Kerala High Court
The Tahsildar vs Renjith George on 29 January, 2020
Author: Shaji P. Chaly
Bench: S.Manikumar, Shaji P.Chaly
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR
&
THE HONOURABLE MR. JUSTICE SHAJI P.CHALY
WEDNESDAY, THE 29TH DAY OF JANUARY 2020 / 9TH MAGHA, 1941
WA.No.2516 OF 2019
AGAINST THE JUDGMENT IN WP(C) 28536/2019(N) OF HIGH COURT OF KERALA
APPELLANT/S/RESPONDENTS IN W.P.(C):
1 THE TAHSILDAR
TALUK OFFICE, THODUPUZHA, IDUKKI-685 584,
2 THE VILLAGE OFFICER,
VILLAGE OFFICE, THODUPUZHA, IDUKKI-685 584.
BY SRI.ARAVIND KUMAR BABU, SR. GOVERNMENT PLEADER
RESPONDENT/PETITIONER IN W.P.(C):
RENJITH GEORGE
AGED 39 YEARS, PARAKKATTEL HOUSE,
AVOLY P O, MUVATTUPUZHA, ERNAKULAM-686 670.
THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 29.01.2020, THE
COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
W.A. No. 2516 OF 2019
-2-
'CR'
JUDGMENT
SHAJI P. CHALY, J This appeal is filed by the Tahsiladar and the Village Officer of Thodupuzha Taluk and Village respectively of Idukki District seeking to set aside the judgment rendered by the learned single Judge quashing Ext.P7 order passed by the Tahsildar dated 01.10.2019 declining the request made by the writ petitioner to make necessary additional entries in the revenue records consequent, to the order passed by the Revenue Divisional Officer permitting the writ petitioner for utilisation of the property in question for other purposes other than paddy cultivation, under clause 6(2) of the land Utilisation Order, 1967.
2. Material facts for the disposal of the writ appeal are as follows:
Writ petitioner is the owner in possession of 19.23 Ares of paddy land situated in survey No. 151/1A-2 of Thodupuzha Village, Thodupuzha Taluk. According to the writ petitioner, though the property was not a paddy field, it was remaining in the village records as 'nilam'. Therefore by virtue of the W.A. No. 2516 OF 2019 -3- enabling provision contained under clause 6(2) of the Kerala Land Utilisation Order, 1967, writ petitioner sought for permission for conversion of paddy filed for other purposes.
Since there was delay in disposing of the application by the Revenue Divisional Officer, the writ petitioner approached this Court by filing W.P.(C) No. 13481 of 2017 and in accordance with Ext.P1 judgment dated 09.11.2017, the Revenue Divisional Officer was directed to dispose of the application within a time frame and also permitted the writ petitioner to move the statutory authority under the Kerala Land Tax Act for fresh assessment of the land as garden land.
Accordingly, Revenue Divisional Officer, Idukki considered the application submitted by the writ petitioner and has passed Ext.P2 order dated 05.06.2018 permitting him to utilise the property for other purposes other than paddy cultivation. Accordingly, the writ petitioner approached the Municipality and secured Ext.P3 building permit dated 26.10.2018 for constructing a commercial building having an area of 997.61 sq. meters. On the basis of Ext.P1 judgment and Ext.P2 order dated 05.06.2018, necessary entries were made in the thandaper register in the Village Office adding W.A. No. 2516 OF 2019 -4- the description of the property as property for other purposes as permitted under Section 6(2) of the Kerala Land Utilisation Order, 1967. Thereafter, the writ petitioner paid tax.
However, in the tax receipt, the property is shown as 'nilam'. Thereupon, the writ petitioner submitted Ext.P6 application dated 22.08.2019 to rectify the mistake in the Land Tax Register, which was declined as per Ext.P7 order for the reason that consequent to the introduction of Section 27A of the Kerala Conservation of Paddy Land and Wet Land Act, 2008 ('Act, 2008' for short) on and with effect from 30.12.2017, the writ petitioner has to approach the Revenue Divisional Officer and secure orders in accordance with the amended provision.
3. Learned single Judge, after taking into account the factual and legal situations, has passed the impugned judgment quashing Ext.P7 and directed the Tahsildar to consider Ext.P6 application construing it as an application under Section 6A of the Kerala Land Tax Act, 1961 and to issue necessary orders thereon, after affording an opportunity of being heard to the writ petitioner as expeditiously as possible, but not later than one month from the date of receipt W.A. No. 2516 OF 2019 -5- of a copy of the judgment.
4. We have heard learned Senior Government Pleader, Sri. Aravinda Kumar Babu T.K and learned counsel appearing for the respondent i.e., the writ petitioner, Sri. T.P. Pradeep and perused the pleadings and documents on record.
5. The prime contention advanced by the learned Senior Government Pleader is relying upon Section 27A of Act, 2008, which was introduced into the Act, 2008 on and with effect from 30.12.2017. In fact, Act, 2008 was brought into force with an intention to conserve the paddy land and wet land and to restrict the conversion or reclamation thereof, in order to promote growth in the agricultural sector and to sustain the ecological system in the State of Kerala. Prior to the introduction of Act, 2008, the paddy fields were basically protected as per the provisions of Kerala Land Utilisation Order, 1967, which was brought into force on and with effect from 04.07.1967 by virtue of the power conferred under Section 3 of the Essential Commodities Act, 1955 (Central Act 10 of 1955) read with the notification of the Government of India in the Ministry of Food and Agriculture S.R.O No. 3950 dated 09.12.1957 with the intention of encouraging and W.A. No. 2516 OF 2019 -6- protecting the paddy cultivation.
6. Clause 6 thereunder, deals with land cultivated with any food crop not be to be cultivated with any other food crop, and sub-clause (1) thereto stipulates that no holder of any land, which has been under cultivation with any food crop for a continuous period of three years immediately before the commencement of the order, shall convert or attempt to convert or utilise or attempt to utilse such land for the cultivation of any other food crop or for any other purpose except under and in accordance with the terms of a written permission given by the Collector.
7. Sub-clause (2) of Clause 6 specifies as follows:
"(2) No holder of any land who cultivates any land with any food crop for a continuous period of three years at any time after the commencement of this order shall, after the said period of three years, convert or attempt to convert or utilise or attempt to utilise such land for the cultivation of any other food crop or for any other purpose except under and in accordance with the terms of a written permission given by the Collector."
Other restrictions are also contained under the said provision.
8. The word 'Collector' is defined under clause 2(a) thus:-
"Collector means the Collector of the district concerned and includes a Revenue Divisional Officer of the division concerned."
9. The writ petitioner has submitted an application W.A. No. 2516 OF 2019 -7- before the Revenue Divisional Officer concerned on 23.03.2017 i.e., before the appointed day of introduction of Section 27A of Act, 2008 on and with effect from 30.12.2017. It was accordingly that the Revenue Divisional Officer has passed Ext.P2 order dated 05.06.2018 permitting the writ petitioner to utilise the property for other purposes other than paddy cultivation i.e., to say when the application was submitted by the writ petitioner, Section 27A of Act, 2008 was never introduced and was not in force. So, the only option available to the writ petitioner was to submit an application under clause 6(2) of the Land Utilisation Order, 1967 before the Revenue Divisional Officer and he was the competent authority to take a decision in the said application. The relevant provisions of Section 27A read thus:
"27A. Change of nature of unnotified land.-(1) If any owner of an unnotified land desires to utilise such land for residential or commercial or for other purpose, he shall apply to the Revenue Divisional Officer for permission in such manner as may be prescribed.
(2) Notwithstanding anything contained in any judgment, decree or order of any Court or Tribunal or any other authority, the Revenue Divisional Officer may, after considering the reports of the Village Officer concerned, pass such orders as deemed fit and proper on such applications, ensuring that there is no disruption to the free flow of water to the neighbouring paddy lands, if any, through such water conservancy measures as is deemed necessary:
Provided that, if the area of such parcel of land where the application is allowed is more than 20.2 Ares, ten per cent of such land W.A. No. 2516 OF 2019 -8- shall be set apart for water conservancy measures.
(3) If the application is allowed, the applicant shall be liable to pay a fee at such rate as may prescribed:
Provided that, no such fee shall be collected if the applicant proves that the land where the application is allowed is, filled up or naturally filled up before the 4th day of July, 1967, the date of commencement of the Kerala Land Utilisation Order, 1967, after completing such procedure, as may be prescribed.
(4) If the application is allowed, the Revenue Divisional Officer shall ensure that the reclamation of the unnotified land shall not adversely affect the cultivation of paddy or any other crops, if any, in the adjoining land and shall specify such water conservancy measures as is necessary to ensure such cultivation:
Provided that in specifying such water conservancy measures, the Revenue Divisional Officer may, if he deems fit, refer to satellite maps of the area maintained by Government agencies. (5) No permission under this section shall be necessary where the purpose for which the unnotified land is converted or attempted to be converted or utilized or attempted to be utilized is for paddy cultivation.
(6) Notwithstanding anything contained in the Kerala Panchayat Raj Act, 1994 (13 of 1994) or in the Kerala Municipality Act, 1994 (20 of 1994), no permission under this section shall be necessary for constructing a residential building having a maximum area of 120 square meters in a maximum extent of 4.04 ares of land or a commercial building having a maximum area of 40 square meters in a maximum extent of 2.02 ares of land:
Provided that the construction of a housing complex or complexes or flats or multi-storied residential complexes shall not come within the meaning of residential building specified in this sub-section:
Provided further that this exemption shall be granted only once."
10. Therefore, there can be no doubt with respect to the application of the said provision on and with effect from the W.A. No. 2516 OF 2019 -9- date of introduction of the said provision into Act, 2008.
Admittedly, the writ petitioner's land was not included in the data bank constituted as per Act, 2008, consequent to which he was not liable to file any application before the authorities constituted under Act, 2008. True, if it is an unnotified land as per the provisions of Act, 2008, after the introduction of Section 27A, an application will have to be filed before the Revenue Divisional Officer seeking permission for utilisation of such lands for residential or commercial or other purposes. But, sub-Sections (1) and (2) of Section 27A quoted above makes it abundantly clear that Section 27A has only prospective effect from 30.12.2017. There is no dispute that the application of the writ petitioner was prior to the introduction of Section 27A to Act, 2008. Sub-Section 13 of Section 27A makes the situation more explicit and clear in the context, which read thus:
"Any application received for the change of nature of unnotified land from the date of commencement of the Kerala Conservation of Paddy Land and Wet Land (Amendment) Act, 2018 shall be considered and disposed of only in accordance with the provisions of the Act."
11. Therefore, needless to say, any application received for the change of nature of unnotified land from the date of W.A. No. 2516 OF 2019 -10- commencement of Amendment Act, 2018 shall be considered and disposed of only in accordance with the provisions of the Act. That apart, the legislature was certain, while introducing Section 27A that the application submitted on or after the the cut off date of 30.12.2017 alone need be considered in accordance with the provisions of Section 27A of the Act, 2008 as amended by Act, 2018. Yet another predominant contention advanced by the learned Senior Government Pleader is relying upon Section 27C, which deals with changes in record, and it reads thus:
"27C. Changes in records.--(1) Notwithstanding anything contained in any other law for the time being in force or in any judgment, decree or order of any Court, Tribunal or any Authority, wherever a part of a survey number or subdivision is permitted to be converted under Sections 8, 9, 10 or 27A of this Act, a new subdivision shall be created for the extent for which such orders for conversion are issued.
(2) Where the paddy land or unnotified land is duly converted as per the provisions of this Act, the Tahsildar shall reassess the land tax under Section 6A of the Kerala Land Tax Act, 1961 (13 of 1961) and make necessary entries in the revenue records relating to such lands.
(3) Where such changes are recorded in revenue records, the number and date of the order and the authority granting sanction, the survey number of the lands for which sanction has been accorded, extent of the land in each survey number for which sanction has been accorded and the revised land tax shall be clearly recorded ensuring that the old entries are legible.
(4) Tahsildar shall conduct periodical inspection to ensure that changes in revenue records are in accordance with sub-section (3).
W.A. No. 2516 OF 2019 -11- (5) No attempt shall be made to alter or change or modify the revenue records relating to the paddy land or wetland or unnotified land otherwise than in accordance with sub-Section (3)."
12. On a reading of the provisions quoted above, it is clear that it deals only with the conversion of the property as per Sections 8, 9, 10 or 27A of Act, 2008, however said provision does not contemplate the permission granted for conversion of land for other purposes under the Kerala Land Utilisation Order, 1967. Therefore, it is clear that the Revenue Authorities are not entitled to insist upon or to direct the writ petitioner to secure an order under Section 27A of Act, 2008 to change the revenue records in accordance with the provisions of Section 27C of Act, 2008, since the petitioner has already secured an order under clause 6(2) of the Kerala Land Utilisation Order, which was the sole requirement before introduction of Section 27A, into Act, 2008, so far as concerning petitioner.
13. In fact, a learned single Judge of this Court had occasion to consider the question with respect to the assessment of tax under the Kerala Land Tax Act, 1961 in Jalaja Dileep v. Revenue Divisional Officer [2012 (3) KLT 333], resultant to the property converted on the basis of W.A. No. 2516 OF 2019 -12- orders passed by the Revenue Divisional Officer under the Kerala Land Utilisation Order, 1967 for utilising the property for other purposes, vis-a-vis the nature of the property classified in the basic tax register as paddy field or nilam. The learned single Judge directed that the property of the respondent will have to be classified as re-claimed land (dry land) in the Basic Tax Register and further issued a direction to the Tahsildar and Village Officer to effect appropriate correction as per the terms of the direction. Aggrieved by the direction so issued, the State preferred appeal before the Division Bench, which affirmed the judgment of the learned single Judge in Revenue Divisional Officer v. Jalaja Dileep [2014 (1) KLT 161=2014 (1) KHC 96]. However, in the appeal preferred by the State before the Apex Court, the judgment of this Court was overruled in Revenue Divisional Officer, Fort Kochi and others v. Jalaja Dileep and another [2015 (2) KHC 109 (SC)= 2015 (1) KLT 984 ], and held as follows in the following paragraphs:
"18. If a property is included in the Data Bank or the Draft Data Bank prepared under the Wet Land Act 2008 as a "Paddy Land"
or "Wetland" and the classification of land is noted as "Nilam" in revenue records, the provisions of the Act 28/2008 would apply. As noticed earlier, there is ample provision within the Act to grant permission for such land for residential purpose or public purpose as W.A. No. 2516 OF 2019 -13- defined in the Act. And as elaborated earlier, if the property is not included in the Data Bank as "Paddy Land" or "Wetland" as defined under Act 28/2008, it is still governed by the provisions of KLU Order 1967. Thus, State of Kerala has two statutes -KLU Order 1967 and Kerala Cultivation of Paddy Land and Wetland Act 2008 each dealing with delineated areas with respect to preservation, management and process of reclamation of agricultural and paddy land for any other legitimate use.
19. Kerala Land Tax Act 1961 is an Act to provide for levy of basic tax of land in the State of Kerala. High Court directed correction of Basic Tax Register (BTR) under Section 18 of Kerala Land Tax Act to order change of nature of land. The change of nature of the land with the passage of time cannot be regarded as a conversion which can be rectified under Section 18 of the KLT Act. Section 18 of KLT Act provides for rectification of mistakes. Section 18 reads as follows:-
"18. Rectification of mistakes.-At any time within four years from the date of any order passed by it the prescribed authority or the appellate authority or the revisional authority may, on its own motion, rectify any mistake apparent from the record and shall, within a like period, rectify any such mistake which has not been brought to the notice of the prescribed authority or the appellate authority or the revisional authority, as the case may be, by a land-holder or other person liable to pay tax:
Provided that no such rectification shall be made which has the effect of enhancing the tax payable unless the landholder and any other person liable to pay tax have been given a reasonable opportunity of being heard in the matter."
20. By the perusal of the above provision, it is evident that the rectification of mistake narrated in Section 18 relates to the apparent mistake on the face of the record in relation to any order passed by the prescribed authority, Appellate authority or the revisional authority under the Act. Therefore, the rectification of mistake can only be in respect of proceedings or orders passed by the original authority, Appellate authority or the revisional authority.
21. Statutory enquiry to ascertain whether the land is a "Paddy Land" or "Wetland" and conversion of the land for residential purpose or for any public purpose is governed by KLU Order or the Kerala Wetland Act, 2008 for conversion of the land from "Nilam" (Wetland) to 'Purayidam' (Dry Land). The concerned authorities constituted under KLU Order or Kerala Wetland Act 2008 are the competent authority. Nature of the land cannot be changed or W.A. No. 2516 OF 2019 -14- converted by directing changes in the Basic Tax Register which is maintained only for the purpose of land tax. The rectification envisaged by Section 18 of Kerala Land Tax Act can only be in respect of arithmetical or clerical error, that too in the order of determining the tax due. Section 18 cannot be made use or the same cannot be taken as a means to effect conversion of the nature of the land bye-passing the competent authority and the procedure stipulated under the KLU Order, 1967 and the Kerala Wetland Act, 2008 and the impugned judgment is liable to be set aside."
14. While so, a question arose before a Division Bench of this Court with respect to the complexity in the assessment of the land tax under Section 6A of the Kerala Land Tax Act, 1961, in a synonymous fact situation in LLMC, Kizhakkambalam Grama Panchayat and others v. Mariumma and another [2015 (3) KHC 19(DB)] and taking into account the judgment of the Apex Court in Jalaja Dileep (supra), it was held as follows:
"9. The further issue raised before us by the learned Government Pleader was that in view of the directions of the Apex Court as contained in paragraph 21 extracted above, even if the authorities under the Kerala Land Utilization Order, 1967 pass an order in favour of the respondents, there cannot be any correction of entries in the Basic Tax Register maintained under the Kerala Land Tax Act. This contention was raised in the context of the principles laid down in the judgment that rectification as envisaged by Section 18 of the Kerala Land Tax Act can only be in respect of arithmetical or clerical error, that too in the order of determining the tax due. Though it is true that in the judgment of the Apex Court, it has been held as above, that principle has been laid down by the Apex Court in the background of Section 18 providing for rectification of mistakes. In our view, if an order is passed by the authority under the Kerala Land Utilization Order or Act 28 of 2008 changing the description of the land, that cannot lead to a situation where Section 18 is attracted. On the other W.A. No. 2516 OF 2019 -15- hand, such change of the description of the land would render the assessments already made under Section 6A of the Kerala Land Tax Act, 1961 redundant and instead what is called for is a fresh assessment in accordance with the said Act. Necessarily, as a consequence of such assessment, it would be open to the authorities also to make appropriate additions to the Basic Tax Register. Such a course, in our view, is not forbidden by any of the principles laid down by the Apex Court, particularly those contained in paragraph 21 of the judgment mentioned above."
15. Therefore, the ratio laid down by this Court was that even though the classification of the land in the Basic Tax Register cannot be altered, addition can be made taking into account the changed condition of the paddy field and then assess tax in accordance with Section 6A of the Kerala Land Tax Act, 1961.
16. Therefore, the assessment of the land tax on conversion of the nature of the property prior to the introduction of Section 27A to Act, 2008, was guided by the provisions of the Land Utilisation order and the law laid down by the Division Bench in Mariyumma (supra). Therefore, when the provisions of the statute are clear and unambiguous, there is no power vested with the statutory authority to expand the scope of the provisions of law by issuing directions against the mandate of law. This is exactly happened in the case at hand. Taking into account the legal and factual W.A. No. 2516 OF 2019 -16- circumstances discussed above, we are of the definite view that the learned single Judge was right in quashing Ext.P7 order passed by the Tahsildar, Thodupuzha Taluk, Idukki District directing the writ petitioner to secure further orders from the Revenue Divisional Officer under Section 27A of Act, 2008 in order to assess the tax as per the provisions of Section 27C of the Act, 2008, as amended by the Amendment Act, 2018.
Upshot of the above discussion is, appeal fails, and it is accordingly dismissed.
sd/-
S. MANIKUMAR, CHIEF JUSTICE.
sd/-
SHAJI P. CHALY, JUDGE.
Rv W.A. No. 2516 OF 2019 -17-