Biby Augustine v. District Collector, Ernakulam; Revenue Divisional Officer, Muvattupuzha; Tahsildhar Taluk Office, Muvattuzha

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **THURSDAY, THE 20TH DAY OF AUGUST 2020 / 29TH SRAVANA, 1942** ## **WP(C).No.15890 OF 2020(I)** ## **PETITIONER:** **BIBY AUGUSTINE, AGED 51 YEARS, S/O. P. A. AUGUSTINE, PARAKANDATHIL HOUSE, ELANJI P. O., ERNAKULAM DISTRICT, PIN - 686665.** **BY ADVS. SRI.P.A.AUGUSTINE(AREEKATTEL) SHRI.RONY AUGUSTINE** ## **RESPONDENTS:** **1 THE DISTRICT COLLECTOR ERNAKULAM, COLLECTORATE, KAKKANAD P. O., PIN - 682030. 2 THE REVENUE DIVISIONAL OFFICER MUVATTUPUZHA, PIN - 686 661.** **3 THE TAHSILDHAR TALUK OFFICE, MUVATTUPUZHA, PIN - 686 661.** ## **OTHER PRESENT:** **SRI.SAIGI JACOB PALATTY, SR.GOVT.PLEADER** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 20.08.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** WP(C).No.15890 OF 2020(I) 2 ## **ALEXANDER THOMAS, J.** ------------------------------------------W.P.(C)No.15890 of 2020 ---------------------------------------------Dated this the 20[th] day of August, 2020 ## **JUDGMENT** The case set up in this Writ Petition (Civil) is as follows:- _The petitioner is the owner in possession of 44 Cents of property comprised in Sy. No. 324/1 of Elanji Village which he obtained as per Exts.P-1 & P-2 documents. In the Basic Tax Register, the said property is shown as ‘Nilam’. The said property faces to the Vaikkom-Thodupuzha PWD State Highway surrounded by buildings on the other two sides. As per Ext.P-4 order dated 15-04-89, the Board of Revenue approved the reclamation of the said property into a garden land and permitted for cultivation of any other food crop / for the use of the property for any other purpose as provided in Clause 6 (2) of the Kerala Land Utilization_ _Order 1967. As per Ext.P-5 order dated 21-01-92, the 2[nd] respondent stated that since the property lies as ‘Purayidam’, no special permission is to be given for conversion of the property as ‘Purayidam’. During the year 2000, the petitioner constructed a residential building in the said property and Ext.P-6 Ownership_ WP(C).No.15890 OF 2020(I) 3 _Certificate was issued by the Elanji Grama Panchayat. The property of the petitioner is not included in Ext.P-8 final land data bank of Elanji Village published under the Kerala Conservation of Paddy Land and Wet Land Act 2008. The petitioner submitted Ext.P-10 application dtd. 14-10-16 before the Tahsildar, Muvattupuzha, the 3[rd] respondent herein, praying to change the nature of the property as ‘Purayidam’ instead of ‘Nilam’ in the Basic Tax Register and other connected revenue records. Even after the lapse of more than 3 years, the 3[rd] respondent has not passed any orders in Ext.P-10 application submitted for the correction/additional entry in the Basic Tax Register of the property of the petitioner. The petitioner is highly aggrieved by the inaction on the part of the 3[rd] respondent on Ext.P-10 application._ It is in the light of the above factual averments and contentions that the petitioner has filed the instant Writ Petition (Civil) with the following prayers:- _“i. declare that the petitioner is entitled to get corrected / additional entry in the Basic Tax Register of the property of him having an extent of 44 Cents comprised in Sy. No. 324/1 of Elanji Village as ‘Purayidam’ instead of ‘Nilam’._ _ii. issue a writ of mandamus or any other appropriate writ, order or direction commanding the respondents 1 to 3 to make correction / additional entry in the Basic Tax Register of the property of the petitioner having an extent of 44 Cents comprised in Sy. No. 324/1 of Elanji Village as ‘Purayidam’ instead of ‘Nilam’._ WP(C).No.15890 OF 2020(I) 4 _iii. issue a writ of mandamus or any other appropriate writ, order or direction commanding the respondents 1 to 3 to allow Exhibit P10 application pending before the 3rd respondent in view of the law laid down by this Hon’ble Court in the above cited decisions, within a time frame as fixed by this Hon’ble Court._ _iv. issue a writ of mandamus or any other appropriate writ, order or direction commanding the respondents 1 to 3 to consider and pass orders in Exhibit P10 application pending before the 3rd respondent in view of the law laid down by this Hon’ble Court in the above cited decisions, within a time frame as fixed by this Hon’ble Court._ _v. pass such other or further writ, order or direction which deems fit and proper to pass by this Hon’ble Court in the facts and circumstances of the case.”_ 2. Heard Sri.P.A. Augustine (Areekkattel), learned counsel appearing for the petitioner and Sri.Saigi Jacob Palatty, learned Senior Government Pleader appearing for respondents 1 to 3. 3. The case of the petitioner is that the subject property covered by Exts.P-1 & P-2 registered title deeds, though continues to be described as 'nilam/paddy land' as per the Basic Tax Register (BTR) has been converted as 'garden land/purayidom' much prior to 12.08.2008 (date of coming into force of the Kerala Conservation of Paddy Land and Wetland Act, 2008). As a matter of fact, the subject property WP(C).No.15890 OF 2020(I) 5 was converted as 'garden land/ purayidom' and was used for cultivation other than for paddy even in the 1980's. In that regard, complaints were given to the 2[nd] respondent-Revenue Divisional Officer (RDO), that the petitioner has unlawfully converted the said property pursuant to which the 2[nd] respondent-RDO had taken _suo- moto_ action under Rule 7 of the Kerala Land Utilisation Order, 1967 (KLU Order), directing the petitioner to effectuate paddy cultivation of the subject property as he has not secured permission under Rule 6(2) of the KLU Order. Aggrieved by Ext.P-3 order dated 11.12.1987, passed by the 2[nd] respondent-RDO under Rule 7 of the KLU Order, the petitioner has preferred statutory appeal in terms of Rule 11 of the KLU Order before the Board of Revenue (which is the predecessor of the Commissionerate for Land Revenue). The Appellate authority considered the said appeal dated 26.05.1987 (referred to as item No.2 in Ext.P-4) and after following the requisite procedure, passed a considered order as per Ext.P-4 Appellate order dated 15.04.2019, interfering with Ext.P-3 order and holding that the conversion has taken place long ago and the direction in Ext.P-3 to effectuate paddy cultivation is rather impossible and that the adjacent property WP(C).No.15890 OF 2020(I) 6 holders are not, in any manner, affected by the said conversion made by the petitioner and accordingly specifically ordered and had found that the restoration of the _status-quo ante_ of effectuating paddy cultivation as ordered as per Ext.P-3 is not right and proper, in view of the changed scenario. Accordingly, the Appellate authority (Board of Revenue) has allowed the said appeal dated 26.05.1987, filed by the petitioner as per Ext.P-4 Appellate order dated 15.04.1989 under Rule 11 of the KLU Order thereby interfering with Ext.P-3 order dated 11.12.1987 passed by the 2[nd] respondent-RDO under Rule 7 of the KLU Order. The petitioner very diligently had filed a separate application dated 13.12.1991 before the 2[nd] respondent-RDO, who is the notified Collector, seeking for formal statutory permission for change of user of the land and conversion in terms of Rule 6(2) of the KLU Order. The said application dated 13.12.1991, filed by the petitioner under Rule 6(2) of the KLU Order has been referred to as item No.1 in Ext.P-5. The 2[nd] respondent-RDO, after following the requisite procedure, found that since the property has already been converted and since the interference of the said conversion as per Ext.P-3 has already been interdicted by the Appellate authority as per WP(C).No.15890 OF 2020(I) 7 Ext.P-4, etc. and in view of the existing ground realities, the property is already a purayidom and therefore no specific permission from the 2[nd] respondent-RDO is required in the given factual circumstances of this case and has thus passed Ext.P-5 proceedings dated 21.01.1992 under Rule 6(2) of the KLU Order. In other words, the 2[nd] respondent-RDO as per Ext.P-5 proceedings dated 21.01.1992 has, thus allowed the said application dated 13.12.1991 (referred to as item No.1 in Ext.P-5) filed by the petitioner under Rule 6(2) of the KLU Order and in the light of Exts.P-3 to P-5, it is only to be held that Ext.P-5 proceedings dated 21.01.1992 is a conscious decision taken by the 2[nd] respondent-RDO, thus granting permission to the petitioner for change of user of the land in terms of Rule 6(2) of the KLU Order, etc. There is no dispute that Exts.P-4 & P-5 proceedings has become final and conclusive and that no one has agitated the illegality and correctness of Exts.P-4 & P-5 either in any subsequent proceedings by way of appeal. This the Court would say as an order passed under Rule 6(2) of the KLU Order is appealable in terms of Rule 11 of the KLU Order and remedy of revision is also provided as per Rule 14 of the KLU Order before the Sate WP(C).No.15890 OF 2020(I) 8 Government. Hence Exts.P-4 & P-5 proceedings have become final and conclusive and the respondent State authorities including all the competent revenue officials concerned are bound by the conclusive findings in Exts.P-4 & P-5 and by the abovesaid substantive decision, that emanates from Ext.P-5. Thereafter, the petitioner has constructed a residential building in the subject property as referred to in Ext.P-6 ownership certificate issued by the local panchayat concerned and the said building constructed in the subject property has also been assessed to Kerala Building Tax as can be seen from Ext.P-7 dated 19.02.2003. Further, the petitioner would assert that the subject property has not been included in the land data bank prepared as per the provisions of the Kerala Conservation of Paddy Land and Wetland Act , 2008, as can be seen from Ext.P-8. Since the subject property continues to be described as 'nilam/paddy land' in the BTR as can be seen from Ext.P-9 dated 19.07.2018, the petitioner has preferred Ext.P-10 application dated 14.10.2016 before the 3[rd] respondentTahsildar seeking for consequential orders under Section 6A of the Kerala Land Tax Act for fresh assessment of the subject property covered by Ext.P-5 so as to secure additional entries in WP(C).No.15890 OF 2020(I) 9 the BTR to show correctly the changed nature of the land as 'garden land/purayidom' instead of the earlier BTR entries as 'nilam/paddy land'. 4. The Village Officer concerned has given Ext.P-11 report dated 20.12.2016 to the 3[rd] respondent-Tahsildar wherein the facts regarding the ground realities of the property and other details are dealt with in detail. The facts relating to the issuance of Ext.P-5 proceedings dated 21.01.1992 by the 2[nd] respondent-RDO on the application dated 13.12.1991 filed by the petitioner under Rule 6(2) of the KLU Oder are also dealt with in Ext.P-11. Ext.P-11 would categorically and unambiguously disclose that the subject property has been converted as 'garden land/purayidom' long ago. Ext.P-12 is the field inspection report dated 04.12.2017 submitted by the Deputy Tahsildar to the 3[rd] respondent-Tahsildar which is also in favour of the petitioner. Thereafter, the 3[rd] respondentTalsildar has submitted Ext.P-13 later dated 28.02.2017 before the 1[st] respondent-District Collector seeking clarification for further steps to be taken on Ext.P-10 application, especially in the light of the judgment dated 08.04.2015 rendered by the division Bench of this Court in Writ Appeal No:1294/2013 WP(C).No.15890 OF 2020(I) 10 (arising out of W.P.(C) No.24116/2012,in the case in _**LLMC, Kizhakkambalam Grama Panchayath and others v. Mariumma and another**_ [2015 (2) KLT 516 (DB)], etc. Thereafter the 3[rd] respondent-Tahsildar has again sent reminder letter as per Ext.P-14 letter dated 05.06.2017 requesting the 1[st] respondent- District Collector to give necessary clarification and guidance for dealing with Ext.P-10 application. Later, the 1[st] respondent-District Collector has sent Ext.P-15 letter dated 26.06.2017 to the 3[rd] respondentTahsildar stating that the matter has been referred to the government and no clarification thereon has been received etc. It is the case of the petitioner and thereafter no effective action is forthcoming from the respondent authorities concerned. 5. From a reading of the pleadings and materials on record, more particularly Exts.P-3 to P-5 as also the various reports and communications sent by the respondents as referred to in Exts.P-11 to P-15, it is seen that the subject property has been converted as 'garden land/purayidom' long ago and that the petitioner has obtained a substantive decision from the 2[nd] respondent as per Ext.P-5 dated 21.01.1992 on his application dated 13.12.1991 filed under Rule 6(2) of the KLU WP(C).No.15890 OF 2020(I) 11 Order, whereby it has been held that in view of the changed scenario and in the light of Ext.P-4 Appellate order from the Board of Revenue, no specific permission is required meaning thereby that the statutory notified Collector in terms of Rule 6(2) of the KLU Order has granted his approval for the change of user and conversion of the land as 'garden land/purayidom'. 6. In the instant case, the petitioner's case would stand on a much higher pedestal compared to such cases as in _**Geo Peter v. Revenue Divisional Officer**_ [2019 (3) KLT 838], _**Renji K.Paul v. Revenue Divisional Officer**_ [2019 (2) KLT 262], _**Salim v. State of Kerala**_ [2019 (3) KLT 604 (DB)], inasmuch as he has secured Ext.P-5 proceedings as early as on 21.01.1992, issued by the 2[nd] respondent. A division Bench of this Court has categorically held in cases as in _**LLMC, Kizhakkambalam Grama Panchayath and others v. Mariumma and another**_ [2015 (2) KLT 516 (DB)], that in such cases where the party obtains permission under Rule 6(2) of the KLU Order, then the earlier BTR entries showing the property as 'nilam/paddy land' becomes superfluous and redundant and in such a case the statutory obligation of Tahsildar concerned is to pass fresh assessment of such subject WP(C).No.15890 OF 2020(I) 12 property in terms of Section 6A of the Kerala Land Tax Act in order to secure additional entries in the BTR to show correctly the changed nature of land as 'garden land/purayidom' instead of the earlier BTR entries as 'nilam/paddy land'. It should also be borne in mind that the land tax payable for paddy land is much lower compared to land tax payable to garden land/purayidom. Therefore, it is the statutory obligation of the Tahsildar to ensure that such alteration is made so as to ensure that land tax is collected for the higher amount in respect of the converted purayidom/garden land, as otherwise only low land tax for the paddy land alone could be collected if the earlier BTR entries are continued indefinitely and the said matter does not require any further elucidation and the dictum laid down by the division Bench of this Court in _**Mariyumma's**_ case (supra), which has also been reiterated by the division Bench of this Court in cases as in _**Thasildar, Thodupuzha Taluk and another v. Renjith George**_ [2020 (1) KHC 865 (DB)]. Needless to say that the said dictum laid down by the division Bench in the above said cases have been followed in a catena of judgments by this Court and the position does not require any further elucidation. WP(C).No.15890 OF 2020(I) 13 7. In such circumstances, it is ordered and declared that in case the subject property covered by Ext.P-10 application is the same or part of the properties covered by Exts.P-4 & P-5 , then the petitioner is entitled to get orders from the 3[rd] repondent-Tahsildar on Ext.P-10 application for fresh assessment of the subject property under Section 6A of the Kerala Land Tax Act for such alterations in the BTR and that too without having to pay any amounts as per the amended provisions of the Kerala Conservation of Paddy Land and Wetland Act, which has introduced Section 27A thereof and the amended Rules framed thereunder including Rule 12(17) thereof. The position in that regard is ordered and declared in this case. 8. Accordingly it is ordered that the 3[rd] respondentTahsildar will immediately take-up for consideration the matters raised in Ext.P-10 application dated 14.10.2016, and shall ascertain as to whether the subject property covered by Ext.P-10 application, Exts.P-1 and P-2 title deeds, is the same or part of the properties covered by Exts.P-4 & P-5 proceedings under the KLU Order, then the 3[rd] respondent will afford reasonable opportunity of being heard to the petitioner through WP(C).No.15890 OF 2020(I) 14 his authorised representative/counsel, if any, and then should pass orders for fresh assessment under Section 6A of the Kerala Land Tax Act, so as to secure additional entries in the BTR to correctly show the changed nature of the subject property as 'garden land/purayidom' instead of the earlier entries in the BTR as 'nilam/paddy land', without much delay, preferably within a period of two months from the date of production of a certified copy of this judgment strictly in the light of the dictum laid down by this Court in the judgments as in _**Mariumma's**_ case (supra) _**Renjith's**_ case (supra) and without compelling the petitioner to pay any amounts as conceived as per the amended provisions of the Kerala Conservation of Paddy Land and Wetland Act 2008, which has introduced Section 27A thereof and the amended Rules framed thereunder. Thereafter the 3[rd] respondent shall also issue consequential directions to the Village Officer, concerned to actually carry out such alterations/corrections in the BTR so as to ensure that the Village Officer will collect the appropriate land tax from the petitioner in respect of the said subject property and shall-issue land tax receipt showing such altered entries in the BTR. Further, the 3[rd] respondent-Tahsildar will ascertain from the WP(C).No.15890 OF 2020(I) 15 office of the 2[nd] respondent-RDO about the matters in relation to Exts.P-5, and as to whether the subject property covered by Ext.P-10 application, Exts.P-1 and P-2 title deeds, is the same or part of the properties covered by Exts.P-4 & P-5 proceedings under the KLU Order. 9. The petitioner will produce certified copy of this judgment as well as a copy of the memorandum of this writ petition (civil) along with all the exhibits before the respondent-Revenue Divisional Officer, for necessary information and further action. With these observations and directions, the above Writ Petition (Civil) will stand finally disposed of. ## **Sd/-** ## **ALEXANDER THOMAS, JUDGE** Skk//14092020 WP(C).No.15890 OF 2020(I) 16 ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** - **EXHIBIT P1** **TRUE COPY OF SETTLEMENT DEED NO.1775/2000 DATED 27.10.2000 OF S.R.O., KOOTHATTUKULAM EXECUTED IN FAVOUR OF THE PETITIONER.** - **EXHIBIT P2 TRUE COPY OF SETTLEMENT DEED NO.1776/2000 DATED 27.10.2000 OF S.R.O., KOOTHATTUKULAM EXECUTED IN FAVOUR OF THE PETITIONER.** - **EXHIBIT P3 TRUE COPY OF NOTICE DATED DECEMBER 1987 ISSUED BY THE REVENUE DIVISIONAL OFFICER (SUB COLLECTOR), MUVATTUPUZHA.** - **EXHIBIT P4 TRUE COPY OF ORDER DATED 15.04.89 ISSUED BY THE BOARD OF REVENUE (LR), TRIVANDRUM.** - **EXHIBIT P5 TRUE COPY OF ORDER DATED 21.01.92 ISSUED BY THE REVENUE DIVISIONAL OFFICER, MUVATTUPUZHA.** - **EXHIBIT P6 TRUE COPY OF OWNERSHIP CERTIFICATE DATED 09.01.02 ISSUED BY THE ELANJI GRAMA PANCHAYAT IN FAVOUR OF THE PETITIONER.** - **EXHIBIT P7 TRUE COPY OF ORDER OF ASSESSMENT UNDER THE KERALA BUILDING TAX ACT 1975 DATED 19.02.03. ISSUED BY THE TAHSILDAR, MUVATTUPUZHA.** - **EXHIBIT P8 TRUE COPY OF RELEVANT PAGES OF THE FINAL LAND DATA BANK OF ELANJI VILLAGE PUBLISHED UNDER THE KERALA CONSERVATION OF PADDY LAND AND WET LAND ACT 2008.** - **EXHIBIT P9 TRUE COPY OF THE BASIC TAX RECEIPT NO.KL07070104221/2018 DATED 19.07.2018 OF THE PROPERTY OF THE PETITIONER ISSUED FROM THE VILLAGE OFFICE, ELANJI.** WP(C).No.15890 OF 2020(I) 17 ## **EXHIBIT P10** **TRUE COPY OF APPLICATION DATED 14.10.16 SUBMITTED BEFORE THE TAHSILDAR, MUVATTUPUZHA BY THE PETITIONER.** - **EXHIBIT P11 TRUE COPY OF REPORT DATED 20.12.16 SUBMITTED BY THE VILLAGE OFFICER, ELANJI BEFORE THE TAHSILDAR, MUVATTUPUZHA.** - **EXHIBIT P12 TRUE COPY OF REPORT DATED 04.02.17 SUBMITTED BY THE DEPUTY TAHSILDAR, MUVATTUPUZHA.** - **EXHIBIT P13 TRUE COPY OF LETTER DATED 28.02.17 SUBMITTED BY THE ADDITIONAL TAHSILDAR, MUVATTUPUZHA BEFORE THE DISTRICT COLLECTOR, ERNAKULAM.** - **EXHIBIT P14 TRUE COPY OF LETTER DATED 05.06.17 SUBMITTED BY THE TAHSILDAR, MUVATTUPUZHA BEFORE THE DISTRICT COLLECTOR, ERNAKULAM.** - **EXHIBIT P15 TRUE COPY OF LETTER DATED 26.06.17 ISSUED BY THE DISTRICT COLLECTOR, ERNAKULAM TO THE TAHSILDAR, MUVATTUPUZHA.** ## **PETITIONER'S EXHIBITS: NIL**