filed by the petitioner under Rule 6(2) of the Kerala Land Utilisation Order, 1967 for conversion of the subject property as garden land or purayidam and use for non- agricultural purposes including construction of residential building. Further this Court has also ordered that after the petitioner secures necessary orders from the RDO under Rule 6(2) of the KLU order he will be then entitled to maintain an application under Sec.6A of the Kerala Land Tax Act before the competent revenue official concerned like Thahsildar for securing additional entries in the BTR in respect of the subject property, showing the said subject property as garden land or purayidam, included in the earlier BTR which shows as nilam or paddy land etc,.
5. It appears that the compliance of the directions issued by this Court in Ext.P5 judgment, 1 st respondent RDO has passed Ext.P8 W.P(C). No. 7679 of 2020 8 order dated 14-12-2018, whereby the main request of the petitioner for conversion of the property as garden land or purayidam and use for any non-agricultural purposes has been conceded in accordance with the provisions contained in Rule 6(2) of the KLU order, 1967. However restrictions have been imposed by the 1st respondent RDO in Ext.P8 as condition No.3 thereof, that the petitioner should necessarily pay the higher amounts imposed as per the amended provisions of the 2008 Act which was introduced under Sec.27 A thereof, as a condition precedent for getting the property converted as garden land or purayidam and for such use. Thereafter the 1 st respondent has also passed consequent order as per Ext.P9 dated 19-10-2019, whereby the petitioner has been specifically directed to pay 20% fair value of the subject property, as the amounts due under Sec.27 A (1) of the amended provisions of 2008 Act and the rules framed thereunder in order to secure necessary orders for conversion of the subject property under Rule 6(2) of the KLU order, 1967. Further in the light of the specific directions issued by this Court in Ext.P5 judgment, the petitioner has also filed Ext.P11 application dated 03-03-2020 before the 2nd respondent Thahsildar seeking for fresh assessment/re-assessment of the subject property under Sec.6 W.P(C). No. 7679 of 2020 9 A of the Kerala Land Tax Act, and for making additional entries in BTR in respect of the subject property to show the same as garden land or purayidam in the earlier BTR entries which shows the land as nilam or paddy land.
6. According to the petitioner in view of the restrictions imposed on the petitioner by the RDO in Exts.P8 and P9, the 1st respondent RDO and 2nd respondent Thahsildar are insisting that the petitioner should necessarily pay the higher amounts in terms of Sec.27 A of the amended provisions of the 2008 Act and the rules framed thereunder as a condition precedent for getting orders under Sec.6 A of the Kerala Land Tax Act to reclassify the property as garden land or purayidam. It is these decisions of the 1st respondent and 2nd respondent that are under challenge in this Writ Petition.
7. It is no longer res integra and it is dully covered in favour of the petitioner and against the respondents, by a series of decisions of this Court as in Geo Peter v. Revenue Divisional Officer [2019 (3) KLT 838], Renjith.K.Paul v.Revenue Divisional Officer [2019 (2) KLT 262), LLMC, Kizhakkambalam Grama Panchayath v. Mariumma [2015 (2) KLT 516 (DB)], Tahsildar, Thodupuzha Taluk and another v. Renjith W.P(C). No. 7679 of 2020 10 George [2020 (1) KHC 865 (DB)] that where the subject property has been converted as garden land or purayidam much prior to coming into force of the 2008 Act and where the property holder has filed requisite application under Rule 6(2) of the Kerala Land Utilisation Order, 1967, before 30-12-2017 (which is the date of coming into force of the amended provisions of 2008 Act, which was introduced Sec.27 A thereof), then the property holder is entitled to get his request for conversion of the property strictly in terms of Rule 6(2) of the KLU order, 1967 and such a case the property holder cannot be mulcted to face the adverse and rigorous conditions prescribed as per the amended provisions of 2008 Act, including Sec.27A thereof as well as the rules framed thereunder.
8. Further it has been also held that in those decisions more particularly in the aforestated Division Bench decisions in Mariumma's case (supra) [2015 (2)KLT 516] and Renjith's case (supra) [2020 (1) KHC 865 (DB)], etc., that where the property holder thus secures orders under Rule 6(2) of the KLU order, 1967 for the RDO, then the property holder is equally entitled to maintain an application under Sec.6A of the Kerala Land Tax Act, 1961 for fresh assessment of the property by the Thahsildar for getting W.P(C). No. 7679 of 2020 11 additional entries in the BTR to show the subject property as garden land or purayidam, instead of the earlier BTR entries as nilam or paddy land etc,.
9. Accordingly in the light of these aspects it is only to be held that the impugned restrictions imposed by 1st respondent RDO as condition No.3 in Ext.P8 and consequential order passed by the 1st respondent in Ext.P9, demanding that the petitioner should necessarily pay the higher amounts in terms of Sec.27 A (1) of the amended provisions of the 2008 Act and rules framed thereunder as a condition precedent for securing formal orders under Rule 6(2) of the KLU order 1967 for conversion of the property and for its use accordingly is illegal, ultra vires and unenforceable. Admittedly, the petitioner has filed the requisite application under Rule 6(2) of KLU Order as per Ext.P2 as early as on 18-03-2014, which has been directed to be considered and ordered by this Court as per Ext.P5 judgment rendered on 12-10-2017. Therefore it is evidently and manifestly clear that the said request in application under Rule 6(2) of KLU order, 1967 has been filed by the petitioner before the 1st respondent RDO much prior to 30-12-2017, which is the date of coming into force of the amended provisions of the 2008 Act, which was introduced Sec.27A thereof.
W.P(C). No. 7679 of 202012
10. Hence, in view of the abovesaid legal principles laid down by this Court in the aforestated judgments, the petitioner is legally entitled to secure orders under Rule 6(2) of the KLU Order, 1967 for conversion of the subject property as garden land or purayidam and use for any non-agricultural purposes including construction of the buildings etc., without having to pay the higher amounts conceded in terms of Sec.27 A(1) of the amended provisions of the 2008 Act and the rules framed thereunder.
11. Therefore it is ordered that the impugned condition No.3 and the restrictions imposed in Ext.P9 will stand set aside and rescinded. Ext.P8 order will stand upheld and confirmed in all other aspects. In other words, Ext.P8 should be taken as unequivocal and unambiguous order rendered by the RDO under Rule 6 (2) of the KLU order, 1967 for conversion of the subject property as garden land or purayidam and use for any non-agricultural purposes including construction of building. Further in the light of the dictum laid down by the Division Bench of this Court as in Mariumma's case (supra)[2015 (2) KLT 516 (DB)], Renjith's case (supra) [2020 (1)KHC 865 (DB)], the petitioner is legally entitled to maintain Ext.P11 application under Sec.6 A of the Kerala Land Tax Act, 1967 W.P(C). No. 7679 of 2020 13 before the 2nd respondent Thahsildar for subjecting the subject property for fresh assessment under that provision and for getting additional entries in the BTR in respect of subject property to show the property as garden land or purayidam, which was earlier shown in the earlier BTR entries as nilam or paddy land. Legal position in that regard is declared and ordered. Consequently the 2nd respondent will take up the plea made by the petitioner in Ext.P11 and will pass orders on the request of the petitioner contained therein for getting additional entries in the BTR showing the property as garden land or purayidam, which was earlier included in the BTR as nilam or paddy land, after affording reasonable opportunity of being heard to the petitioner and strictly in the light of the dictum laid down by the judgments of the Division Bench of this Court as in Mariumma's case (supra) [2015 (2)KLT 516] and Renjith's case (supra) [2020 (1) KHC 865 (DB)], etc., without any further delay at any rate within one month from the date of production of the certified copy of this judgment. At the risk of the repetition, it is reiterated that the 2nd respondent Thahsildar is also obliged to pass necessary orders on Ext.P11 as aforedirected and in the light of the dictum laid down by the Division Bench of this Court in the W.P(C). No. 7679 of 2020 14 aforestated judgment and without the petitioner having to pay any amounts as conceived in terms of the provisions contained in Sec.27 A of the amended provisions of the 2008 Act and any of the provisions of the amended rules framed thereunder.
12. This Court is so repeating as it has very often come to the notice of this Court by now that the revenue officials like RDO and the Thahsildar etc., are repeatedly violating the abovesaid dictum laid down by this Court in the abovesaid judgments and thus driving the litigants to come to this Court unnecessarily, which could have been easily sorted out at the level of the competent authorities concerned. It is hoped and expected that the respondents, more particularly the 2nd respondent will rise up to the occasion so as to ensure that they discharges their statutory obligations and duties under Sec.6 A of the Kerala Land Tax Act and to comply with the directions already issued by the Division Bench in the aforestated judgments.
With these observations and directions the above Writ Petition (Civil) will stand finally disposed of.
Sd/-
ALEXANDER THOMAS, JUDGE KAS W.P(C). No. 7679 of 2020 15 APPENDIX PETITIONER'S/S EXHIBITS:
EXHIBIT P1 A TRUE COPY OF THE PROPERTY TAX RECEIPT DATED 17.04.2019 ISSUED FROM VILLAGE OFFICE, KOTHAMANGALAM.
EXHIBIT P2 A TRUE COPY OF THE APPLICATION
SUBMITTED BY THE PETITIONER ON
18.03.2014 UNDER CLAUSE 6(2) OF THE KLU
ORDER BEFORE THE 1ST RESPONDENT.
EXHIBIT P3 A TRUE COPY OF REPORT NO.K-2/14-15
DATED 02.04.2014 SUBMITTED BY THE
AGRICULTURAL OFFICER, KOTHAMANGALAM
BEFORE THE 1ST RESPONDENT.
EXHIBIT P4 A TRUE COPY OF REPORT NO.206/14 DATED
07.06.2014 SUBMITTED BY THE 3RD
RESPONDENT.
EXHIBIT P5 A TRUE COPY OF THE JUDGMENT DATED
12.10.2017 OF THIS HON'BLE COURT IN
W.P.(C)NO.32540/2017 IS RESPONDENT.
EXHIBIT P6 A TRUE COPY OF THE CERTIFICATE DATED
21.12.2017 ISSUED BY THE AGRICULTURAL
OFFICER, KOTHAMANGALAM ADDRESSED TO THE
1ST RESPONDENT.
EXHIBIT P7 A TRUE COPY OF THE COVERING LETTER
DATED 12.02.2018 SUBMITTED BY THE
PETITIONER BEFORE THE 1ST RESPONDENT
ALONG WITH EXT.P5 JUDGMENT AND EXT.P6
CERTIFICATE.
EXHIBIT P8 TRUE COPY OF THE ORDER DATED 14.12.2018
ISSUED BY THE 1ST RESPONDENT UNDER RULE
6(2) OF KLU ORDER.
EXHIBIT P9 A TRUE COPY OF ORDER NO.A11-5703/19
DATED 19.10.2019 WHICH WAS SERVED ON
THE PETITIONER DURING THE 2ND WEEK OF
JANUARY 2020.
W.P(C). No. 7679 of 2020
16
EXHIBIT P10 A TRUE COPY OF THE COMMON JUDGMENT
DATED 11.12.2019 IN W.P.
(C)NO.31942/2019 AND CONNECTED CASE.
EXHIBIT P11 A TRUE COPY OF THE APPLICATION DATED
03.03.2020 SUBMITTED BY THE PETITIONER
IN FORM NO.A OF THE KERALA LAND TAX
ACT, 1961 BEFORE THE 2ND RESPONDENT.
RESPONDENT'S/S EXHIBITS: NIL
//TRUE COPY//
PA TO JUDGE