K. M. Alexander and Lissy Peter v State of Kerala and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **MONDAY, THE 15TH DAY OF JUNE 2020 / 25TH JYAISHTA, 1942** ## **WP(C).No.11606 OF 2020(A)** ## **PETITIONERS:** - **1 K.M.ALEXANDER HOUSE NO.68/849,KOOTIYANI HOUSE, OLD RAILWAY STATION ROAD, KOCHI-18** - **2 LISSY PETER HOUSE NO.68/849,KOOTIYANI HOUSE, OLD RAILWAY STATION ROAD, KOCHI-18 BY ADV. SMT.K.P.SANTHI** ## **RESPONDENTS:** - **1 STATE OF KERALA REPRESENTED BY THE SECRETARY TO GOVERNMENT, REVENUE DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM-695 001** - **2 THE DISTRICT COLLECTOR, CIVIL STATION, KAKKANAD, ERNAKULAM-682 030** - **3 REVENUE DIVISIONAL OFFICER, FORTKOCHI, KOCHI-682 001** - **4 THE LOCAL LEVEL MONITORING COMMITTEE KRISHI BHAVAN, VYTTILA-682 019, REPRESENTED BY ITS CONVENER** - **5 THE TAHSILDAR KANAYANNUR TALUK, PARK AVENUE ROAD, KOCHI-682 011** **BY ADVS. SRI.SAIGI JACOB PALATTY, SR.GOVT.PLEADER** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 15.06.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** W.P(C). No. 11606 of 2020 2 ## ALEXANDER THOMAS, J. -----------------------------------W.P(C). No. 11606 of 2020 -----------------------------------Dated this the 15[th] day of June, 2020 ## **JUDGMENT** The prayers in the above writ petition (C) are as follows: - _i) Issue a writ of mandamus or such other writ, direction or order compelling the 2[nd] respondent to conclude the proceedings in Ext.P4 on merits, affording opportunity of hearing to the petitioners as directed in Ext.P5._ - _ii) Declare that status of the land measuring 3.55 ares and 4.05 ares in Survey No.1153/1 of Cheranallur Village, Kanayannur Taluk is entitled to be changed in the BTR without making payment as mandated in Sec.27A of Act 28 of 2008._ - _iii) Issue such other writ, direction or order as is deemed just and necessary in the facts, features and circumstances of the case._ 2. Heard Smt.K.P.Santhi, learned counsel appearing for the petitioners and Sri.Saigi Jacob Palatty, learned Senior Government Pleader appearing for the respondents. 3. It is the case of the petitioners that the subject property though continuous to be classified as ‘paddy land/nilam’ as per 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). 3 W.P(C). No. 11606 of 2020 The petitioners have submitted the requisite Ext.P3 application dated 20-12-2017 before the 3[rd] respondent RDO for exclusion of the said property from the land data bank. Further that the petitioners have also submitted the requisite statutory application as per Ext.P4 dated 04-12-2017 under Rule 6(2) of the Kerala Land Utilisation Order, 1967 before the 2[nd] respondent District Collector for permission for change of use of the land. Since no action was being taken on the abovesaid applications, petitioners were constrained to approach this Court by filing W.P(C) No.4069/2018, which culminated in Ext.P5 judgment dated 23-05-2018, wherein it was directed that necessary decision should be rendered by the statutory authorities concerned on Exts.P3 and P4 applications. 4. That the fact that the petitioners have submitted Ext.P4 application dated 04-12-2017 produced in this W.P(C) has been produced as Ext.P4 in the said Ext.P5 W.P(C) No.4069/2018. It appears that pursuant to the directions issued by this Court in Ext.P5 judgment, the 3[rd] respondent RDO has already passed orders in favour of the petitioners by excluding the subject property from the land data bank and Ext.P6 is the certificate issued by the 4[th] respondent Convenor of the Local Level Monitoring Committee W.P(C). No. 11606 of 2020 4 certifying the said fact. Exhibit.P7 is a report dated 05-01-2016 of the 5[th] respondent Tahsildar, reporting that the land has been converted as ‘garden land or purayidam’ much prior to 12-08-2008, based on the instruction of the Village Officer etc,. The complaint of the petitioners is that even now Ext.P4 application under Rule 6(2) is not being acted upon, presumably on the ground that the request of the petitioners can be considered only in terms of the amended provisions of the 2008 Act, more particularly, Sec.27A thereof and that the petitioners will have to pay the higher amounts as per those amended provisions and the amended rules. The petitioners have submitted Ext.P8 application dated 02-03-2020 before the 5[th] respondent Tahsildar seeking for formal orders under Sec.6A of the Kerala Land Tax Act for fresh assessment/reassessment of the subject property so as to secure additional entries in the BTR. 5. It is now well settled by 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)] W.P(C). No. 11606 of 2020 5 that where the subject property has been converted as garden land or purayidam much prior to 12-08-2008 ( the date of coming 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 was introduced Sec.27 A thereof), then the property holder is entitled to get his request for conversion of the property strictly in terms of Rule 6(2) of the KLU order, 1967 and such a case the property holder cannot be mulcted to face the adverse and rigorous conditions prescribed as per the amended provisions of 2008 Act, including Sec.27A thereof as well as the rules framed thereunder. 6. Further it has been also held that in those decisions more particularly in the aforestated Division Bench decisions in _**Mariumma’s case**_ (supra) [2015 (2)KLT 516(DB)] 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, 1961 for fresh assessment of the property by the Thahsildar for W.P(C). No. 11606 of 2020 6 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. 7. Accordingly it is only to be held that Ext.P4 application is to be considered strictly in terms of the provisions contained in Rule 6(2) of the KLU Order and the petitioners cannot be ordered to pay any amounts as conceived as per the amended provisions of the 2008 Act, including Sec.27A thereof and the amended rules framed thereunder including Rule 12(17) thereof. Moreover, in this case Ext.P5 judgment dated 23-05-2018 in W.P(C) No.4069/2018 is a binding _inter partes_ judgment, which has become final and conclusive between the parties and therefore the respondents are obliged to consider Ext.P4 application only in terms of Rule 6(2) of the KLU Order. The fact that the petitioners have submitted Ext.P4 application dated 04-12-2017 is also evident and manifest from Ext.P5 judgment, wherein it has been produced as Ext.P4 therein. 8. It is brought to the notice of this Court that the 2[nd] respondent District Collector, who is the head of the District Revenue administration, may not have sufficient time to attend the matters like in Ext.P4, especially in view of the Covid-19 pandemic scenario. W.P(C). No. 11606 of 2020 7 Accordingly it is ordered that the officials of the 2[nd] respondent District Collector will immediately forward and transfer Ext.P4 application dated 04-12-2017 submitted by the petitioners to the 3[rd] respondent RDO for consideration and decision, without any further delay. It is common ground that both the 2[nd] respondent District Collector and the 3[rd] respondent RDO are concurrently empowered to exercise the powers of the notified Collector in terms of Rule 6(2) of the KLU Order. 9. However to obviate any further delay, it is ordered that the petitioners will produce a certified copy of this judgment along with a copy of the memorandum of the W.P(C) with all the Exhibits before both the 2[nd] respondent and the 3[rd] respondent. The petitioners should also produce a copy of Ext.P4 application attested by his Advocate before the 3[rd] respondent along with the copy of this judgment etc,. In case the 3[rd] respondent RDO does not receive the papers in relation to Ext.P4 application from the 2[nd] respondent District Collector, he did not await any further and copy of Ext.P4 application so filed by the petitioners before him shall be treated as the application filed by the petitioners. The 3[rd] respondent RDO may conduct appropriate inspection with due prior notice to the 8 W.P(C). No. 11606 of 2020 petitioners and copy of the inspection report should be given to the petitioners in advance and thereafter the petitioners should be afforded reasonable opportunity of being heard to the petitioners through their authorised representative or counsel if any, and then should take a considered decision so as to pass orders on Ext.P4 application strictly in terms of the provisions contained in Rule 6(2) of the KLU Order and taking note of the matters in Ext.P7 letter of the 5[th] respondent Tahsildar and Ext.P6 certificate issued by the 4[th] respondent Local Level Monitoring Committee etc., without much delay preferably within a period of two months from the date of production of a certified copy of this judgment. 10. While doing so, the 3[rd] respondent cannot stipulate the petitioners will have to pay any amounts as conceived as per the amended provisions of the 2008 Act and the amended provisions of the rules, including Sec.27A thereof, as the petitioners have indisputably filed Ext.P4 application much before the cut off date of 30-12-2017. 11. After getting orders on Ext.P4 application under Rule 6(2) of the KLU Order, the petitioners may produce a copy of the same along with a copy of this judgment before the 5[th] respondent 9 W.P(C). No. 11606 of 2020 Tahsildar. Thereafter, the 5[th] respondent Tahsildar will take up the matters in Ext.P8 representation dated 02-03-2020 on the request of the petitioners for reassessment of the subject property in terms of Sec.6A of the Kerala Land Tax Act for securing additional entries in the BTR so as to show the change in nature of the land as ‘garden land or purayidam’ instead of the earlier BTR entries as ‘nilam/paddy land’ and without making the petitioners pay any such amounts as aforesaid, including that as per Rule 12 (17) and strictly in terms of the dictum laid down by the Division Bench of this Court in cases as in _**Mariumma’s case**_ (supra) [2015 (2)KLT 516 (DB)] and _**Renjith's case**_ (supra) [2020 (1) KHC 865 (DB)] etc., without much delay preferably within a period of one month from the date of production of a copy the order passed by the 3[rd] respondent, granting permission under Rule 6(2) of the KLU Order. With these observations and directions the above Writ Petition (Civil) will stand finally disposed of. Sd/- **ALEXANDER THOMAS, JUDGE** KAS W.P(C). No. 11606 of 2020 10 ## **APPENDIX** **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1** **TRUE COPY OF THE DATA BANK** **EXHIBIT P2 TRUE COPY OF THE REPORT DATED 13.7.2017 OF THE 3RD RESPONDENT** **EXHIBIT P3** **TRUE COPY OF THE APPLICATIONS DATED 20.12.2017 SUBMITTED TO THE 3RD RESPONDENT** **EXHIBIT P4 TRUE COPY OF THE APPLICATION DATED 4.12.2017 SUBMITTED TO THE 2ND RESPONDENT** **EXHIBIT P5** **TRUE COPY OF THE JUDGMENT DATED 23.5.2018 IN W.P.(C) NO.4069 OF 2008 OF THIS HONOURABLE COURT** **EXHIBIT P6 TRUE COPY OF THE LETTER AND CERTIFICATE DATED 8.8.2018 OF THE 4TH RESPONDENT** **EXHIBIT P7** **TRUE COPY OF THE LETTER DATED 5.1.2016 OF THE 5TH RESPONDENT** **EXHIBIT P8** **TRUE COPY OF THE REPRESENTATION DATED 2.3.2020 SUBMITTED TO THE 5TH RESPONDENT**