Binu Kuriaokose & Jibin Kuriaokose v. District Collector, Ernakulam and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **TUESDAY, THE 03RD DAY OF MARCH 2020 / 13TH PHALGUNA, 1941** ## **WP(C).No.5005 OF 2020(A)** ## **PETITIONERS:** **1 BINU KURIAKOSE AGED 58 YEARS W/O.K.K.KURIAKOSE, RESIDING AT FLAT NO.9A, VENDRAPPILLIL ENCLAVE, EROOR SOUTH (P.O), THRIPUNITHURA, ERNKAULAM DISTRICT,PIN-682 306 2 JIBIN KURIAKOSE AGED 36 YEARS S/O.K.K.KURIAKOSE, RESIDING AT FLAT NO.9A, VENDRAPPILLIL ENCLAVE, EROOR SOUTH (P.O), THRIPUNITHURA, ERNKAULAM DISTRICT,PIN-682 306 BY ADVS. SHRI.JAWAHAR JOSE SRI.SARUN RAJAN** ## **RESPONDENTS:** - **1 THE DISTRICT COLLECTOR ERNAKULAM CIVIL STATION, KAKKANAD, ERNAKULAM, PIN-682 030** - **2 SUB COLLECTOR,FORT KOCHI, REVENUE DIVISIONAL OFFICE, K.B.JACOB ROAD, FORT KOCHI, ERNAKULAM,PIN-682 001** - **3 THE TAHSILDAR,KANYANNOOR TALUK OFFICE, NEAR SUBHASH PARK, MARINE DRIVE, ERNAKULAM,PIN-682 011** - **4 THE VILLAGE OFFICER,NADMA, POST OFFICE ROAD, THRIPUNITHURA, ERNAKULAM DISTRICT,PIN-682 301** ## **OTHER PRESENT:** **SRI.JESTIN MATHEW, GOVT.PLEADER** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 03.03.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** W.P.(C)No.5005/2020 2 ## **ALEXANDER THOMAS, J.** ------------------------------------------W.P.(C)No. 5005 of 2020 ---------------------------------------------Dated this the 3[rd] day of March, 2020 ## **JUDGMENT** The case set up in this Writ Petition (Civil) is as follows:- That the 1[st] petitioner owns an extent of 44 cents of property in survey number 1514/1 of Nadma Village in Ernakulam District. The said property was purchased by her, by two registered documents, bearing numbers 235/08 and 279/09 of S.R.O Thripunithua. The 2[nd] petitioner owns an extent of 11 cents of property in survey number 1514/1 of Nadma Village in Ernakulam District. The said property was purchased by him by a registered document bearing number 946/08 of S.R.O Thripunithura. The 1[st] petitioner is the mother of 2[nd] petitioner. The aforementioned properties owned by the petitioners, having the total extent of 55 cents, lies as a compact plot, and the said property is classified in the Basic Tax Register as “nilam”. The 1[st] petitioner originally approached this Court, by filing W.P.(C)No.10362/2009 and the said case was disposed by Exhibit-P1 judgment dated 18-12-2014, wherein this Court has issued the following directions:- _“i. The petitioner is directed to approach the Local Level Monitoring Committee under the Kerala Conservation of Paddy Land and Wet Land Act, 2008, for correcting the_ W.P.(C)No.5005/2020 3 _entry with respect to the description of property. ii. Thereupon, the petitioner is directed to approach the Revenue Divisional Officer under Clause 6 of the Kerala Land Utilisation Order. The Revenue Divisional Officer is further directed to give permission to the petitioner, to utilise the property for other purposes, as the property is situated in the residential zone, as per the certificate issued by the Senior Town Planner, Kochi.”_ The petitioner's property is classified by the Town Planning authorities as “Residential Zone” as is evident from Exhibit-P2 certificate issued by the Senior Town Planner, Kochi. Consequent to Exhibit-P1 judgment, the Local Level Monitoring Committee in their meeting held on 27-6-2015, has found that the petitioner's property was converted before the promulgation of the Kerala Conservation of Paddy Land and Wet Land Act, 2008 as is evident from Exhibit-P3 document. Consequently, the petitioner's property was deleted from the data bank, as is evident from Exhibit-P4 document. Immediately after the deletion of petitioner's property from the data bank, the directions in the aforementioned Exhibit-P1 judgment was modified by Exhibit-P5 order. The Revenue Divisional Officer has originally rejected the petitioner's application under Clause 6 of t he Kerala Land Utilisation Order on two occasions i.e. firstly on 3-3-2017 and secondly on 27-11-2017. But the said orders were set aside by this Court by Exhibits-P6 and P7 judgments. Later the Revenue Divisional Officer (Sub Collector) has granted the exemption under Clause 6 of the Kerala Land Utilisation Order, by ExhibitP8 order dated 31.01.2020, but however a condition was imposed, specifying that the corresponding changes in the B.T.R will not be made based on W.P.(C)No.5005/2020 4 Exhibit-P8 order. The petitioners are aggrieved by the said condition in Exhibit-P8 order. By Exhibit-P8 order, the 2[nd] respondent being the statutory authority under the Kerala Land Utilization has permitted to change/utilize the property from the category “agricultural” to “residential”. This would certainly result in a reassessment of fresh-assessment to be made under Section 6A of the Kerala Land Tax Act, 1961, as the original assessment made has become redundant. The reassessment to be made under Section 6A of the Kerala Land Tax Act can only be on the basis of Exhibit-P8 order and the change effected in the description of property in the data bank which is maintained under the Kerala Conservation of Paddy land and Wet Land Act, 2008, which is evident from Exhibit-P3 and P4 orders. Therefore, the respondents 3 and 4 are statutorily bound to reassess the property and should initiate for fresh assessment and should also change the classification of property in the B.T.R which is maintained under the Kerala Lad Tax Act. Thus, the incorporation of 2[nd] condition in Exhibit-P8 order is illegal and arbitrary.” 2. It is in the light of these factual averments and contentions, the petitioner has filed the instant Writ Petition (Civil) with the following prayers:- _“i. Issue a writ in the nature of certiorari, quashing Exhibit-P8 order, to the extent the 2[nd] respondent has prescribed the 2[nd] condition therein._ _ii. Issue a writ in the nature of mandamus, directing the respondents 3 and 4 to change the description of petitioner's property in the_ W.P.(C)No.5005/2020 5 _Basic Tax Register (B.T.R) as “residential property” and also to initiate for a fresh assessment of the petitioners property under Section 6A of the Kerala Land Tax Act, 1961, by allowing the application submitted by the petitioner evidenced by Exhibit-P9. iii. Declare that the respondents 3 and 4 are legally obliged to reassess the petitioner's property under Section 6A of the Kerala Land Tax Act, 1961, as the description of petitioner's property has been changed consequent to Exhibit-P8 order and also on account of the change effected in the description of property in the data bank which is maintained under the Kerala Conservation of Paddy Land and Wet Land Act, 2008, which is evident from Exhibit-P3 and P4 orders.”_ 3. Heard Sri. Jawahar Jose, learned counsel appearing for the petitioner and Sri. Jestin Mathew, learned Government Pleader appearing for the respondents. 4. It is beyond any serious dispute that the subject property was not a paddy land or wet land as on the date of coming into force of the Kerala Conservation of Paddy and Wet Land Act, 2008, going by the definitions contained in Sections 2(xii) and 2(xviii)of the said Act. The specific case of the petitioner is that the subject property is situated in a residential zone going by the zonal classification made as per Ext.P2. Further it is also beyond any disputed that the petitioner has submitted application under Rule 6(2) of the Kerala Land Utilization Order, 1967 on 31.8.2015 before the 2[nd] respondent Revenue Divisional Officer, seeking for formal orders for conversion of the said land as garden land or purayidom in terms of the provisions contained in the said Rules. It is also beyond any dispute that this Court as per Ext.P1 judgment dated 18.12.2014 in W.P. (C)No.10362/2009 as reiterated in Ext.P6 judgment dated 31.8.2017 in W.P.(C)No.5005/2020 6 W.P.(C)No.9273/2017, has directed the respondent Revenue Divisional Officer to consider and take decision on the said application filed by the petitioner on 31.8.2015 under Rule 6(2) of the KLU Order 1967. The fact that the petitioner has filed such an application on 31.8.2015 under Rule 6(2) of the KLU Order, 1967 is also clear from a reading of the appendix of Ext.P6 judgment, wherein the said document has been referred to as Ext.P13 therein. It is also not in dispute that now the 2[nd] respondent Revenue Divisional Officer has allowed the said application dated 31.8.2015 filed by the petitioner under Rule 6(2) of the KLU Order as per Ext.P8 order dated 31.1.2020. The limited grievance of the petitioner is that while allowing the main plea under Rule 6(2)of the KLU Order, the 2[nd] respondent has illegally added yet another rider in Ext.P8 that the said order as per Ext.P8 will not able the petitioner to seek corrections in the Basic Tax Register (BTR) to show the said land as garden land or purayidom. It is by now too well settled by a series of ruling of this Court including that of Division Bench of this Court as in _**LLMC, Kizhakkambalam Grama Panchayath and others**_ v. _**Mariumma and another**_ [2015(2) KLT 516 (DB)] as well as _**Tahsildar, Thodupuzha Taluk and another**_ v. _**Renjith George**_ [2020 (1) KHC 865 (DB)] that, where the subject property has been converted as garden land/purayidom prior to coming into force of the 2008 Act and where the property holder in respect of such a property submits application under Rule 6(2) of the KLU Order seeking formal conversion of W.P.(C)No.5005/2020 7 the said property as garden land or purayidom under Rule 692) of the KLU order before 30.12.2017 (date of coming into force of the amended provisions of 2008 Act introducing Section 27A thereof), then once orders under Rule 6(2) of the KLU Order obtained, then the land owner is entitled to maintain an application under Section 6A of the Kerala Land Tax Act, 1961 before the competent revenue officials like the 2[nd] respondent to re-assessment of the subject property under Section 6A of the Kerala Land Tax Act in order to make additional entries in the BTR to show the said property as garden land/purayidom instead of the earlier BTR entries as “nilam/paddy land” as the case may be. Therefore, it is only to be held categorically and conclusively that the impugned condition No.2 in Ext.P8 issued by the 2[nd] respondent RDO to the effect that the petitioner will not be enable to make request for correction in the BTR is absolutely illegal, ultra vires and unenforceable and in that view of the matter, Ext.P8 order to the limited extent it contains condition No.2 thereof will, to the above extent, stand quashed and rescinded. It is made clear that in all other aspects, Ext.P8 will stand affirmed and upheld. The petitioner has now submitted Ext.P9 application dated 11.2.2020 before the 3[rd] respondent Tahsildar seeking re-assesement of the subject property in terms of Section 6A of the Kerala Land Tax Act, 1961 and therefore, it is ordered that in the light of Ext.P8 order under Rule 6(2) of the KLU Order, 1967, the 3[rd] respondent Tahsildar to take steps to re-assessment of the subject property under W.P.(C)No.5005/2020 8 Section 6A of the Kerala Land Tax Act, 1961, so as to make additional entries in the BTR of the said subject property to show the said property as garden land or purayidom, instead of the earlier BTR entry showing it as “nilam or paddy land as the case may be. Orders in this regard should be duly passed by the 3[rd] respondent Tahsildar, after affording reasonable opportunity of being heard to the petitioner, within three weeks from the date of production of certified copy of this judgment. With these observations and directions, the above Writ Petition (Civil) will stand finally disposed of. sd/- ## **ALEXANDER THOMAS, JUDGE.** acd W.P.(C)No.5005/2020 9 ## **APPENDIX** **PETITIONER'S/S EXHIBITS:** - **EXHIBIT P1 TRUE COPY OF THE JUDGMENT DATED 18.12.2014 IN WPC NO.210362/2009 OF THIS HON'BLE COURT** - **EXHIBIT P2 TRUE COPY OF THE CERTIFICATE DATED 25.3.2009 ISSUED BY THE SENIOR TOWN PLANNER, KOCHI** - **EXHIBIT P3 TRUE COPY OF THE MINUTES OF THE MEETING DATED 27.6.2015 OF THE LOCAL LEVEL MONITORING COMMITTEE** - **EXHIBIT P4 TRUE COPY OF THE RELEVANT PAGE OF THE DATA BANK MAINTAINED AS PER THE KERALA CONVERSATION OF PADDY LAND AND WET LAND ACT, 2008** **EXHIBIT P5 TRUE COPY OF THE ORDER DATED 24.7.29015 IN R.P.NO.143/2015 IN W.P(C)NO.10362/2009 OF THIS HON'BLE COURT** **EXHIBIT P6 TRUE COPY OF THE JUDGMENT DATED 31.8.2017 IN WP(C) NO.9273/2017 OF THIS HON'BLE COURT EXHIBIT P7 TRUE COPY OF HE JUDGMENT DATED 18.11.20198 IN W.P(C) NO.39149/2019 OF THIS HON'BLE COURT EXHIBIT P8 TRUE COPY OF THE ORDER DATED 31.1.2020 OF THE 2ND RESPONDENT EXHIBIT P9 TRUE COPY OF THE PETITION FILED BY THE PETITIONERS BEFORE THE 3RD RESPONDENT TOGETHER WITH ITS ACKNOLWEDLGEMENT**