George Varghese, Lalu Varghese, Jolly K. George, Abraham George v State of Kerala and Others

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN MONDAY, THE 13[TH] DAY OF JUNE 2022 / 23RD JYAISHTA, 1944 ``` ## **`WP(C) NO. 15190 OF 2020`** ## **`PETITIONER/S:`** - `1 GEORGE VARGHESE AGED 51 YEARS CHINGAMPARAMBIL HOUSE, I.E NAGAR, VEROOR, CHANGANACHERRY, KOTTAYAM DISTRICT.` - `2 LALU VARGHESE, CHINGAMPARAMBIL HOUSE, I.E NAGAR, VEROOR, CHANGANACHERRY, KOTTAYAM DISTRICT.` - `3 JOLLY K. GEORGE, KATTAMPALLIL HOUSE, THRIKODITHANAM P.O, CHANGANACHERRY, KOTTAYAM DISTRICT.` - `4 ABRAHAM GEORGE, PALATHINGAL HOUSE, KARIKUZHI P.O, THALAVADI, ALAPPUZHA DISTRICT. BY ADVS. JOMY GEORGE R.PADMARAJ DEEPAK MOHAN CHITRA N. DAS SHRI.RISHAB S.` ## **`RESPONDENT/S:`** - `1 STATE OF KERALA REPRESENTED BY ITS CHIEF SECRETARY, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM 695 001` - `2 THE DISTRICT COLLECTOR, KOTTAYAM , KUMILY ROAD, COLLECTORATE, KOTTAYAM 686 001` - `3 THE REVENUE DIVISIONAL OFFICER, RDO OFFICE, KOTTAYAM 686 001` - `4 THE VILLAGE OFFICER, CHANGANACHERRY VILLAGE, KOTTAYAM DISTRICT 686 101` -2- W.P.(C). No. 15190 of 2020 - `5 ADDL.R5. JOYCE GEORGE W/O.ABRAHAM GEORGE, PALATHINKAL HOUSE, KARIKUZHI P.O., THALAVADI, ALAPPUZHA DISTRICT` - `6 ADDL.R6. JERRIN ABRAHAM GEORGE, S//O.ABRAHAM GEORGE, PALATHINKAL HOUSE, KARIKUZHI P.O., THALAVADI, ALAPPUZHA DISTRICT` - `7 ADDL.R7. SHERRIN ANNIE GEORGE D//O.ABRAHAM GEORGE, PALATHINKAL HOUSE, KARIKUZHI P.O., THALAVADI, ALAPPUZHA DISTRICT` - `8 ADDL.R8. IRENE MARIA GEORGE D//O.ABRAHAM GEORGE, PALATHINKAL HOUSE, KARIKUZHI P.O., THALAVADI, ALAPPUZHA DISTRICT` ``` [ADDITIONAL RESPONDENTS ARE IMPLEADED AS PER ORDER DATED 26.07.2021 IN I.A.1/2021 IN WP(C)15190/2020.] ``` ## **`OTHER PRESENT:`** ``` SMT.DEEPA NARAYANAN, SR.GP ``` ``` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 13.06.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` -3- W.P.(C). No. 15190 of 2020 ## **P.V.KUNHIKRISHNAN, J.** ====================================================== W.P.(C) No. 15190 of 2020 ============================================================= Dated this the 13[th ] day of June, 2022 ## **JUDGMENT** The above writ petition is filed with following prayers: _“a) issue a writ of certiorari or any other appropriate writ order or direction quashing Exhibit P-3 Order to the extent the provisions of ordinance No. 26798/Leg.B2/2017/Law dated 30.12.2017 is invoked and made applicable while allowing Exhibit P-1 application and direct the 3[rd] respondent to pass fresh orders on the basis of Clause 6 of Kerala Land Utilization Order alone._ _b) issue a writ of certiorari or any other appropriate writ order or direction quashing Exhibit P-4 and to permit the change in the nature of use of the land without levying any fee._ _c) To declare that Section 27 A of the Act is not applicable to the petitioners application which is submitted before the inclusion of provisions of amending Act 29 of 2018 in the Kerala Conservation of Paddy Land and Wet Land Act, 2008. And_ _d) issue such other order or direction as deem fit to the facts and circumstances of the case.” (Sic)_ -4- W.P.(C). No. 15190 of 2020 ## 2. When this writ petition came up for consideration on 10.08.2020, this Court passed the following order: _“The counsel for the petitioners would ensure that an additional copy of memorandum of this WP(C) is served on Sri.K.J.Manu Raj, learned Government Pleader, appearing for the respondents today itself._ _The 3[rd] respondent RDO will get specific instructions as to whether the petitioners had submitted Ext.P1 application dated 20.9.2017 under Rule 6 of the Kerala Land Utilization Order, as acknowledged in Ext.P1 receipt dated 20.9.2017 and as referred to in Ext.P2 judgment before the cut-off date of 30.12.2017, and as to why the date of application filed under Rule 6 of the KLU Order has not been explicitly mentioned in Ext.P3 proceedings._ _List on 18.8.2020”_ 3. Today, the learned Government Pleader submitted that Ext.P1 application is dated 20.09.2017 and it is received on 20.09.2017. Therefore, it is before the cut of date of 30.12.2017 and the application of the petitioner is to be considered as per the Kerala Land Utilisation Order, and there cannot be any -5- W.P.(C). No. 15190 of 2020 direction to comply with the direction in Section 27A of the Kerala Conservation of Paddy Land and Wetland Act, 2008 (for short the Act). This point is considered by this Court in detail in **District Collector, Ernakulam and Others v. Fr.Jose Uppani and Others [2020 (4) KHC 394]** . The relevant paragraphs are extracted hereunder: _“(5) No attempt shall be made to alter or change or modify the revenue records relating to the paddy land or wetland or unnotified land otherwise than in accordance with sub-section(3)."_ _6. On a reading of the said provision it is clear that, Section 27C applies, wherever a part of survey number of subdivision is permitted to be converted under Sections 8,9,10 or 27A of Act 2008, and in which case, a new subdivision shall be created for the extent for which such orders for conversion are issued. Therefore it is clear that, Section 27C deals with a situation where an order is passed to convert the land as per the provisions of the Kerala Conservation of Paddy Land and WetLand Act, 2008. The rest of the provisions there under are consequential to Section 27C(1) and therefore only under the circumstances prescribed_ -6- W.P.(C). No. 15190 of 2020 _under Section 27C(1), the procedure can be followed by the Tahsildar._ _7. However, it is an admitted fact that the application was submitted by the writ petitioners on the basis of the orders secured by them under the provisions of the Kerala Land Utilization Order, 1967. Therefore, the provisions of Section 27C have no application. The issue with respect to the alteration of the entries in the Basic Tax Register was considered by the Apex Court in Revenue Divisional Officer, Fort Kochi Vs. Jalaja Dileep [2014(1) KLT 161 = 2014 (1) KHC 96] and held that the entries contained in the Basic Tax Register cannot be changed. However, the Division Bench of this Court in Mariyumma (supra) has held that, without defacing the entry contained in the Basic Tax Register, necessary additional entries can be made on the basis of the orders passed by the statutory authority under the Kerala Land Utilization Order, 1967. It was accordingly that the applications were submitted by the writ petitioners before the Tahsildar. Therefore, the Tahsildar should have considered the applications submitted by the writ petitioners in terms of the proposition of law laid down by the Division Bench in Mariyumma (supra) and not on the basis of the amended provisions of Section 27C, which has come into force only with effect from 30.12.2017. It was exactly on the basis of the judgment of Mariyumma (supra), learned Single Judge has held that, the order passed by the Tahsildar directing the writ petitioners to_ -7- W.P.(C). No. 15190 of 2020 _pay the amounts at the rate of 25% of the converted land, after securing orders from the Revenue Divisional Officer cannot be legally sustained. In fact, the issue in question was considered by this court in Tahsildar Vs. Renjith George [2020(2) KLT 13] and held that, when the provisions of the statute are clear and unambiguous, there is no power vested with the statutory authority to expand the scope of the provisions of law by issuing directions against the mandate of law. The proposition of law laid down by this court in the judgment in Renjit George (Supra) squarely applies to the facts and circumstances of the appeals on hand also. Taking into account the law, facts and circumstances, we are of the considered opinion that the appellants have not made out any case for interference with the judgment of the learned Single Judge.”_ 4. In the light of the same, I think the directions in Ext.P3 to comply with the provisions under Section 27A of the Act, is to be set aside. Therefore, this writ petition is to be allowed. Therefore, this writ petition is allowed in the following manner: -8- W.P.(C). No. 15190 of 2020 1. Ext.P4 is set aside. 2. The direction in Ext.P3 to the extent that provisions under Section 27A of the Act is to be complied, is also set aside. 3. The petitioner is free to approach the authorities with an application along with necessary documents, for the purpose of reassessment of the property under the Kerala Land Tax Act, 1961, and if such an application is preferred, the same will be considered, in accordance to law. sd/- **P.V.KUNHIKRISHNAN JUDGE** das -9- W.P.(C). No. 15190 of 2020 ## **`APPENDIX OF WP(C) 15190/2020`** ``` PETITIONER EXHIBITS EXHIBIT P1 ``` ``` TRUE COPY OF THE PETITION DATED 20-09- 2017 FILED BY THE PETITIONER BEFORE THE 3RD RESPONDENT AND ALONG WITH THE RECEIPT ``` ``` EXHIBIT P2TRUE COPY OF THE JUDGMENT DATED 26-10- 2017 IN W.P(C) NO. 34201/2017 OF THIS HN'BLE COURT ``` ``` EXHIBIT P3TRUE COPY OF THE ORDER DATED 20-03- 2018 OF THE 3RD RESPONDENT EXHIBIT P4TRUE COPY OF THE COMMUNICATION NO. B- 5855/19 DATED 02-03-2020 SENT BY THE 3RD RESPONDENT TO THE PETITIONERS. ```