M.A. Ali and A M Ummer v District Collector, Ernakulam District and Others

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR.JUSTICE N.NAGARESH`** ``` THURSDAY, THE 30[TH] DAY OF JUNE 2022 / 9TH ASHADHA, 1944 ``` ## **`WP(C) NO. 17735 OF 2022`** ## **`PETITIONERS:`** - **`1 M.A. ALI AGED 65 YEARS MOLATHU HOUSE, EDAYAPRAM, ALUVA, ERNAKULAM DISTRICT.`** - **`2 A M UMMER ASARIAKATHODU HOUSE, ANSAR LANE, ALUVA, ERNAKULAM DISTRICT, BY ADVS. V.PREMCHAND SURYA MOHAN P. INDHU G.`** ## **`RESPONDENTS:`** - **`1 THE DISTRICT COLLECTOR ERNAKULAM DISTRICT- 682 030.`** - **`2 THE ADDITIONAL TAHSILDAR (LR), TALUK OFFICE, ALUVA, ERNAKULAM DISTRICT- 683 101.`** - **`3 THE VILLAGE OFFICER, ALUVA EAST VILLAGE, ALUVA,ERNAKULAM DISTRICT- 683 101.`** - **`4 THE SECRETARY, KEEZHMADU GRAMA PANCHAYAT KEERZHMADU, ALUVA, ERNAKULAM DISTRICT- 683 105. BY ADV K.S.ARUN KUMAR- R4 SMT.SURYA BINOY B SR.GP`** ``` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 30.06.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` WP(C) NO. 17735 OF 2022 ``` ``` 2 ``` ## **JUDGMENT** Dated this the 30[th] day of June, 2022 The petitioners, who are co-owners of a property having an extent of 13.25 Ares in Survey No.14/12-2 of Aluva East Village in Ernakulam District, have approached this Court seeking to quash Exts.P8 and P9 and to direct the 2[nd] respondent to consider the prayer of the petitioners in Exts.P6 and P7 and make suitable entries in the Basic Tax Register and reassess the Land Tax under Section 6A of the Kerala Land Tax Act, 1961. 2. The petitioners applied for conversion of land invoking the provisions of the Kerala Land Utilisation Order, 1967 (hereinafter referred to as ‘the KLU Order, 1967’). When the said application was rejected, the petitioners filed W.P.(C) No.19287 of 2014 before this Court. The writ petition was disposed of as per Ext.P1 judgment, wherein the District Collector was directed to consider the application preferred by ``` WP(C) NO. 17735 OF 2022 ``` ``` 3 ``` the petitioners under the KLU Order, 1967, afresh. 3. The petitioners submit that pursuant to Ext.P1, the Local Level Monitoring Committee considered the issue and decided to remove the land from the Data Bank, as per Ext.P2 proceedings. However, the District Collector again rejected the application submitted by the petitioners under the KLU Order, 1967, as per Ext.P3 proceedings. In Ext.P3 proceedings, the District Collector observed that the land is still lying as paddy land. 4. Aggrieved by Ext.P3 order, the petitioners filed W.P.(C) No.25162 of 2021. This Court set aside the order of the District Collector as per Ext.P4 judgment and again directed the District Collector to reconsider the application. After such reconsideration, the District Collector passed Ext.P5 order on 12.04.2022 granting permission to the petitioners to convert the land for other purposes. It was stipulated in Ext.P5 order that such conversion shall not affect water channels, wetlands or paddy lands in the nearby area. ``` WP(C) NO. 17735 OF 2022 ``` ``` 4 ``` 5. Based on Ext.P5 order, the petitioners filed Exts.P6 and P7 applications before the Additional Tahsildar (LR) seeking to reassess the land of the petitioners under Section 6A of the Kerala Land Tax Act. The Additional Tahsildar (LR) rejected those applications as per Exts.P8 and P9 holding that the petitioners have to resort to Section 27A of the Kerala Conservation of Paddy Land and Wetland Act, 2008 (hereinafter referred to as ‘the Act, 2008’) for changing the nature of the land of the petitioners. 6. The counsel for the petitioners argued that Exts.P8 and P9 orders are illegal and are passed on wrong understanding of the provisions contained in the KLU Order, 1967 and the Kerala Conservation of Paddy Land and Wetland Act, 2008. When an order has been passed by the competent authority under the KLU Order, 1967 permitting conversion of the land, the Tahsildar (LR) is bound to reassess the land for levy of Land Tax. The Tahsildar (LR) ``` WP(C) NO. 17735 OF 2022 ``` ``` 5 ``` committed a grave error in directing the petitioner to change the nature of land invoking the provisions contained in the Act, 2008. 7. The counsel for the petitioners further pointed out that the issue has been considered by this Court in **District Collector, Ernakulam v. Father Jose Uppani and others [2020 (4) KHC 394],** wherein this Court has held that when an application was submitted on the basis of the orders under the provisions of the KLU Order, 1967, Section 27A or 27C cannot have any application. The rejection of the petitioners’ application as per Exts.P8 and P9 goes against the law laid down by this Court also. 8. Government Pleader entered appearance on behalf of respondents 1 to 3 and resisted the writ petition. The Government Pleader submitted that the 1[st] petitioner and his brother are the co-owner of a property having an extent of 13.25 Ares comprised in Survey No.14/12-2 in Block No.33 of Keezhmad Village, Aluva Taluk and the 2[nd] petitioner is the owner of 13.25 Ares comprised in Survey No.14/12 of Keezhmad Village. The lands are classified as ‘Nilam’ in Revenue records. Both properties are lying contiguously by the southern side of the Aluva-Perumbavoor KSRTC Road. This property is lying lower than the surrounding properties and it is lying about 10 feet below the road level. There is a possibility of accumulating rain water from the nearby properties flowing into this property and it is found to be waterlogged. 9. I have heard the learned counsel for the petitioners, the learned Government Pleader representing respondents 1 to 3 and the learned Standing Counsel appearing for the 4[th] respondent. 10. In the petitioners’ case, there is a clear order of the District Collector evidenced by Ext.P5, wherein the District Collector has invoked his powers under the KLU Order and granted permission to the petitioners for conversion of the land for other purposes. The order is subject to conditions ``` WP(C) NO. 17735 OF 2022 ``` ``` 7 ``` stipulated therein. When the petitioners are thus permitted to convert the land, the competent authority under the Kerala Land Tax Act is bound to take up the issue of reassessment of Tax. The petitioners have submitted proper applications evidenced by Exts.P6 and P7 for reassessment of Tax. The Tahsildar, however, opined that the petitioners have to resort to the provisions of the Kerala Conservation of Paddy Land and Wetland Act, 2008, for changing the nature of the land. 11. This Court is of the view that the stand taken by the Tahsildar cannot stand the scrutiny of law. The petitioners have invoked the provisions of the KLU Order and have obtained orders for changing the nature of the land. The said order is absolute and is subject only to the conditions stipulated therein. When the District Collector has passed such an order, the respondents will not be justified in forcing the petitioners to get yet another order under the provisions of the Act, 2008. ``` WP(C) NO. 17735 OF 2022 ``` ``` 8 ``` 12. The issue regarding applicability of the provisions of the Act, 2008 and the Rules made thereunder in respect of conversions ordered under the KLU Order, came up for consideration before this Court in **Iype Varghese v. The Revenue Divisional Officer, Idukki and others [2020 (6) KHC 770]** . In the said judgment, this Court held that statutory permission for change of nature of land when obtained for conversion of a paddy land to a garden land, either as per the provisions contained in the KLU Order, 1967 or in terms of the provisions contained in the Act, 28 of 2008, then it will be the obligation of the competent Revenue authorities concerned in terms of Section 6A of the Kerala Land Tax Act, to subject the property to a fresh assessment so as to ensure that higher Land Tax is collected from such converted land and consequently, it is also the obligation of the Revenue authorities concerned to make additional entries in the BTR so as to reflect correctly the changed nature of the land as garden land/purayidam etc. ``` WP(C) NO. 17735 OF 2022 ``` ``` 9 ``` 13. In view of the law laid down by this Court in the afore judgment, this Court is of the view that the petitioners are entitled to relief. In the circumstances, the writ petition is allowed. Exts.P8 and P9 orders are set aside. The 2[nd] respondent is directed to consider Exts.P6 and P7 applications submitted by the petitioners under Section 6A of the Kerala Land Tax Act and make suitable entries in BTR and cause fresh assessment of Tax. A decision in this regard shall be taken within a period of one month. sd/- **N.NAGARESH JUDGE** hmh ``` WP(C) NO. 17735 OF 2022 ``` ``` 10 ``` ## **`APPENDIX OF WP(C) 17735/2022`** ## **`PETITIONER EXHIBITS`** ``` Exhibit P1 ``` - **`Exhibit P2`** ``` TRUE COPY OF THE JUDGMENT IN DATED 30.03.2021 IN WPC NO.19287/2014. ``` ``` TRUE COPY OF THE ORDER DATED 16.07.2021 OF THE LLMC. ``` - **`Exhibit P3 TRUE COPY OF THE ORDER DATED 19.10.2021 ISSUED ON BEHALF OF THE DISTRICT COLLECTOR.`** ``` Exhibit P4TRUE COPY OF THE JUDGMENT DATED 18/1/2022 IN W.P.(C) 25126 OF 2021. Exhibit P5TRUE COPY OF THE ORDER DATED 12/4/2022 ISSUED BY THE DISTRICT COLLECTOR, ERNAKULAM. ``` ``` Exhibit P6TRUE COPY OF THE APPLICATION DATED 5/5/2022 SUBMITTED BY THE EXHIBIT FIRST PETITIONER BEFORE THE SECOND RESPONDENT. ``` ``` Exhibit P7TRUE COPY OF THE APPLICATION DATED 5/5/2022 SUBMITTED BY THE SECOND PETITIONER BEFORE THE SECOND RESPONDENT. ``` - **`Exhibit P8 TRUE COPY OF THE NOTICE DATED 25/5/2022 ISSUED BY THE SECOND RESPONDENT TO THE FIRST PETITIONER.`** ``` Exhibit P9TRUE COPY OF THE NOTICE DATED 25/5/2022 ISSUED BY THE SECOND RESPONDENT TO THE SECOND PETITIONER. ```