Kerala High Court
Babu Sunny vs The Revenue Divisional Officer on 19 March, 2020
Author: Alexander Thomas
Bench: Alexander Thomas
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS
THURSDAY, THE 19TH DAY OF MARCH 2020 / 29TH PHALGUNA, 1941
WP(C).No.8655 OF 2020(F)
PETITIONER/S:
1 BABU SUNNY,
AGED 58 YEARS
ELENJICKAL HOUSE, KUTHUKUZHI P.O., KOTHAMANGALAM-686
691.
2 ANCILY BABU
ELENJICKAL HOUSE, KUTHUKUZHI P.O., KOTHAMANGALAM-686
691.
3 SUJI THOMAS
ELENJICKAL HOSUE, RAMALLOOR KARA, KOTHAMANGALAM P.O.
686 691
4 ALFRED VINCENT
77/A, KAVERI STREET, UDAYANAGAR, BANGLORE NORTH,
DOORVANINAGAR, BANGLORE, KARNATAKA-560 016.
BY ADVS.
SRI.RINNY STEPHEN CHAMAPARAMPIL
SMT.ASHA ELIZABETH MATHEW
RESPONDENT/S:
1 THE REVENUE DIVISIONAL OFFICER,
MUVATTUPUZHA R.D.O. OFFICE, PATTIMATTOM-MUVATTUPUZHA
ROAD, MUVATTUPUZHA (P.O), 686 673.
2 THE TAHASILDAR (LAND RECORDS)
THALUK OFFICE, KOTHAMANGALAM-686 691.
3 THE VILLAGE OFFICER
VILLAGE OFFICE, KOTHAMANGALAM-686 691.
OTHER PRESENT:
SRI.K.J.MANU RAJ, GOVT.PLEADER
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
19.03.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C).No.8655 OF 2020(F) 2
ALEXANDER THOMAS, J.
-----------------------------------------
W.P.(C.) No. 8655 of 2020
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Dated this the 19th day of March, 2020
JUDGMENT
The case set up in the W.P.(C.) is as follows :
That the Petitioners are seeking direction for consideration of an application submitted under Section 6A of the Kerala Land Tax Act without insisting for payment of any amount and aggrieved by Exts.P10 & P11 Orders issued by the 1st respondent requiring the Petitioners to pay the amount prescribed under Section 27A of the Paddy Land Act inspite of the fact that the Petitioners are armed with Ext.P9 KLU Order on an application submitted on 18.03.2014. Petitioners 1 to 3 were the title holders in absolute possession of 23.67 Ares of land comprised in SurveyNos.1230/9 and 1230/10 of Kothamangalam Village. Subsequent to Ext.P9 KLU Order, they sold 121 Ares of land comprised in Survey No.1230/9. As on the date of the coming into force of the Paddy Land Act, the Petitioner's land was lying as Purayidom, but classified in the revenue records as 'Nilam'. Petitioners 1 to 3 submitted Ext.P3 KLU application before the 1st respondent on 18.03.2014 on which 1 st respondent obtained Ext.P4 report dated 02.04.2014 from the Agricultural Officer and Ext.P5 report dated 07.06.2014 from the 3rd Respondent. But no Order were WP(C).No.8655 OF 2020(F) 3 passed on Ext.P3. Hence, Petitioners 1 to 3 filed W.P.(C)No.32544/2017 and Ext.P6 Judgment dated 12.10.2017, the above W.P.(C) was disposed of by directing the 1st respondent to take a decision on Ext.P3 KLU application & Petitioners 1 to 3 were directed to obtain a Certificate from the Convenor of LLMC and to produce it before the 1 st respondent pursuant to which the Petitioner obtained Ext.P7 Certificate dated 21.12.2017 and produced the same before the 1st respondent. Thereafter the 1st respondent issued Ext.P9 KLU Order imposing Condition No.3 that the Petitioner shall pay the prescribed amount. The said condition is illegal as Ext.P9 was issued on Ext.P3 KLU Application submitted on 18.03.2014. When the Petitioners approached the Officials for correcting the revenue records, they were made to believe that for validating Ext.P9 KLU Order, a formal application in Printed Form has to be submitted on which Exts.P10 & P11 Orders were issued by the 1st respondent requiring the Petitioners to pay 20% of fair value. Petitioners are not bound to pay any amount as KLU Application was submitted on 18.03.2014. Even though, the Petitioners submitted Ext.P13 Application for reassessment, they were told by 2 nd respondent that as long as the Condition in Ext.P9 KLU Order and Exts.10 & P11 Orders remain in force, reassessment is not possible.
2. The main contentions urged by the petitioner are as follows :
A. That condition No. 3 in Ext.P9 KLU order & the stipulation therein that Revenue records have to be corrected as per the existing WP(C).No.8655 OF 2020(F) 4 provisions are illegal as it was issued on Ext.P3 KLU application submitted on 18.3.2014.
B. That Exts.P10 & P11 orders are illegal as the petitioners are not bound to pay any amount as per the Paddy Land Act & the Rules made thereunder as petitioners 1 to 3 submitted Ext.P3 KLU application on 18.3.2014 C. That the 2nd respondent is bound to reassess and reclassify the petitioners' land as Purayidam in the BTR based on Ext.P38 order issued under Clause 6(2) of the KLU order without insisting for any payment & dehors condition No.3 in Ext.P9 KLU order & the requirement in Exts.P10 & P11 orders.
3. In the light of these averments and contentions the petitioner has filed the instant W.P.(C.) with the following prayers :
(i) "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 stipulation in it that it could be made use of only after making correction 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.P10 and Exhibit P11 Orders and quash the original of the same as illegal and opposed to law.
iii) Issue a Writ of Certiorari, or any other appropriate Writ, Order or Direction commanding the 2nd respondent to consider Ext.P13 application under Section 6A 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 19.22 Ares of land comprised in Survey No.1230/9/3 of Kothamangalam Village as 'Purayidom' on the basis of Ext.P9 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.P9 Order and the requirement to pay the prescribed amount in Exts.P10 & P11 Orders. WP(C).No.8655 OF 2020(F) 5
iv) Issue an appropriate Writ, Order or Direction declaring that the 2 nd respondent is bound to consider Exhibit P13 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 19.22 Ares of land comprised in Survey No.1230/9 & 1.21 Ares of land comprised in Survey No.1230/9/3 of Kothamangalam Village as 'Purayidom' on the basis of Ext.P9 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.P9 Order and the requirement to pay the prescribed amount in Exts.P10 & P11 Orders.
v) Pass such others appropriate Writs, Orders or Directions as this Hon'ble Court may deem just and proper to issue in the circumstances of the case."
4. Heard Sri.Rinny Stephen Chamaprambil, learned counsel appearing for the petitioners and Sri.K.J.Manuraj, learned Government Pleader appearing for the respondents.
5. It is beyond any dispute that the subject property involved in this case was converted as 'garden land' or 'purayidom' much prior to 12.8.2008, which is the date of coming into force of the Kerala Conservation of Paddy Land or Wetland Act, 2008. It is also beyond any dispute that the petitioners have in fact submitted the requisite application under Rule 6(2) of the Kerala Utilization Order, 1967 before the 1 st respondent Revenue Divisional Officer, Muvattupuzha much prior to 30.12.2017, which is the date of coming into force of the amended provisions of the 2008 Act, which has introduced Sec.27A thereof and this crucial aspect can be seen from the fact that the said application has been produced as Ext.P3 in Ext.P6 W.P.(C.) No. 32544/2017 filed by the petitioners herein, which has been finally disposed of by this Court as per WP(C).No.8655 OF 2020(F) 6 Ext.P6 judgment rendered on 12.10.2017. The report of the Agricultural Officer concerned and the report of the Village Officer in pursuance to the said Rule 6(2) application filed by the petitioners under KLU order has been rendered by those officers on 2.4.2014 and 7.6.2014 respectively and it has been produced and marked as Exts.P4 and P5 in Ext.P6 W.P.(C.) No.32544/2017. Therefore, it is evidently clear from a mere reading of Ext.P6 judgment that the petitioners have indeed filed the requisite application under Rule 6(2) of the KLU order much prior to 30.12.2017 which is the date of coming into force of the amended provisions of the 2008 Act.
6. Thereafter, the 1st respondent RDO has passed Ext.P9 order dated 14.12.2018 directing that the request of the petitioners for conversion of the subject property as 'garden land' or 'purayidom' and for its use for any non-agricultural purposes in terms of Rule 6(2) of the KLU order, 1967 could be ordered, only if the petitioners pay a higher amounts conceived in terms of the amended provisions of the 2008 Act which has introduced Sec.27A thereof and the amended Rules framed thereunder. Ext.P10 and P11 are the consequential orders passed by the 1 st respondent RDO directing the petitioners to pay the quantifying the said requisite amount as 20% of the fair value of the subject property. The petitioners have also submitted Ext.P13 application dated 3.3.2020 before the 2 nd respondent Tahsildar seeking for fresh assessment/re-assessment of the property to WP(C).No.8655 OF 2020(F) 7 secure additional entries in the BTR of the subject property to show correctly the property as 'garden land' or 'purayidom' instead of the earlier BTR entries as 'nilam' or 'paddy land' etc.
7. The matter in issue is no longer res integra and is fully covered in favour of the petitioners and against the respondents as per the dictum laid down by this Court in a series of rulings as in Geo Peter v. Revenue Divisional Officer [2019 (3) KLT 838], Renji K.Paul v. Revenue Divisional Officer [2019 (2) KLT 262], Salim v. State of Kerala [2019 (3) KLT 604 (DB)] LLMC, Kizhakkambalam Grama Panchayat v. Mariumma [2015 (2) KLT 516 (DB)] therein this Court has categorically held and declared that in a case where the subject property has been converted as 'garden land' or 'purayidom' prior to 12.08.2008 (the date of coming into force of the 2008 Act) and where the party concerned has made a requisite application under Rule 6(2) of the KLU order, 1967 before 30.12.2017 (date of coming into force of the amended provisions of the 2008 Act, which has introduced Sec.27A thereof) then in such a case the party concerned is legally entitled to consider and treat the case, strictly in accordance with the provisions contained in Rule 6(2) of the KLU order, 1967 and in such a case, the party cannot be compelled by the respondent Revenue official concerned to pay the higher amounts conceived as per the amended provisions of the 2008 Act including Sec.27A thereof and the amended Rules framed thereunder. WP(C).No.8655 OF 2020(F) 8
8. Further, the Division Bench of this Court has held in judgment as in Tahsildar, Thodupuzha Taluk v. Renjith [2020 (1) KHC 865(DB)] that in such a case where the party concerned has secured such orders under Rule 6(2) of the KLU order for conversion of the property, then thereafter the party is equally entitled to maintain an application under Sec.6A of the Kerala Land Tax Act, 1961 for subjecting the property to fresh assessment/re-assessment for securing additional entries in the BTR to correctly show the property as 'garden land' or 'purayidom' instead of the earlier BTR entries as 'nilam' or 'paddy land' and without the party having to pay any higher amounts as conceived as per the amended provisions of the 2008 Act and the Rules framed thereunder.
9. In the instant case, restrictive conditions imposed by the 1 st respondent in the impugned proceedings as per Exts.P9, P10 and P11 are thus illegal and ultravires and goes flagrantly against the dictum laid down by this Court in the aforecited judgments. Accordingly, the impugned Ext.P9 to the limited extent it places restrictions therein that the petitioners should necessarily pay the higher amounts as per the amended provisions of the 2008 Act including Sec. 27A thereof and the amended Rules framed thereunder etc. is set aside and quashed as it is illegal, ultravires and unenforceable. Ext.P9 order under Rule 6(2) of the KLU order passed by the 1st respondent to the extent it is in favour of the petitioners will stand fully affirmed and upheld. Consequently, it is also WP(C).No.8655 OF 2020(F) 9 ordered that the consequential orders as Exts.P10 and P11 passed by the 1 st respondent directing the petitioners to pay the said higher amounts at the rate of 20% of the fair value of the subject property will also stand set aside and quashed.
10. Accordingly, it is ordered and declared that Ext.P9 order should be treated as an unconditional order passed by the 1 st respondent RDO granting permission to the petitioners under Rule 6(2) of the KLU order, 1967 for conversion of the subject property as 'garden land' or 'purayidom' and for its use for any non-agricultural purposes. Further, it is also ordered that the 2nd respondent Tahsildar is also bound to consider the request of the petitioners under Sec.6A of the Kerala Land Tax Act, 1961 for making additional entries in the BTR to correctly show the nature of the property as 'garden land' or 'purayidom', in consequence to Ext.P9 order, in the light of the dictum laid down by the judgemnts of the Division Bench of this Court as in Mariumma's case (supra) [2015 (2) KLT 516 (DB)] and Renjith's case (supra) [2020 (1) KHC 865(DB)] and without the petitioners having to pay any amounts as conceived as per the amended provisions of the 2008 Act, including the amended Rules framed thereunder. Consequently, it is ordered that the 2 nd respondent Tahsildar will immediately take up the request made by the petitioners in Ext.P13 application and will pass necessary orders for re-assessment/fresh assessment of the subject property so as to make additional entries in the WP(C).No.8655 OF 2020(F) 10 BTR to correctly show the nature of the property as 'garden land' or 'purayidom' instead of the earlier BTR entries as 'nilam' or 'paddy land' without any further delay and after affording reasonable opportunity of being heard to the petitioners and within one month from the date of production of a certified copy of this judgment and 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 (DB)] and Renjith's case (supra) [2020 (1) KHC 865(DB)]. It is ordered and reiterated that the 2nd respondent Tahsildar will have to do the needful on Ext.P13 application as aforedirected without compelling the petitioners to pay any amounts as per the amended provisions of the 2008 Act and the amended Rules framed thereunder.
With these observations and directions, the above W.P.(C.) will stand finally disposed of.
Sd/-
ALEXANDER THOMAS, JUDGE SKS WP(C).No.8655 OF 2020(F) 11 APPENDIX PETITIONER'S/S EXHIBITS:
EXHIBIT P1 A TRUE COPY OF THE PROPERTY TAX RECEIPT
DATED 17.4.2019 ISSUED FROM VILLAGE OFFICE,
KOTHAMANGALAM.
EXHIBIT P2 TRUE COPY OF THE PROPERTY TAX RECEIPT DATED
18.5.2019 ISSUED FROM VILLAGE OFFICE,
KOTHAMANGALAM IN FAVOUR OF THE 4TH
PETITIONER.
EXHIBIT P3 TRUE COPY OF THE APPLICATION SUBMITTED BY
ON 18.3.2014 UNDER RULE 6(2) OF THE KLU
ORDER.
EXHIBIT P4 TRUE COPY OF REPORT NO.K-2/14-15 DATED
2.4.2014 SUBMITTED BY AGRICULTURAL OFFICER,
KOTHAMANGALAM BEFORE IST RESPONDENT.
EXHIBIT P5 A TRUE COPY OF REPORT NO.207/14 DATED
7.6.2014 SUBMITTED BY THE 3RD RESPONDENT.
EXHIBIT P6 A TRUE COPY OF THE JUDGMENT DATED
12.10.2017 OF THIS HON'BLE COURT IN WPC
NO.32544/2017.
EXHIBIT P7 TRUE COPY OF THE CERTIFICATE DATED
21.12.2017 ISSUED BY THE AGRICULTURAL
OFFICE,R KOTHAMANGALAM ADDRESSED TO THE IST
RESPONDENT.
EXHIBIT P8 A TRUE COPY OF THE COVERING LETTER DATED
12.2.2018 SUBMITTED BY THE PETITIONER
BEFORE THE IST RESPONDENT ALONG WITH EXT.P6
JUDGMENT & EXT.P7 CERTIFICATE.
EXHIBIT P9 TRUE COPY OF THE ORDER DATED 14.12.2018
ISSUED BY THE IST RESPONDENT UNDER RULE
6(2) OF KLU ORDER.
EXHIBIT P10 TRUE COPY OF ORDER NO.A11-5705/19 DATED
22.11.2019 IN RESPECT OF 19.22 ARES OF
PETITIONERS 1 TO 3.
EXHIBIT P11 TRUE COPY OF ORDER NO.A11-5704/19 DATED
22.10.2019 IN RESPECT OF 1.21 ARES OWNED BY
THE 4TH PETITIONER.
EXHIBIT P12 A TRUE COPY OF THE COMMON JUDGMENT DATED
11.12.2019 IN WPC NO.31942/2019 AND
WP(C).No.8655 OF 2020(F) 12
CONNECTED CASE.
EXHIBIT P13 A TRUE COPY OF THE APPLICATION DATED
3.3.2020 SUBMITTED BY THE PETITIONERS IN
FORM NO.A.