CFI Charitable Trust v. State of Kerala and Others

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **MONDAY, THE 01ST DAY OF JUNE 2020 / 11TH JYAISHTA, 1942** **WP(C).No.6249 OF 2020(E)** ## **PETITIONER/S:** **CFI CHARITABLE TRUST J-4/46, KHIRKI EXTENTION, MALVIYA NAGAR, NEW DELHI, REPRESENTED BY C.S.JOSEPH, AGED 69 YEARS, S/O.V.M.SAMUEL, RESIDING AT CHALLACKAL HOUSE, KEEKOZHUR P.O., RANNI TALUK, PATHANAMTHITTA DISTRICT, ONE OF THE TRUSTEES. (TRUST DEED NO.7216 OF 04.10.2000 REGISTERED AT DELHI).** **BY ADVS. SRI.ROY CHACKO SRI.K.C.VINCENT** ## **RESPONDENT/S:** **1 STATE OF KERALA REPRESENTED BY SECRETARY, DEPARTMENT OF REVENUE, SECRETARIAT, THIRUVANANTHAPURAM-695 001. 2 THE REVENUE DIVISIONAL OFFICER, THRISSUR-680 003. 3 THE VILLAGE OFFICER, POYYA, THRISSUR-680 733. 4 THE LOCAL LEVEL MONITORING COMMITTEE, REPRESENTED BY THE AGRICULTURAL OFFICER, KRISHI BHAVAN, POYYA, POYYA P.O., PIN-680 733. 5 POYYA GRAMA PANCHAYAT, REPRESENTED BY ITS SECRETARY, OFFICE OF THE POYYA GRAMA PANCHAYAT, POOPPATHY P.O., THRISSUR-680 733.** ::2:: ## **WP(C).No.6249 OF 2020(E)** **6 ADDL.R6 THE REVENUE DIVISIONAL OFFICER, IRINJALAKKUDA, IRINJALAKKUDA P.O., THRISSUR DISTRICT,PIN - 600121. IS IMPLEADED AS PER ORDER DATED 01.06.2020 IN IA 1/2020 IN WPC NO. 6249./2020. R5 BY ADV. MR.M.SHAJU PURUSHOTHAMAN, SC, POYYA GRAMA PANCHAYAT, THRISSUR SRI.K.J.MANU RAJ, GP FOR R-1 TO R-4 & R-6** ## **OTHER PRESENT:** **SRI.K.J.MANU RAJ, GOVT.PLEADER** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 01.06.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ::3:: **WP(C).No.6249 OF 2020(E)** ## **ALEXANDER THOMAS, J** . ----------------------------W.P(C).No.6249 Of 2020 --------------------------------Dated this the 1[st] day of June, 2020. ## **J U D G M E N T** The case set up in this Writ Petition (Civil) is as follows: The petitioner, a Trust registered under the Indian Trust Act presently administering an Unaided B.ed Training College and Hindi Prachara Kendra College of Teacher Education, Kodungallur, Thrissur, affiliated to the University of Calicut, proposed to reconstruct a building for the purpose of the educational institution. The subject land categorise as 'Purayidom' in Data Bank but as 'Nilam' in Basic Tax Register. The petitioner's predecessors filed Ext-P5 under KLU Order but kept unattended and the petitioner under compulsion submitted Ext.P7 under Section 27A of the 2008 Act but may take long time for finalisation. An early disposal is necessitated considering the requirement of completion of construction before next academic year. The Poyya Grama Panchayat cannot consider permit application without change of category of land. Hence, seeks indulgence of this Hon'ble Court for expeditious finalisation of ::4:: ## **WP(C).No.6249 OF 2020(E)** Section 27A Application or consideration of Building Permit Application de hors the entry in BTR on terms dictated by this Court. It is in the light of these factual averments that the petitioner has filed the instant Writ Petition seeking the following reliefs: - _“a) Issue a writ of mandamus or other writ, order or direction directing the 2[nd] respondent to take up and finalise Exhibit P5 as expeditiously as possible within a period prescribed by this Hon'ble Court considering the urgency to complete the construction for the purpose of the educational institution, in view of the dictum laid down in Geo Peter's case reported in 2019 (3) KLT 838._ - _b) If this Honourable court finds that prayer (a) cannot be granted, issue a writ of mandamus or other writ, order or direction directing the 2[nd] respondent to take up and finalise Exhibit P7 as expeditiously as possible within a period prescribed by this Hon'ble Court considering the urgency to complete the construction for the purpose of the educational institution._ - _c) Issue a writ of mandamus or any other appropriate writ, direction or order directing the Poyya Grama Panchayat, the 5[th] respondent to process and finalise the Building Permit Application de hors the categorization of the subject land as nilam in the Basic Tax Register on terms dictated by this Hon'ble Court, including deposit of fee provided for change of categorization in the 2008 Act._ - _d) Issue such other order or direction as this Hon'ble Court deems fit and proper to grant in the facts and circumstances of the case.”_ 2. Heard Sri.K.C.Vincent, learned counsel for the petitioner, Sri.K.J.Manu Raj, learned Government Pleader, appearing for respondents 1 to 4 & additional 6[th] respondent and Sri.Shaju Purushothaman, learned Standing Counsel for the 5[th] respondent-Poyya Grama Panchayat. 3. The petitioner is said to be a Trust registered under the provisions of the Indian Trust Act and that the petitioner is administering and managing an unaided B.Ed College as well as ::5:: **WP(C).No.6249 OF 2020(E)** Hindi Prachara Kendra College of Teacher Education, Kodungallur, Thrissur, affiliated to the University of Calicut. That the subject property was converted as garden land/purayidam much prior to 12.8.2008 (the date of coming into force of the Kerala Conservation of Paddy Land and Wet Land Act, 2008). It is averred that as a matter of fact, a building was constructed in the subject property even prior to 2003 for the running of the abovesaid unaided College and that as per Ext.P-4 G.O.(MS).No. 146/2003/LSGD dated 9.1.2003 the competent authority of the Local Self Government Department, has granted exemption to the said building from the purview of Panchayath property tax as the College is a charitable institution, etc. That Ext.P-4 Government Order dated 9.1.2003 itself would make it clear that a building was in existence in the property even prior to 2003 and that it would clearly show that the subject property has been converted as garden land/purayidom, much prior to 12.8.2008 and that since the petitioner wanted to make new construction in the property, he had moved Ext.P-5 application dated 30.5.2008 under Rule 6(2) of the Kerala Land Utilization Order before the 2[nd] respondent-RDO, Thrissur. That Ext.P-5 application dated 30.5.2008 was acted upon and the Tahsildar concerned has submitted Ext.P-5(a) ::6:: ## **WP(C).No.6249 OF 2020(E)** inspection report and mahazar dated 17.9.2008 wherein it has been conclusively found that the subject property has already been converted as garden land/purayidam and further that a building has been in existence in the subject property and there are coconut trees more than 22 years of age and that the application of the petitioner could be considered, etc. According to the petitioner, thereafter, Ext.P-5 application was kept in cold storage and was never considered by the 2[nd] respondent-RDO, Thrissur, citing the reason that the new 2008 Act had come into force by then on 12.8.2008, etc. Ext.P-6 would show that in the land data bank prepared as per the provisions of the abovesaid 2008 Act, the property has been clearly shown as purayidam. Now, the petitioner wants to proceed with the construction of the new building in the subject property as otherwise it is virtually impossible for him to conduct the running of the courses in the college in a proper and effective manner, etc. 4. When the matter had come up for consideration on 2.3.2020, this Court had directed the respondents to furnish as to whether Ext.P-5 application dated 30.5.2008 filed under Rule 6(2) of the Kerala Land Utilization Order is still pending, etc. ::7:: **WP(C).No.6249 OF 2020(E)** 5. It is by now well settled by a series of rulings of this Court that where the subject property has been converted as Garden Land or Purayidam prior to 12.08.2008 (date of coming into force of the Kerala Conservation of Paddy Land and Wetland Act, 2008) and where the property holder has filed the requisite application under Rule 6(2) of the Kerala Land Utilization Order for change of user of the land, before 30.12.2017 (date of coming into force of the amended provisions of the 2008 Act, which has introduced Sec.27A thereof, then in such a case, the property holder is entitled to get his request is considered in terms of Rule 6(2) of the KLU Order and in such a case none of the adverse provisions contained in the amended provisions of the 2008 Act, including Sec.27A thereof and the amended Rule framed thereunder cannot be enforced as against such a property holder. In other words, the application under Rule 6(2) of the KLU Order has to be considered strictly in terms of that provision and without insisting for the amounts conceived as per the amended provisions of the 2008 Act including Sec.27A thereof and the amended provisions of the Rules (refer _**Geo Peter v. Revenue Divisional Officer**_ [2019 (3) KLT 838], _**Renjith K.Paul v. Revenue Divisional Officer**_ [2019 (2) KLT 262], _**Tahsildar, Thodupuzha**_ ::8:: **WP(C).No.6249 OF 2020(E)** _**Taluk and another v. Renjth George**_ [2020 (1) KHC 865 (DB)] _**LLMC, Kizhakkambalam Grama Panchayath and others v. Mariumma and another**_ [2015 (2) KLT 516 (DB), etc.]. 6. Further, in the aforesaid judgments of the Division Bench of this Court in _**Mariyumma’s**_ case (supra) and _**Renjth George's**_ case (supra), it has also been held that in such a case where the property holder has filed the application under Rule 6(2) before 30.12.2017 and after securing such orders under Rule 6(2), the party concerned is also entitled to get the subject property assessed/re-assessed under Sec.6A of the Kerala Land Tax Act, so as to secure additional entries in the BTR to show the change of nature of the land as garden land or purayidam instead of the earlier BTR entries as paddy land or Nilam. 7. Now, the jurisdictional RDO concerned to consider Ext.P-5 application is the additional 6[th] respondent-RDO, Irinjalakuda. Accordingly, it is ordered that the 2[nd] respondentRDO, Thrissur, will immediately forward Ext.P-5 application dated 30.5.2008, Ext.P-5(a) report and mahazar dated 17.9.2008, etc., to the additional 6[th] respondent-RDO, Irinjalakuda, for further action. This process should be completed within 2 weeks from the date of receipt of a certified copy of this judgment. The petitioner ::9:: ## **WP(C).No.6249 OF 2020(E)** is also directed to ensure that certified copy of this judgment as well as copy of the memorandum of the Writ Petition along with all exhibits and supporting documents and attested copy of Ext.P-5 application dated 30.5.2008 as well as Ext.P-5(a) report cum mahazar dated 17.9.2008 are forwarded to the 6[th] respondentRDO, Irinjalakuda. In case the papers in relation to Exts.P5 & P-5(a) are not received from the 2[nd] respondent within 2 weeks from the date of receipt of a copy of this judgment, then the 6[th] respondent should treat the copies of Exts.P5 & P-5(a) so produced by the petitioner before the 6[th] respondent as those applications so as to proceed further and further delay is avoided at any cost. This direction is rendered by this Court as Ext.P-5 application dated 30.5.2008 has been submitted even before coming into force of the 2008 Act. Since the application has indisputably been filed before the cut off date of 30.12.2017 (the date of coming into force of the amended provisions of the 2008 Act, which has introduced as per Sec.27A thereof), it goes without saying that Ext.P-5 application of the petitioner is to be considered by the 6[th] respondent strictly in terms of the provisions contained in Rule 6(2) of the Kerala Land Utilization Order and in that process of consideration none of the detrimental or adverse ::10:: **WP(C).No.6249 OF 2020(E)** provisions contained in the amended provisions of the 2008 Act including Sec.27A thereof and the Rules framed thereunder can be pressed into service against the petitioner. In other words, while considering the said request as per Ext.P-5, the 6[th] respondentRDO cannot demand that the petitioner should pay higher amounts as conceived as per the amended provisions of the Act including Sec.27A thereof and the amended Rules thereof. In this regard, it is relevant to note that this Court has also decided in quite a few cases as can be seen from the judgment dated 19.3.2020 in W.P.(C).No.8645/2020 that in such a case, where the land has been converted prior to 2008 Act and requisite application under Rule 6(2) of the Kerala Land Utilisation Order has been filed before the cut off date of 30.12.2017, then the statutory officer in the process of consideration of the case under the Rule 6(2) Kerala Land Utilisation Order cannot stipulate that a party should pay amounts as conceived even as per Rule 12(17) of the amended Rules under the amended provisions of the Act. Orders in this regard is so declared and ordered. Orders should be rendered by the 6[th] respondent-RDO on Ext.P-5 application filed under Rule 6(2) of the Kerala Land Utilisation Order seeking for change of nature of land, taking note of the relevant aspects ::11:: **WP(C).No.6249 OF 2020(E)** including Ext.P-4 Government Order, Ext.P-5(a) mahazar report Ext.P-6 data bank, and conduct a site inspection with due prior notice to the petitioner to ascertain the factual details and should ensure that copy of the inspection report is served on the petitioner and the petitioner shall be afforded an opportunity of being heard either in person or through authorised representative/counsel, if any, and pass orders on the application filed under Rule 6(2) of the Kerala Land Utilisation order within a period of 2 months from the date of receipt of a certified copy of this judgment. Needless to say, after the petitioner secures orders from the 6[th] respondent-RDO, Irinjalakuda, for permission for change of use of land under Rule 6(2) of the Kerala Land Utilisation Order, the petitioner will be at liberty to file requisite application under Sec.6A of the Kerala Land Tax Act before the Tahsildar seeking reassessment or fresh assessment of the property for securing additional entries in the BTR to show the changed nature of land as garden land/purayidom instead of the earlier BTR entry as nilam/paddy land. If such application is filed along with a copy of the order passed by the 6[th] respondent-RDO under Rule 6(2) of the Kerala Land Utilization Order, then the Tahsildar concerned should afford reasonable opportunity of being heard to the petitioner and then ::12:: **WP(C).No.6249 OF 2020(E)** pass orders for reassessment or fresh assessment of the property in the matter of securing additional entries in the BTR to show the changed nature of the land as purayidom, within one month from the date of submission of such application and in the light of the dictum laid down by this Court in cases as in _**LLMC, Kizhakkambalam Grama Panchayath and others v. Mariumma and another**_ [2015 (2) KLT 516 (DB), _**Geo Peter v. Revenue Divisional Officer**_ [2019 (3) KLT 838], etc. At that stage, the petitioner may produce a copy of the judgment before the Tahsildar concerned for consideration of the application under Sec.6A of the Kerala Land Tax Act. 8. Having regard to the fact that the petitioner has filed Ext.P-5 application under Rule 6(2) of the Kerala Land Utilisation Order as early as on 30.5.2008 and also having regard to the fact that the petitioner emergently requires construction of a new building for the effective running of the educational trust concerned, it is also ordered that in the meanwhile, the 5[th] respondent-Secretary of Grama Panchayath will process the application of the petitioner for building permit (Ext.P8) in terms of the provisions contained in the Building Rules. But final decision on the application for building permit may be rendered ::13:: ## **WP(C).No.6249 OF 2020(E)** only after the 6[th] respondent-RDO, Irinjalakuda passes orders on Ext.P-5 application dated 30.5.2008 filed under Rule 6(2) of the Kerala Land Utilisation Order as well as after the issuance of the proceedings by the Tahsildar under Sec.6A of the Kerala Land Tax Act by the Tahsildar concerned. With these observations and directions, the above writ Petition (Civil) will stand finally disposed of. **Sd/ALEXANDER THOMAS, Judge.** bkn/- ::14:: **WP(C).No.6249 OF 2020(E)** ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** - **EXHIBIT P1 A COPY OF THE PAN CARD DATED 04.10.2000.** **EXHIBIT P2 TRUE COPY OF THE SANCTION ORDERS DATED 16.11.2005 ISSUED BY THE GOVERNMENT OF KERALA.** **EXHIBIT P2 A TRUE COPY OF THE ORDER OF AFFILIATION DATED 26.08.2006 ISSUED BY UNIVERSITY OF CALICUT.** **EXHIBIT P3 TRUE COPY OF THE TAX RECEIPT DATED 09.04.2019.** - **EXHIBIT P3 A A TRUE COPY OF THE POSSESSION CERTIFICATE DATED 30.06.2019.** - **EXHIBIT P3 B A TRUE COPY OF THE SALE DEED NO.448 OF 2018 OF SRO, MALA DATED 28.03.2018.** **EXHIBIT P4** - **A TRUE COPY OF THE PROCEEDINGS DATED 09.01.2002 ISSUED BY THE SECRETARY TO GOVERNMENT, DEPARTMENT OF LOCAL SELF GOVERNMENT INSTITUTIONS.** - **EXHIBIT P5 A TRUE COPY OF THE APPLICATION FOR PERMISSION UNDER KERALA LAND UTILISATION ORDER 1967, DATED 30.05.2008.** - **EXHIBIT P5 A A TRUE COPY OF THE REPORT AND MAHAZAR DATED 17.09.2008.** - **EXHIBIT P6 COPY OF THE RELEVANT PAGE OF DATA BANK.** - **EXHIBIT P7 TRUE COPY OF THE APPLICATION UNDER SECTION 27A AND RECEIPT DATED 13.02.2020.** - **EXHIBIT P7 A TRUE COPY OF THE REQUEST DATED 30.01.2020 SUBMITTED TO THE REVENUE DIVISIONAL OFFICER.** ## **EXHIBIT P8** - **TRUE PRINT OUT OF THE RELEVANT PAGES OF THE BUILDING PERMIT APPLICATION SUBMITTED BY THE PETITIONER ON 02.08.2019 ALONG WITH SERVICE PLAN.**