Bency Cherian v. State of Kerala and others

# `IN THE HIGH COURT OF KERALA AT ERNAKULAM` ## `PRESENT` ``` THE HONOURABLE MR.JUSTICE N.NAGARESH TUESDAY, THE 25[TH] DAY OF OCTOBER 2022 / ``` ``` 3RD KARTHIKA, 1944 ``` ## `WP(C) NO. 27322 OF 2022` ## `PETITIONER` ``` BENCY CHERIAN AGED 46 YEARS W/O. BIJU STEEPHEN, PUTHENPARAMPIL, MANNANAM, NOW RESIDING AT PALAMOOTTIL HOUSE, THIRUMOOLAPURAM.P.O, THIRUVALLA, PIN-689115, PATHANAMTHITTA DISTRICT. ``` ``` BY ADVS. VARUGHESE M EASO VIVEK VARGHESE P.J. ``` ## `RESPONDENTS` ``` 1THE SUB COLLECTOR OFFICE OF THE SUB COLLECTOR, KOTTAYAM, KOTTAYAM.P.O, KOTTAYAM DISTRICT, PIN-686001. 2THE TAHSILDAR(LAND RECORDS), KOTTAYAM TALUK OFFICE, KOTTAYAM, KOTTAYAM.P.O, KOTTAYAM DISTRICT, PIN-686001. 3THE TAHSILDAR, KOTTAYAM TALUK OFFICE, KOTTAYAM, KOTTAYAM.P.O, KOTTAYAM DISTRICT, PIN-686001. ``` W.P(C) No.27322 of 2022 2 ] - `4 THE VILLAGE OFFICER, VIJAYAPURAM VILLAGE OFFICE, VADAVATHOOR.P.O, KOTTAYAM DISTRICT, PIN-686010.` - `5 THE PRINCIPAL AGRICULTURAL OFFICER OFFICE OF THE DEPUTY DIRECTOR OF AGRICULTURE, CIVIL STATION, KOTTAYAM, KOTTAYAM.P.O, PIN-686001, KOTTAYAM DISTRICT.` - `6 THE LOCAL LEVEL MONITORING COMMITTEE REPRESENTED BY ITS CONVENOR, AGRICULTURE OFFICER,` - `KRISHIBHAVAN, VADAVATHOOR.P.O, VIJAYAPURAM, KOTTAYAM DISTRICT, PIN-686010.` - `7 THE DISTRICT COLLECTOR KOTTAYAM, CIVIL STATION, KOTTAYAM, PIN-686001.` - `8 STATE OF KERALA, REPRESENTED BY THE PRINCIPAL SECRETARY, DEPARTMENT OF REVENUE, SECRETARIAT, THIRUVANANTHAPURAM-695001.` ``` SMT.DEEPA NARAYANAN SR.GP ``` ``` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 25.10.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` W.P(C) No.27322 of 2022 ] 3 ## **J U D G M E N T** Dated this the 25[th] day of October, 2022 The petitioner is owner of 1 Acre 19 Cents of land in Re-Survey No.32/03 in Old Survey No.172/1 in Vijayapuram Village of Kottayam District. The petitioner purchased the property in the year 1991. 2. The petitioner states that the property was a non-cultivated land for so many years. The petitioner therefore submitted an application invoking the provisions of the Kerala Land Utilisation Order, 1967 seeking permission to use the land for non-agricultural purposes. After conducting necessary enquiries, the Sub Collector passed Ext.P3 order, permitting the petitioner to convert 1 Acre 19 Cents of land for non-agricultural purposes. 3. The petitioner states that the land is described in Land Tax Receipt as 'Purayidam'. However, in the Basic Tax Register, the land continued to be described as paddy land. W.P(C) No.27322 of 2022 4 ] The petitioner therefore approached the respondents seeking to make necessary changes in the Basic Tax Register. At the insistence of the respondents, the petitioner submitted an application in Form-7, invoking the provisions of the Kerala Conservation of Paddy Land and Wetland Rules, 2008. On the application so submitted by the petitioner, Ext.P8 order has been passed requiring the petitioner to remit an amount of ₹14,92,852/- towards fee for conversion. The petitioner states that the demand is illegal. 4. This Court in the judgment in _**Prakash P.K and another v. State of Kerala and others**_ [2022 (4) KHC 504] held that provisions of Section 27A cannot be made applicable to a property when the owner has obtained an order under Clause 6(2) of the Kerala Land Utilisation Order,1967 prior to 30.12.2017. 5. The Senior Government Pleader resisted the writ petition. It is submitted that the veracity and genuineness of Ext.P3 order stated to be passed in favour of the petitioner will W.P(C) No.27322 of 2022 5 ] have to be verified by the respondents. The petitioner herself has filed a Form-7 application admitting that her land is a paddy land in Revenue records and seeking corrections. 6. It is on the basis of an application submitted by the petitioner that the Sub Collector has passed Ext.P8 order. Since the land of the petitioner exceeds 25 Cents, the petitioner is liable to pay applicable fee for conversion. Ext.P8 cannot be impugned on any of the grounds urged by the petitioner, contended the Senior Government Pleader. 7. I have heard the learned counsel for the petitioner and the learned Senior Government Pleader representing the respondents. 8. The fact remains that the petitioner's property was subjected to proceedings under the Kerala Land Utilisation Order,1967. After obtaining report from the Tahsildar and the Agricultural Officer and after making a personal site visit, the Sub Collector has found that the land has no adequate irrigation facilities and it is not suitable for paddy cultivation. W.P(C) No.27322 of 2022 6 ] 9. Ext.P7 Communication of the Convenor of the Local Level Monitoring Committee submitted to the Sub Collector would also show that the land in question has no sufficient water sources available and the land is not fit for paddy cultivation. The Local Level Monitory Committee also submitted that the land can be used for non-agricultural purposes. 10. This Court finds that when the petitioner has obtained an order under the Kerala Land Utilisation Order, 1967 and permission is granted to the petitioner for use of the land for non-agricultural purposes, the petitioner is entitled to file an application for re-assessment of land under the provisions of the Kerala Land Tax Act, 1961. The petitioner has submitted Ext.P9 Form A application invoking Section 6A of the Kerala Land Tax Act, 1961. 11. The fact that the petitioner has submitted an application invoking the provisions of the Kerala Conservation of Paddy Land and Wetland Act, 2008 and the competent W.P(C) No.27322 of 2022 7 ] authority has passed an order thereon, requiring the petitioner to pay conversion fee need not be a reason to deny the petitioner the benefit under the Kerala Land Utilisation Order. This Court in a number of cases has held that when the owner of a property has obtained an order under the Kerala Land Utilisation Order prior to 30.12.2017 to utilise the property for non-agricultural purposes, the provisions of Section 27A cannot be imposed. In view of the above, the writ petition is allowed. Ext.P8 order of the Sub Collector is set aside. There will be a direction to the 2[nd] respondent-Tahsildar to consider Ext.P9 Form A application submitted by the petitioner and pass appropriate orders thereon within a period of one month. Sd/- ## **N. NAGARESH, JUDGE** smm W.P(C) No.27322 of 2022 8 ] The Re-Survey Number in the 1[st] paragraph of the judgment dated 25.10.2022 in W.P(C) No.27322 of 2022 is corrected as 82/03 instead of 32/03 as per order dated 04.04.2023 in R.P.No.362 of 2023 in W.P(C) No.27322 of 2022. Sd/Deputy Registrar W.P(C) No.27322 of 2022 9 ] ## `APPENDIX OF WP(C) 27322/2022` ## `PETITIONER EXHIBITS` ``` Exhibit P1TRUE COPY OF THE TITLE DEED NO.1116 OF 1991 DATED 09.05.1991 OF ADDITIONAL SUB REGISTRAR OFFICE, KOTTAYAM ``` ``` Exhibit P2TRUE COPY OF THE TITLE DEED NO.1325 OF 1991 DATED 03.06.1991 OF ADDITIONAL SUB REGISTRAR OFFICE, KOTTAYAM ``` ``` Exhibit P3TRUE COPY OF THE PROCEEDINGS NO.H 8725/91 OF THE 1ST RESPONDENT DATED 10/01/1994 Exhibit P4TRUE COPY OF THE LAND TAX RECEIPT NO.KL050326903424/2019 DATED 10/04/2019 ISSUED BY THE 4TH RESPONDENT Exhibit P4(A)TRUE COPY OF THE LAND TAX RECEIPT NO.KL05032602584/2022 DATED 06/04/2022 ISSUED BY THE 4TH RESPONDENT ``` - `Exhibit P5 TRUE COPY OF THE APPLICATION DATED 20/06/2018 SUBMITTED BY THE PETITIONER BEFORE THE 1ST RESPONDENT` - `Exhibit P6 TRUE COPY OF THE ACKNOWLEDGEMENT RECEIPT NO.B3-3705/2019 DATED 13/06/2019 ISSUED BY THE OFFICE OF THE 1ST RESPONDENT ALONG WITH THE CHELAN RECEIPT DATED 13/06/2019` - `Exhibit P7 TRUE COPY OF THE REPORT FROM THE 6TH RESPONDENT, CONVENOR OF THE LOCAL LEVEL MONITORING COMMITTEE DATED 26/11/2019 ALONG WITH THE RELEVANT PAGES OF THE DATA BANK` ``` Exhibit P8TRUE COPY OF THE LETTER NO.B3-3705/2019 DATED 29/09/2021 ISSUED BY THE 1ST RESPONDENT Exhibit P9TRUE COPY OF THE APPLICATION DATED 16/08/2022 SUBMITTED BY THE PETITIONER FROM THE 2ND RESPONDENT Exhibit P10TRUE COPY OF THE ACKNOWLEDGEMENT RECEIPT DATED 17/08/2022 ISSUED BY THE OFFICE OF THE 2ND RESPONDENT. ```