Joshy A. Chempparathy v. Revenue Divisional Officer, Muvattupuzha; Tahsildar (Land Records), Muvattupuzha; Village Officer, Manjalloor Village

1 W.P.(C)No.11825 of 2021 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE T.R.RAVI** **FRIDAY, THE 25TH DAY OF FEBRUARY 2022 / 6TH PHALGUNA, 1943** **WP(C) NO. 11825 OF 2021** ## **PETITIONER:** JOSHY A.CHEMPARATHY, AGED 51 YEARS S/O.AUGUSTINE, CHEMPARATHIKKAL, MUTHALAKODAM P.O., THODUPUZHA-685 605. BY ADVS. SRI RINNY STEPHEN CHAMAPARAMPIL SMT.ASHA ELIZABETH MATHEW ## **RESPONDENTS:** 1 THE REVENUE DIVISIONAL OFFICER R.D.O. OFFICE, GROUND FLOOR, PATTIMATTOMMUVATTUPUZHA ROAD, MUVATTUPUZHA (PO), PIN-686 673. 2 THE TAHSILDAR (LAND RECORDS), TALUK OFFICE, MUVATTUPUZHA (PO), PIN-686 673. 3 THE VILLAGE OFFICER, VILLAGE OFFICE, MANJALLOOR VILLAGE, MUVATTUPUZHA TALUK-686 670. BY GOVERNMENT PLEADER SRI B.S.SYAMANTHAK THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 06.12.2021, THE COURT ON 25.2.2022 DELIVERED THE FOLLOWING: 2 W.P.(C)No.11825 of 2021 **T.R.RAVI, J. ----------------------------W.P.(C)No.11825 of 2021 ------------------------------Dated this the 25[th] day of February, 2022** ## **JUDGMENT** The petitioner owns 13.59 Ares of land in Sy.No.22/1-2-2-2 of Manjalloor Village in Muvattupuzha Taluk. According to the petitioner, the property has been lying as a dry land for the last several decades and was neither a paddy land nor a wet land on the date of coming into force of the Kerala Conservation of Paddy Land and Wetland Act, 2008 (hereinafter referred to as the 2008 Act). The petitioner submits that initially the land was classified as 'conversion' and later it was excluded from the data bank. The property was part of 16.19 Ares of land which belonged to one Smt.Rajamma, who had obtained the same as per sale deed No.1508/1972 of SRO, Thodupuzha. In 1992, the said Rajamma applied under Clause 6(2) of the Kerala Land Utilisation Order (KLU Order for short), seeking permission to convert the land as 'purayidam'. On 27.11.1992, the 1[st] respondent issued order No.K.Dis./8894/92/A3 granting permission to the predecessor of the petitioner to convert the land as a dry land. Rajamma transferred her title and possession in favour of Smt.Suja Xavier as per sale deed No.14/1993 dated 15.1.1993 of 3 W.P.(C)No.11825 of 2021 SRO, Kalloorkkad. The document is produced as Ext.P2. The petitioner submits that on the strength of the KLU order issued on 27.11.1992, the said Smt.Suja Xavier converted the 16.19 Ares of land as dry land. It is further submitted that 2.60 cents out of the said land was acquired by the Government for the purpose of widening of the Muvattupuzha-Thodupuzha Road and it is the balance extent which has vested in the petitioner as per Ext.P3 sale deed. It is stated in the writ petition that since Smt.Suja Xavier had lost the copy of the KLU Order issued in 1992, the same was not made over to the petitioner at the time of execution of Ext.P3. The petitioner submits that an application was submitted on 24.10.2019 in Form No.6 on the bona fide belief that even in respect of land converted as dry land as per KLU Order, a formal permission under the 2008 Act was required to be obtained. The 1[st] respondent issued a notice on 24.7.2020 on the application submitted by the petitioner, directing him to remit the prescribed amount. The petitioner submits that no amount was remitted as directed, since his land had been converted much prior to the coming into force of the 2008 Act and he was not liable to pay any amount. The petitioner further submits that he had applied to the Public Information Officer of the 1[st] respondent for a copy of the KLU Order dated 27.11.1992 and that he received a reply dated 13.4.2020, stating that File No.K.Dis./8894/92/A3 had been 4 W.P.(C)No.11825 of 2021 destroyed. Ext.P4 is the copy of the said reply. Since the land had been converted as a dry land much before the 2008 Act came into force, there was a requirement for a reassessment under Section 6A of the Land Tax Act, 1961 with respect to the land, treating the land as a dry land. The petitioner applied to the 2[nd] respondent on 10.8.2020, seeking reassessment and reclassification of his land. Ext.P5 is the application. When no orders were issued, the petitioner filed W.P.(C)No.16878/2020 before this Court, which was disposed of by judgment dated 17.11.2020 directing the 1[st] respondent to verify whether the claim regarding the KLU Order is genuine and take a decision thereafter. Ext.P6 is the judgment of this Court. The 3[rd] respondent issued Ext.P7 letter dated 25.2.2021 stating that as per the records, the previous Thandapper number relating to the properties belonging to the petitioner was T.P.No.2558 and the owner is recorded as Rajamma. It is further stated that the total extent of land is 16.19 Ares. It is further stated that the remarks column shows that the land had been permitted to be converted as dry land as per order No.K.Dis./8894/92/A3 dated 27.11.1992, but no information or documents evidencing the endorsement are available in the Office of the Village Officer, Manjalloor that no further lands are available in the said Thandapper numbe. Ext.P8 is the copy of the relevant page of the Thandapper Register relating to the 5 W.P.(C)No.11825 of 2021 petitioner's property. The 1[st] respondent thereafter issued Ext.P9 order dated 19.2.2021 to the petitioner informing that it was not possible to decide on the genuineness of the KLU Order solely based on the prior title deeds produced by the petitioner and the entry in the Thandapper Register, as the petitioner has not produced the original or copy of the order No.K.Dis./8894/92/A3 and no information regarding the said file is available in the Office of the Revenue Divisional Officer. A reading of Ext.P9 in entirety would only make one wonder, whether an attempt is being made to make it appear that the directions contained in Ext.P6 judgment of this Court has been complied with. Aggrieved by Ext.P9, the petitioner has approached this Court. 2. Pending the writ petition, the petitioner has filed an application in Form A under Section 6(3) of the Kerala Land Tax Act, 1961. Ext.P10 is the copy of the application and Ext.P11 is the acknowledgment showing receipt of Ext.P10 in the Office of the 1[st] respondent. 3. A statement has been filed by the 1[st] respondent. As per the statement, the petitioner was required to produce the original or copy of the KLU Order and it is only since he failed to produce the same that he is required to pay the amount of Rs.4,23,360/- as fee for the purpose of conversion. The statement says that the 6 W.P.(C)No.11825 of 2021 description in the title cannot be considered as an authoritative one. Regarding the extract of the Thandapper Register, it is stated that the same cannot be considered as a valid proof, since it does not contain the date and initials of the Officer who made the endorsement. 4. The petitioner has filed a reply affidavit, which is more in the nature of an argument against the contentions of the 1[st] respondent in the counter affidavit. It is pointed out in the reply that the observations regarding the entries in Ext.P2 title deed are totally uncalled for. The petitioner points out that in 1993, when reference to the KLU Order was made in the registered document, none of the parties could have anticipated that at a later point of time, the 2008 Act will be enacted. There was absolutely no reason to site a KLU Order in the sale deed, unless such a document was existing. The above contention is also supported by the reply received by the petitioner to the query under the Right to Information Act. Ext.P4 clearly says that on verification it was noticed that the file referred to has been destroyed. The very fact that the file has been destroyed is ample evidence to show that such a file was in existence. Possibly, for the purpose of reducing the unnecessary files and increasing the available space in the concerned office, the files would have been destroyed following the rules of procedure. This will not mean that no such order was ever issued. The contemporaneous documents 7 W.P.(C)No.11825 of 2021 clearly show existence of such an order and as such there is no reason to doubt the fact that the predecessor-in-interest of the petitioner had been issued with an order under Clause 6(2) of the KLU Order on 27.11.1992. ## 5. In **Iype Varghese v. Revenue Divisional Officer,** **Idukki and Ors.** reported in **[2020 (6) KHC 770]** , this Court held that where the nature of the land was changed after obtaining an order under Clause 6(2) of the KLU Order, a fresh assessment has to be done for the purpose of the Kerala Land Tax Act and Rules. The judgment further says that the procedure as envisaged in Section 27A(3) of the 2008 Act need not be gone through in such cases. In **Kizhakkambalam Grama Panchayat & Ors. v. Mariyumma and Anr.** reported in **[2015 (3) KHC 19]** , a Division Bench of this Court held that in cases where the land is converted prior to the enforcement of the 2008 Act and the entry in the data bank is also corrected as converted land, what is required is a fresh assessment under Section 6A of the Land Tax Act. In the case on hand, the property was initially shown as converted land and later it was removed from the data bank. In **Ranjith M. v. State of Kerala** reported in **[2020 (5) KHC 313]** , this Court held that the benefit of a KLU Order issued in favour of the predecessor-in-interest of the present owner, will entail to the benefit of the present owner who 8 W.P.(C)No.11825 of 2021 cannot be asked to pay any additional amounts under Section 27A for seeking additional entries in the BTR showing the nature of the land as 'purayidam'. The counsel for the petitioner relied on the above decisions and many other decisions to support his contentions regarding his entitlement to get the property reassessed. 6. I find considerable force in the contentions put forward by the learned counsel for the petitioner. As already held, the existence of the KLU Order No.K.Dis./8894/92/A3 dated 27.11.1992 cannot be denied by the respondents. Ext.P2 read with Ext.P8 clearly shows the existence of the order. It is relevant that Ext.P8 relates to Thandapper account of Smt.Rajamma who sold the property to Smt.Suja Xavier as early as in 1993. The mere fact that the person who had noted the issuance of the KLU Order permitting conversion of the land as dry land has not affixed his initials, will not in any way affect the genuineness of Ext.P8 and the entries in it. Coupled with the fact that the file was existing in the Office and was later destroyed, I am inclined to hold that the petitioner's predecessor-ininterest had obtained a KLU Order and converted the land much prior to the coming into force of the 2008 Act. 7. The writ petition is hence allowed. Ext.P9 order is quashed. There will be a direction to the 2[nd] respondent to issue orders reassessing and reclassifying the petitioner's 13.59 Ares of 9 W.P.(C)No.11825 of 2021 land comprised in Sy.No.22/1-2-2-2 of Manjalloor Village as 'purayidam' in the revenue records and there will be a further direction to the 3[rd] respondent to make the consequential corrections in the revenue records including the Basic Tax Register to the same effect. Necessary orders shall be issued within two months from the date of receipt of a certified copy of this judgment. **T.R.RAVI JUDGE** dsn 10 W.P.(C)No.11825 of 2021 ## **APPENDIX OF WP(C) 11825/2021** |PETITIONER EXHIBITS|PETITIONER EXHIBITS| |---|---| |Exhibit P1|A TRUE COPY OF THE LAND TAX RECEIPT DATED| ||01.03.2021 ISSUED FROM THE MANJALLOOR VILLAGE| ||OFFICE.| |Exhibit P2|A TRUE COPY OF DOCUMENT NO.14/1993 DATED| ||05.01.1993 OF SRO, KALLOORKAD.| |Exhibit P3|A TRUE COPY OF DOCUMENT NO.616/I/2019 DATED| ||23.05.2019 OF SRO, KALLOORKAD.| |Exhibit P4|A TRUE COPY OF THE REPLY DATED 13.04.2020| ||ISSUED BY THE PUBLIC INFORMATION OFFICER OF THE| ||RDO OFFICE, MUVATTUPUZHA.| |Exhibit P5|A TRUE COPY OF THE APPLICATION DATED 10.08.2020| ||SUBMITTED BY THE PETITIONER.| |Exhibit P6|A TRUE COPY OF THE JUDGMENT DATED 17.11.2020 IN| ||WPC NO.16878 OF 2020.| |Exhibit P7|A TRUE COPY OF THE NOTICE DATED 25.02.2021| ||ISSUED TO THE PETITIONER BY THE 3RD RESPONDENT.| |Exhibit P8|A COPY OF THE RELEVANT PAGE OF THE THANDAPER| ||REGISTER PERTAINING TO THE PETITIOENR'S LAND IN| ||SURVEY NO.22/1-2 OF MANJALLOOR VILLAGE.| |Exhibit P9|A TRUE COPY OF ORDER NO.A3-2601/20/R.DIS DATED| ||19.02.2021 ISSUED BY THE 1ST RESPONDENT.| |Exhibit P10|TRUE COPY OF APPLICATION IN FORM NO.A| ||DT.23.7.2021 SUBMITTED BY THE PETITIONER BEFORE| ||THE 1ST RESPONDENT.| |Exhibit P11|TRUE<br>COPY<br>OF<br>ACKNOWLEDGEMENT<br>RECEIPT| ||DT.23.7.2021 ISSUED FROM THE OFFICE OF THE 1ST| ||RESPONDENT.|