K.T. Joseph and P.T. Mathew v. Revenue Divisional Officer, Kottayam; Tahasildar, Changanacherry; Village Officer, Vazhappally West Village

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **TUESDAY, THE 17TH DAY OF MARCH 2020 / 27TH PHALGUNA, 1941** ## **WP(C).No.7815 OF 2020(B)** ## **PETITIONERS:** **1 K.T.JOSEPH AGED 72 YEARS S/O.THOMAS, KANIYANTHRA PUTHUPARAMBIL HOUSE, PAIPPADU VILLAGE, PALLICKACHIRA KAVALA P.O., CHANGANACHERRY TALUK, KOTTAYAM DISTRICT, PIN-686537. 2 P.T.MATHEW, AGED 72 YEARS S/O.THOMAS, KIZHAKKE MECHERIL HOUSE, PERUNNA EAST P.O., CHANGANACHERRY TALUK, KOTTAYAM DISTRICT, PIN-686102.** **BY ADV. SRI.M.P.MADHAVANKUTTY** ## **RESPONDENTS:** **1 REVENUE DIVISIONAL OFFICER KOTTAYAM, PIN-686001.** - **2 TAHASILDAR, CHANGANACHERRY, KOTTAYAM DISTRICT, PIN-686101.** - **3 VILLAGE OFFICER, VAZHAPPALLY WEST VILLAGE, KOTTAYAM DISTRICT, PIN-686103.** ## **SMT.K.AMMINIKUTTY, GOVT.PLEADER** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 17.03.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** W.P(C) No.7815 of 2020 2 ## **ALEXANDER THOMAS, J.** ## **===========================** ## **W.P(C) No.7815 of 2020** **===========================** Dated this the 17[th] day of March, 2020 ## **JUDGMENT** The prayers in this Writ Petition (Civil) are as follows: - _“i. To issue a writ of mandamus directing the 2[nd] respondent to consider and pass appropriate orders on Exhibit P9 representation within a time frame;_ - _ii. To issue a declaration that the respondents are bound to make an additional entry in the Basic Tax Register regarding the present status of petitioners land in Survey No.216/3 in Block No.IV having an extent of 38 Ares 66 square meters;_ - _iii. To issue such other writ, order or direction which this Hon'ble court may deem fit and proper in the facts and circumstances of this case;”_ 2. Heard Sri.M.P.Madhavankutty, learned counsel appearing for the petitioners and Smt.K.Amminikutty, learned Government Pleader appearing for the respondents. 3. In the instant case, it is beyond the pale of any controversy that the subject property has been converted as garden land or purayidam, much prior to 12.08.2008, which is the date of coming into force of the Kerala Conservation of Paddy Land and Wetland Act, 2008. Further, the petitioner has already secured Ext.P-2 order as early as on 02.08.2003 from the 1[st] respondent-Revenue Divisional Officer under Rule 6(2) of the W.P(C) No.7815 of 2020 3 Kerala Land Utilisation Order, 1967, whereby necessary permission has already been given by the 1[st] respondent-RDO for conversion of the subject property as garden land or purayidam and for use of any non-agricultural purposes, as conceived in Rule 6(2) of the Kerala Land Utilisation Order. Consequential thereto, the petitioners have submitted application on 04.09.2015 before the 2[nd] respondent-Tahsildar seeking for orders under Sec.6A of the Kerala Land Tax Act for re-assessment/fresh assessment of the subject property for making additional entries in the Basic Tax Register to show the subject property as garden land or purayidam, instead of the earlier BTR entries as Nilam or Paddy Land. This Court as per Ext.P-4 judgment rendered as early as on 17.12.2015 in W.P(C)No.36507/2015 filed by the 1[st] petitioner herein had directed the respondent-Tahsildar to pass orders under Sec.6A of the Kerala Land Tax Act on the said application filed by the petitioner. The 2[nd] respondent-Tahsildar has rejected the said request as per Ext.P-5 order dated 03.09.2016 on the ground that the request for re-assessment/fresh assessment under Sec.6A of the Kerala Land Tax Act is legally impermissible. Further, the petitioners have now submitted Ext.P-9 application before the 2[nd] respondent for reconsideration of the matter and to pass orders under Sec.6A of the Kerala Land Tax Act in the light of the dictum laid down by the Division Bench of this Court in decisions as in _**Local Level Monitoring Committee,**_ W.P(C) No.7815 of 2020 4 ## _**Kizhakkambalam Grama Panchayath v. Mariumma and**_ _**another**_ [2015 (2) KLT 516 (DB)] as well as _**Tahsildar, Thodupuzha Taluk and another v. Renjth George**_ [2020 (1) KHC 865 (DB)], etc. and the matter is now pending consideration with the 3[rd] respondent. 4. It is by now too 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], _**Salim v. State of Kerala**_ [2019 (3) KLT 604 (DB)] that in a case where the subject property has been converted prior to coming into force of the 2008 Act and where the requisite application under Rule 6(2) of the Kerala Land Utilization Order, 1967 has been submitted by the party concerned before 30.12.2017 (date of coming into force of the amended provisions of the 2008 Act introducing Sec.27A thereof) etc., then none of the detrimental and adverse conditions flowing out from the said amended provisions can be pressed into service as against the party concerned and the respondent-RDO is statutorily obliged to consider the said plea for conversion on the basis of the provisions contained in Rule 6(2) of the Kerala Land Utilization Order, 1967. This aspect of the matter has also been reiterated by a recent judgment of the Division Bench of this Court in ## _**Thasildar, Thodupuzha Taluk and another v. Renjith George**_ [2020 (1) KHC 865 (DB)] that in a case where the subject property has W.P(C) No.7815 of 2020 5 been converted prior to the coming into force of the 2008 Act and where Rule 6(2) application under the Kerala Land Utilization Order, 1967 has been submitted before 30.12.2017, then the said plea of the party has to be considered in terms of the provisions contained in Rule 6(2) of the Kerala Land Utilization Order and that none of the adverse provisions contained in the amended provisions of the 2008 Act can be pressed into service as against such a party. Moreover, the Division Bench has also reiterated in **Renjith’s case** (supra) [2020 (1) KHC 865 (DB)] that in respect of such a property, the party is also legally entitled to maintain an application Sec.6A of the Kerala Land Tax Act for re-assessment of the subject property, so as to make additional entries in the Basic Tax Register to show the classification of the land as purayidam or garden land, instead of the earlier BTR entries as paddy land or Nilam, as the case may be, in view of the earlier dictum laid down by another Division Bench of this Court in _**LLMC, Kizhakkambalam Grama Panchayath and others v. Mariumma and another**_ [2015 (2) KLT 516 (DB)]. 5. Hence, it is only to be held that the impugned Ext.P-5 rejection order passed by the 2[nd] respondent-Tahsildar is illegal, _ultra vires_ and unenforceable. The view taken by the 2[nd] respondent that it is legally impermissible to make fresh assessment/re-assessment of the subject property under Sec.6A of the Kerala Land Tax Act, even after obtaining W.P(C) No.7815 of 2020 6 favourable orders under Rule 6(2) of the Kerala Land Utilisation Order, 1967, as per Ext.P-2 order issued by none other than the RDO, who is the superior, to say the least that it is clearly illegal and without comprehending the elementary legal procedure in that regard already enunciated by this Court in a series of rulings including the aforecited judgments of the Division Bench of this Court. 6. Accordingly, it is ordered that the application dated 04.09.2015 submitted by the petitioners (referred to as in Ext.P-2 & Ext.P-4) and which has been rejected by Ext.P-5 will stand remitted to the 2[nd] respondent-Tahsildar, for consideration, along with Ext.P-9 application. The 2[nd] respondent-Tahsildar will take up the matters raised in those applications referred to hereinabove and if it is found that the property covered by those applications is one and the same, as that covered by Ext.P-2 order dated 02.08.2003 issued by the 1[st] respondent-Revenue Divisional Officer, then the 2[nd] respondent will pass necessary orders granting the request for fresh assessment/re-assessment under Sec.6A of the Kerala Land Tax Act, for making additional BTR entries to show the subject property as garden land or purayidam, instead of the earlier BTR entries as Nilam or paddy land, after affording reasonable opportunity of being heard to the petitioners, within one month from the date of production of a certified copy of this judgment and in the light of the W.P(C) No.7815 of 2020 7 dictum laid down by the Division Bench judgments of this Court in the aforecited decisions in **Mariumma's case** (supra) [2015 (2) KLT 516 (DB)] and **Renjith’s case** (supra) [2020 (1) KHC 865 (DB)]. It is further made clear that since the petitioners have filed the requisite application under Rule 6(2) of the Kerala Land Utilisation Order and has even secured Ext.P-2 order as early as on 02.08.2003 in that regard, which is much prior even to coming into force of the 2008 Act and therefore, much prior to the coming into force of the amended provisions of the 2008 Act, which has introduced Sec.27A thereof. The 2[nd] respondent-Tahsildar will pass orders on the abovesaid applications under Sec.6A of the Kerala Land Tax Act without in any manner compelling the petitioners to pay the amounts stipulated as per the amended provisions of the 2008 Act, including Sec.27A thereof and the Rules framed under the amended provisions of the 2008 Act and strictly in terms of the dictum laid down by the Division Bench of this Court in the aforecited judgments. With these observations and directions, the above Writ Petition (Civil) stands finally disposed of. **Sd/ALEXANDER THOMAS JUDGE** vgd W.P(C) No.7815 of 2020 8 ## **APPENDIX** **PETITIONER'S/S EXHIBITS: EXHIBIT P1 TRUE COPY OF THE SALE DEED DATED 20.04.2004 BEARING NO.1239/04 OF SUB REGISTRAR'S OFFICE, CHANGANACHERRY.** **EXHIBIT P2 TRUE COPY OF THE ORDER DATED 02.08.2003 BEARING NO.B.4874/02/K.DIS ISSUED BY REVENUE DIVISIONAL OFFICER, KOTTAYAM.** **EXHIBIT P3 TRUE COPY OF THE REPORT DATED 04.05.2013 BEARING NO.B3-13963/11 SUBMITTED BY THE TAHASILDAR, CHANGANACHERRY.** **EXHIBIT P4 TRUE COPY OF THE JUDGMENT DATED 17.12.2015 IN W.P.(C) NO.36507/2015 BEFORE THIS HON'BLE COURT.** **EXHIBIT P5 TRUE COPY OF THE ORDER DATED 03.09.2016 BEARING NO.B.10-3557/16. EXHIBIT P6 TRUE COPY OF THE STOP MEMO DATED 30.08.2019 BEARING NO.144/19 FROM THE VILLAGE OFFICE, VAZHAPPALLY WEST VILLAGE. EXHIBIT P7 TRUE COPY OF THE APPLICATION DATED 02.03.2020 SUBMITTED BY THE PETITIONERS BEFORE THE 1ST RESPONDENT. EXHIBIT P8 TRUE COPY OF THE RECEIPT DATED 02.03.2020 ISSUED FROM THE OFFICE OF THE 1ST RESPONDENT. EXHIBIT P9 TRUE COPY OF THE APPLICATION DATED 07.03.2020 SUBMITTED BY THE PETITIONERS BEFORE THE 2ND RESPONDENT. EXHIBIT P10 TRUE COPY OF THE POSTAL RECEIPT DATED 07.03.2020.**