K.I. Jacob v. Tahsildar (Land Records), Taluk Office, Kothamangalam & The Village Officer, Village Office, Kothamangalam

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN** **TUESDAY, THE 7[TH] DAY OF MARCH 2023 / 16TH PHALGUNA, 1944** ## **WP(C) NO.42511 OF 2022** ## **- PETITIONER :** K.I.JACOB, AGED 66 YEARS S/O.ISSAC, KUTTICHIRAKUDIYIL, THANKALAM KARA, ERAMALLUR VILLAGE, KOTHAMANGALAM TALUK - 686 691. BY ADVS. RINNY STEPHEN CHAMAPARAMPIL ASHA ELIZABETH MATHEW ANJANA S. ## **- RESPONDENTS :** 1 THE TAHSILDAR (LAND RECORDS), TALUK OFFICE, KOTHAMANGALAM - 686 691. 2 THE VILLAGE OFFICER, THE VILLAGE OFFICE, KOTHAMANGALAM - 686 692. SRI.APPU.P.S, GP THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 07.03.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C) NO.42511 OF 2022 -: 2 :- ## JUDGMENT ## Dated this the 7th day of March, 2023 This writ petition is filed seeking the following reliefs :- - “(i) Issue a Writ of Certiorari or any other appropriate Writ, Order or Direction calling for all the records leading to Exhibit P11 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 27.81 Ares (68.69 cents) of land in Survey No.1020/6-3-2 and 1020/6-3-4 of Kothamangalam Village as 'Dry Land/Purayidom' based on Exhibit P3 KLU Order without insisting the petitioner for obtaining any further orders under the Kerala Conservation of Paddy Land and Wet Land Act, 2008 and without insisting for payment of any amount there under. - (iii) Issue an appropriate Writ, Order or Direction declaring that the 1[st] respondent is legally bound to reassess and reclassify the petitioner's 27.81 Ares (68.69 cents) of land in Survey No.1020/6-3-2 and 1020/6-3-4 of Kothamangalam Village as 'Dry Land/Purayidom' based on Exhibit P3 KLU Order without insisting for obtaining any further orders under the Kerala Conservation of Paddy Land and Wet Land Act, 2008 and without insisting for payment of any amount.” 2. Heard the learned counsel for the petitioner and the learned Government Pleader. WP(C) NO.42511 OF 2022 -: 3 :- 3. The learned counsel for the petitioner submits that the petitioner is the owner of 27.81 Ares of land in Survey No.1020/6-3 of Kothamangalam Village. It is submitted that the property had been permitted to be used for other purposes by the Revenue Divisional Officer by Ext.P3 and that this Court in Shameem P. K. and others v. Revenue Divisional Officer, Idukki and others [2021 (2) KHC 373] had considered an identical situation and had held that if the conversion had been carried out on the basis of a valid order under the Kerala Land Utilisation Order, then there is no necessity for any further proceedings under the provisions of the Kerala Conservation of Paddy Land and Wetland Act, 2008 (for short, 'the 2008 Act'). The learned counsel also relies on Exts.P12 and P14 judgments of this Court to contend that in identical situations, this Court has directed the consideration of the applications under Section 6A of the Kerala Land Tax Act. 4. A detailed counter affidavit has been placed on record by the 1[st] respondent, wherein it is contended that Ext.P3 granted permission only for raising the land by 3 feet and to make it fit for cultivation of paddy and other crops. It is submitted that in the light of Ext.P3, the petitioner cannot claim that the land had been converted as dry land. WP(C) NO.42511 OF 2022 -: 4 :- 5. The learned counsel for the petitioner would place reliance on the sale deeds of the property and would contend that the property had been used for planting rubber and that it is, therefore, clear that it had actually been converted as dry land. 6. The learned Government Pleader would submit that the recording of properties in sale deeds executed between parties cannot be relied on to decide the nature of the land. 7. Having considered the contentions advanced on either side, I notice that this Court in Shameem P. K.'s case (supra) had held that if a property covered by a written permission under the Kerala Land Utilisation Order had actually been converted prior to 30.12.2017, then such land does not have to undergo the process under Section 27A of the 2008 Act. In a similar situation, in Ext.P14 judgment, this Court had considered the specific contention as raised by the learned Government Pleader in this writ petition and had held as follows :- “4. The counsel for the petitioners points out that the issue involved is no longer Res Integra and is covered by several decisions of this Court. Reliance is placed on the judgment in Shameem P.K. & Ors. v Revenue Divisional Officer, Idukki & Ors. reported in [2021 (2) KHC 373] to submit that once the property has been reclaimed or converted prior to 30.12.2017 as a dry land on the basis of orders obtained under the KLU Order, such land does not have to undergo the process under Section 27A of the WP(C) NO.42511 OF 2022 ## -: 5 :- Kerala Conservation of Paddy Land and Wetland Act, 2008. This court specifically held that the only question to be considered by the Tahsildar is whether the lands are dry lands prior to 30.12.2017. The counsel for the petitioners submits that the lands belonging to the petitioners are not included in the data bank as paddy land. It is further submitted that under the Town Planning Scheme applicable for the Perumbavoor Town, a major portion of the property falls under the residential zone, wherein, goind by the Development Control Regulation, paddy cultivation is not permissible. The counsel submits that any use which is not permitted under the Town Planning Scheme is to be treated as prohibited. It is also submitted that the cultivation of tapioca and plantain permitted in Ext.P2 necessarily requires conversion of wetland into dry land and as such, the contention that there is no permission granted for converting wetland as dry land as per Ext.P2 order is not sustainable. The counsel further relies on the judgment in Reliance Industries Ltd. & Ors. v. The Commissioner of Land Revenue & Ors. reported in [2007 (2) KHC 346], wherein a learned Single Judge held that no permission under the KLU Order is necessary for any activity of construction or use of land in the residential use zone or any other zone in the Town Planning Scheme. The counsel points out that a subsequent Division Bench in Antony Jayan v. State of Kerala & Ors. reported in [2015 (6) KHC 142] has noticed the above judgment with approval. Much later, a learned Single Judge has in Shaji Chacko v. State of Kerala & Ors. reported in [2020 (6) KHC 420] reiterated the legal position that land covered by Town Planning Scheme and identified as a residential zone does not require further permission under the KLU Order. The learned Judge referred to the decision of the Hon'ble Supreme Court in Revenue Divisional Officer v. Jalaja Dileep reported in [2015 (1) KLT 984] and held that the said judgment would apply only if the KLU Order is applicable and that once the land is covered under the Town Planning Act, it no longer comes under the ambit of KLU Order. Thereafter, another Division Bench WP(C) NO.42511 OF 2022 ## -: 6 :- of this Court in State of Kerala & Ors. v. Binu Mathew Chacko & Ors. reported in [2020 (6) KHC 717] noted with approval the above decisions and after referring to another Division Bench judgment of this Court in LLMC, Kizhakkambalam v. Mariyumma reported in [2015 (2) KLT 516], held that all that is required is for the applicant to submit an application before the Revenue Authority to make an additional entry in the basic tax register showing the present tenure of the land. I am in respectful agreement with the decisions afore cited. The petitioners are entitled to succeed in these writ petitions.” After considering the judgments on the point, it is further held that “the petitioners are entitled to succeed in the writ petition on the basis of the judgments relied on and the 1[st] respondent was directed to reassess and reclassify the properties belonging to the petitioners covered by the KLU Order without insisting on payment of any amount prescribed under Section 27A of the 2008 Act.” Consequential corrections was also directed to be made in the Basic Tax Register. 8. Having considered the contentions advanced and in view of the specific findings in Ext.P14 judgment, I am of the opinion that the petitioner is also entitled to succeed in this writ petition. The writ petition is, therefore, allowed. The impugned order is set aside. There will be a direction to the 1[st] respondent to take up the Form A application submitted by the petitioner and to consider and pass orders on the same, taking note of Ext.P3 order WP(C) NO.42511 OF 2022 -: 7 :- under the KLU Order and to reclassify the nature of the property as 'purayidom' and reassess the land tax. Necessary shall be done within a period of two months from the date of receipt of a copy of this judgment. Sd/ANU SIVARAMAN JUDGE Jvt/10.3.2023 WP(C) NO.42511 OF 2022 ## -: 8 :- ## **APPENDIX OF WP(C) 42511/2022** PETITIONER EXHIBITS - Exhibit P1 TRUE COPY OF THE LAND TAX RECEIPT DATED 21/12/2021 ISSUED BY VILLAGE OFFICER, KOTHAMANGALAM. - Exhibit P2 TRUE COPY OF THE RELEVANT PAGES OF THE NOTIFIED DATA BANK OF KOTHAMANGALAM MUNICIPALITY. - Exhibit P3 TRUE COPY OF THE KLU ORDER DATED 15/10/2001 ISSUED BY THE RDO, MUVATTUPUZHA. - Exhibit P4 TRUE COPY OF DOCUMENT NO. 6550/2005 DATED 24/10/2005 OF SRO, KOTHAMANGALAM. - Exhibit P5 TRUE COPY OF THE DOCUMENT NO.6551/2005 DATED 24/10/2005 OF SRO, KOTHAMANGALAM. - Exhibit P6 TRUE COPY OF PARTITION DEED NO. 559/2011/I OF SRO, KOTHAMANGALAM. - Exhibit P7 TRUE COPY OF PARTITION DEED NO. 589/11/I OF SRO, KOTHAMANGALAM. - Exhibit P8 TRUE COPY OF PARTITION DEED NO. 14/2019 OF SRO, KOTHAMANGALAM. - Exhibit P9 TRUE COPY OF APPLICATION DATED 03/01/2022 IN FORM A SUBMITTED BY PETITIONER BEFORE THE 1ST RESPONDENT. - Exhibit P10 A TRUE COPY OF THE JUDGMENT DATED 22/02/2022 OF THIS HON'BLE COURT IN W.P.(C)NO.3608/2022. - Exhibit P11 A TRUE COPY THE ORDER DATED 26/04/2022 ISSUED BY THE 1ST RESPONDENT. - Exhibit P12 A TRUE COPY OF THE JUDGMENT DATED 15/12/2021 OF THIS HON'BLE COURT IN W.P.(C) NO.28897/2021 - Exhibit P13 A TRUE COPY OF KLU ORDER NO.A9-630/2005 DATED WP(C) NO.42511 OF 2022 -: 9 :- 14/02/2005 ISSUED BY THE RDO, MUVATTUPUZHA Exhibit P14 A TRUE COPY OF THE COMMON JUDGMENT DATED 19/05/2022 OF THIS HON'BLE COURT IN W.P.(C) NO.22001/2021 AND W.P.(C) NO.24732/2 Exhibit P15 A TRUE COPY OF THE LAND TAX RECEIPT DATED 03/11/2022 ISSUED BY THE VILLAGE OFFICER, PERUMBAVOOR IN RESPECT OF THE LAND COVERED BY EXHIBIT P13 KLU ORDER Exhibit P16 A TRUE COPY OF THE ORDER DATED 10/02/2021 OF THIS HON'BLE COURT IN R.P.NO.58/2021 IN W.P.(C) NO.27496/2020