C.I.Mathew v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **WEDNESDAY, THE 03RD DAY OF JUNE 2020 / 13TH JYAISHTA, 1942** ## **WP(C).No.10586 OF 2020(W)** ## **PETITIONER:** **C.I.MATHEW, CHEERAN HOUSE, GANGA NAGAR, CHANGAMPUZHANAGAR P.O., THRIKKAKARA NORTH VILLAGE , KOCHI-33. BY ADV. SMT.K.P.SANTHI** ## **RESPONDENTS:** |**1**|**STATE OF KERALA,**| |---|---| ||**REPRESENTED BY THE SECRETARY TO GOVERNMENT,**| ||**REVENUE DEPARTMENT, SECRETARIAT,**| ||**THIRUVANANTHAPURAM-695 001.**| |**2**|**THE DISTRICT COLLECTOR,**| ||**CIVIL STATION ,KAKKANAD,**| ||**ERNAKULAM-682 030.**| |**3**|**THE TAHSILDAR,**| ||**KANAYANNUR TALUK, PARK AVENUE ROAD,**| ||**KOCHI-682 011.**| |**4**|**ADDL.R4. REVENUE DIVISIONAL OFFICER,**| ||**FORT KOCHI, ERNAKULAM DISTRICT,**| ||**PIN - 682 001.**| **ADDITIONAL R4 IS IMPLEADED AS PER ORDER DATED 3/6/2020 IN I.A.1/2020 IN WP(C). R1-4 BY SRI.SAIGI JACOB PALATTY, SR.GOVT.PLEADER** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 03.06.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** WP(C).No.10586 OF 2020 2 ## **ALEXANDER THOMAS, J.** ## **=======================** W.P.(C). No. 10586 of 2020 **=======================** Dated this the 3[rd] day of June, 2020 ## **J U D G M E N** T The case set up by the petitioner in the aforecaptioned Writ Petition (Civil) is as follows:- The petitioner is the owner, title holder in possession and enjoyment of 2.45 Ares in R.S.No.495/14, Block No.5 of Thrikkakara North Village, Kanayannur Taluk, Ernakulam District, as per registered documents, which land lies along with property measuring 3.21 Ares in R.S.No.494/14. The petitioner submits that the subject property though classified as Nilam/paddy land in the Basic Tax Register and other revenue records, has been converted as garden land /purayidom prior to 12-08-2008 (date of coming into force of the Kerala Conservation of Paddy Land and Wetland Act 2008). That the petitioner has filed Ext.P1 application dated 05-08-2017 before the 2nd respondent District Collector, seeking for permission for change of user of land in terms of Rule 6(2) of the Kerala Land Utilization (KLU) Order 1967. Since no action was taken on Ext.P1 application dated 05-082017, the petitioner was constrained to approach this Court by filing W.P.(C). No.30942/2017, which this Court has disposed of as per WP(C).No.10586 OF 2020 3 Ext.P3 judgment rendered on 27-09-2017. Therein it has been directed that the petitioner will have to initially get the certification from the Local Level Monitoring Committee (LLMC) concerned to show that the property has not been included in the Land Data Bank and that the petitioner will have to produce such certification before the 2nd respondent and thereafter, the 2nd respondent District Collector should consider the plea of the petitioner under Rule 6(2) of the K.L.U. Order and pass orders thereon within the time limit mentioned in the said judgment. It so happened that the property was actually included in the land data bank. Further it appears that thereupon after due process, the LLMC has excluded the property from the land data bank and has issued certification as per Ext.P4 only on 19-02-2020 stating that the subject property having an extent of 2.45 Ares in R.S. No.495/14, Block No.5 of Thrikkakara North Village has been excluded from the land data bank of Thrikkakara North Village by the decision of the LLMC, etc., and in compliance with the directions of this Court in Ext. P3 judgment dated 27/09/2017 in W.P.C.No.30942 of 2017. It appears that the petitioner has therefore secured Ext.P4 certification from the Local Level Monitoring Committee only on 19-02-2020 and therefore the 2nd respondent District Collector could have considered the request of petitioner as produced under Ext.P1 application dated 05-08-2017 under Rule 6(2) only thereafter. Now the petitioner has filed an WP(C).No.10586 OF 2020 4 application as per Ext.P5 dated 20-02-2020 before the 3rd respondent Tahsildar, seeking for orders of fresh assessment/re-assessment of the subject property in terms of Section 6(A) of the Kerala Land Tax Act for securing additional entries in the B.T.R. to show changed nature of the land as garden land/purayidom instead of the earlier B.T.R. entries as nilam/paddy land. It is in the light of these averments and contentions that the petitioner has filed the aforecaptioned Writ Petition (Civil) with the following prayers: - _“(i) issue a writ of mandamus or such other writ, direction or order compelling the 3rd respondent to consider Exhibit P5 application affording opportunity of hearing to the petitioner within a time frame to be fixed by this Honourable Court and change the entry in the BTR without insisting for payment mandated n Section 27A of Act28 of 2008._ - _(ii) issue such other writ, direction or order as is deemed just and necessary in the facts, features and circumstances of the case.”_ 2. Heard Smt. K.P. Santhi, learned counsel appearing for the petitioner and Sri. Saigi Jacob Palatty, learned Senior Government Pleader appearing for the respondents. 3. The learned counsel for the petitioner has made submissions in tune with the pleadings in the W.P.(C). 4. Per contra, Sri.Saigi Jacob Palatty, learned Senior Government Pleader would submit that Ext.P1 application dated 05-08-2017 though duly filed, has not been disposed of so far by the 2[nd] WP(C).No.10586 OF 2020 5 respondent District Collector and that this is mainly on account of the fact that the petitioner could secure Ext.P4 certification from the LLMC that the land has been excluded from the land data bank only on 19-02-2020. It is only thereafter that the 2[nd] respondent District Collector could have considered the request as per Exhibit P1 application and in view of the scenario that has risen out of the spreading of the Covid-19 pandemic, the Revenue administration also had virtually come to a stand still and therefore it appears that orders on Ext.P1 has not been duly passed. 5. Further the learned Senior Government Pleader would point out that since orders on Ext. P1 application have not so far been passed by the competent Revenue Official concerned, the petitioner is not now in a position to legally maintain an application in the nature of Ext.P5 dated 20-02-2020 before the 3[rd] respondent Tahsildar for fresh assessment/re-assessment of the subject property under Section 6(A) of the Kerala Land Tax Act. That the plea as per Ext.P5 could be considered only after the petitioner secures orders on Ext.P1 application, etc. 6. After hearing both sides, this Court is of the view that the above said contention raised by the learned Senior Government Pleader is correct. The petitioner can seek consideration of Exhibit P5 WP(C).No.10586 OF 2020 6 application by the 3[rd] respondent Tahsildar only after he secures favourable orders on Exhibit P1 application under Rule 6(2) of the KLU order. 7. It is by now well settled by a series of rulings of this Court 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)]_ etc,. _**LLMC, Kizhakkambalam Grama Panchayath v. Mariumma** [2015 (2) KLT 516 (DB)]_ _**Tahsildar, Thodupuzha Taluk v. Renjith** [2020 (1) KHC 865 (DB) etc._ that in a case where the subject property has been converted as ‘garden land’ or ‘purayidam’ prior to 12.8.2008 (date of coming into force of the 2008 Act) and where the party concerned has filed the requisite application under Rule 6(2) of the Kerala Land Utilization Order, 1967, for conversion of the property and for its use for any non-agricultural purposes before 30.12.2017 (which is the date of coming into force of the amended provisions of the 2008 Act, which has introduced Sec. 27A thereof), then the statutory revenue authorities are obliged the duty to treat such a case strictly within the purview of Rule 6(2) of the KLU Order, 1967, and in such a case, the party cannot be mulcted to pay the higher amounts conceived as per the amended provisions of the Act including Sec. 27A thereof, which has come into force on 30.12.2017 and the amended Rules framed thereunder. WP(C).No.10586 OF 2020 7 Further, it has also been categorically held by the judgments of the Division Bench of this Court as in **Mariumma’s case supra [2015 (2) KLT 516 (DB)] and Renjith's case supra [2020 (1) KHC 865 (DB)]** that in such a case where the property holder has filed application under Rule 6(2) of the KLU order before 30.12.2017, then the party is also equally entitled to maintain an application under Sec.6A of the Kerala Land Tax Act, 1961, for securing additional entries in the BTR to show the property as ‘garden land’ or ‘purayidam’ instead of the earlier BTR entries as ‘nilam’ or ‘paddy land’, and without having to pay the higher amounts conceived as per the amended provisions of the 2008 Act including Sec. 27A thereof and the amended Rules framed thereunder. _8._ In the instant case it is indisputable that the petitioner has indeed filed Exhibit P1 application on 05-08-2017 under Rule 6(2) of the KLU order, which is much before the cut off date of 30.12.2017 (date of coming into force of the amended provisions of the 2008 Act, which has introduced Section 27A thereof). Therefore the petitioner is entitled to get his application as per Ext.P1 considered in terms of the beneficial provisions contained in Rule 6(2) of the K.L.U. order for permission for change of user of the land, without having to pay the higher amounts. This Court has held in the judgment in W.P.(C) No.8645/2020 that in a case if the party has filed requisite Rule 6(2) application under the WP(C).No.10586 OF 2020 8 K.L.U. order before the cut off date of 30.12.2017, cannot be mulcted to pay the higher amounts as per the amended provisions of the 2008 Act including Section 27A thereof and the amended rules including Rules 12(19), 12(17) of the amended rules. The position in that regard is duly declared and ordered in this case as well. However it is seen that Ext.P1 application dated 05-08-2017 has been pending for a very long time. The 2[nd] respondent District Collector is quite busy with managing the crisis which has arisen out of the Covid-19 pandemic and he, being the head of the district administration and head of the Revenue administration in the district, may not have sufficient time to deal with matters in the nature of Ext.P1. Therefore, to ensure that orders are passed without any further delay, this Court is of the opinion that the matter could be considered for orders by the 4[th] respondent R.D.O. as the R.D.O. is also equally empowered to exercise the powers of the Collector in terms of the provisions contained in the Kerala Land Utilisation Order 1967. Accordingly the following directions and orders are passed: - _i) The officials of the 2[nd] respondent District Collector will forthwith forward Ext.P1 application and the connected papers to the 4[th] respondent R.D.O. for immediate consideration. This shall be done by the 2[nd] respondent within two weeks from the date of receipt of a certified copy of this judgment._ - _ii) The petitioner will produce certified copy of the judgment along_ WP(C).No.10586 OF 2020 9 _with copy of memorandum of this W.P.(C). with all the exhibits and should also produce copy of Ext.P1 application dated 05-082017 which is attested by the petitioner's advocate, and these documents shall be placed before the 4[th] respondent R.D.O. If the papers in relation to Ext.P1 application dated 05-08-2017 are not received by the 4[th] respondent R.D.O. from the 2[nd] respondent District Collector within the abovesaid time limit of two weeks, then the 4[th] respondent R.D.O. will treat the above said copy of Ext.P1 application so produced by the petitioner, as the application so filed by him under Rule 6(2) of the K.L.U. order._ - _(iii) Thereafter the 4[th] respondent R.D.O. may take up the matters raised in Ext.P1 application and may conduct an appropriate inspection of the property with due prior notice to the petitioner and may ensure that copy of the inspection report is given to the petitioner in advance. Thereafter the petitioner should be afforded reasonable opportunity of being heard through authorised representative/counsel, if any and then should pass orders in terms of Rule 6(2) of the K.L.U. Order on the request made by the petitioner for permission for change of user of the land, without much delay preferably within a period of two months from the date of receipt of Ext.P1 application, as aforesaid. However, it is made clear that while passing orders under Rule 6(2) of the K.L.U. Order on Ext.P1 application, the 4[th] respondent R.D.O. shall bear in mind that he cannot legally mulct any higher amounts to be paid by the petitioner for such process in terms of the amended provisions of the 2008 Act including Section 27A thereof and the amended provisions of the rules including Rule 12(17) of the Rules._ - _(iv) After securing favourable orders on Ext.P1 application from the 4[th] respondent R.D.O., the petitioner may produce a copy of the said order so issued by the 4[th] respondent R.D.O. before the_ WP(C).No.10586 OF 2020 10 _3[rd ] respondent Tahsildar. Thereupon, the 3[rd] respondent Tahsildar will take up for consideration the matters raised by the petitioner in Ext.P5 application dated 20-02-2020 and after affording reasonable opportunity of being heard to the petitioner, should pass orders on the said plea of the petitioner for fresh assessment/re-assessment of the subject property in terms of Section 6A of the Kerala Land Tax Act for securing additional entries in the B.T.R. to show the changed nature of the land as garden land/purayidom instead of earlier entries of nilam/paddy land without much delay, preferably within a period of one month from the date of production of a copy of the order so passed by the 4[th] respondent R.D.O. under Rule 6(2) of the K.L.U. Order and in the light of the dictum laid down by the Division Bench of this Court in cases as in_ _**LLMC, Kizhakkambalam Grama Panchayath v. Mariumma** [2015 (2) KLT 516 (DB)]_ _**Tahsildar, Thodupuzha Taluk v. Renjith** [2020 (1) KHC 865 (DB) etc. and without making the petitioner to pay any amounts as conceived as per the amended provisions of the Act including Section 27A thereof and the amended provisions of Rules including Rule 12(17) of the Rules._ 9. The petitioner will also produce certified copy of this judgment along with copy of the memorandum of this W.P.C. and all the exhibits before the 3[rd] respondent Tahsildar as well, at the time he produces a copy of the order passed by the 4[th] respondent RDO on Ext.P1 application under Rule 6(2) of the K.L.U. order. WP(C).No.10586 OF 2020 11 With these observations and directions, the above Writ Petition (Civil) stands finally disposed of. **Sd/ALEXANDER THOMAS JUDGE** SSK/03/06 WP(C).No.10586 OF 2020 12 ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF THE APPLICATION DATED 5.8.2017 SUBMITTED TO 2ND RESPONDENT. EXHIBIT P2 TRUE COPY OF THE TAX RECEIPT DATED 8.3.2019 ISSUED BY THE VILLAGE OFFICER, THRIKKAKARA NORTH VILLAGE. EXHIBIT P3 TRUE COPY OF THE JUDGMENT DATED 27.9.2017 IN WPC NO.30942 OF 2017 OF THIS HONOURABLE COURT. EXHIBIT P4 TRUE COPY OF THE CERTIFICATE DATED 19.2.2020 ISSUED BY AGRICULTURAL OFFICER, KALAMASSERY. EXHIBIT P5 TRUE COPY OF THE REPRESENTATION DATED 20.2.2020 SUBMITTED TO THE 3RD RESPONDENT.** ## **RESPONDENT'S EXHIBITS:NIL** SSK //TRUE COPY// PA TO JUDGE