JAVAD K. HASSAN v. REVENUE DIVISIONAL OFFICER, FORT KOCHI & TAHSILDAR (LAND RECORDS), ALUVA TALUK

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **MONDAY, THE 27TH DAY OF JULY 2020 / 5TH SRAVANA, 1942** ## **WP(C).No.14486 OF 2020(I)** ## **PETITIONER:** **JAVAD K.HASSAN S/O.LATE NAGOOR ROWTHER, MACKER MANZIL, THYNOTHIL LANE, ALUVA, ERNAKULAM DISTRICT-683 101, REPRESENTED BY HIS POWER OF ATTORNEY HOLDER, JEHANGIR ROWTHER, AGED 62, S/O.LATE NAGOOR ROWTHER, RESIDING AT MACKER MANZIL, THYNOTHIL LANE, ALUVA, ERNAKULAM DISTRICT-683 101,** **BY ADVS. SRI.E.S.MOHAMED KABIR SRI.N.B.ANOOP SMT.K.M.AMINABEEVI SMT.C.SHEEBA** ## **RESPONDENTS:** **1 THE REVENUE DIVISIONAL OFFICER REVENUE DIVISIONAL OFFICE, FORT KOCHI, KOCHI, ERNAKULAM DISTRICT-682 001.** **2 THE TAHSILDAR (LAND RECORDS) ALUVA TALUK, TALUK OFFICE, ALUVA, ERNAKULAM DISTRICT-683 101.** **BY ADVS. SRI.SAIGI JACOB PALATTY, SR.GOVT.PLEADER** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 27.07.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 2 W.P(C) No. 14486 of 2020 ## ALEXANDER THOMAS, J. -----------------------------------W.P(C) No. 14486 of 2020 -----------------------------------Dated this the 27[th] day July, 2020 ## **JUDGMENT** The prayers in the above Writ Petition (C) are as follows: - _"(i) To call for the records relating to Exhibit P1 to P3 and to issue a writ of mandamus directing the 2nd respondent to reassess the tax towards the property having an extent of 275 cents in Sy. No. 950/2 and 951/1 of Aluva East Village (Keezhmadu Village) in the Basic Tax Register as per Section 6A of the Kerala Land Tax Act, 1961._ - _(ii) To issue any writ, order or direction directing the 2nd respondent to pass orders on Exhibit P3 application submitted by the petitioner under Section 6A of the Kerala Land Tax Act, 1961._ - _(iii) Any other reliefs also may be granted in order to meet out justice considering the circumstances of the case."_ 2. Heard Sri.E.S.M.Kabeer, learned counsel appearing for the petitioner and Sri.Saigi Jacob Palatty, learned Senior Government Pleader appearing for the respondents. 3. The case of the petitioner is that the subject property though continues to be described as nilam/paddy land in the Basic Tax Register (BTR) has been converted as garden land or purayidam long prior to 12-08-2008 (date of coming into force of the Kerala Conservation of Paddy Land and Wetland Act, 2008). That as a 3 ## W.P(C) No. 14486 of 2020 matter of fact the petitioner had in fact filed the requisite application on 04-01-1996 (referred to as item No.1 in Ext.P2) before the 1[st] respondent RDO seeking for orders for change of user of the land to use the subject property for any non-agricultural purposes in terms of Rule 6(2) of the KLU Order. That after conducting the requisite enquiry and after following the requisite procedure, the 1[st] respondent RDO had passed Ext.P2 proceedings as early as on 02-03-1996 allowing the said application filed by the petitioner on 04-01-1996 under Rule 6(2) of the KLU Order. 4. Exhibit P2 proceedings dated 02-03-1996 issued by the 1[st] respondent RDO reads as follows: _“Read: 1. Application dt.4-1-96 filed by Jawad Hassan, Macker Manzil, Aluva 2. Report of Aluva Tahsildar dated 18-1-96_ _Sri./Smt.Jawad Hassan, Macker Manzi, Aluva has filed an application read as 1[st] cited for permission under KLU Order for conversion of 275 cent of paddy land in Sy No.950/2 and 951/1 of Aluva East Village._ _The application has been enquired trough the Tahsildar Aluva. The Tahsildar has reported that Sy No.950/2 and 951/1 is having an extent of 275 cents which is situated in Aluva East village and the no paddy cultivation is being conducted in this land for last long period. The Tahsildar further reported that no problems, like water logging or labour problem, will arise due to conversion of land and that this land is not fit for paddy cultivation. I have inspected the site and it is revealed that no harm to others in reclamation of this land._ _In the above circumstances sanction is hereby accorded to Sri/Smt.Jawad Hassan, Macker Manzil, Aluva for the_ 4 ## W.P(C) No. 14486 of 2020 _conversion of Sy.950/2 and 951/1 of Aluva East Village for cultivation except paddy subject to the following conditions, under Section 6 (2) at KLU Order, 1967_ _1. Land Holder who converts the paddy field held by him into the garden land on building site are liable to pay cess under is fixed by the local authority._ _2. The easement right, if any should not be affected. 3. The neighbouring Ni Lams, purayidams etc., should not be effected in any way._ _4. The drainage facilities should be provided in nearby areas.”_ 5. Now the petitioner has filed the consequential application as per Ext.P3 dated 25-06-2020 seeking for reassessment/fresh assessment of the subject property covered by Ext.P2 under Sec.6A of the Kerala Land Tax Act 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 entries as 'nilam/paddy land'. 6. The matter in issue is no longer _res integra_ and is covered in favour of the petitioner and against the respondents. It has been held in various decisions including the one rendered by a Division Bench of this Court in the case in _**LLMC, Kizhakkambalam Grama Panchayath v. Mariumma**_ [2015 (2) KLT 516 (DB)] that where the party has secured orders from the notified Collector in terms of Rule 6(2) of the KLU Order and has secured permission for change of 5 ## W.P(C) No. 14486 of 2020 user of the land, then the earlier BTR entries showing the property as nilam/paddy land would become superfluous and redundant and it is the statutory obligation of the Tahsildar concerned to make fresh assessment/reassessment of the subject property in terms of Sec.6A of the Kerala Land Tax Act, 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 entries as 'nilam/paddy land'. In the instant case, the petitioner has even secured Ext.P2 order of statutory permission under Rule 6(2) of the KLU Order from the 1[st] respondent as early as on 02-03-1996 on application filed by him on as early as on 04-01-1996 (referred to as item No.1 in Ext.P2). 7. It has been well settled in a series of rulings of this Court as in _**Geo Peter v. Revenue Divisional Officer**_ [2019 (3) KLT 838], _**Renjith.K.Paul v.Revenue Divisional Officer**_ [2019 (2) KLT 262), _**LLMC, Kizhakkambalam Grama Panchayath v. Mariumma**_ [2015 (2) KLT 516 (DB)], _**Tahsildar, Thodupuzha Taluk and another v. Renjith George**_ [2020 (1) KHC 865 (DB)], etc, that where the paddy land has been converted as garden land or purayidam much prior to 12-08-2008 ( the date of coming 6 ## W.P(C) No. 14486 of 2020 into force of the 2008 Act) and where the property holder has filed requisite application under Rule 6(2) of the Kerala Land Utilisation Order, 1967, before 30-12-2017 (which is the date of coming into force of the amended provisions of 2008 Act, which has introduced Sec.27 A thereof), then the property holder is entitled to get his request considered for conversion of the property strictly in terms of Rule 6(2) of the KLU order, 1967 and in such a case the provisions in Sec.27A of the 2008 Act and rules framed thereunder cannot have any application and the party cannot be compelled to pay any amounts as conceived as per amended provisions of the 2008 Act and the rules framed thereunder, even if such application is pending, provided the application under Rule 6(2) of the KLU Order has been filed before 30-12-2017. 8. Further it has been also held in those decisions, more particularly, in the aforestated Division Bench decisions in _**Mariumma’s case**_ (supra) [2015 (2)KLT 516] and _**Renjith's case**_ (supra) [2020 (1) KHC 865 (DB)], etc., that where the property holder thus secures orders under Rule 6(2) of the KLU order, 1967 from the RDO, then the property holder is equally entitled to maintain an application under Sec.6A of the Kerala Land Tax Act, 7 ## W.P(C) No. 14486 of 2020 1961 for fresh assessment of the property by the Thahsildar for getting additional entries in the BTR to show the subject property as 'garden land' or 'purayidam', instead of the earlier BTR entries as 'nilam' or 'paddy land'. ## 9. This position is all the more clear from a reading of Sub-sec (13) of Sec.27A, which reads as follows: _“Sec.27A. Change of nature of unnotified land.-_ _(13) Any application received for the change of nature of unnotified land from the date of commencement of the Kerala Conservation of Paddy Land and Wetland (Amendment) Act, 2018 shall be considered and disposed of only in accordance with the provisions of the Act.”_ Sec.27A(13) mandates that it is only for application for change of user of land filed after commencement of the amended provisions of the 2008 Act (30-12-2017), which has introduced Sec.27A thereof, that has to be considered in terms of the said provisions of the Act. In other words, applications filed before 30-12-2017 have to be considered strictly in terms of the provisions contained in the Rule 6(2) of the KLU Order. 10. It has been held by this Court in a series of decisions that in a case where the requisite application under Rule 6(2) of the KLU Order has been filed before 30-12-2017 (date of coming into force of 8 ## W.P(C) No. 14486 of 2020 the amended provisions of the 2008 Act) then the provisions contained in Sec.27A and the rules framed thereunder do not have any application whatsoever and the party cannot be compelled to pay any amounts as conceived as per the amended provisions of the 2008 Act and the rules framed thereunder including Rule 12(17) thereof. 12. As a matter of fact, in view of the legislative mandate contained in Sub-sec (13) of Sec.27A of the Act, it is only for application filed on or after 30-12-2017, that could be considered in terms of the said provisions of the 2008 Act. In other words, in the cases where the application has been filed before 30-12-2017 the said request for the change of user of the land has to be considered strictly in terms of Rule 6(2) of the KLU Order. 13. This Court has already held in a series of cases that in such cases, the party cannot be compelled to pay the amount as conceived as per the amended provisions of the 2008 Act as well as amended rules including Rule 12(17) thereof. A case, where the party has secured permission under Rule 6(2) of the KLU Order for such conversion and change of user of the land even prior to 12-08-2008 (date of the coming into force of the 2008 Act), would stand on a 9 ## W.P(C) No. 14486 of 2020 much better and higher pedestal, compared to cases, where the party has filed such application under Rule 6(2) of KLU Order after 12-082008, but before 30-12-2017. 14. The position in that regard is ordered and declared. Hence it is ordered that the 1[st] respondent RDO will immediately take up the matters raised in Ext.P3 application dated 25-06-2020 for consideration without much delay and if the subject property covered by Ext.P3 application filed under Sec.6A of the Kerala Land Tax Act is the same or part of the property covered by Ext.P2 proceedings dated 02-03-1996 issued by the 1[st] respondent RDO under Rule 6(2) of the KLU Order, then after affording reasonable opportunity of being heard to the petitioner, orders should be passed for fresh assessment/reassessment 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 purayidam' instead of the earlier BTR entries as 'nilam/paddy land', without much delay preferably within a period of six weeks from the date of production of a certified copy of this judgment and without compelling the petitioner to pay any amounts as conceived as per the amended provisions of the 2008 Act and the 10 ## W.P(C) No. 14486 of 2020 amended rules framed thereunder including Rule 12(17) thereof and strictly in terms of the dictum laid down by this Court in cases as in _**Mariumma’s case**_ (supra) [2015 (2)KLT 516 (DB)] etc, within one month from the date of receipt of a certified copy of this judgment. 15. The petitioner will produce certified copies of the judgment along with copies of the memorandum of W.P(C) with all the Exhibits before both the respondents for necessary information and further action. With these observations and directions the above Writ Petition (Civil) will stand disposed of. ## **Sd/-** ## **ALEXANDER THOMAS** **JUDGE** KAS 11 W.P(C) No. 14486 of 2020 ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF POWER OF ATTORNEY EXECUTED BY THE PETITIONER IN FAVOUR OF MR.JEHANGIR ROWTHER DATED 2/2/2018.** **EXHIBIT P2 TRUE COPY OF THE ORDER UNDER CLAUSE 6(2) OF THE LAND UTILIZATION ORDER DATED 2/3/1996.** **EXHIBIT P3 TRUE COPY OF THE APPLICATION FOR CHANGE IN THE BASIC TAX REGISTER DATED 25/6/20.** **RESPONDENT'S/S EXHIBITS: NIL**