Kerala High Court
Janakamma vs The Tahsildar(Land Records) on 24 February, 2020
Author: Alexander Thomas
Bench: Alexander Thomas
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS
MONDAY, THE 24TH DAY OF FEBRUARY 2020 / 5TH PHALGUNA, 1941
WP(C).No.5068 OF 2020(G)
PETITIONERS:
1 JANAKAMMA,
AGED 55 YEARS
W/O. N.D.SURESH KUMAR,
SREELAKSHMI HOUSE,
KUTTIKATTUKARA,
UDHOYGAMANDAL P.O., -683 501
2 JAYAMMA @ JAYA
AGED 49 YEARS
SREELAKSHMI HOUSE,
KUTTIKATTUKARA,
UDHOYGAMANDAL P.O., -683 501
BY ADVS.
SRI.RINNY STEPHEN CHAMAPARAMPIL
SMT.ASHA ELIZABETH MATHEW
RESPONDENTS:
1 THE TAHSILDAR(LAND RECORDS)
TALUK OFFICE,
PARAVOOR TALUK,
MAIN ROAD,
NORTH PARAVUR P.O-683 513
2 THE VILLAGE OFFICER,
VILLAGE OFFICE,
KADUNGALLOOR,
MUPPATHADAM P.O,
KOCHI-683 110
OTHER PRESENT:
SRI.SAIGI JACOB PALATTY, SR.GOVT.PLEADER
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
24.02.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
W.P.(C). No. 5068 of 2020
2
ALEXANDER THOMAS, J.
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W.P.(C). No. 5068 of 2020
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Dated this the 24th day of February, 2020
JUDGMENT
The factual aspects projected in the writ petition (civil) are as follows;
That the petitioners are aggrieved by the refusal to reassess the classification of the land in the BTR as Purayidom on the basis of an Order issued under Clause 6(2) of the KLU Order. The petitioners are the tiltle holders of 28.72 Ares of land in Survey Nos. 16/5A4, 16/5-B2, 16/5A1, 16/5B1, 16/5A1, & 16/5-3 of Kadungallur Village. As on the date of coming into force of the Kerala Conservation of Paddy Land and Wetland Act, it was lying as 'Purayidom' wherein there are very old buildings constructed decades back wherein Eloor Tourist Home is functioning. As early in the year 1962, there was a building in the property evident from Ext. P2 sale deed. For the reason that the land is described as Nilam in the BTR, the Municipality was insisting for a KLU Order for issuing permit for reconstruction of the old building. W.P.(C). No. 5068 of 2020 3 Therefore, an application was submitted under Clause 6(2) of the KLU Order on which the RDO issued Ext. P7 granting permission under the KLU Order, but imposing conditions under the Paddy Land Amendment Act to pay the prescribed amount. The said condition was challenged in W.P.(C) No. 13473/2018 and by Ext. P9 judgment, this Court quashed the impugned conditions & directed the 1st respondent to reassess the land by following Geo Peter Vs. RDO Muvattupuzha 2019 (4) KHC 400. But in spite of the said direction, the 1st respondent had not reassessed the land as Purayidom. Instead, the 1st respondent issued Ext. P11 Provisional Notice of Demand retaining the classification of the land as Nilam in BTR by just mentioning about the KLU Order in the remarks column of the thandaper Register. The petitioners had submitted Ext. P12 objection along with which the petitioners produced orders issued by the Tahasildar based on directions issued by this Court in similar cases whereby the land involved therein had been reassessed as Purayidom. Even without providing an opportunity of being heard and without adverting to any of the contentions in Ext. P12, the 1 st respondent has issued Ext. P15 whereby it was ordered to retain the classification of the land in the BTR and the Thandaper register as Nilam and to just W.P.(C). No. 5068 of 2020 4 mention about Ext. P7 KLU Order in the remarks column of the Thandaper Register. The 1st respondent is bound to reassess the land as Purayidam as per the dictum in LLMC Kizhakkambalam Grama Panchayat Vs, Mariumma & Anr.(2015 (3) KHC 19 DB) which held that 'if an Order is passed under the KLU Order, it would render the assessment already made under Sec.6A of Land Tax Act redundant and instead what is called for is fresh assessment under the Act.
2. The main contentions urged by the petitioner are as follows;
a). The 1st respondent is bound to reassess and reclassify the land as Purayidom in the BTR based on Ext.P7 Order issued under Clause 6(2) of the KLU Order.
b). Ext.P15 is not an Order issued in tune with the dictum laid down in LLMC Kizhakkambalam Grama Panchayat Vs. Mariumma.
c). Ext.P15 was issued without hearing as mandated by Section 6A (3) of the KLT Act.
d). The Objections raised (Ext.P12) & documents produced were not adverted to in Ext.P15.
3. In that regard, the petitioner would place reliance on various judgments of this Court as in Shanmugam R. and Anr. Vs. District Collector Kollam and Ors. (2019 (2) KLT 45 W.P.(C). No. 5068 of 2020 5 DB) as well as Geo Peter Vs. RDO Muvattupuzha 2019 (4) KHC 400, wherein it has been held that if the application filed under Rule 6(2) of the KLU Order 1967 was submitted prior to 30.12.2017 (date of coming into force of the Kerala Conservation of Paddy Land and Wetland Act, 2008 as amended), then none of the detrimental conditions in the amended provisions can be pressed into service as against such a property holder and the case of the said applicant should be fully considered and decided in terms of provisions contained in Rule 6(2) of the KLU Order 1967. Further, the learned counsel for the petitioner would also place reliance on the judgment of the Division Bench of this Court in Local Level Monitoring Committee Kizhakkambalam Grama Panchayat Vs. Mariumma & Anr. [2015 (3) KHC 19 DB] that in such a scenario where the change of the user of the land is granted in terms of provisions contained in Rule 6 (2) of the KLU Order 1967, then the competent revenue officials concerned like the Tahasildar is statutory obliged to make a reassessment of the subject property in terms of Section 6A of the Kerala Land Tax Act 1961 and then should make necessary entries in Basic Tax Register maintained in terms of provisions contained in Rule 5 of the Kerala Land Tax Rules, so as to show the change in W.P.(C). No. 5068 of 2020 6 the nature of the land as garden land etc. and not as Nilam/paddy land etc.
4. Further, the learned counsel for the petitioner would also place reliance on the judgment of this Court in Puthan Purakkal Joseph Vs. Sub Collector (2015 (3) KLT 182) that once an order is passed under Rule 6(2) of the KLU Order 1967 then it would render the previous assessment made under Section 6A of the Kerala Land Tax Act redundant and instead what is called for and mandated is a fresh assessment under Section 6A of the Kerala Land Tax Act as above stated in Mariumma's case (supra) in [2015 (3) KHC 19 DB]. The petitioner would also place reliance on a recent judgment of the Division Bench in the case in Tahsildar, Thodupuzha Taluk and Another Vs. Rengith George [2020 (1) KHC 865 (DB)] wherein it has been held in para No. 16 thereon that the assessment of land tax on conversion of the nature of the property prior to the introduction of Section 27A of the Kerala Conservation of Paddy Land and Wetland Act, 2008 will be guided by the provisions contained in the Kerala Land Utilization Order and the law laid down by the Division Bench in Mariumma's case (supra) in [2015 (3) KHC 19 DB].
5. It is in the light of these averments and contentions, W.P.(C). No. 5068 of 2020 7 the petitioner has filed the aforecaptioned writ petition (civil) 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. P15 Order and quash the original of the same as illegal and opposed to law to the extent to which it ordered to retain the classification of the land covered by Ext. P7 Order in the BTR and the Thandaper Register as Nilam.
ii) Issue a Writ of Mandamus, or any other appropriate Writ, Order or direction commanding the 1 st respondent to reassess and reclassify the Petitioners' land covered by Ext.P7 Order as Purayidam in the Basic Tax Register and in the Thandaper register and in the other revenue records in the light of the law laid down in LLMC Kizhakkambalam Grama Panchayat Vs. Mariumma & Anr. (2015 (3) KHC 19 DB).
iii) Issue an appropriate Writ, Order or direction declaring that the 1st respondent is bound to reassess and reclassify the Petitioners' land covered by Ext.P7 Order as Purayidam in the Basic Tax Register and in the Thandaper register and in the other revenue records in the light of the law laid down in LLMC Kizhakkambalam Grama Panchayat Vs. Mariumma & Anr.
iv) 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."
6. Heard Sri. Rinny Stephen Chamaparampil, learned counsel appearing for petitioners and Sri. Saigi Jacob Palatty, learned Senior Government Pleader appearing for respondents.
7. After hearing both sides and after going through the pleadings and materials on record, it is clear like the daylight that the subject property has been converted as garden land long prior to the coming into force of the Kerala Conservation of Paddy Land and Wet Land Act, 2008 and even, the age of the buildings that are W.P.(C). No. 5068 of 2020 8 standing in the said property, would clearly manifest the fact about the conversion of the land long prior to coming into force of the 2008 Act. Therefore, the matter in issue is fully covered in favour of the petitioner by the afore cited judgments made by the petitioner. The disputes now which remains out of the impugned Ext. P15 proceedings dated 31.01.2020 issued by the 1st respondent, Tahasildar (Land Records), lies on a very narrow compass. The main objectionable part are those contained in penultimate paragraph and the final paragraph of Ext. P15 proceedings reads as follows;
"........................ എനന്നാല് ടടി നടപടടിക്രമതടിനന്റെ കകടി സൂചന (5) പ്രകന്നാരരം ആകകപരം ഉനയടിചടിട്ടുള്ളതന്നാണണ. വസ്തുവടിനന്റെ തരരം അടടിസന്നാന ഭൂ നടികുതടി രജടിസ്റ്ററടില് പുരയടിടമന്നാകടി നല്കണനമന കകടിയുനട ആവശശരം നടിലവടിനല നടിയമ പ്രകന്നാരരം തഹസടില്ദന്നാര്കണ അനുവദടിക്കുവന്നാന് വശവസ ഇലന്നാതതരം ആയതടിനുള്ള അധടികന്നാരരം റവനന്യൂ ഡടിവടിഷണല് ഓഫഫീസറടില് നടികടിപ്തമന്നാണണ.
ടടി സന്നാഹചരശതടില് പറവൂര് തന്നാലൂകടില് കടുങ്ങല്ലൂര് വടികലജടില് സര്നവ നമ്പര് 16/5 എ 4, 16/5 ബടി 2, 16/5 എ 1, 16/5 ബടി 1, 16/5 എ 1, 16/5-3, എനഫീ നമ്പറുകളടില്നപ്പെട്ട യഥന്നാക്രമരം 04.45, 01.62, 19.42, 1.62, 00.40, 1.21 ആര് ആനക 28.72 ആര് (70.93 നസന്റെണ) വഹകളുനട ഭൂ നടികുതടി 11.03.2016 നല കകരള ഭൂ നടികുതടി നടിയമരം 20053/LEG.B2/2015/Law നമ്പര് സര്കന്നാര് ഗസറണ വടിജന്നാന പ്രകന്നാരരം ഇകതന്നാനടന്നാപ്പെരം ഉള്ളടകരം നചയടിട്ടുള്ള കകരള ഭൂ നടികുതടി ചട്ടരം 1972 കഫന്നാറരം 'സടി' യടില് അനടിമമന്നായടി പുനര് നടിര്ണ്ണയടിച്ചുനകന്നാണരം വസ്തുവടിനന്റെ തരരം അടടിസന്നാന ഭൂ നടികുതടി രജടിസ്റ്ററടിലരം കഫന്നാറരം 'സടി' യടിലരം നടിലനമനരം തണ്ടകപ്പെരടിനന്റെ റടിമന്നാര്കണ കകന്നാളതടില് 'കഫന്നാര്ട്ടണനകന്നാചടി സബണ കളക്ടറുനട 09.04.2018 നല K2-7463/17 നമ്പര് ഉതരവണ പ്രകന്നാരരം കന്നാര്ഷടികകതര ആവശശങ്ങള്കണ ഉപകയന്നാഗടിക്കുനതടിനണ കകരള ഭൂ വടിനടികയന്നാഗ ഉതരവണ 1967 നസകന് W.P.(C). No. 5068 of 2020 9 6(2) പ്രകന്നാരരം നടിബന്ധനകള്കണ വടികധയമന്നായടി അനുമതടി നല്കടിയടിട്ടുള്ളതണ' എനരം കൂടുതലന്നായടി കചര്ക്കുനതടിനുരം അതടിനന്റെ അടടിസന്നാനതടില് അകപകകനടില് നടിനണ ഭൂ നടികുതടി സസഫീകരടിക്കുനതടിനണ കടുങ്ങല്ലൂര് വടികലജണ ഓഫഫീസര്കണ നടിര്കദ്ദേശരം നല്കടിനകന്നാണ്ടണ ബഹമന്നാനനപ്പെട്ട ഹഹകകന്നാടതടിയുനട WP(C) 13473/18 നമ്പര് ഉതരവണ നടപ്പെന്നാകടിനകന്നാള്ളുന........................"
8. After hearing both sides, it is seen that the stand taken by the 1st respondent Tahasildar in penultimate paragraph in Ext. P15 that the powers to make re-assessment of the land is vested not with the 1st respondent Tahasildar, but with the Revenue Divisional Officer, is untenable and unsustainable as such power is certainly vested with the 1st respondent Tahasildar under the Kerala Land Tax Act.
9. More over, the other objectionable part is the one portion of the final paragraph in Ext. P15 wherein it is stated that the earlier entry of the subject property as Nilam/paddy land will be continued to be retained in the Basic Tax Register and the conversion of the land as purayidom / garden land will be shown only in the remarks column of the Thandaper account etc. The abovesaid impugned portions of Ext. P15 proceedings more particularly, in the penultimate paragraph and the abovesaid portion of the final paragraph of Ext.P15 is illegal and ultra vires. It is ordered and declared that the 1 st respondent Tahasildar is W.P.(C). No. 5068 of 2020 10 statutory obliged to make reassessment of the subject property in the terms of Section 6A of the Kerala Land Tax Act and should make an additional entry in the Basic Tax Register in respect of the subject property maintained as per the mandatory provisions contained in Rule 5 of the Kerala Land Tax Rules 1964 and to show that the land has been converted as "Purayidom /Garden land". It is seen that enabling provisions in that regard are contained not only in Section 6A of the Kerala Land Tax Act 1961 but also under Section 27C of the 2008 Act as amended and Rule 13 of amended 2008 Rules and the said provisions contained in 2008 Act would also apply in the case of a land which has been converted prior to coming into force of the 2008 Act. But, it goes without saying that the petitioner cannot be imputed with any financial liability for recording such conversion of the land in the Basic Tax Register.
10. In that view of the matter, the abovesaid portions of Ext. P15 to the extent it refuses to make reassessment of the subject property in terms of Section 6A of the Kerala Land Tax Act so as to show the subject property as a converted land/garden land as an additional entry in the Basic Tax Register will stand quashed and set aside. The 1st respondent Tahasildar will immediately issue W.P.(C). No. 5068 of 2020 11 a corrigendum proceedings to Ext. P15. It is made clear that Ext. P15 proceedings in all other aspects will stand affirmed and the interdiction is only of the abovesaid limited aspects. The 1 st respondent Tahasildar will immediately issue a corrigendum to Ext. P15 proceedings ordering that an additional entry be made in Basic Tax Register that the subject property is a purayidom/ converted land/garden land, in view of the above said aspects. Necessary corrigendum proceedings to Ext. P15 so as to order for additional entry in the BTR in respect of the subject property should be issued by the 1st respondent Tahasildar without much delay, preferably within a period of three weeks from the date of production of a certified copy of this judgment.
11. This Court would so to categorically hold as it is now well established that where the subject property has been converted as purayidom/garden land long prior to the coming into force of the 2008 Act and the application for permission for such conversion under Rule 6(2) of the KLU Order, 1967 is made prior to 30.12.2017, then none of the detrimental provisions in the 2008 Act as amended and the provisions in the 2008 Rules as amended can affect such a property holder. That apart the matter in issue is already concluded by the directions issued by this Court W.P.(C). No. 5068 of 2020 12 in the inter parties judgment between the petitioner herein and respondents herein as per Ext. P9 judgment dated 16.10.2019 rendered by this Court in W.P.(C) No. 13473 of 2018, more particularly, para No.3 on page No.3 thereof which reads as follows :
"............................. going by Geo Peter (Supra), no conditions, as permitted under Section 27A of the Paddy Land Act can be imposed; and that the RDO could have incorporated only those conditions as are sanctioned by the KLU Order ..................."
The said judgment has become final and conclusive inter parties.
With these observations and directions, the above Writ Petition (Civil) stands finally disposed of.
(Sd/-) ALEXANDER THOMAS JUDGE LU W.P.(C). No. 5068 of 2020 13 APPENDIX PETITIONER'S/S EXHIBITS:
EXHIBIT P1 TRUE COPY OF TAX RECEIPT DATED 05.06.2017 EXHIBIT P2 TRUE COPY OF THE SALE DEED DATED 07.12.1962 EXHIBIT P3 TRUE COPY OF THE DEMAND NOTICE DATED 17.08.1990 ISSUED TO THE PETITIONER'S FATHER EXHIBIT P4 TRUE COPY OF THE BUILDING TAX RECEIPT DATED 20.11.1996 IN THE NAME OF THE PETITIONER'S FATHER EXHIBIT P5 TRUE COPY OF TAX RECEIPT DATED 29.07.2016 EXHIBIT P6 TRUE COPY OF THE JUDGMENT DATED 31.10.2017 OF THIS HON'BLE COURT IN WPC NO.34577/2017 EXHIBIT P7 A TRUE COPY OF THE ORDER DATED 09.04.2018 ISSUED BY THE RDO FORT KOCHI EXHIBIT P8 A TRUE COPY OF THE APPLICATION DATED 29.08.2019 IN FORM A BEFORE THE 1ST RESPONDENT EXHIBIT P9 A TRUE COPY OF THE JUDGEMENT DATED 16.10.2019 IN WPC NO.13473/2018 EXHIBIT P10 A TRUE COPY OF THE PROVISIONAL ORDER DATED
12.11.2019 ISSUED BY THE RESPONDENT EXHIBIT P11 A TRUE COPY OF THE PROVISIONAL NOTICE OF DEMAND DATED 12.11.2019 ISSUED BY THE RESPONDENT EXHIBIT P12 A TRUE COPY OF THE OBJECTION DATED 16/1/2019 SUBMITTED BY THE PETITIONERS TO EXHIBIT P11 EXHIBIT P13 A TRUE COPY OF THE ORDER No. F2-10120/13 DATED 16.07.2019 ISSUED BY THE TAHASILDAR (LAND RECORDS) PUNALUR EXHIBIT P14 A TRUE COPY OF THE ORDER DATED 21.8.2019 ISSUED BY THE TAHASILDAR (LR) THIRUVALLA W.P.(C). No. 5068 of 2020 14 EXHIBIT P15 A TRUE COPY OF THE ORDER DATED 31/01/2020 ISSUED BY THE 1ST RESPONDENT EXHIBIT P16 TRUE COPY OF POSSESSION CERTIFICATE DATED 06.02.2020 EXHIBIT P17 A TRUE COPY OF THE INTERIM ORDER DATED 13.4.2018 OF THIS HON'BLE COURT IN W.PC NO.13473/2018 EXHIBIT P18 A TRUE COPY OF THE NOTICE DATED 12.07.2019 ISSUED BY THE SECRETARY, ELOOR MINICIPALITY // True Copy // PA to Judge