Hotel Sears Pvt. Ltd. v. State of Kerala and others

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** # **`PRESENT`** ## **`THE HONOURABLE MR.JUSTICE N.NAGARESH`** ``` FRIDAY, THE 16[TH] DAY OF JUNE 2023 / 26TH JYAISHTA, 1945 ``` ## **`WP(C) NO. 9160 OF 2023`** ## **`PETITIONER:`** ``` HOTEL SEARS PVT. LTD, PANAYAKIZHIPPU KARA KOTTAYAM DISTRICT, REPRESENTED BY ITS MANAGING DIRECTOR, SAJAN MANI, AGED 55 YEARS, PIN – 686 001 ``` ``` BY ADV V.P.MOHAMMED NIYAZ ``` ## **`RESPONDENTS:`** ``` 1STATE OF KERALA REPRESENTED BY SECRETARY TO GOVERNMENT, DEPARTMENT OF REVENUE, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM, PIN – 695 001 2THE REVENUE DIVISIONAL OFFICER REVENUE DIVISIONAL OFFICE, MINI CIVIL STATION, PUTHENANGADY, KOTTAYAM DISTRICT,, PIN – 686 001 3THE THAHSILDAR (LR), KOTTAYAM TALUK, MINI CIVIL STATION, PUTHENANGADY, KOTTAYAM DISTRICT, PIN – 686 001 4THE VILLAGE OFFICER MUTTAMBALAM VILLAGE, COLLECTORATE P.O, KOTTAYAM DISTRICT, PIN – 686 002 ``` ``` BY ADV ``` ``` SMT.AMMINIKKUITTY – SR.GP ``` ``` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 16.06.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` W.P.(C) NO.9160 OF 2023 ``` ``` 2 ``` ## **JUDGMENT** Dated this the 16[th] day of June, 2023 The petitioner is before this Court aggrieved by the omission of the 3[rd] respondent-Tahsildar in entertaining an application submitted by the petitioner for re-assessment of rate of Basic Tax of land and for making necessary entries in the Basic Tax Register. 2. The petitioner is owner of 3.51 Ares of property in Re-Survey No.36/1, 9.69 Ares of land in Re-Survey No.36/3 and 0.53 Ares of land in Re-Survey No.36/4 in Block No.109 of Muttambalam Village in Kottayam District. The petitioner approached the Revenue Divisional Officer invoking the provisions of the Kerala Land Utilisation Order, 1967 seeking to permit to use the land for non-agricultural purposes. The Revenue Divisional Officer passed Ext.P1 order under Clause 6 of the Kerala Land Utilisation Order, 1967 permitting to use the land for non-agricultural purposes. ``` W.P.(C) NO.9160 OF 2023 ``` ``` 3 ``` 3. The grievance of the petitioner is that even though Ext.P1 order was passed under the Kerala Land Utilisation Order, 1967 in the year 2003, the land of the petitioner is not re-assessed for fixing rate of Basic Tax and the property of the petitioner is still described as ‘Nilam’ in the Revenue records. The petitioner submitted Ext.P4 application invoking Section 6(3) of the Kerala Land Tax Act, 1961 seeking to re-assess the Basic Tax and to make necessary entries in the Basic Tax Register. The Tahsildar, however, has not passed any orders on the application. Hence, the petitioner has approached this Court. 4. The Senior Government Pleader entered appearance on behalf of the respondents and resisted the writ petition. The Senior Government Pleader controverted all the material allegations made by the petitioner in the writ petition. It is submitted that Ext.P1 proceedings are of the year 2003. The veracity and the genuineness of Ext.P1 proceedings under the Kerala Land Utilisation Order, 1967 are liable to be verified. The ``` W.P.(C) NO.9160 OF 2023 ``` ## **`4`** present status of the land will also have to be ascertained, before re-assessment of Basic Tax under the Kerala Land Tax Act, 1961. 5. I have heard the learned counsel for the petitioner and the learned Senior Government Pleader representing the respondents. 6. This Court has considered the issue of reassessment of land tax on the basis of the orders obtained under the Kerala Land Utilisation Order, 1967 in the judgment in _**Mary Abraham**_ _**v. State of Kerala and others**_ [2020 (4) KLT 448]. This Court held that once enabling order is passed under Rule 6(2) of the Kerala Land Utilisation Order, 1967 permitting conversion of the land, then the earlier entries in the BTR showing the land as Nilam, Paddy Land, etc. will become superfluous and redundant and the competent Revenue officials like the Tahsildar are obliged under law to make a fresh assessment of the property under Section 6A of the Kerala Land Tax Act, 1961. ``` W.P.(C) NO.9160 OF 2023 ``` ``` 5 ``` 7. A Division Bench of this Court also considered the issue in _**District Collector, Ernakulam and others v. Fr.Jose Uppani and others** [2020 (4) KLT 612_ ] and the Division Bench held that when an applicant has secured orders under the Kerala Land Utiliation Order prior to the cut-off date on which Section 27A was introduced to the Kerala Conservation of Paddy Land and Wetland Act, 2008, the competent Revenue officials are bound to consider the subsequent application submitted under the provisions of the Kerala Land Tax Act, 1961. 8. As the nature of the land of the petitioner has been permitted to be changed pursuant to passing of a statutory order under the Kerala Land Utilisation Order, 1967, the competent authority is bound to re-assess the rate of Basic Tax in respect of the land and to make necessary entries in the Basic Tax Register, if necessary, after verifying the veracity/genuineness of the permission obtained under the Kerala Land Utilisation Order, 1967 produced by the petitioner. ``` W.P.(C) NO.9160 OF 2023 ``` ``` 6 ``` 9. The Tahsildar, however, intimated the petitioner as per Ext.P5 that in order to effect changes in the Revenue Records, the petitioner will have to resort to Rule 12(7) of the Kerala Conservation of Paddy Land and Wetland Rules, 2008. It is to be noted that the petitioner had obtained orders invoking Clause 6 of the Kerala Land Utilisation Order, 1967 as early on 30.12.2003. As permission was granted by the Revenue Divisional Officer to use the land for non-agricultural purposes, even before the introduction of 27A in the Kerala Conservation of Paddy Land and Wetland Act, 2008 on 30.12.2017, the petitioner is entitled to re-assessment of Basic Tax and incidental additions in the Revenue Records without resorting to the provisions of the Act, 2008. In Ext.P1, the Revenue Divisional Officer has specifically stated that permission to use the land for non-agricultural purposes is given for the purposes including construction of building. In view of Ext.P1 order, the Tahsildar (LR) is not justified in driving the petitioner to avail the remedy under the Kerala ``` W.P.(C) NO.9160 OF 2023 ``` ``` 7 ``` Conservation of Paddy Land and Wetland Act, 2008. The writ petition is therefore allowed. The 3[rd] respondentTahsildar is directed to consider Ext.P4 Form-A application submitted by the petitioner, in accordance with law, and pass appropriate orders thereon within a period of one month. Sd/- **N.NAGARESH JUDGE** ded ``` W.P.(C) NO.9160 OF 2023 ``` ``` 8 ``` ## **`APPENDIX OF WP(C) 9160/2023`** ``` PETITIONER EXHIBITS EXHIBIT P1TRUE COPY OF THE ORDER NO K.D DIS- 7482/03 DATED 30-12-2003 OF THE REVENUE DIVISIONAL OFFICER, KOTTAYAM EXHIBIT P2TRUE COPY OF THE BUILDING PERMIT NO.PW3/BA/355/12-13 DATED 06-02-2013 ISSUED BY THE KOTTAYAM MUNICIPALITY TO THE PETITIONER EXHIBIT P3TRUE COPY OF THE BASIC TAX RECEIPT DATED 19-05-2022 WITH RESPECT TO THE PROPERTY HAVING AN EXTENT OF 3.51 ARES COMPRISED IN RE.SY.NO.36/1 FOR THE PERIOD 2022-23 ISSUED TO PETITIONER FROM VILLAGE OFFICE, MUTTAMBALAM EXHIBIT P3(A)TRUE COPY OF THE BASIC TAX RECEIPT DATED 19-05-2022 WITH RESPECT TO THE PROPERTY HAVING AN EXTENT OF 09.69 ARES COMPRISED IN RE.SY.NO.36/3 FOR THE PERIOD 2022-23 ISSUED TO PETITIONER FROM VILLAGE OFFICE, MUTTAMBALAM EXHIBIT P3(B)TRUE COPY OF THE BASIC TAX RECEIPT DATED 19-05-2022 WITH RESPECT TO THE PROPERTY HAVING AN EXTENT OF 0.53 ARES COMPRISED IN RE.SY.NO.36/4 FOR THE PERIOD 2022-23 ISSUED TO PETITIONER FROM VILLAGE OFFICE, MUTTAMBALAM EXHIBIT P4TRUE COPY OF THE APPLICATION DATED 24- 08-2022 FILED BY THE PETITIONER BEFORE 3RD RESPONDENT EXHIBIT P5TRUE COPY OF THE LETTER OF COMMUNICATION/ORDER BEARING NO.K4- 7876/2022 DATED 15-02-2023. ISSUED TO THE PETITIONER BY THE 3RD RESPONDENT ```