Iype Varghese v. Revenue Divisional Officer, Idukki; Tahsildar, Thodupuzha; Thodupuzha Municipality; Secretary, Thodupuzha Municipality

**CR** ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **WEDNESDAY, THE 29TH DAY OF JULY 2020 / 7TH SRAVANA, 1942** ## **WP(C).No.11519 OF 2020(L)** ## **PETITIONER:** **IYPE VARGHESE, AGED 58 YEARS,** **S/O. VARGHESE IYPE, KOCHUKUDIYIL HOUSE, KALOOR P. O., KALLOORKKADU VIA, MUVATTUPUZHA, PIN - 686 668.** **BY ADV. SRI.R.RAMADAS** ## **RESPONDENTS:** **1 THE REVENUE DIVISIONAL OFFICER, IDUKKI, PIN - 685 602. 2 THE TAHSILDAR, THODUPUZHA, IDUKKI DISTRICT, PIN - 685 581. 3 THE THODUPUZHA MUNICIPALITY, REPRESENTED BY ITS SECRETARY, THODUPUZHA, IDUKKI DISTRICT, PIN - 685 581. 4 THE SECRETARY, THODUPUZHA MUNICIPALITY, THODUPUZHA, IDUKKI DISTRICT, PIN - 685 581.** ## **BY ADVS.** **R1-R2 SRI.SAIGI JACOB PALATTY, SR.GOVT.PLEADER R3-R4 SRI.UNNIKRISHNAN V.ALAPPATT, SC, THODUPUZHA MUNICIPALITY** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 29.07.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** WP(C).No. 11519 of 2020 2 ## **(CR)** ## **ALEXANDER THOMAS, J. ======================= W.P.(C) No. 11519 of 2020 ======================= Dated this the 29[th] day of July, 2020** ## **J U D G M E N T** The case set up in this Writ Petition (Civil) is as follows: _That the petitioner is the co-owner of 6.07 Ares of land in Sy. Nos. 151/3-1-1, 151/6-1-1-2 and 151/6-2-1-2 of Thodupuzha village. The other co-owners of the property are petitioners children, Joseph Varghese and George Varghese. The above property is a dry land. The petitioner's predecessor had sought permission from the 1[st] respondent for constructing a building after filling the land under the Kerala Land Utilization Order. On the basis of the above application, the Revenue Divisional Officer conducted enquiry and on the basis of the reports submitted by the Tahsildar, Thodupuzha and the Village Officer, Thodupuzha, the 1[st] respondent issued Ext.P1 Order stating that since there was no paddy cultivation in the land in question from 1961-1962 onwards, there is no need for permission under the Kerala Land Utilisation of Order. In this connection it is urged that as per the proviso to Section 27A(3) of the Kerala Conservation of Paddy_ WP(C).No. 11519 of 2020 3 _Land and Wet Land where the application is allowed, is filled up or naturally filled up before the 4[th] day of July, 1967, the date of commencement of the Kerala Land Utilisation Order 1967. The petitioner along with his sons became the absolute owner of the above property by virtue of Ext.P2 Registered Sale Deed. Subsequently, the petitioner has remitted land tax in respect of the above property for the period 2019-2020 as can be seen from Ext.P3 receipt. In Ext.P3, Land Tax Receipt the nature of land is shown as ‘Nilam’, as in the Revenue records the above property is shown as ‘Nilam’. But it can be seen from Ext.P1 that the property is a pucca dry land and that there was no paddy cultivation in the above property since 1961-1962. The above property is not included in the data bank prepared under the Kerala Conservation of Paddy Land and Wetland Act, 2008 also. The petitioner has applied for permission from the Thodupuzha Municipality for constructing a commercial building in the above property. But the Municipality has now rejected the application on the ground that necessary correction has to be carried out in the revenue records after remitting 25% fees by issuing Ext.P5. In Ext.P5, certain other corrections are also directed as per the Kerala Municipal Building Rules, which can_ WP(C).No. 11519 of 2020 **==> picture [7 x 8] intentionally omitted <==** _be rectified by the petitioner. Hence the petitioner is not challenging that part of Ext.P5. The petitioner is aggrieved by the first part of the direction in Ext.P5 directing to remit 25% fees for making necessary corrections in the revenue records so as to get a building permit for constructing a commercial building in the property. It can be seen from the proviso to Section 27 A(3) of the Kerala Conservation of Paddy Land and Wetland Act, 2008, no fee shall be collected if the applicant proves that the land where the application is allowed, is filed up or naturally filled up before 04.07.1967. In view of Ext.P1, respondents 1 and 2 are bound to make necessary corrections regarding the nature of petitioner’s property in the revenue records taking into account proviso to Section 27A(3). Ext.P5 order, in so far as it is against the petitioner, is per se illegal, highly arbitrary and unreasonable._ It is in the light of the above averments and contentions, that the petitioner has filed the instant Writ Petition (Civil) with the following prayers : _“i) Call for the records of the case leading upto Ext.P5, in so far as it is against the petitioner, and to quash the same by the issuance of a writ of certiorari or any other appropriate writ, order or direction._ _ii) Issue a writ of mandamus or any other appropriate writ, order or direction directing the respondents 3 and 4 to forthwith_ WP(C).No. 11519 of 2020 5 _issue necessary building permit to the petitioner as the land in question is not a paddy land or nilam a evident from Ext.P1._ _iii) Issue a writ of mandamus or any other appropriate writ, order or direction directing the respondents 1 and 2 to make necessary corrections in the revenue records regarding the nature of petitioner’s property on the basis of Ext.P1, without collecting any fees in view of proviso to Section 27A(3) of the Kerala Conservation of Paddy Land and Wetland Act, 2008._ _iv) Pass any other appropriate writ, order or direction which this Hon’ble Court may deem fit to issue and the petitioner may pray from time to time.”_ 2. Heard Sri. R. Ramadas, learned counsel appearing for the petitioner, Sri. Saigi Jacob Palatty, learned Senior Government Pleader appearing for respondent Nos.1 & 2 and Sri.Unnikrishnan V. Alapatt, learned Standing Counsel for Thodupuzha Municipality appearing for respondents 3 & 4. 3. It is the specific case of the petitioner that the subject property, though continues to be classified as Nilam /Paddy land in the Basic Tax Register, has been converted as “garden land/purayidom” even much prior to 04.07.1967 (date of coming into the force of the Kerala Land Utilization Order, 1967). That by way of abundant caution, the petitioner's predecessors earlier filed application dated 07.06.1999, (referred to as paper No.1 in Ext. P1) seeking for formal orders of the 1[st] respondent RDO, for permission for change of user of the land in terms of Rule 6(2) of the KLU order. That the 1[st] respondent RDO after conducting due WP(C).No. 11519 of 2020 6 enquiry could find, as a matter of fact that, the subject property was converted as “garden land /purayidom” even prior to coming into the force of the KLU Order 1967. Therefore, the 1[st] respondent has taken the considered stand in Ext. P1 proceedings dated 13.07.1999 that, since the conversion is prior to even the enforcement of the KLU order, no formal permission under Rule 6(2) of KLU order is required, thereby clearly holding that the petitioner can use the land in the way, he deems fit and proper. Exhibit P1 proceedings dated 13.07.1999 issued by the 1[st] respondent RDO reads as follows; “അപപേക്ഷയയില്‍ പേറയുന്ന തതതൊടുപുഴ വയിപല്ലേജയിതലെ സര്‍തവ 151/41, 151/7-1, 151/7-2, 151/3-1, 151/6 എ1, 151/6-ബയി, 151-5-1 ല്‍തപ്പെട 3.78.460 ഏക്കര്‍ നയിലെയയ്ക്ക് 61-62 കതൊലെലം മുതല്‍ക്കു തതന്ന തനല്‍കൃഷയിയയില്ലേതൊയയിരുന്നുതവന്നുലം തനല്‍കൃഷയി അസതൊദദ്ധ്യമതൊകലം വയിധലം ഇപപ്പെതൊള്‍ കരയതൊയയി സയിതയി തചെയ്യുന്നുതവന്നുലം മനസയിലെതൊക്കുന്നതയിനതൊല്‍ പകരളതൊ ഭൂവയിനയിപയതൊഗ ഉത്തരവുപ്രകതൊരമുള്ള അനുമതയി ആവശദ്ധ്യമയില്ലേ എന്നുള്ള വയിവരലംഅറ **യ** ” ിയിക്കുന്നു. 4. The petitioner has now submitted application for building permit for construction of a commercial building in the subject property and the said application dated 19.09.2019 for the building permit has been rejected by the 4[th] respondent Secretary of the Thodupuzha Municipality, mainly on the ground that the WP(C).No. 11519 of 2020 7 petitioner will have to pay the amounts under Section 27A (3) of the Kerala Conservation of Paddy land and Wetland Act, 2008 and should also clear certain other defects mentioned as item Nos. 1 to 7 in the note thereunder. At the outset, it has to be borne in mind, that the petitioner is not challenging any of the defects noted as item nos. 1 to 7 in para 3 of Ext. P5. The petitioner has taken up the case that, he is prepared to make rectification of all those defects noted as item nos. 1 to 7 on para 3 of Ext. P5. The only controversy is as to the legality and correctness of the conditions imposed by the 2[nd] respondent in para 2 of Ext. P5 that the petitioner will have to necessarily pay the higher amounts to the Revenue Authorities under Section 27A(3) and get necessary permission under Section 27A(1) before his application for building permit can be considered. Para 2 of the impugned Ext. P5 orders reads as follows; "കൂടതൊതത പകരള തണണ്ണീര്‍ത്തടലം പഭേദഗതയി നയിയമലം സ.ഉ.പേയി. )o 85/2018 റവനന്യൂ തണ്ണീയതയി 15/12/18 ഉത്തരവയിതലെ 17- ഖണയിക പ്രകതൊരലം നയിലെവയിലുള്ള 2018 തലെ പകരള തനല്‍വയല്‍ തണണ്ണീര്‍ത്തട സലംരക്ഷണ പഭേദഗതയി നയിയമലം പ്രതൊബലെദ്ധ്യത്തയില്‍ വരുന്നതയിനു മുമയ്ക്ക് 1967 തലെ പകരള ഭൂവയിനയിപയതൊഗ ഉത്തരവയ്ക്ക് പ്രകതൊരലം വണ്ണീടയ്ക്ക് വയതൊപനതൊ മറ്റു ആവശദ്ധ്യങ്ങള്‍പക്കതൊ നയിലെലം പേരയിവര്‍ത്തനതപ്പെടുത് ന്‍ നയിയമപേരമതൊയയി അനുമതയി വതൊങ്ങയിയതയ്ക്ക് സലംബനയിചയ്ക്ക് ഉത്തരവുകള്‍ ഹതൊജരതൊക്കുന്നപേക്ഷലം അപ്രകതൊരമുള്ള ഭൂമയിയുമതൊയയി ബനതപ്പെട റവനന്യൂ പരഖകളയില്‍ വദ്ധ്യതയിയതൊനലം വരുത്തുന്നതയിനയ്ക്ക് തഷഡന്യൂളയില്‍ പേറഞയിരയിക്കുന്ന ഫണ്ണീസയിതന്റെ 25% WP(C).No. 11519 of 2020 8 നയിരക്കയില്‍ അടവയ്ക്ക് വരുപത്തണ്ടതതൊണയ്ക്ക് എന്നയ്ക്ക് നയിഷ്കര്‍ഷയിക്കുന്നുണ്ടയ്ക്ക്. ആയതയിതന്റെ അടയിസതൊനത്തയില്‍ ഫണ്ണീസടചയ്ക്ക് വസ്തുവയിതന്റെ തരലം മതൊറലം പൂര്‍ത്തണ്ണീകരയിചയ്ക്ക് പുതയിയ കകവശതൊവകതൊശ സര്‍ടയിഫയിക്കറ്റുലംസമര്‍പ്പെയിപക്കണ്ടതതൊണയ്ക്ക്.” 5. If, as a matter of fact, the subject property covered by the building permit referred to in Ext. P5, is the same as Ext. P1 order dated 13.07.1999 issued by the 1[st] respondent RDO, then this Court has no hesitation to hold that the said stand of the 4[th] respondent in para 2 of Ext. P5 is untenable and unsustainable. Rule 6(2) of the KLU Order 1967 provides as follows; _“Rule 6. Land cultivated with any food crop not to be cultivated with any food crop.- (1)......._ _(2) No holder or any land who cultivates any land with any food crops for a continuous period of three years at any time after the commencement of this Order shall, after the said period of three years, convert or attempt to convert or utilise or attempt to utilise such land for the cultivation of any other food crops or for any other purpose except under and in accordance with the terms of a written permission given by the Collecto_ r.” 6. Sec.27A(3) and its proviso of the Kerala Conservation of Paddy Land and Wet Land Act, 2008, made effective from 30.12.2017 provides as follows: _“Sec.27A. Change of nature of unnotified land.- (1)...._ xxx xxx xxx _(3) If the application is allowed, the applicant shall be liable to pay a fee at such rate as may prescribed:_ _Provided that, no such fee shall be collected if the applicant proves that the land where the application is allowed is, filled up or naturally filled up before the 4[th] day of July, 1967, the date of_ WP(C).No. 11519 of 2020 9 _commencement of the Kerala Land Utilisation Order, 1967, after completing such procedure, as may be prescribed.”_ 7. From a reading of the proviso to Section 27A (3) it can bee seen that, if, as a matter of fact, the subject property has been converted as garden land/purayidom even prior to 04.07.1967 (date of coming into force of the Kerala Land Utilization Order, 1967), then the party need not pay any amounts prescribed in terms of Section 27A (3). But in such a case, the party will have to go through the procedure for ascertaining the said factual correctness regarding the conversion of the property prior to 04.07.1967, in the terms of procedural norms as per Rule 12(13) and Rule 12(14) of the Kerala Conservation of Paddy land and Wetland Rules. Rules 12 (13) and Rule (14) of the above said Rules reads as follows; “ _**12. 27**_ എ വകകപപ _**(2)-**_ ആആ ഉപവകകപപ പപരകകരആ വവജകപനആ ചചയപയചപടകതഭഭമവയകചടസപവഭകവവപയതവയകനആഅനകവദവകകനതവനകള നടപടവകപരമആ _**.(1).....- -** xxx xxx xxx_ _**(13) 1967-**_ ചല ജഭലല _**4-**_ ആആ തതയതവകകമകമപ നവകതവയതതക നവകനതതക ആയ ഭഭമവയകചട സപവഭകവ വപയതവയകനആ സആബനവചകള അതപകഫകറആ _**9-**_ ഇൽസമർപവതകണതകആപപരസകതഭഭമവ _**1967**_ ജഭലല _**4-**_ ആആ തതയതവകക മകമപ നവകതവയതതക നവകനതതക ആചണനപ ചതളവയവകകനതവനകയവപപരസകതഭഭമവചയസആബനവകകനതകചഴപറയകന തരഖകൾചതളവവകയവസപവതകരവകകവകനതകണപ _**,**_ അതകയതപ _**.-**_ _**(** i_ _**)**_ അപപരകകരമകളഭഭമവ _**1967**_ ജഭലല _**4-**_ നപമകമപനവകനതകതയക മറപ കകർഷവതകതര ആവശപയങൾകകയവ ഉപതയകഗവചവടകളതകതയക പപരസകവവചവടകള ആധകരതവചന പകർപകകൾഅലപചലങവൽ _**;**_ > _**(** ii_ _**)**_ അപപരകകരമകള ഭഭമവയവൽ _**1967**_ ജഭലല _**4**_ നപ മകമപ നവകനതകതയക മറപ കകർഷവതകതരആവശപയങൾകകയവ WP(C).No. 11519 of 2020 10 ഉപതയകഗവചകയവടകളളതതയക പപരസകവവചവടകള _**/**_ തരഖചപടകതവയവടകള മകദപരപതപരതവൽ തയപയകറകകവയവടകളനവയമകനകസസതഉടമടവകൾ _**(**_ ഒറവ _**,**_ കകണആ തകടങവയവയകതടതപഉൾചപചട _**);**_ - _**(** iii_ _**)**_ അപപരകകരമകള ഭഭമവ _**1967**_ ജഭലല _**4**_ നപ മകമപ നവലവവലകണകയവരകന ചകടവടതവനപ തതദശ സപവയആഭരണ സകപനതവൽ ചകടവട നവകകതവ അടചതവചന രസതതപ _**;**_ - അലപചലങവൽ - _**(** iv_ _**)**_ അപപരകകരമകളഭഭമവ _**1967**_ ജഭലല _**4 -**_ നപമകമപനവകനതകതയക മറപകകർഷവതകതരആവശപയങൾകകയവഉപതയകഗവചവടകളതകയവ ചതളവയവകകന തരതവൽ ഏചതങവലകആ സർകകർ ഉദപതയകഗസതനക _**,**_ സർകകർ ഏജൻസവകതളക നൽകവയ ലലസൻതസകമറപതരഖകതളക _**;**_ - _**(** v_ _**)**_ വവജകപനആ ചചയപയചപടകത ഭഭമവയകചട സപവഭകവ വപയതവയകനആ സആബനവചപ സമർപവചവടകള അതപകയവൽ വപയകപതമകകവയവടകള ഭഭമവയവലകള മരങൾ _**,**_ വതടകകൾ _**,**_ പകരകതനമകയ കകവകകൾ _**,**_ എടകപപ എനവവയകചട പപരകയആ _**,**_ കകലപഴകആ എനവവയകചട അടവസകനതവലകആ _**.**_ - അതവനനകസസതമകയകആഉളസകകപയചമകഴവകതളക _**(14)**_ ഇകകരപയതവൽ തതരകമകനചമടകകകനതവനകയവ റവനപയഭ ഡവവവഷണൽ ഓഫതസർ വവലപതലജപ ഓഫതസതറകടപ അനപതവഷണ റവതപകർടപ ആവശപയചപതടണതകആ ആവശപയമകള പകആ സല പരവതശകധന നടതതണതകമകണപ _**. “**_ 8. After hearing both sides, this court is of the considered view that, if a party like the petitioner's predecessor has indeed obtained an order in the nature of Ext. P1, after consideration of an application filed under Rule 6 (2) of the KLU Order, that the property has been duly converted even prior to 04.07.1967 and that therefore, no permission under Rule 6(2) is required, then in such a case, such an order in the nature of Ext. P1 has to be treated as having the force of an order passed in terms of the proviso to Section 27 A(3) of the ab0ve said Act. The resort to the procedure under Section 27 A(3) proviso and Rule 12(13) and WP(C).No. 11519 of 2020 11 Rule (14) would be applicable, only in a case where the party could not obtain an order of clarification as in the nature of Ext. P1 from the statutory notified collector under Rule 6(2) of the KLU Order. 9. If the party like the petitioner's predecessor has indeed obtained Ext.P1 order dated 13.07.1999 and that too, based on an application filed as early as on 07.06.1999 seeking for formal permission under Rule 6(2) of the KLU order, then there is no question of again legally compelling the said party to go through the rigmarole of the procedure under section 27 A(3) proviso read with Rule 12 (13) and Rule 12(14) of the Rules. The legal position in that regard is declared and ordered. It is made clear that, it is only in a case where the party has not secured any such clarificatory orders issued by the statutory notified Collector under Rule 6(2) of the KLU Order, on an application filed as per that provision before 30.12.2017, that claim under the proviso to Sec. 27A(3) has to be considered. This is so, as Section 27(13) mandates that it is only applications for permission filed on or after 30.12.2017 (date of commencement of the amended provisions of the 2008 Act which has introduced Section 27A thereof), that will have to be considered as per those provisions in the 2008 Act. WP(C).No. 11519 of 2020 12 10. However, the crucial fact of the matter would be as to whether the subject property covered by Ext. P1 order dated 13.07.1999, is the same or part of the subject property covered by the building permit referred to in Ext. P5 rejection order. That is a question of fact to be ascertained and its consideration need not detain the attention of this Court. Accordingly, it is ordered that it is for the 1[st] respondent RDO to immediately ascertain as to whether the subject property covered by Ext. P1 order dated 13.07.1999, is same as the one covered by the building permit dated 19.06.2019 referred to in Ext. P5 rejection order dated 14.01.2020 issued by the 4[th] respondent Secretary of the Thodupuzha Municipality. In the light of these aspects, the grounds of rejection cited in para No. 2 of Ext. P5 is not sustainable in any view of the matter. This is for the simple reason that even in a case, where the conversion is effected after coming into force of the KLU Order, 1967, if the party has indeed filed Rule 6(2) application, before the cut off date of 30.12.2017, then the application of such a party is to be considered strictly in terms of that Rule 6(2) of KLU Order and in such a scenario, there is no question of compelling such a party to pay the higher amounts as conceived as per the amended provisions of the WP(C).No. 11519 of 2020 13 Section 27 A(1) of the 2008 Act and the Rules framed thereunder. The case, where the conversion is effected before the coming into force of the KLU Order, would stand on the much better and higher pedestal, as the conversion was not in contravention of any statutory restriction. Therefore, the ground of rejection cited in para 2 of Ext. P5 cannot even be sustained for a moment. 11. The next consequential issue to be considered is as to whether, in a case where the subject property, which is described in the BTR as “nilam/paddy land” has been converted as “garden land/purayidom” even prior to 04.07.1967 (date of coming into force of the KLU Order) and orders are also obtained from the notified statutory officer under Rule 6(2) of the KLU Order and since the property has been converted prior to coming into force of the KLU Order, no statutory permission is required under the said provision, etc. then whether the subject property is also liable for re- assessment/ fresh assessment in terms of Sec. 6A of the Kerala Land Tax Act, 1961, for securing alteration of the entries in the BTR. In that regard, it will be pertinent to refer to the provisions of the Kerala Land Tax Act, 1961 and the Kerala Land Tax Rules, 1972 framed thereunder. The Kerala Land Tax Act, 1961 (State Act 13 of 1961) had received the assent of the WP(C).No. 11519 of 2020 14 Governor of the State on 04.04.1961 and has been published in the Kerala Gazette Extraordinary No.40 dated 05.04.1961. Sec.1 (3) of the above Act would mandate that the said Act shall be deemed to have come into force in the area comprising in the former State of Travancore-Cochin, with effect on and from 1[st] day of April, 1956 and in the Malabar area, with effect on and from the 1[st] day of September, 1957. 12. Sec. 5 of the Kerala Land Tax Act mandates that subject to the provisions of the said Act, land tax shall be charged and levied a tax called “basic tax” on all lands of whatever description and held under whatever tenure situated in the area comprising in the former State of Travancore-Cochin for every financial year commencing on and from 1[st] day of April, 1956 and situated in Malabar area, for the period commencing on and from the 1[st] day of September, 1957 and ending on 31[st] day of March, 1958 and thereafter for every financial year commencing or and from the 1[st] day of April, 1958. Sec.5(2) further mandates that the basic land tax shall be charged on any land, which has to be paid by the landholder of that land before such date to be prescribed. Sec. 3(3) of the said Act defines “land holder” as follows: _Sec.3. Definitions.- in this Act, unless the context otherwise requires,-(1)..._ WP(C).No. 11519 of 2020 15 _xxx xxx xxx_ _(3) ‘landholder’ means,-_ - _(a) in relation to any land held by a cultivating tenant as defined in the Kerala Land Reforms Act, 1963 (1 of 1964), such cultivating tenant;_ - _(b) in relation to any land in the possession of a kanam tenant as defined in the Kanam Tenancy Act, 1955 (XXIV of 1955), such kanam tenant;_ - _(c) in relation to any land which has not been surveyed and it not held by a cultivating tenant referred to in sub-clause (a), the proprietor of such land;_ - _(d) in relation to any other land, the registered holder for the time being of such land,and includes his legal representatives and assigned and any person who under any law for the time being in force is liable for the payment of public revenue due in respect of the land held by him;”_ 13. Sec. 4 thereof mandates that the arrangement under the Kerala Land Tax Act is mandated to be a general revenue settlement and it is provided therein that notwithstanding anything in any enactment, grant, deed or other transaction, the arrangement made as per the said Act for levy of basic tax shall be deemed to be a general revenue settlement of the State. Hence, in view of the mandate of Sec. 5 read with Sec. 3 of the Kerala Land Tax Act, the statutory revenue authorities concerned are obliged to collect land tax from the land holder as understood in Sec. 3(3) of the Kerala Land Tax Act. Sec.6 deals with rate of basic tax and Sec.6A deals with assessment of basic tax. In exercise of the powers conferred under Sec.20 of the Kerala Land Tax Act, the State Government has framed “the Kerala Land Tax Rules, 1972”, which has been published in Kerala gazette No.40 WP(C).No. 11519 of 2020 **==> picture [12 x 9] intentionally omitted <==** dated 10.10.1972. Rule 4 of the Kerala Land Tax Rules, 1972 mandates that a register called, “the Basic Tax Register” shall be maintained in all the Village and Taluk offices. 14. So in a case, where the subject land/ property is assessed to basic tax and land tax is collected from the land holder concerned, then the competent revenue authority concerned is obliged to statutorily maintain a register called “Basic Tax Register” (BTR) in terms of Rule 4 of the Kerala Land Tax Rules, 1972. Going by the provisions contained in the Kerala Land Act and the rules framed thereunder, different rates of tax are prescribed for paddy land, garden land, etc. and higher tax amount is due from garden land compared to paddy land. So, after such statutory assessment for land tax purposes, the nature of the land will also have to be entered in the BTR prepared as per the mandate of Rule 4 of the Kerala Land Tax Rules, 1972, as to whether the subject property is paddy land/ nilam or garden land/purayidam, etc. Sec. 6A of the Kerala Land Tax Act deals with assessment of basic tax and has been introduced as an amended provision inserted by Act 9 of 1972 in TC areas w.e.f. 01.04.1956 and in Malabar area from 01.09.1957. So, in a case where the nature of the property is changed and in case the WP(C).No. 11519 of 2020 17 garden land is converted for use as paddy land, or vice versa, the fresh assessment has to be done for land tax purposes in terms of Sec. 6A of the Kerala Land Tax Act by the competent Revenue authority concerned and after such fresh assessment, if there is change of nature of the land, higher tax or the lower tax as the case may be, will have to be collected and the changed nature of the land will have to be entered as additional entries in the basic land tax register prepared in terms of Rule 4 of the Land Tax Rules, 1972. However, the exception to this would arise if there are any statutory restrictions for change of user of the land, then such assessment in terms of Sec.6A and consequential alteration in the BTR entries prepared as per Rule 4 of the Kerala Land Tax Rules, will not be automatic and if statutory permission is required for change of user of the land, then such assessment may not be legally permissible, unless statutory permission for change of user of the land is duly obtained. Major change in that regard was introduced in the State with the promulgation and enforcement of the Kerala Land Utilisation Order, 1967, (published as SRO No.176/1967, in Kerala Gazette No.26 dated 4.7.1967), which has been framed under the enabling provisions contained in Sec.3(2)(1) of the Essential Commodities Act, 1955 WP(C).No. 11519 of 2020 18 (Central Act 10 of 1955) read with the notification of the India in the Ministry of Food & Agriculture vide SRO No.3950 dated 9[th] December, 1957. As per the provisions of the KLU Order, 1967, made effective from 04.07.1967, restrictions have been imposed for change of user of the land especially in the case of existing paddy land, as can be seen from Rule 6 of the KLU Order, 1967 and statutory permission is required from the notified collector as per the said rules, for such change of user of the land. If the change of user of the land is without such formal statutory permission in terms of Rule 6 of the KLU Order, then it cannot be said that alteration in the BTR maintained in terms of Rule 4 of the Kerala Land Tax Rules will be automatic based on the existing ground reality of actual change of user of the land and such process of alteration based on fresh assessment in terms of Sec.6A of the Kerala Land Tax Act would come into play only after formal statutory permission of the notified collector in terms of Rule 6 of the KLU Order is later obtained. 15. It has been held by this Court that such permission under Rule 6(2) of the KLU Order, could be considered and granted even after such actual conversion, but subject to various relevant aspects to be taken into consideration in the exercise of WP(C).No. 11519 of 2020 19 that power. So in a case, where the subject property, which is described in the BTR as “paddy land/ nilam” has been converted as garden land or purayidam, and statutory permission under Rule 6(2) of the KLU Order is also obtained from the notified collector, then the earlier entries in the BTR describing the property as nilam or paddy land would become redundant and superfluous and the competent revenue authority concerned is statutorily obliged to exercise the powers under Sec 6A of the Kerala Land Tax Act in order to subject the property for fresh/ re-assessment to land tax so that the land tax is collected from the land holder concerned at the correct tax rates and in a case where the paddy land is converted the BTR will have to be altered so as to secure additional entries in the BTR to show the changed nature of the land as garden land/ purayidam and statutory permission is also secured, then additional entries will have to be made in the BTR maintained in terms of Rule 4 of the Kerala Land Tax Rules so as to show correctly the changed nature of the land as garden land or purayidam so that higher land tax could be collected in respect of the subject property from the land holder concerned. This position of the matter is now well established by a series of rulings of this Court, more particularly, WP(C).No. 11519 of 2020 20 by the judgment of the Division Bench of this Court in the case in ## _**LLMC, Kizhakkambalam Grama Panchayat v. Muriumma**_ [2015 (2) KLT 516 (D.B), para 9.] The Division Bench of this Court in Murimma's case, para 9, has categorically held that once necessary permission is secured under the Kerala Land Utilisation Order, 1967, or under the State Act 28 of 2008, changing the nature of use of the land, that cannot be the situation where Sec.18 of the Kerala Land Tax Act is attracted and on the other hand, the said change of user of the land on obtaining statutory permission would render the assessment already made under Sec. 6A redundant and superfluous and instead, what is called for is a fresh assessment in accordance with Sec. 6A of the Kerala Land Tax Act and necessarily as a consequence of such assessment, the authorities will have to make appropriate additional entries in the BTR, etc. The abovesaid legal principles laid down by the Division Bench in Mariumma's case [2015 (2) KLT 516] has been reaffirmed and and relied on by subsequent decisions of this Court as in _**Tahsildar, Thodupuzha Taluk v. Renjith**_ [2020 (2) KLT 13 (DB) = 2020 (1) KHC 865 (DB)]. These aspects of the matter have also been dealt with in judgments as in _**Puthenpurakkal Joseph v. Sub**_ WP(C).No. 11519 of 2020 21 _**Collector**_ [2015 (3) KLT 182, paras 18 and 19]. 16. As already held by the Division Bench in _**Muriumma's case**_ supra, the said position of fresh assessment under Sec. 6A of the Kerala Land Tax Act would come into play, not only in respect of permissions obtained in terms of Rule 6 (2) of the KLU Order, but also in terms of applicable provisions contained in the Kerala Conservation and Paddy Land and Wetland Act, 2008 (Act 28 of 2008), which came into force on 01.08.2008. It is well settled that, in view of the provisions contained in Sec. 27A(13) of the 2008, the application for such change of user of the land filed on or after the commencement of the said amended provisions of the 2008 Act made effective from 30.12.2017, such applications will then have to be considered in terms of Sec. 27A of the amended provisions of the 2008 Act. In the case of a property which fulfills the definition of paddy land as per Sec. 2(12) of the 2008 Act, as on 12.8.2008, then there are provisions as in Sec. 8(4) for getting sanction for reclamation of paddy land, as envisaged therein as well as provisions as in Sec.5(3)(i) proviso read with Sec. 9 (i) proviso or in terms of Sec. 10 of the Act for permission for change of user of the land, etc. The Legislature has clearly recognized the abovesaid legal principles WP(C).No. 11519 of 2020 22 flowing out from the provisions of the Kerala Land Tax Act and the Kerala Land Tax Rules, as can be seen from the specific provision engrafted in Sec. 27C of the 2008 Act, wherein sub section (1) thereof would clearly envisage for change of entries in the BTR consequent to permission obtained for change of user of land in terms of various provisions as in Secs.8, 9, 10 or Sec. 27A of the Act, etc. and sub section (2) of Sec. 27C would stipulate that where the paddy land or unnotified land is duly converted as per the provisions of the 2008 Act, then the Tahsildar will have to re-assess the land tax under Sec. 6A of the Kerala Land Act, 1961 and make necessary entries in the revenue records. The provisions contained in Sec. 27C deals with situation, where permission for change of user of land is obtained as per the provisions of the 2008 Act and the applicability of Sec. 6A of the Kerala Land Tax is explicitly recognized and incorporated in Sec. 27C(2). Section 27C is applicable in cases, where the permission is secured as per the 2008 Act and not in cases covered by Rule 6(2) of KLU Order. But Section 6A of the Kerala Land Tax Act, 1961 would apply to both provisions covered by Rule 6(2) of the KLU Order but also Section 27C of the 2008 Act. Suffice to say that where statutory permission for WP(C).No. 11519 of 2020 **==> picture [13 x 8] intentionally omitted <==** change of user of land has been obtained for conversion of a paddy land to a garden land, either as per the provisions contained in the Kerala Land Utilisation Order, 1967 or in terms of the provisions contained in the State Act 28 of 2008, then it will be the obligation of the competent revenue authorities concerned in terms of Sec. 6A of the Kerala Land Tax Act, to subject the property for a fresh assessment so as to ensure that higher land tax is collected from such converted land and consequently, it is also the obligation of the revenue authorities concerned to make additional entries in the BTR so as to reflect the correctly the changed nature of the land as garden land/ purayidam, etc. 17. In view of the abovesaid legal position, it has to be borne in mind that in a case, where the party has secured orders from the notified collector in application filed under Rule 6(2) of the KLR Order, that since the paddy land has been converted as garden land even prior to coming into force of the KLU Order, no permission thereunder is required. Then such case would stand on a better footing or pedestal compared to cases where permission has been obtained, either after coming into force of the KLU Order, 1967 or after coming into force of the 2008 Act. WP(C).No. 11519 of 2020 24 As already held herein above, in a case where the party concerned has approached the notified collector under Rule 6(2) of the KLU Order, and has obtained clarificatory orders from the notified collector, that as the property has already been converted prior to 04.07.1967, statutory permission under that rule is not necessary, etc., then the party cannot again be compelled to take the procedure as envisaged in Sec. 27A (3) proviso of the Act. Sec. 27A(3) proviso mandates that no fee shall be collected if the applicant proves that the land, where the application is allowed, is filled up or naturally filled up before 04.07.1967 (date of coming into force of the KLU Order, 1967) after completing such procedure as may be prescribed. The said procedure as envisaged in Sec. 27A(3) proviso need be undergone only by a party who has converted the property prior to 04.07.1967 and had never claimed the benefit by filing application before 30.12.2017, as aforesaid and in such a case, necessarily the party will have to establish his case in terms of the requirements of the proviso to Sec. 27A(3). The Division Bench of this Court in the case in _**District Collector and others v. Fr.Jose Uppani**_ [2020(4) KLT 612 (DB)] in the common judgment dated 21.07.2020 rendered in W.A.Nos.876 and 918 of WP(C).No. 11519 of 2020 **==> picture [13 x 8] intentionally omitted <==** 2020 has elaborately considered the issue regarding the applicability of Sec.27C of the Kerala Conservation of Paddy Land & Wetland Act, 2008. Even in such case, where such permission is obtained in terms of Sec. 27A(3) proviso, the provisions in Sec. 27C for change of BTR could be invoked. But in a case, where the party has already approached the notified collector under the KLU Order and secured the above said clarificatory orders that no permission is required under the KLU Order since the land has already been converted even prior to the KLU Order, then such a party is certainly legally entitled to maintain an application in terms of Sec. 6A of the Kerala Land Tax Act before the competent Tahsildar concerned seeking for fresh assessment of the subject property so as to collect the high tax amount due for such converted land and consequently to get alteration in the BTR to show the changed nature of the land. It has to be borne in mind that in such a case, where the party has converted the paddy land as garden land, even prior to 04.07.1967, such conversion was not in contravention of any statutory restriction and so such conversion is lawful and so the party is entitled to get fresh assessment in terms of Sec. 6A, but subject to procedural requirements of either getting clarificatory WP(C).No. 11519 of 2020 26 orders from the notified collector in terms of Rule 6 of the KLU Order or in a case where the said benefit was not claimed by filing application before 30.12.2017 then the party will have to necessarily seek the procedure as envisaged in Sec. 27A(3) proviso read with Rule 12(13) & (14) of the Rules, but without having to pay the fee as explicitly permitted therein. ## Accordingly, the following directions and orders are passed; - _(i). The impugned ground of rejection in para 2 of Ext. P5, will stand declared to be untenable and unsustainable and to that extent, the ground of rejection as per para 2 of Ext. P5 will stand set aside and rescinded._ - _(ii) All the other deficiencies noted as item nos. 1 to 7 of para no. 3 of Ext. P5 are not being interfered with and it is for the petitioner to fully adhere to the process of rectification of those defects._ - _(iii) Further it is ordered and declared that, if a party has indeed secured an order in the nature of Ext. P1 dated 13.07.99 from the notified Collector while considering an application under Rule 6(2) of the KLU order that the subject property has been converted as garden land/puriydom prior to coming into force of the KLU Order, 1967, and therefore, no statutory permission under Rule 6(2) of the KLU order is required etc., then such an order so obtained has to be treated as having_ WP(C).No. 11519 of 2020 27 _the full legal efficacy of a formal order as conceived in terms of the proviso to Section 27 A(3) of the 2008 Act read with Rule 12 (13) and 12 (14) of the Rules. If a party has a claim that such a property has been converted before the cut of date 04.07.1967 and application as per KLU Order has not been filed before 30.12.2017, then certainly the party is obliged to seek the benefit of the proviso to Section 27A(3) by following the procedure under Rule 12(13) and Rule 12 (14) of the above said Rules._ - _(iv) The 4[th] respondent Secretary of the Thodupuzha Municipality, will immediately issue a certificate to the petitioner stating as to the details of the building permit and also the details of the subject property covered by that building permit, more particularly, with reference to the Sy. nos., name of the village etc., of the subject property. This, the 4[th] respondent, the Secretary of the Thodupuzha Municipality, will comply within a period of ten days from the date of production of certified copy of this judgment._ - _(v) Thereafter, the petitioner will make available a copy of the said certificate issued by the 4[th] respondent, Thodupuzha municipality before the 1[st] respondent RDO Idukki. Thereafter, 1[st] respondent RDO will ascertain as to whether the subject property covered by the building permit dated 19.09.2019 referred to Ext. P5 is the same or part of the properties covered by Ext. P1 order dated 13.07.1999. If it is found by the 1[st] respondent that the subject property covered by the above said building permit is the same or the part of_ WP(C).No. 11519 of 2020 28 _the subject property covered by Ext. P1 proceedings dated 13.07.1999, then the 1[st] respondent will issue a certificate in that regard to the petitioner. This process should be duly completed by the 1[st] respondent within a period of three weeks from the date of receipt of the above said certificate from the 4[th] respondent Secretary of the Thodupuzha Municipality. In the above said process, 1[st] respondent RDO, may seek necessary factual clarification from the 2[nd] respondent the Tahsildar and the village officer concerned, and the said revenue officials may give necessary reports in the matter to the 1[st] respondent and the copy of the report of the Tahasildar/Village Officer as the case may be should also be given to the petitioner in advance. Thereafter the 1[st] respondent RDO will afford reasonable opportunity of being heard to the petitioner through the authorized representative/counsel, if any, and then should take a decision regarding ascertaining the facts as to whether the subject property covered by the above said building permit, is the same or part of the property covered by Ext. P1 proceedings etc. for the purpose of issuance of the abovesaid certificate by him._ - _(vi) After completion of the abovesaid formalities, the petitioner will be entitled to file requisite application under Sec. 6A of the Kerala Land Tax Act before the 2[nd] respondent Tahsildar, for fresh assessment of the subject property in terms of that provision so as to secure additional entries in the BTR to show the changed nature of the land as “garden land or purayidam” instead of the earlier BTR as “nilam”. On filing of_ WP(C).No. 11519 of 2020 29 _such application before the 2[nd] respondent Tahsildar, along with a certified copy of this judgment, and on completion of the aforementioned steps, the 2[nd] respondent Tahsildar will afford reasonable opportunity of being heard to the petitioner through authorised representative/ counsel, if any, and then pass orders of re-assessment/fresh assessment of the subject property in terms of Sec. 6A of the Land Tax Act so as to show the changed nature of the land as “garden land or purayidam” instead of the earlier BTR entries as “nilam/paddy land” and without compelling the petitioner in any manner to pay the amounts as conceived as per the amended provisions of the 2008 Act including Sec. 27A thereof and the amended provisions of the Rules including Rule 12(17) thereof, within one month from the date of filing of such application as afore directed._ - _(vii) After passing orders, the 2[nd] respondent Tahsildar will ensure that necessary directions are also given to the Village Officer concerned to ensure that the said decision is carried out by actually incorporating additional entries in the BTR to show the changed nature of the “land as garden land or purayidam” in respect of the subject property and to collect land tax from the petitioner and to issue the land tax receipt in respect of the subject property showing the altered entries in the BTR. Those aspects should be duly completed by the Village Officer concerned within two weeks from the date of receipt of the copy of the proceedings/order to be passed under Sec. 6A of the Kerala Land Tax Act by the 2[nd] respondent Tahsildar._ WP(C).No. 11519 of 2020 30 - _(viii) Thereafter the petitioner will produce the aforesaid certificate of the RDO regarding the abovesaid aspects as well as the order of the 2[nd] respondent Tahsildar regarding the fresh assessment of the property for alteration of the BTR, etc. before the 3[rd] respondent Secretary of the Thodupuzha Municipality and thereupon the 3[rd] respondent will consider the grant of building permit to the petitioner in accordance with the provisions contained in the applicable building rules and without any reference to the earlier entries in the BTR showing the nature of the property as “nilam/paddy land”._ The petitioner will produce the certified copy of the judgment along with the copy of memorandum of this WP(C) along with all the exhibits before respondent Nos. 1, 2 & 4 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** VPK WP(C).No. 11519 Of 2020 31 ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF THE ORDER OF THE 1ST RESPONDENT DATED 13.07.1999.** **EXHIBIT P2 TRUE COPY OF THE REGISTERED SALE DEED NO.1574/2019 OF S.R.O., THODUPUZHA, DATED 22.07.2019.** **EXHIBIT P3 TRUE COPY OF THE LAND TAX RECEIPT DATED 19.11.2019 IN RESPECT OF THE ABOVE PROPERTY FOR THE PERIOD 2019-2020.** **EXHIBIT P4 TRUE COPIES OF THE SURVEY SKETCHES ISSUED BY THE TALUK SURVEYOR IN RESPECT OF FIELD NO.151 ND 151/3, 5, 6.** **EXHIBIT P5 TRUE COPY OF THE LETTER DATED 14.01.2020 ISSUED BY THE MUNICIPALITY.**