Khamarannisa v. Revenue Divisional Officer, Kozhikode and Others

W.P.(C).No.21635/21 1 # **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN TUESDAY, THE 16[TH] DAY OF NOVEMBER 2021 / 25TH KARTHIKA, 1943** **WP(C) NO. 21635 OF 2021** ## **PETITIONER:** KHAMARANNISA AGED 48 YEARS S/O PUTHEN VEETTIL SHAHUL HAMEED, PUTHEN VEETTIL HOUSE, KIZHAKKOTH, KOZHIKODE DISTRICT, PIN-673572. BY ADVS. M.P.MADHAVANKUTTY MATHEW DEVASSI ## **RESPONDENTS:** 1 REVENUE DIVISIONAL OFFICER KOZHIKODE REVENUE DIVISION, OFFICE OF THE REVENUE DIVISIONAL OFFICER, CIVIL STATION, ERANHIPPALAM, KOZHIKODE, PIN-673020. 2 TAHASILDAR, KOZHIKODE TALUK, CIVIL STATION, ERANHIPPALAM, KOZHIKODE, PIN-673020. 3 VILLAGE OFFICER OLAVANA VILLAGE OFFICE, KOZHIKODE TALUK, KOZHIKODE DISTRICT-673019. 4 OLAVANNA GRAMA PANCHAYATH REPRESENTED BY ITS SECRETARY, OLAVANNA, KOZHIKODE DISTRICT, PIN-673019. W.P.(C).No.21635/21 2 5 SECRETARY OLAVANNA GRAMA PANCHAYATH OLAVANNA, KOZHIKODE DISTRICT, PIN-673019. 6 ADDL.R6: TAHSILDAR (L.R) KOZHIKODE TALUK, CIVIL STATION, ERANHIIPPALAM, KOZHIKODE PIN - 673020 ADDL.R6 IS IMPLEADED AS PER ORDER DATED 25.10.2021 IN IA NO.1/2021. ## **OTHER PRESENT:** APPU.P.S-GP THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 29.10.2021, THE COURT ON 16.11.2021 DELIVERED THE FOLLOWING: W.P.(C).No.21635/21 3 ## **ANU SIVARAMAN, J.** **= = = = = = = = = = = = = = = W.P.(c).No.21635 of 2021** **= = = = = = = = = = = = = = = = Dated this the 16[th] day of November, 2021** ## **JUDGMENT** - 1.This writ petition is filed with the following prayers:- 1. To issue a writ of mandamus directing 2[nd] respondent to consider Exhibit P7 application for reassessment of basic tax in the light of Exhibit P3 proceedings within a time frame: 2.To issue a writ of mandamus directing respondents 2 and 3 to comply with the directions contained in Exhibit P3 proceedings and to effect the necessary corrections in the revenue records as directed therein. - 2.Heard the learned counsel for the petitioner and the learned Government Pleader. 3. It is submitted that the petitioner is the owner in possession of 10.97 Ares of property in Re-survey No.147/7 of Olavanna Village, Kozhikode Taluk, Kozhikode district. It is submitted that the petitioner had purchased the property by Exhibit P1 sale deed. It is submitted that the nature of the property is shown as thottam in the said deed. The learned counsel for the W.P.(C).No.21635/21 4 petitioner submits that the entire property had been converted as garden land long prior to the purchase of the property by the petitioner. It is submitted that by Exhibit P3 proceedings dated 27.2.2006, an order had been passed by the Revenue Divisional Officer on an application preferred by the predecessor-in-interest of the petitioner. Relying on a report of the village officer dated 24.2.2006, it was observed in the said proceedings that there were more than 100 coconut palms aged more than 40 years in the property. However, the property was shown as 'nanja' in the revenue records. It was, therefore, found that the property is a coconut garden lying on a higher level from the level of the river and that the nature of the property should be so recorded in the revenue records. 4. It is submitted that the petitioner, after purchase of the property, had made Exhibit P8 application under Section 6A of the Kerala Land Tax Act for re-assessment of the land tax and for effecting alterations/additions in the Basic Tax Register and to enter the nature of the property as garden land. The learned counsel for the petitioner submits that the issue ## W.P.(C).No.21635/21 5 stands squarely covered by the decisions of this Court in **LLMC Kizhakkambalam Grama Panchayath v. Mariumma and another** [2015(2) KLT 516], **District Collector Ernakulam and others v. Fr.Jose Uppani and others** [2020 (4) KLT 612] and **Iype Varghese v. Revenue Divisional Officer** [2020 (5) KLT 403]. It is submitted that the 2[nd] respondent is duty bound to do consider Exhibit P8 application submitted by the petitioner under Section 6A of the Kerala Land Tax Act and make necessary corrections in the revenue records pursuant to Exhibit P3. 5. The learned Government Pleader would submit that Exhibit P3 order did not specifically contain any direction permitting the use of the property for other purposes, as provided in Clause 6(2) of the Kerala Land Utilisation Order, 1967 and that therefore, the contention of the petitioner that entries are to be made in the Basic Tax Register on the basis of Exhibit P3 is misconceived. It is submitted that after the comprehensive amendments were effected in the Kerala Conservation of Paddy land and Wetland Act, 2008 by the 2018 amendment, W.P.(C).No.21635/21 6 specific provisions have been incorporated for the purpose of use of un-notified land for other purposes and therefore, the petitioner has to make a proper application under Section 27A of the 2008 Act for effecting conversion and thereafter for making necessary alterations in the Basic Tax Register. It is further submitted that even where the petitioner has a case that the land was garden land even before the Kerala Land Utilisation Order came into force, there is a provision available in the 2008 Act for dealing with such cases. It is the specific contention that Exhibit P3 is not an order under Clause 6(2) of the Kerala Land Utilisation order and therefore it cannot be relied on by the petitioner for effecting consequent corrections under the Kerala Land Tax Act. 6. The learned Government Pleader also relied on the decisions of this Court in **Thomas v. State of Kerala** [2020 (6) KLT 405] to contend that this Court has held that after amendment effected to the 2008 Act, by incorporation of Section 27A and other allied provisions, the Kerala Land Utilization Order has become redundant and thereafter, proceedings are liable to be W.P.(C).No.21635/21 7 taken under the amended provisions of the 2008 Act and not under the Kerala Land Utilisation Order. 7. I have considered the contentions advanced. A Division Bench of this Court in **District Collector, Ernakulam and others v. Fr.Jose Uppani and others** [2020 (4) KLT 612] has considered the provisions of the 2008 Act as amended vis a vis the orders passed under the Kerala Land Utilisation Order. It was specifically held that where applications are preferred before the competent authorities under the Kerala Land Utilization Order before the amendment of the 2008 Act w.e.f. 30.12.2017, applications have to be considered in accordance with the provision of the Kerala Land Utilization Order and in case orders are passed thereon, further steps would have to be taken for effecting corrections in the Basic Tax Register under Section 6A of the Kerala Land Tax Act and no further proceedings under Section 27A of the 2008 Act would be necessary. W.P.(C).No.21635/21 8 ## 8. The specific finding of this Court reads as follows:- “However, it is an admitted fact that the application was submitted by the writ petitioners on the basis of the orders secured by them under the provisions of the Kerala Land Utilisation Order, 1967. Therefore, the provisions of S.27C have no application. The issue with respect to the alteration of the entries in the Basic Tax Register was considered by the Apex Court in Revenue Divisional Officer, Fort Kochi v. Jalaja Dileep (2014 (1) KLT 161 = 2014 (1) KHC 96) and held that the entries contained in the Basic Tax Register cannot be changed. However, the Division Bench of this Court in Mariyumma (supra) has held that, without defacing the entry contained in the Basic Tax Register, necessary additional entries can be made on the basis of the orders passed by the statutory authority under the Kerala Land Utilization Order, 1967. It was accordingly that the applications were submitted by the writ petitioners before the Tahsildar. Therefore, the Tahsildar should have considered the applications submitted by the writ petitioners in terms of the proposition of law laid down by the Division Bench in Mariyumma (supra) and not on the basis of the amended provisions of S.27C, which has come into force only with effect from 30.12.2017. It was exactly on the basis of the judgment of Mariyumma (supra), learned Single Judge has held that, the order passed by the Tahsildar directing the writ petitioners to pay the amounts at the rate of 25% of the converted land, after securing orders from the Revenue Divisional Officer cannot be legally sustained. In fact, the issue in question was considered by this court in Tahsildar v. Renjith George (2020 (2) KLT 13) and held that, when the provisions of the statute are clear and unambiguous, there is no power vested with the W.P.(C).No.21635/21 9 statutory authority to expand the scope of the provisions of law by issuing directions against the mandate of law. The proposition of law laid down by this court in the judgment in Renjith George (Supra) squarely applies to the facts and circumstances of the appeals on hand also. Taking into account the law, facts and circumstances, we are of the considered opinion that the appellants have not made out any case for interference with the judgment of the learned Single Judge.” 9. The said view has been followed in several other decisions as well. In the instant case, Exhibit P3 order considers an application submitted by the predecessor-in-interest of the petitioner and a report of the Village Officer generated thereon and holds that the property is a coconut garden and that it is liable to be so included in the revenue records. A specific direction is also issued for effecting changes in the revenue records. - 10.In the above view of the matter and in the factual circumstances of the instant case, I am of the opinion that the contention raised by the learned Government Pleader that Exhibit P3 is not an order under Clause 6(2) of the Kerala W.P.(C).No.21635/21 10 Land Utilisation Order cannot be accepted. Clause 6 of the Kerala Land Utilization Order provides for permission for putting paddylands to other use. On an application for the said purpose, it appears that the competent officer has found that the property in question is actually a coconut garden which is planted with more than a 100 coconut palms ages 40 years or more. On the said finding, a direction is issued for the corrections to be effected in the Basic Tax Register. The said order is therefore well within the scope of a written permission given by the Collector to use the land for other purposes as provided in Clause 6(2) of the KLU Order, 1967. - 11.In the above factual situation, I am of the opinion that the application submitted by the petitioner for effecting such change under Section 6A under the Kerala Land Tax Act is liable to be considered in accordance with law. There will, accordingly, be a direction to the Additional 6[th] respondent to take up Exhibit P8 application submitted by the petitioner and to consider and pass orders on the same, taking note of the decisions of this Court in **Iype Varghese v. Revenue** 11 W.P.(C).No.21635/21 **Divisional Officer** [2020 (5) KLT 403]. **District Collector Ernakulam and others v. Fr.Jose Uppani and others** [2020 (4) KLT 612]. The application shall be considered after verifying all relevant aspects of the matter including the veracity of Ext.P3 order and the question whether the property owned by the petitioner is part of the property covered by Exhibit P3 order. If so, appropriate steps to secure additional entries in the Basic Tax Register to show the change in nature of the land as garden land shall be taken and re-assessment of land tax shall be effected within a period of two months from the date of receipt of a copy of this judgment. **==> picture [25 x 12] intentionally omitted <==** **Anu Sivaraman, Judge** sj W.P.(C).No.21635/21 12 ## **APPENDIX OF WP(C) 21635/2021** PETITIONER EXHIBITS Exhibit P1 TRUE COPY OF THE SALE DEED BEARING NO.3977/2010 BEFORE THE SUB REGISTRAR'S OFFICE, CHEVAYOOR, KOZHIKODE DATED 25.11.2010. Exhibit P2 TRUE COPY OF THE SALE DEED BEARING NO.2524/2014 DATED 03.07.2014 BEFORE THE SUB REGISTRAR'S OFFICE, CHEVAYOOR, KOZHIKODE. Exhibit P3 TRUE COPY OF THE PROCEEDINGS OF THE REVENUE DIVISIONAL OFFICER, KOZHIKODE BEARING NO.C1453/2006 DATED 27/02/2006. Exhibit P4 TRUE COPY OF THE POSSESSION CERTIFICATE DATED 16.09.2021 ISSUED CERTIFICATE FROM THE VILLAGE OFFICER, OLAVANNA. Exhibit P5 TRUE COPY OF TAX RECEIPT DATED 23.01.2021 ISSUED FROM THE OFFICE OF THE 3RD RESPONDENT. Exhibit P6 TRUE COPY OF THE BUILDING PERMIT BEARING NO.BL-212/17-18 DATED 27/04/2018 ISSUED FROM OLAVANNA GRAMA PANCHAYATH. Exhibit P7 TRUE COPY OF THE APPLICATION UNDER SECTION 6A OF THE KERALA LAND TAX ACT BEFORE THE 2ND RESPONDENT DATED 30.09.2021. Exhibit P8 TRUE COPY OF THE APPLICATION UNDER SECTION 6A OF THE KERALA LAND TAX ACT BEFORE THE 2ND RESPONDENT DATED 30.09.2021. True copy PS to Judge