Kerala High Court
K.P.Jose vs The District Collector on 25 February, 2020
Author: Alexander Thomas
Bench: Alexander Thomas
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS
TUESDAY, THE 25TH DAY OF FEBRUARY 2020 / 6TH PHALGUNA, 1941
WP(C).No.5288 OF 2020(I)
PETITIONER/S:
K.P.JOSE, AGED 52 YEARS
S/O. POULOSE, KALATHIPARAMBIL HOUSE,
NEERIKKODE P O, ERNAKULAM DISTRICT-683511.
BY ADVS.
SHRI.ESM.KABEER
SRI.N.B.ANOOP
SMT.K.M.AMINABEEVI
SMT.C.SHEEBA
RESPONDENT/S:
1 THE DISTRICT COLLECTOR, COLLECTORATE, CIVIL STATION,
KAKKANAD P O, ERNAKULAM-682030.
2 THE REVENUE DIVISIONAL OFFICER,
FORT KOCHI P O, KOCHI-682001.
3 THE TAHSILDAR, TALUK OFFICE, ALUVA, ALUVA P O,
ERNAKULAM DISTRICT-683101.
4 THE VILLAGE OFFICER,MATTOOR VILLAGE OFFICE,
MATTOOR P O, ERNAKULAM DISTRICT-683574.
5 THE LOCAL LEVEL MONITORING COMMITTEE
KALADY GRAMA PANCHAYATH, REPRESENTED BY ITS CONVENER,
(THE AGRICULTURAL OFFICER, KRISHI BHAVAN, KALADY P O,
ERNAKULAM DISTRICT-683574.
SRI.SAIGI JACOB PALATTY, SR.GOVT.PLEADER
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
25.02.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C).No.5288 OF 2020 2
ALEXANDER THOMAS, J.
----------------------------------------
WP(C).No.5288 OF 2020
---------------------------------------------------
JUDGMENT
Dated this the 25th day of February 2020 The case set up in this writ petition is as follows:-
The writ petition is filed praying to lift condition Nos.1 and 3 in Exhibit P5 order. The petitioner's property having an extent of 2.09 Ares in Re.Sy.No.209/1-2-5 of Mattoor village, Aluva Taluk which as an un-notified land. But in the revenue records the property is shown as Nilam. As per Exhibit P4 judgment, this Court directed the 2 nd respondent to pass orders on the petition dated 15-09-2017 to use the property for other purposes. But the 2 nd respondent invoking Section 27A(3) of the Kerala Conservation of Paddy land & Wet Land Act, 2008 issued condition Nos.1 and 3 for payment of 50% of the fair value and also to ascertain whether the petitioner has complied the procedures under Section 27C of the Act. Both the Sections 27A and 27C has no retrospective effect. It will applicable only from 30.12.2017. so conditions 1 and 3 in Exhibit P5 order is unsustainable and is urged. Main contentions urged by the petitioner WP(C).No.5288 OF 2020 3 are as follows:-
A. The direction in Exhibit P4 judgment is to pass orders on Exhibit P3 application dated 15-09-2017. So Exhibit P3 application is before the cut off date 30-12-2017 and hence condition Nos.1 and 3 in Exhibit P5 order is unsustainable.
B. Section 27A and 27C of the act came into force after 30-12-2017 and have no retrospective operation.
C. The decision reported in 2019 (4) KHC 400, this Court held that Section 27A and 27C of the Act is not applicable to applications before 30-12-2017.
2. In the light of these averments and contentions, the petitioners have filed the instant writ petition with following prayers:-
i. To call for records relating to Exhibit P1, P2, P3 and P5 and to issue a writ of certiorari quashing condition Nos.1 and 3 in Exhibit P5 order.
ii. To issue a writ of mandamus directing the 2 nd respondent to reconsider Exhibit P3 application in the light of the decision reported in 2019(4) KHC 400 Geo Peter V. Revenue Divisional Officer, Muvattupuzha.
iii. To issue a writ order or direction directing the 3 rd respondent to reassess land tax of the petitioner's property and permit him to use the property for other purposes.
3. Heard Sri.E.S.M Kabeer, learned counsel for the petitioner and Sri.Saigi Jacob Paletty, the learned Senior Government pleader for the respondents.
WP(C).No.5288 OF 2020 4
4. It is beyond any factual dispute that in the instance case, subject property of the petitioner has been converted as a purayidam/garden land, long prior to coming into force of Kerala Conservation of Paddy Land and Wet Land Act, 2008 (hereinafter referred to as 'the Act of 2008) and the subject property has been duly deleted from the data bank prepared as per the said Act as can be seen from Ext.P2. It is also beyond any dispute that the petitioner has indeed submitted Ext.P3 application dated 15-09-2017 under Clause 6(2) of the Kerala Land Utilisation Order, 1967 (hereinafter referred to as 'the KLU Order') before the 2nd respondent-Revenue Divisional Officer, seeking for conversion of the said land as purayidam/garden land. This Court, as per Ext.P4 judgment rendered as on 27.09.2017 in W.P.(C). No.30935 of 2017 filed by the writ petitioner, has directed the 2nd respondent-Revenue Divisional Officer to consider and pass orders on the said application under Clause 6(2) of the KLU order as per Ext.P3 herein, within a reasonable time limit.
5. Now, in compliance with the directions in Ext.P4- judgment, the 2nd respondent-Revenue Divisional Officer has passed Ext.P5 order dated 13.04.2018. The limited grievance of the petitioner is only as regards the condition Nos.1 and 3 of Ext.P5, WP(C).No.5288 OF 2020 5 appended under the operative portion of the Ext.P5 order and the said condition Nos.1 and 3 reads as follows:-
1) ÉøÞÎVÖ¢ (4) ³VÁßÈXØí dɵÞø¢ çµø{ æÈWÕÏW ÄHàVJ¿ Ø¢øfà ÈßÏ΢ 2008_W ÉáÄáÄÞÏß ©ZæM¿áJßÏ 27 A (3) ÕµáMá dɵÞø¢ ¥çÉf ÕØñá Ø¢Ìtߺîí ùÕÈcâ çø¶µ{ßW ÎÞx¢ ÕøáJáKÄßÈÞÏß ÍâÎßÏáæ¿ ÈcÞÏÕßÜÏáæ¿ ¥OÄí ÖÄÎÞÈ¢ ÈßøAßW ²øá ËàØí ÈWµáÕÞX ¥çÉf µfßµZ ÌÞicØíÅøÞÃí.
(2) xxxxxx
(3) ÉøÞÎVÖ¢ (4) ³VÁßÈXØí dɵÞø¢ çµø{ æÈWÕÏW
ÄHàVJ¿ Ø¢øfà ÈßÏ΢ 2008_W ÉáÄáÄÞÏß ©ZæM¿áJßÏ
27A(3) ÕµáMá dɵÞøÎáU ËàØí ¥çÉfµX ²¿áAí
ÕøáJßÏßGáçIÞæÏKᢠ27C ÕµáMá dɵÞøÎáU È¿É¿ßdµÎBZ
ÉÞÜߺîßGáçIÞæÏKᢠÍâçø¶ ÄÙØßWÆÞV ©ùMá ÕøáçJIÄÞÃí.å
6. It is clearly admitted by the respondents that the subject property has been converted as garden land/purayidam long prior to the coming into force of the 2008 Act and that petitioner has submitted application under Clause 6(2) of the KLU Order as per Ext.P3 herein on 15.09.2017, which is much before the cut of date of 30.12.2017, which is the date of coming into force of the amended provisions of the Kerala Conservation of Paddy Land and Wet Land Act as amended in the year 2008. Therefore, it is now well settled by a series of decisions of this Court that none of the detrimental provisions contained in the said amended provisions of the 2008 Act and the amended provisions of the Rules framed under the amended WP(C).No.5288 OF 2020 6 2008 Act can be invoked against the property holder as the subject property has been converted prior to coming into force of 2008 Act and as Clause 6(2) application under the KLU Order has been submitted before the cut of date of 30.12.2017. This Court in decisions as in Geo Peter V. Revenue Divisional Officer, Muvattupuzha reported in 2019(4) KHC 400 as well as in Salim V. State of Kerala reported in 2019 (3) KLT 604, has held that where the subject property has been converted as garden land/purayidam before coming into force of the 2008 Act and where the application has been submitted under Clause 6(2) of the KLU Order, before 30.12.2017, then the plea of the property holder to convert the land has been considered strictly in terms of the provisions contained in Clause 6(2) of the KLU Order and then none of the detrimental conditions going out from the amended provisions of the 2008 Act , which came into force on 30.12.2017 can be forced into service as against such a property holder. This aspect of the matter has also been recently clarified by the Division Bench of this Court by a judgment rendered in Tahsildar, Thodupuzha Taluk and another v. Renjith George reported in 2020(1) KHC 865 and held that conversion of the nature of the property prior to coming into force of 2008 Act is guided by the provisions of KLU WP(C).No.5288 OF 2020 7 order. In such cases, this Court has also clarified that the directions issued by the Division Bench of this Court in LLMC, Kizhakkambalam Grama Panchayat and others v.
Mariumma and another [2015 (2) KLT 516] governs and therefore, as much as once permission is granted under Clause 6(2) of the KLU order for conversion of the land, then the property holder is entitled to maintain an application under Rule 6A of the Kerala Land Tax Act, 1961 for the respondent Tahsildar concerned, for reassessment of the land, so that additional entries have to be made in the Basic Tax Register to show that the land is puradiyam/garden land after such conversion instead of the earlier entries as in nilam/paddy field, as the case may be.
7. It is also relevant to note that, this Court in the judgment in Renjit K. Paul V. Revenue Divisional Officer reported in 2019 (2) KLT 262, has held that the in a case where an impugned condition imposed for the payment of 50% of land value to the Government is not legal or correct and in the said judgment, this Court had quashed the impugned demands therein and directed the respondent-Revenue Divisional Officer to reconsider the matter in accordance with law, considering it as one submitted prior to 30.12.2017, the appointed date on which the amended provisions of WP(C).No.5288 OF 2020 8 the 2008 Act came into force and that there are no provisions in the KLU Order,1967 for imposing any condition for payment of land value to the State Government etc. It would be proper to refer paragraph No.5 of the judgment of Renjit K.Paul's case (cited supra) as follows:
''5. I find force in the said contention advanced by the petitioners and therefore, the condition imposed for payment of 50% of the land value to the Government is not legal or correct. In that view of the matter, I quash Ext.P10 and direct the Revenue Divisional Officer to re-consider the matter in accordance with law, considering it as one submitted prior to 30.12.2017, the appointed date from only the amended provisions of Act, 2008 came into force and under the provisions of Kerala Land Utilization Order, 1967 wherein there is no provision for imposing any condition for payment of land value to the State Government. A decision shall be taken in accordance with law at the earliest possible time and at any rate within two months from the date of receipt of a copy of this judgment. Needless to say, if the petitioners are producing necessary enabling orders, the Secretary of the Municipality shall consider the application submitted by the petitioners, in accordance with law, also taking into account the orders, if any, produced by the petitioners as directed above. ''
8. In the light of this decision, the aforementioned impugned condition Nos.1 and 3 appended under the operative portion of Ext.P5 order is illegal, ultra vires and unenforceable in as much as the adverse and detrimental provisions contained in the WP(C).No.5288 OF 2020 9 amended 2008 Act, which came into force on 30.12.2017 cannot forced into service as against the property holder like the petitioner herein, where the subject property has been converted as garden land prior to coming into force of the 2008 Act and where an application under Clause 6(2) of the KLU Order has been duly filed before 30.12.2017 (date of coming into force of the amended provisions of the 2008 Act). Hence, in view of the above said legal principles already laid down by this Court in the above cited judgments, it is ordered that the impugned condition Nos.1 and 3 will stand quashed as illegal, ultra vires and unenforceabe.
Consequently, it is ordered that the 2nd respondent-Revenue Divisional Officer immediately pass revised orders. However, it is ordered that Ext.P5, in all other aspects, will stand affirmed and upheld. However, for the sake of clarity, it is ordered that the 2 nd respondent-Revenue Divisional Officer, Fort Kochi shall issue revised orders in relation to Ext.P5, so as to delete the impugned condition Nos.1 and 3 mentioned therein and this may be issued within ten days from the date of production of a certified copy of this judgment. Further, in the light of the above said legal position already laid down by the judgments of this Court as in LLMC, Kizhakkambalam's case [2015 (2) KLT 516] (cited supra) as well WP(C).No.5288 OF 2020 10 as in paragraph No.5)of Renith George's case [2020(1) KHC 865] (cited supra), it is ordered that the petitioner to immediately submit appropriate application before the 3rd respondent-Tahsildar, Aluva, seeking for reassessment of the subject property under Section 6A of the Kerala Land Tax Act, upon which the Tahsildar will ensure that the orders are passed so as to ensure that additional entries are made in the Basic Tax Register in respect of the subject property so as to show that the subject property covered by Exts.P3, P4 and P5 etc., is converted as purayidam/garden land instead of the previous entry as nilam/paddy land. Necessary orders in this regard shall be passed by the 3rd respondent-Tahsildar within three weeks from the date of submission of such application by the petitioner along with the certified copy of this judgment.
With these observations and directions, the above W.P.(C) stands disposed of.
Sd/-
ALEXANDER THOMAS
ajt JUDGE
WP(C).No.5288 OF 2020 11
APPENDIX
PETITIONER'S/S EXHIBITS:
EXHIBIT P1 TRUE COPY OF THE TAX RECEIPT DATED
11.07.2017
EXHIBIT P2 TRUE COPY OF THE DATA BANK .
EXHIBIT P3 TRUE COPY OF THE APPLICATION DATED
15.09.2017 BEFORE THE 2ND RESPONDENT.
EXHIBIT P4 TRUE COPY OF THE JUDGMENT IN WP(C)
NO.30935/2017 DATED 27.09.2017
EXHIBIT P5 TRUE COPY OF THE ORDER DATED ISSUED BY THE
2ND RESPONDENT DATED 13.04.2018.