Hemamalini v. State of Kerala and others

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT** **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** # **TUESDAY, THE 16TH DAY OF JUNE 2020 / 26TH JYAISHTA, 1942** # **WP(C).No.11656 OF 2020(F)** ## **PETITIONER:** **HEMAMALINI AGED 48 YEARS W/O.MURALIDHARAN.K.K., KIZHAKKEDATH (H), UDAYAMPEROOR.P.O., TRIPUNITHURA.** **BY ADV. SRI.L.RAJESH NARAYAN** ## **RESPONDENTS:** - **1 STATE OF KERALA, REP. BY SECRETARY AND AGRICULTURAL PRODUCTION COMMISSIONER, DEPARTMENT OF AGRICULTURE, SECRETARIAT, THIRUVANANTHAPURAM-695001.** - **2 DISTRICT COLLECTOR, COLLECTORATE, KAKKANAD, ERNAKULAM-682020.** - **3 VILLAGE OFFICER,** **THEKKUMBHAGOM VILLAGE, TRIPUNITHURA-682301.** - **4 REVENUE DIVISIONAL OFFICER,** **FIRST FLOOR, KB JACOB RD, FORT KOCHI, KOCHI-682001.** - **5 TAHSILDAR,** **TALUK OFFICER KANAYANNUR, PARK AVE,** **NEAR SUBHASH PARK, MARINE DRIVE, ERNAKULAM-682011.** ## **SRI.SAIGI JACOB PALATTY, SR.GOVT.PLEADER** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 16.06.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** W.P(C) No.11656 of 2020 2 ## **ALEXANDER THOMAS, J.** ## **=========================== W.P(C) No.11656 of 2020** **===========================** Dated this the 16[th] day of June, 2020 ## **JUDGMENT** The case set up in this Writ Petition (Civil) is as follows: _Petitioner is the joint owner in possession of 12 cents of property comprised in Sy.No.537/2 of Thekkumbhagom Village which was obtained by her on the basis of Partition Deed No.1764/98 dated 6.8.1998 of Tripunithura SRO. Petitioner has been remitting basic tax with respect to the property. In fact there is no doubt whatsoever that the land had ever been used for any sort of cultivation. It was lying as dry land even when the same was purchased by the petitioner. The property is a pucca dry land and the same is wrongly described as Nilam in village records. Petitioner therefore approached this Court by filing WPC No.3164/2017 seeking appropriate directions for correcting the entries in the basic tax register and also for utilizing the property for other purposes. By Ext.P5 judgment this Court was pleased to dispose off the writ petition permitting the petitioner to prefer an application before the 2[nd] respondent under KLU seeking permission to utilize the property for_ W.P(C) No.11656 of 2020 3 _other purposes, which was directed to be considered as per the decision reported in_ _**Puthan Purakkal Joseph V. Sub Collector [2015 (3) KLT 182]** . Further that if such permission was granted, petitioner will be entitled to move for fresh assessment of land which was directed to be considered as per the decision reported in_ _**Kizhakkambalam Grama Panchayath vs. Mariumma [2015 (2) KLT 516]** . Petitioner thereafter filed COC No.2307/2018 for non compliance of Ext.P5 judgment. Pending the contempt proceedings, the 2[nd] respondent, as per Ext.P6 order, permission was granted to utilise the property for other purposes and also for effecting changes in the BTR as per Government orders in force. COC 2307/2018 was closed in the light of the fact that in order to comply with the second part of the direction, the petitioner has to prefer an application before the concerned Tahsildar under the Kerala Land Tax Act, and the petitioner is yet to prefer an application before the concerned Tahsildar under the Kerala Land Tax Act, and the petitioner is yet to prefer an application before the Tahsildar and if an application in this regard is preferred by the petitioner before the Tahsildar, appropriate decision will be taken as directed by this Court in the judgment. Petitioner has thereafter preferred Ext.P8 application seeking reassessment as per the provisions of the Kerala Land Tax Act. In spite of the same being preferred, the 5[th] respondent is refusing to take steps,_ W.P(C) No.11656 of 2020 4 _insisting that the fee prescribed will have to be paid. Such a stand is illegal since he has no authority or jurisdiction to refuse fresh assessment in the light of Ext.P6 order wherein no such condition is prescribed. Also in the light of the decision reported in_ _**2019 (4) KHC 400 (Geo Peter Vs. Revenue Divisional Officer, Muvattupuzha and Another, and 2020 (1) KHC 865 (DB) Tahsildar, Thodupuzha Vs. Renjith**_ _**George** in cases where application seeking permission for conversion under Clause 6(2) of KLU order is submitted prior to 30.12.2017, there cannot be any condition insisting compliance of Sections 27A and 27C of_ _the Paddy Land Act._ It is in the light of these averments and contentions, the petitioner has filed the instant Writ Petition with the following prayers: - _“i. issue a writ in the nature of mandamus or any such other writ, direction or orders commanding the 5[th] respondent to forthwith initiate steps in pursuance to Ext.P8 application for fresh assessment of the land as garden land as per the provisions of the Kerala Land Tax Act, 1961;_ - _ii. issue a writ in the nature of mandamus or any such other writ, direction or orders commanding the 5[th] respondent to forthwith initiate steps to alter the nature of land in the basic tax register from nilam to garden land as per Ext.P6 without insisting for any payment of prescribed fee for conversion as per the provisions of the Kerala Conservation of Paddy and Wetland Act;_ - _iii. Issue any such other writ, appropriate order or direction as this Hon'ble Court may deem fit and proper considering the facts and circumstances of the case.”_ 2. Heard Sri.L.Rajesh Narayan Iyer, learned counsel appearing for the petitioner and Sri.Saigi Jacob Palatty, learned Senior Government W.P(C) No.11656 of 2020 5 ## Pleader appearing for the respondents. 3. It is beyond any dispute that the subject property though continues to be classified as ‘Nilam/paddy land’ in the Basic Tax Register has been converted as ‘garden land or purayidom’ much prior to 12.08.2008 (date of coming into force of the Kerala Conservation of Paddy Land and Wetland Act, 2008) and it is also beyond any dispute that the petitioner has infact submitted the requisite application under Rule 6(2) of the Kerala Land Utilization (KLU) Order, 1967 on 17.11.2017 (referred to as first paper in Ext.P-6) and consequent to the directions issued by this Court as per Ext.P-5 judgment dated 20.10.2017 in W.P(C)No.3164/2017 filed by the petitioner, the 2[nd] respondent-District Collector has allowed the said plea of the petitioner under Rule 6(2) as per Ext.P-6 proceedings dated 08.05.2019, granting permission for change of user of the subject property for any non-agricultural purposes and without stipulating any conditions. It appears that since the petitioner has filed the said requisite Rule 6(2) KLU application before the cut-off date of 30.12.2017 (date of coming into force of the 2008 Act), the 2[nd] respondent-District Collector has rightly considered the said application only in terms of Rule 6(2) of the KLU Order and has not imposed any condition that the petitioner should pay the higher amounts as conceived as per the amended provisions of the 2008 Act, including Sec.27A thereof which came into force on 30.12.2017 and the W.P(C) No.11656 of 2020 6 amended provisions framed thereunder. In Ext.P-5 judgment this Court had also directed that after petitioner obtains favourable orders under Rule 6(2) of the KLU Order will be at liberty to approach the respondentTahsildar seeking for re-assessment of the subject property in terms of Sec.6A of the Kerala Land Tax Act for securing additional entries in the Basic Tax Register to show the changed nature of the land and in the light of the dictum laid down by the judgments of the Division Bench of this Court in cases as in _**LLMC, Kizhakkambalam Grama Panchayath and others v. Mariumma and another**_ [2015 (2) KLT 516 (DB) and _**Tahsildar, Thodupuzha Taluk and another v. Renjth George**_ [2020 (1) KHC 865 (DB)]. 4. Now the petitioner has filed Ext.P-8 application dated 26.06.2019 before the 5[th] respondent-Tahsildar seeking for re-assessment of the subject property in terms of Sec.6A of the Kerala Land Tax Act, in order to secure additional entries in the BTR for showing the changed nature of the land as ‘garden land or purayidom’ etc. The complaint of the petitioner is that the 5[th] respondent is not acting upon Ext.P-8 application inspite of the directions issued by this Court in Ext.P-5 judgment and Ext.P-6 order, etc. and that the officials in the office of the 5[th] respondentTahsildar is taking the stand that such alteration in the BTR can be made in favour of the petitioner only if he pays the higher amounts as conceived as W.P(C) No.11656 of 2020 7 per the amended provisions of the 2008 Act and the Rules framed thereunder. At the outset, it has to be held that even the 2[nd] respondentDistrict Collector has clearly recognized in Ext.P-6 proceedings dated 08.05.2019 that since the petitioner has filed the requisite Rule 6(2) application on 17.11.2017 which is before the cut-off date of 30.12.2017, there is no question of imposing the condition that the petitioner has to pay the higher amounts in terms of the amended provisions of the 2008 Act and the amended Rules. Moreover, in cases like this, where Rule 6(2) application has been filed before the cut-off date of 30.12.2017 and permission is obtained under Rule 6(2), then the 5[th] respondent-Tahsildar is duty bound to consider the application of the party for re-assessment of the subject property in terms of Sec.6A of the Kerala Land Tax Act, for securing additional entries in the BTR, without making the party to pay any higher amounts, as per the amended provisions of the Act and in the light of the dictum laid down by the Division Bench of this Court in cases as in **Mariumma’s case** (supra) and **Renjith George's case** (supra). The position in this regard is ordered and declared in this case as well. 5. Accordingly, it is ordered that the 5[th] respondent-Tahsildar will immediately take up for consideration the matters raised in Ext.P-8 application dated 26.06.2019 and after affording reasonable opportunity of being heard to the petitioner, should pass orders under Sec.6A of the Kerala W.P(C) No.11656 of 2020 8 Land Tax Act for re-assessment of the subject property, so as to secure additional entries in the BTR to show the changed nature of the land as garden land or purayidom instead of the earlier BTR entries as Nilam or paddy land, without much delay, preferably within a period of one month from the date of production of a certified copy of this judgment, provided the subject property covered by Ext.P-8 application is the same as the one covered by Ext.P-6 order. Orders in this regard should be passed by the 5[th] respondent-Tahsildar strictly in terms of the dictum laid down by the judgments of the Division Bench of this Court in **Mariumma’s case** (supra) and **Renjith George's case** (supra) and without compelling the petitioner in any manner to pay the amounts conceived as per the amended provisions of the 2008 Act including Sec.27A thereof and the amended Rules framed thereunder including Rule 12(17) thereof. 6. The petitioner will produce the certified copy of this judgment along with a copy of the Memorandum of this W.P(C) with all the exhibits before the 5[th] respondent-Tahsildar, 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** vgd W.P(C) No.11656 of 2020 9 ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF THE BASIC TAX RECEIPT DATED 7.6.2016.** **EXHIBIT P2 TRUE COPY OF THE EXTRACT FROM THE BASIC TAX REGISTER.** **EXHIBIT P3 TRUE COPY OF THE EXTRACT FROM THE DATA BANK.** **EXHIBIT P4 TRUE COPY OF THE REPRESENTATION DATED 18.8.16. EXHIBIT P5 TRUE COPY OF THE JUDGMENT DATED 20.10.2017 IN WPC.NO.3164/2017. EXHIBIT P6 TRUE COPY OF THE ORDER NO.L10-148755/17 DATED 8.5.19. EXHIBIT P7 TRUE COPY OF THE JUDGMENT DATED 7.6.2019 IN COC.NO.2307/2018. EXHIBIT P8 TRUE COPY OF THE APPLICATION DATED 26.6.2019.**