Kerala High Court
The District Collector vs Fr. Jose Uppani on 21 July, 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
TUESDAY, THE 21ST DAY OF JULY 2020 / 30TH ASHADHA, 1942
WA.No.876 OF 2020
AGAINST THE ORDER/JUDGMENT IN WP(C) 8645/2020(E) OF HIGH COURT OF
KERALA
APPELLANT/S:
1 THE DISTRICT COLLECTOR
CIVIL STATION,KAKKANAD,ERNAKULAM,
PIN-682030.
2 THE TAHSILDAR(LAND RECORDS),
TALUK OFFICE,KANAYANNUR TALUK,
ERNAKULAM .P.O, ERNAKULAM DISTRICT,
PIN-682011.
3 THE VILLAGE OFFICER,
CHERANALLOOR VILLAGE,KANAYANNUR TALUK,
CHITTOOR SOUTH.P.O ERNAKULAM DISTRICT,
PIN-682027.
BY ADV. SRI.RANJITH THAMPAN,ADDL.ADVOCATE GENER
SRI. SURIN GEORGE IPE, SR.GP
RESPONDENT/S:
FR. JOSE UPPANI,
S/O.LATE VARGHESE,DIRECTOR,
'SNEHA SISHRUSHALAYAM'(CHITTOOR RETREAT
CENTRE),SOUTH CHITTOOR.P.O,
ERNAKULAM DISTRICT,KOCHI-682027.
SRI. P.K.SOYUZ
THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 21.07.2020,
ALONG WITH WA.918/2020, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
WA.Nos.876 & 918 OF 2020 2
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR
&
THE HONOURABLE MR. JUSTICE SHAJI P.CHALY
TUESDAY, THE 21ST DAY OF JULY 2020 / 30TH ASHADHA, 1942
WA.No.918 OF 2020
AGAINST THE ORDER/JUDGMENT IN WP(C) 8307/2020(K) OF HIGH COURT OF
KERALA
APPELLANT/S:
1 THE TAHSILDAR (LAND RECORDS),
KANAYANNUR, KANAYANNUR TALUK OFFICE,
KOCHI-681 011.
2 THE REVENUE DIVISIONAL OFFICER,
REVENUE DIVISIONAL OFFICE, FORT KOCHI, PIN-682
001.
3 THE VILLAGE OFFICER, AMBALLUR VILLAGE OFFICE,
AMBALLUR, PIN-682 315.
BY SRI.SURIN GEORGE IPE, SR.GOVERNMENT PLEADER
RESPONDENT/S:
1 BINCY JOSE,
AGED 46 YEARS
W/O.TOM JOSE, THERUWAN KUNNEL HOUSE, VADUTHALA
DESOM, VADUTHALA P.O., CHERANALLOOR VILLAGE,
KOCHI-23.
2 MINNU MARIA JOSE,
AGED 25 YEARS
D/O.TOM JOSE, THERUWAN KUNNEL HOUSE, VADUTHALA
DESOM, VADUTHALA P.O., CHERANALLOOR VILLAGE,
KOCHI-23.
BY SRI. T.K.AJITHKUMAR
THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 21.07.2020,
ALONG WITH WA.876/2020, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
WA.Nos.876 & 918 OF 2020 3
JUDGMENT
[ WA.876/2020, WA.918/2020 ] Dated this the 21st day of July 2020 SHAJI P.CHALY, J The above Writ Appeals are filed by the respondents against the common judgment of the learned Single Judge in W.P.(C).No.8645/2020 and 8307/2020 dated 19.03.2020 respectively, whereby, the learned Single Judge directed the Tahsildar(LR), Kanayannur Taluk, Kochi, to immediately take up for consideration the request made by the writ petitioners in their applications, so as to make additional entries in the Basic Tax Register, making entries of the properties in question as 'garden land/purayidam', without much delay and at any rate, within one month from the date of production of a certified copy of the judgment and in accordance with the dictum laid down by the judgments of the Division Bench of this court in LLMC, Kizhakkambalam Grama Panchayat Vs. WA.Nos.876 & 918 OF 2020 4 Mariyumma 2015(2)KLT 516(DB) and yet another judgment of this court in Tahsildar Vs. Renjith George 2020(1) KHC 865 (DB) , without insisting for any payments made as per the amended provisions of the Kerala Conservation of Paddy Land and WetLand Act, 2008 and the amended Rules. It was further directed that the orders so passed by the Tahsildar shall immediately be communicated to the 3rd respondent Village Officer within one week and the Village Officer was also directed to take consequential steps in the matter without any further delay at any rate within one week thereafter, apparently under Section 6A of the Kerala Land Tax Act, 1961. Since the subject matter of the Writ Appeals are common in nature, we heard them together in agreement, and propose to pass this common judgment.
2. It is an admitted fact that the writ petitioners have secured orders from the Revenue Divisional Officer concerned as per Section 6(2) of the Kerala Land Utilization Order, 1967 to WA.Nos.876 & 918 OF 2020 5 utilize the property for any purpose other than paddy cultivation and agricultural activities. The applications were filed by the writ petitioners before the statutory authority prior to the amendment of the Kerala Conservation of Paddy Land and WetLand Act, 2008, by which, Sections 27A to 27D were brought into force on and with effect from 30.12.2017. The subject issue leading to the writ petitions arose when the writ petitioners submitted applications for making additional entry in the Basic Tax Register on the basis of enabling orders passed under the the Kerala Land Utilisation Order 1967 as specified above, in terms of the dictum laid down by this court in Mariumma (supra). The Tahsildar on receipt of the said application, has passed orders directing the applicants to pay 25% of the scheduled fee as enjoined in Sub Rule 17 of Rule 12 of the Kerala Conservation of Paddy Land and WetLand Rules 2008 as amended in 2018 consequent to the Amendment of Act, 2018, and further directed the applicants to make an application in WA.Nos.876 & 918 OF 2020 6 that behalf before the Revenue Divisional Officer, Fort Kochi and remit the fee as ordered to be paid. Further the Tahsildar held that the applicants are liable to pay land tax in accordance with the modified order.
3. The learned Single Judge after considering the issue, has clearly found that the writ petitioners have secured the orders in terms of the Kerala Land Utilization Order 1967, on the basis of application submitted by them prior to the cut off date of 30.12.2017, on which date only, the amended provisions of Act 2008 came into force. It was accordingly that the directions were issued to the Tahsildar and the Village Officer concerned. In the appeals the paramount contention advanced is that, Section 27C of Act 2008, which has come into force on and with effect from 30.12.2017, is to be construed independently of the provisions of Section 27A and therefore, even if an order was secured under the Kerala Land Utilization Order for utilization of the property for a different purpose other WA.Nos.876 & 918 OF 2020 7 than paddy cultivation and agricultural operations, Since the application submitted under Section 27C is after the cut off date of 30.12.2017, necessarily the proceedings under Section 27A and Section 27C are bound to be followed, and therefore, there is no illegality in the order passed by the Tahsildar directing the writ petitioners to pay 25% of the land value after securing orders from the Revenue Divisional Officer . It is also submitted that, since Section 27C has come into force, merely because an order was secured under the Land Utilization Order 1967, that will not enable the writ petitioners to seek correction of the Basic Tax Register without following the procedure contemplated under Section 27C of act 2008.On the other hand learned counsel for the respondents/Writ petitioners advanced arguments fully supporting the Judgment of the learned Single Judge.
4. We have appreciated the rival submissions made across the Bar and perused the pleadings and WA.Nos.876 & 918 OF 2020 8 documents on record.
5. As we have pointed out earlier, Section 27A was brought into force on and with effect from 30.12.2017,to deal with change of nature of unnotified land,thus requiring any owner of an unnotified land desiring to utilise any Paddy land for residential or commercial purpose or for other purpose,to apply to the Revenue Divisional officer for permission in such manner as may be prescribed.True a procedure is prescribed there under in the matter of consideration of such an application . Admittedly, the applications were filed by the writ petitioners under the Kerala Land Utilization Order, 1967, prior to the aforesaid cut off date. Therefore, the applications so submitted had to be considered by the statutory authority in accordance with the procedure, and terms and conditions contained under the Kerala Land Utilisation order 1967. It is also an admitted fact that the orders were passed by the statutory authority taking into account the provisions of the Kerala Land WA.Nos.876 & 918 OF 2020 9 Utilization Order, 1967. Therefore in our view, none of the provisions contained under Section 27A of Act 2008, which has come into force only with effect from 30.12.2017, has any manner of binding force so far as the facts and circumstances of the appeals are concerned. It is also an admitted fact that the orders passed by the authority under the Kerala Land Utilization Order have become final and conclusive. Now the sole question is whether Section 27C of Act 2008 can be construed as an independent provision detached from Section 27A of Act 2008. In order to understand the purport of Section 27C, it is extracted as under:
"27C. Change 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 other 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 WA.Nos.876 & 918 OF 2020 10 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 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).
(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 WA.Nos.876 & 918 OF 2020 11 with sub-section(3)."
6. On a reading of the said provision it is clear that, Section 27C applies, wherever a part of survey number of subdivision is permitted to be converted under Sections 8,9,10 or 27A of Act 2008, and in which case, a new subdivision shall be created for the extent for which such orders for conversion are issued. Therefore it is clear that, Section 27C deals with a situation where an order is passed to convert the land as per the provisions of the Kerala Conservation of Paddy Land and WetLand Act, 2008. The rest of the provisions there under are consequential to Section 27C(1) and therefore only under the circumstances prescribed under Section 27C(1), the procedure can be followed by the Tahsildar.
7. However, it is an admitted fact that the application was submitted by the writ petitioners on the basis of the orders secured by them under the provisions of the Kerala Land Utilization Order, 1967. Therefore, the provisions of Section 27C have no application. The issue with WA.Nos.876 & 918 OF 2020 12 respect to the alteration of the entries in the Basic Tax Register was considered by the Apex Court in Revenue Divisional Officer, Fort Kochi Vs. Jalaja Dileep [2014(1) KLT 161 = 2014 (1) KHC 96] and held that the entries contained in the Basic Tax Register cannot be changed. However, the Division Bench of this Court in Mariyumma (supra) has held that, without defacing the entry contained in the Basic Tax Register, necessary additional entries can be made on the basis of the orders passed by the statutory authority under the Kerala Land Utilization Order, 1967. It was accordingly that the applications were submitted by the writ petitioners before the Tahsildar. Therefore, the Tahsildar should have considered the applications submitted by the writ petitioners in terms of the proposition of law laid down by the Division Bench in Mariyumma (supra) and not on the basis of the amended provisions of Section 27C, which has come into force only with effect from 30.12.2017. It was exactly on the basis of the WA.Nos.876 & 918 OF 2020 13 judgment of Mariyumma (supra), learned Single Judge has held that, the order passed by the Tahsildar directing the writ petitioners to pay the amounts at the rate of 25% of the converted land, after securing orders from the Revenue Divisional Officer cannot be legally sustained. In fact, the issue in question was considered by this court in Tahsildar Vs. Renjith George [2020(2) KLT 13] and held that, 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. The proposition of law laid down by this court in the judgment in Renjit George (Supra) squarely applies to the facts and circumstances of the appeals on hand also. Taking into account the law, facts and circumstances, we are of the considered opinion that the appellants have not made out any case for interference with the judgment of the learned Single Judge.
WA.Nos.876 & 918 OF 2020 14
Needless to say, appeals fail and accordingly they are dismissed.
Sd/-
S.MANIKUMAR CHIEF JUSTICE Sd/-
SHAJI P.CHALY JUDGE uu/21.07.2020