Joy Mathew S/O E.V. Mathai v. Tahsildar (Land Records) Taluk Office, Kothamangalam; Village Officer, Eramalloor; Local Level Monitoring Committee Nellickuzhy Grama Panchayat

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN** **MONDAY, THE 22[ND] DAY OF AUGUST 2022 / 31ST SRAVANA, 1944** ## **WP(C) NO. 12931 OF 2022** ## **PETITIONER:** JOY MATHEW S/O.E.V.MATHAI, ERUMALA, ERUMALAPPADY, ERAMALLOOR P.O., KOTHAMANGALAM - 686 691. BY ADVS. RINNY STEPHEN CHAMAPARAMPIL ASHA ELIZABETH MATHEW ## **RESPONDENTS:** 1 THE TAHSILDAR(LAND RECORDS) TALUK OFFICE, KOTHAMANGALAM - 686 691. 2 THE VILLAGE OFFICER THE VILLAGE OFFICE, ERAMALLOOR - 686 671. 3 THE LOCAL LEVEL MONITORING COMMITTEE NELLIKUZHY GRAMA PANCHAYAT, REP. BY ITS CONVENOR, THE AGRICULTRAL OFFICER, KRISHI BHAVAN, NELLIKUZHI P.O. - 688 691. SRI.AHAMMAD SACHIN .K – ADVOCATE COMMISSIONER SRI.ASHWIN SETHUMADHAVAN, SENIOR GP THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 22.08.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C) NO. 12931 OF 2022 2 ## **P.V.KUNHIKRISHNAN, J.** **-----------------------------W.P.(C).No. 12931 of 2022** **---------------------------------------------Dated this the 22[nd] day of August, 2022** ## **JUDGMENT** The above writ petition is filed with the following prayers: _“(i) Issue a Writ of Certiorari, or any other appropriate Writ, Order or Direction calling for all the records leading to Exhibit P14 Order and quash the original of the same as illegal and opposed to law._ _(ii) Issue a Writ of Mandamus, or any other appropriate Writ, Order or Direction commanding the 1[st] respondent to reassess and reclassify the Petitioner's 60 cents of land in Survey No.270/4-1 of Eramalloor Village as Dry Land/Purayidam' in BTR and other revenue records based on Exhibit P2 KLU Order._ _(iii) Issue an appropriate Writ, Order or Direction declaring that Exhibit P14 is ex-facie illegal and issued in blatant violation of the provisions of the Kerala Land Tax Rules 1971 and in violation of the principles of natural justice and that the 1[st] respondent is legally bound to reassess and reclassify Petitioner's 60 cents of land in Survey No.270/4-1 of Eramalloor Village as Dry Land/Purayidam' in BTR and other revenue records based on Exhibit P2 KLU Order._ _(iv) Pass such other appropriate Writs, Orders_ WP(C) NO. 12931 OF 2022 3 _or Directions as this Hon'ble Court may deem just and proper to issue in the circumstances of case.”[SIC]_ 2. The Petitioner is aggrieved by Ext.P14 Order issued by the 1[st] respondent refusing to reassess and reclassify the Petitioner's 60 cents of land comprised in Survey No.270/4-1 of Eramalloor Village as Dry Land. According to the petitioner, the aforesaid Order was passed in violation of the principles of natural justice and without hearing the petitioner as mandated in Rule 8(iii) and Rule 10(iii) of the Kerala Land Tax Rules. The Petitioner is the title holder of 55.74 Ares of land comprised in Survey No.270/4-1 of Eramalloor Village. When the Petitioner obtained title over the said land in 1995, a portion of it was lying as Purayidom. It is submitted that, after obtaining title, the petitioner submitted application dated 12/09/1995 before the RDO, Muvattupuzha under Clause 6(2) of the Kerala Land Utilization Order seeking permission to convert 60 cents out of the said 55.74 Ares. It is stated that, after conducting enquiry, the RDO, Muvattupuzha as per Ext. WP(C) NO. 12931 OF 2022 4 P2 Order granted permission to the petitioner to convert 60 cents of land in Survey No.270/4-1 of Eramalloor Village. It is also the case of the petitioner that, pursuant to Exhibit P2 Order, the said 60 cents which was remaining as partially converted had been fully converted by the Petitioner. Thereafter, the petitioner constructed a commercial building in the land covered by Exhibit P2 Order and Nellikuzhy Grama Panchayat assessed the building constructed by the petitioner. According to the petitioner, what remains to be done is reclassification of the land as Dry Land/Garden Land in BTR. Therefore, the Petitioner submitted Ext.P8 application in From A. Based on Ext.P11 KSREC report, Ext.P12 decision has been taken by LLMC removing the said 60 cents out of 55.74 Ares in Survey No.270/4-1 of Eramalloor Village from Data Bank. It is the case of the petitioner that, even without hearing the petitioner as mandated in Rule 8(iii) and 10(ii) of the Land Tax Rules, the 1[st] respondent issued Ext.P14 Order refusing to reassess the said 60 cents of land as Purayidom based WP(C) NO. 12931 OF 2022 5 on a report of the 2[nd] respondent stated to have been prepared after inspection and his own alleged inspection without notice and behind back of the petitioner. Hence, this writ petition is filed. 3. Heard counsel appearing for the petitioner and the learned Government Pleader. 4. The counsel appearing for the petitioner reiterated his contentions in the writ petition. The counsel takes me through Exts.P2, P11, P12 and P13. The counsel also takes me through the judgment of this Court which is produced as Ext.P10. The Government Pleader on the other hand submitted that, there is nothing to interfere with Ext.P14 order and Ext.P14 order considered all the aspects and based on the materials available, such an order is passed. 5. When this writ petition came up for consideration, this Court appointed an Advocate Commissioner to inspect the property which is covered by Ext.P2 and also to identify whether the building constructed which is evident from Ext.P4 is situated in WP(C) NO. 12931 OF 2022 6 the property covered by Ext.P2. The Advocate Commissioner submitted a report. It will be better to extract the relevant portion of the report submitted by the Advocate Commissioner. _“6. The property covered under Exhibit P2 was identified with the help of the 2[nd] respondent village officer along with the petitioner using the FMB sketch and location sketch. True copy of the FMB sketch is produced herewith and marked as Annexure A1. True copy of the location sketch is produced herewith and marked as Annexure A2._ _7. The property covered under Exhibit P2 is measured with the assistance of Private Surveyor Sri.Abhilash C T with the Reg.No 407/97. The area of the property has been measured by the private surveyor. After the measurement, it is understood that the, petitioner's property covered under Exhibit P2 is having an extent of 24.29 ares (60 cents). True copy of the sketch prepared by the private surveyor is produced herewith and marked as Annexure A3(a) and Annexure A3(b)._ _8. In the 60 cents of property in Survey no 270/41 of Eramalloor Village, Kothamangalam Taluk, covered under Exhibit P2, there is a two storied building and 2 small shops, trees and bushes._ _9. The building covered under Exhibit P4 is a two storied building having shop rooms. There is a bakery by name Half Moon Bakers in the ground floor of the building. The building also consist of other shop rooms_ WP(C) NO. 12931 OF 2022 7 _and some of the other rooms in the building are kept vacant. True copy of the photograph of the building is produced herewith and marked as Annexure A4._ _10.There exist a small structure which has metal sheeted roofs and walls adjacent to the above mentioned two storied building. True copy of the photograph of the small structure which has metal sheeted roofs and walls adjacent to the above mentioned two storied building is produced herewith and marked as Annexure A5._ _11. There exist another small shop with metal sheet roof in the above mentioned property. Towards the southern side of the property there exist another small structure constructed with bricks and metal sheet roof and presently someone is running a meat shop named Halal Chicken Centre in that structure. True copy of the photograph of small shop with metal sheet roof is produced herewith and marked as Annexure A6. True copy of the photograph of meat shop named Halal Chicken Centre is produced herewith and marked as Annexure A7._ _12. I am submitting the commission report along with the notice and warrant herewith before this Hon'ble court.”_ 6. From the Commission report it is clear that a pucca building is situated in the property. The Government Pleader submitted that, since the property is shown as 'nilam', the assessment is not possible. That point is considered by this Court in Ext.P10 judgment WP(C) NO. 12931 OF 2022 8 ## which is followed in Ext.P17 judgment. It will be better to extract the relevant portion of Ext.P10 judgment: _“Petitioner owns 19 Acres 12 cents and 76 square links of land in Survey Nos.72/2, 73/1, 74/6, 86/1 and 86/2 of Mannakunnam Village. The land aforesaid is a paddy land in terms of the revenue records. The predecessor of the petitioner earlier obtained permission under the Land Utilization Order to make use of the land for other purposes and was running a factory in the said land. Ext.P6 series are the orders obtained by the predecessor of the petitioner under the Land Utilization Order. The petitioner has now preferred Ext.P15 series applications before the first respondent for reassessment of the land under the Kerala Land Tax Act and also for reclassification of the land as dry land in the revenue records. It is alleged by the petitioner that the said applications are not being considered since the land is included as paddy land in the data bank prepared under the Kerala Conservation of Paddy Land and Wetland Act, 2008 (the Act). The case of the petitioner is that insofar as the said land is covered by orders issued under the Land Utilization Order, it ought not have been included as paddy land in the data bank prepared under the Act. The petitioner, therefore, seeks appropriate directions in this regard in the writ petition._ _2. Heard the learned counsel for the petitioner as also the learned Government Pleader._ _3. The fact that the land covered by Ext.P15 series applications is a land covered by Ext.P6 series orders_ WP(C) NO. 12931 OF 2022 9 _issued under the Land Utilization Order is not in dispute. Further, Ext.P8 report indicates that the said land is presently lying as a dry land. It is held by this court in_ _**Kaipadath Property Development Company (Pvt.) Ltd. v. State of Kerala and Others,** 2011 (1) KHC 291 that the lands covered by orders issued under the Land Utilization Order cannot be included in the data bank prepared under the Act. If that be so, the inclusion of the said land in the data bank cannot be an impediment in considering the application for reassessment of the land and also reclassification of the same in the revenue records. In the said view of the matter, the writ petition is disposed of directing the second respondent to exclude the land covered by Ext.P6 series orders issued under the Land Utilization Order, and directing the first respondent to reassess the said land treating the same as Purayidam/dry land and issue appropriate orders directing the officers concerned to change its classification in the Basic Tax Register and other revenue records as Purayidam/dry land. This shall be done within two months from the date of production of a copy of this judgment.”_ 7. Moreover, the findings in Ext.P14 are not relevant while considering an application for reassessment. Therefore, according to me, Ext.P14 is to be set aside and the matter is to be reconsidered by the 1[st] respondent in the light of the observations in this WP(C) NO. 12931 OF 2022 10 judgment. Therefore, this writ petition is allowed in the following manner: - _i. Ext.P14 is set aside._ _ii. The 1[st] respondent is directed to reconsider Ext.P8 in the light of the observations in this judgment, the findings by the Advocate Commissioner, the findings of the LLMC and also in the light of the law declared by this Court in Ext.P10 judgment._ _iii. Before passing final orders, an opportunity of hearing should be given to the petitioner by the 1[st] respondent._ _iv. The above exercise should be completed, as expeditiously as possible, at any rate, within a period of one month from the date of receipt of a copy of this judgment._ Sd/- **P.V.KUNHIKRISHNAN JUDGE** DM WP(C) NO. 12931 OF 2022 11 ## **APPENDIX OF WP(C) 12931/2022** PETITIONER EXHIBITS |EXHIBIT P1|TRUE COPY OF TAX RECEIPT DATED| |---|---| ||22/09/2020.| |EXHIBIT P2|TRUE COPY OF KLU DATED 16/09/1995.| |EXHIBIT P3|TRUE COPY OF BUILDING TAX RECEIPT| ||DATED 17/12/2020.| |EXHIBIT P4|TRUE COPY OF THE ORDER OF ASSESSMENT| ||DATED 25/04/2005 ISSUED BY THE| ||TAHSILDAR, KOTHAMANGALAM.| |EXHIBIT P5|TRUE COPY OF THE RECEIPT DATED| ||10/06/2005 ISSUED BY THE VILLAGE| ||OFFICER, ERAMALLOOR.| |EXHIBIT P6|TRUE COPY OF OWNERSHIP CERTIFICATE| ||DATED 19/11/2004 ISSUED BY NELLIKUZHY| ||GRAMA PANCHAYAT.| |EXHIBIT P7|PHOTOGRAPHS SHOWING THE LIE OF THE| ||PETITIONER'S 60 CENTS OF LAND IN| ||SURVEY NO.270/4-1 OF ERAMALLOOR.| |EXHIBIT P8|TRUE COPY OF THE APPLICATION IN FORM| ||A SUBMITTED BY THE PETITIONER BEFORE| ||THE 1ST RESPONDENT.| |EXHIBIT P9|TRUE COPY OF THE NOTICE DATED| ||05/02/2021 ISSUED BY THE 1ST| ||RESPONDENT TO THE PETITIONER.| |EXHIBIT P10|A TRUE COPY OF THE JUDGMENT DATED| ||19/03/2021 OF THIS HON'BLE COURT IN| ||WP(C) NO.6374/2021.| |EXHIBIT P11|A TRUE COPY OF PAGE NO.163 OF| ||CONSOLIDATED<br>KSREC<br>REPORT<br>OF| ||NELLIKUZHI PANCHAYAT.| |EXHIBIT P12|A TRUE COPY OF THE MINUTES OF THE| ||MEETING DATED 27/02/2021 OF THE LLMC,| ||NELLIKUZHY.| WP(C) NO. 12931 OF 2022 ||12| |---|---| |EXHIBIT P13|A TRUE COPY OF THE REPORT DATED| ||27/08/2021 OF THE AGRICULTURAL| ||OFFICER, NELLIKUZHY.| |EXHIBIT P14|A TRUE COPY OF THE ORDER DATED| ||21/02/2022 ISSUED BY THE 1ST| ||RESPONDENT.| |EXHIBIT P15|A RUE COPY OF THE RTI APPLICATION| ||DATED 03/03/2022 SUBMITTED BEFORE THE| ||1ST RESPONDENT.| |EXHIBIT P16|TRUE COPY OF REPLY DATED 11/03/2022| ||BY PUBLIC INFORMATION OFFICER TALUK| ||OFFICE, KOTHAMANGALAM.| |EXHIBIT P17|A TRUE COPY OF JUDGMENT DATED| ||08/02/2022 OF THIS HON'BLE COURT IN| ||WP(C) NO.22081/2021.| |EXHIBIT P18|TRUE COPY OF THE JUDGMENT DATED| ||15/12/2021 IN W.P(C) 28897/2021| |EXHIBIT P19|TRUE COPY OF THE ORDER NO. A12-99/22| ||DATED 24/02/2022 ISSUED BY THE 1ST| ||RESPONDENT| |EXHIBIT P20|TRUE COPY OF THE JUDGMENT DATED| ||19/05/2022 IN W.P(C) 22001/2021 AND| ||CONNECTED CASES| RESPONDENT EXHIBITS: NIL //TRUE COPY// **==> picture [80 x 8] intentionally omitted <==**