MANOJ P. KUNJACHAN v. STATE OF KERALA & OTHERS

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE VIJU ABRAHAM** **MONDAY, THE 11[TH] DAY OF DECEMBER 2023 / 20TH AGRAHAYANA, 1945** ## **WP(C) NO. 31269 OF 2023** ## **PETITIONER:** MANOJ P. KUNJACHAN AGED 50 YEARS S/O LATE P.M. KUNJACHAN, PALAPPILLIL HOUSE, PAMPAKUDA P.O., MUVATTUPUZHA TALUK, ERNAKULAM, PIN - 686667 BY ADV K.C.VINCENT ## **RESPONDENTS:** 1 STATE OF KERALA REPRESENTED BY SECRETARY DEPARTMENT OF REVENUE, SECRETARIAT, THIRUVANANTHAPURAM, PIN - 695001 2 THE REVENUE DIVISIONAL OFFICER OFFICE OF THE REVENUE DIVISIONAL OFFICER, MUVATTUPUZHA, PIN - 686669 3 THE TAHSILDAR (LAND RECORDS) MUVATTUPUZHA TALUK, TALUK OFFICE, MUVATTUPUZHA, MUVATTUPUZHA, PIN - 686669 4 THE VILLAGE OFFICER ONAKKUR VILLAGE, ERNAKULAM, PIN - 686667 **OTHER PRESENT:** GP - RIYAL DEVASSY THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 11.12.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: : 2 : W.P.(C). No.31269 of 2023 ## **VIJU ABRAHAM, J.** - - - - - - - - - - - - - - - - - - - - - - - - - - **W.P.(C) No.31269 of 2023** - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 11[th] day of December, 2023 ## **JUDGMENT** The petitioner has approached this Court seeking to quash Exts.P8, P8(a) and P8(b) orders and for a declaration that the subject properties are eligible for reassessment of land tax and for effecting appropriate entries in the revenue records showing its changed nature as dry land/purayidom. The petitioner has also sought for a direction to the 3[rd] respondent to process Ext.P7, the application in Form A, and to effect consequential entries in the revenue records showing the category of the subject properties as purayidom/dry land, within a time limit to be fixed by this Court. 2. The petitioner is the owner and is in possession of different items of properties in Onakkur Village, in Muvattupuzha Taluk. The lands as above also include an extent of 27.52 Ares comprised in Survey No. 723/10B, 94.58 Ares in Survey Nos. 723/3, 723/6B, 723/6A, 723/5, 723/4, 723/7A, 723/7B and 42.3 Ares in Survey No. 706/7A, 706/7B and 706/8 respectively, and lying at different parts of the same Village. The properties were initially categorized as nilam/paddy land in the Basic Tax Register. Thereupon the : 3 : W.P.(C). No.31269 of 2023 petitioner on 05.01.2017 submitted three separate applications under Clause 6 of the Kerala Land Utilisation Order, 1967 (hereinafter referred as KLU Order) before the 2[nd] respondent. As an abundant caution, the petitioner has also filed applications before the Local level Monitoring Committee(LLMC) for deletion of the entries in the data bank as “Converted before 20 years.” Thereafter the petitioner has filed W.P.(C) Nos. 23581, 23584 and 23636 of 2018 seeking expeditious consideration of the request to remove entries from the data bank and also to finalise the KLU applications submitted by the petitioner. This Court as per order dated 16.07.2018, disposed of the writ petitions directing consideration of the applications within a time limit prescribed therein. The LLMC on 11.03.2019, decided to delete the entries in relation to the subject properties from the data bank and an erratum notification was issued on 29.12.2020. As no orders were passed by the 2[nd] respondent even after the deletion from the data bank was communicated, the petitioner submitted a representation dated 28.06.2021. Thereafter this Court as per Ext.P1 judgment, directed the 2[nd] respondent to pass orders on the KLU applications. The 2[nd] respondent on 13.06.2022 issued separate proceedings on the applications, but in the said proceedings, the 2[nd] respondent : 4 : W.P.(C). No.31269 of 2023 incorporated conditions including a prohibition against reclamation of the permitted lands by depositing earth. Aggrieved by the said restriction, a Contempt of Court Case was filed and thereafter the 2[nd] respondent on 29.11.2022, issued fresh proceedings withdrawing the proceedings dated 13.06.2022 and on the basis of the fresh orders passed, the Contempt of Court Case was closed as per Ext.P3. As per Exts. P4, P5 and P6 proceedings, for the entire properties listed in this writ petition, KLU permission was granted. The petitioner on the strength of Exts. P4, P5 and P6, approached the 3[rd] respondent with Ext.P7 application in Form A for reassessment of land tax and consequential additional entries in the Basic Tax Register showing the category of the subject lands as purayidom/dry land. But to the utter surprise of the petitioner, he was served with Exts.P8, P8(a) and P8(b) communications taking a stand that there is no provision in the Kerala Conservation of paddy Land and Wetland Act, 2008(for short 'the Act, 2008) or the (Amendment) Act 2018 for effecting entries in the revenue records based on the permission under Clause 6(2) of the KLU Order alone. It is aggrieved by the said proceedings produced as Exts.P8, P8(a) and P8(b), that the present writ petition is filed. 3. The petitioner submits that the issue raised in this writ W.P.(C). No.31269 of 2023 : 5 : petition is covered by the judgment of this Court in _**LLMC**_ , _**Kizhakkambalam Grama Panchayat v. Mariumma [2015 (2) KLT 516], District Collector v. Fr. Jose Uppani [2020 (4) KLT 612]**_ and also judgment in _**Sealand Builders Pvt. Ltd. v. Revenue Divisional Officer [2020 (5) KLT 56].**_ The petitioner would contend that the provisions of the KLU Order permits land owners to utilize paddy lands for other purposes after securing written permission from the Collector and that petitioner has obtained Exts. P4 to P6 permissions under Clause 6 of the KLU Order. It is further contended that in the judgments cited (Supra) this Court has declared that appropriate entries can be made in the Basic Tax Register if permissions for changing the utility of the land had been obtained under the KLU Order. It is also submitted that the 3[rd] respondent is empowered and legally bound to pass orders on Ext.P7 and to issue orders re-assessing the land tax treating the subject lands as purayidom/dry land and to direct to effect additional entries in the Basic Tax Register showing the present status of the land as purayidom/dry land. 4. Heard the learned Government Pleader also. 5. It is an admitted fact that the application for KLU permission was submitted by the petitioner as early as on W.P.(C). No.31269 of 2023 : 6 : 05.01.2017, ie., before the date of coming into force of Section 27A in the Statute. Exts.P4 to P6 are the proceedings issued, whereby the KLU permission was granted. It is also to be noted that the LLMC on 11.03.2019 decided to delete the entries in relation to the subject properties from the data bank and an erratum notification was issued on 29.12.2020. So the factual position is that the properties have been removed from the data bank by the proceedings issued by the LLMC and that the properties are covered by the KLU permission, as is evident from Exts.P4 to P6 orders issued on the application submitted by the petitioner on 05.01.2017, ie., prior to the coming into force of Section 27A in the Statute. Rule 12(17) of the Kerala Conservation of Paddy land and Wetland Rules, 2008 which mandates payment of 25% of the fee stated in the schedule in respect of the land which are covered by KLU permission before the coming into force of the Amendment Act, 2018, was also interfered by this Court in _**Sealand Builders Pvt. Ltd**_ 's case cited (Supra) and held that the provisions of Rule 12(17) is legally not sustainable. This Court in _**Mariumma**_ 's case cited (Supra) held that, when the land is covered by valid permission under the KLU order, then it is open to authorities to make appropriate additions in the Basic Tax Register. This Court : 7 : W.P.(C). No.31269 of 2023 in _**Fr. Jose Uppani**_ 's case cited(Supra) held that when the application was filed under the KLU order, 1967, prior to the cut off date of 31.12.2017, such application has to be considered by the statutory authority in accordance with the procedure and in terms and conditions under the KLU order, 1967 and that none of the provisions contained under Section 27A of the Act, 2008, which has come into force only with effect from 30.12.2017, has any manner of binding force in such circumstances. The Court further held that the application for additional entries in the revenue records shall be considered by the Tahsildar in terms of the law laid down by the Divisional Bench in _**Mariumma**_ 's case cited (Supra) and not on the basis of amended provision of Section 27C which came into force with effect from 30.12.2017. This Court in _**Sealand Builders Pvt. Ltd.**_ 's case cited (Supra) held that in cases where application for KLU permission has been filed prior to coming into force of Section 27A, ie., with effect from 30.12.2017, the additional entries in the Basic Tax Register shall be made and reassessment of the tax shall be undertaken, based on the permission granted under Rule 6(2) of the KLU Order, without compelling the petitioner to pay any amount as conceived as per the amended provisions of the Act, 2008, including Section 27A. : 8 : W.P.(C). No.31269 of 2023 6. In view of the categorical declaration of law and the factual situation discernible from the statement of facts in this writ petition, I am of the opinion that the stand taken by the 3[rd] respondent in rejecting Ext.P7 application in Form A is absolutely without any basis and is liable to be interfered with. Since the application for KLU permission was filed as early as on 05.01.2017, ie., ,much before the cut off date of 31.12.2017, wherein Section 27A was introduced in the Statute and further that the property has been removed from the data bank as per order dated 11.03.2019 of the LLMC and the consequential erratum notification issued on 29.12.2020 and further, based on the KLU permission granted as per Exts.P4 to P6 on the application submitted prior to the cut off date of 31.12.2017, I am of the opinion that Ext.P7 application in Form A is to be considered on the basis of Exts.P4 to P6 KLU permission and on the basis of declaration of law laid down in the judgments of this Court in _**Mariumma**_ 's case, _**Fr. Jose Uppani**_ 's case and _**Sealand Builders**_ 's case cited (Supra). In view of the above, Exts.P8, P8(a) and P8(b) orders are set aside with a consequential direction to the 3[rd] respondent to consider Ext.P7 application in Form A in the light of Exts.P4 to P6 KLU permission granted in favour of the W.P.(C). No.31269 of 2023 : 9 : petitioner, without directing the petitioner to undergo the procedures under Section 27A, including payment of any conversion fee. Fresh orders in this regard on Ext.P7 application making consequential entries in the revenue records showing the category of the subject property as purayidom/dry land and the reassessment of land tax shall be also done by the 3[rd] respondent as expeditiously as possible, at any rate, within an outer limit of two months from the date of receipt of a copy of this judgment. The writ petition is allowed as above. Sd/- **VIJU ABRAHAM JUDGE** sm/ W.P.(C). No.31269 of 2023 : 10 : ## **APPENDIX OF WP(C) 31269/2023** |PETITIONER EXHIBITS|| |---|---| |Exhibit P1|A TRUE COPY OF THE COMMON JUDGMENT DATED| ||24.03.2022 IN W.P.(C) 28208, 28222 AND| ||28244 OF 2021| |Exhibit P2|A TRUE COPY OF THE PROCEEDINGS BEARING| ||NO.A17-84/17/R.DIS ISSUED BY THE 2ND| ||RESPONDENT DATED 13.06.2022 WITH| ||RESTRICTION| |Exhibit P3|A TRUE COPY OF THE COMMON JUDGMENT IN| ||CON. CASE (C) NO. 1315 AND 1320 OF 2022| ||DATED 12.12.2022| |Exhibit P4|A TRUE COPY OF THE PROCEEDINGS BEARING| ||NO.A17-83/17/R. DIS ISSUED BY THE 2ND| ||RESPONDENT DATED 13.06.2022 IN RELATION| ||TO 27.52 ARES COMPRISED IN SURVEY NO.| ||723/10B| |Exhibit P5|A TRUE COPY OF THE PROCEEDINGS BEARING| ||NO. NO.A17-8793/22/R. DIS ISSUED BY THE| ||2ND RESPONDENT DATED 29.11.2022 IN| ||RELATION TO 94.58 ARES IN SURVEY NO.| ||723/3, 723/6B, 723/6A, 723/5, 723/4,| ||723/7A AND 723/7B| |Exhibit P6|A TRUE COPY OF THE PROCEEDINGS BEARING| ||NO. NO.A17-9416/22/R. DIS ISSUED BY THE| ||2ND RESPONDENT DATED 29.11.2022 IN| ||RELATION TO 42.3 ARES IN SURVEY NO.| ||706/7A, 706/7B AND 706/8| |Exhibit P7|A TRUE COPY OF THE APPLICATION IN FORM A| ||DATED 17.12.2022 SUBMITTED BY THE| ||PETITIONER BEFORE THE 3RD RESPONDENT WITH| ||RECEIPT| |Exhibit P8|A TRUE COPY OF THE COMMUNICATION| ||ADDRESSED TO THE PETITIONER AND ISSUED BY| ||THE 3RD RESPONDENT DATED 09/2023| ||REFERRING EXHIBIT P4 PROCEEDINGS| |Exhibit P8(a)|A TRUE COPY OF THE COMMUNICATION| ||ADDRESSED TO THE PETITIONER AND ISSUED BY| ||THE 3RD RESPONDENT DATED 09/2023| ||REFERRING EXHIBIT P5 PROCEEDINGS| |Exhibit P8(b)|A TRUE COPY OF THE COMMUNICATION| ||ADDRESSED TO THE PETITIONER AND ISSUED BY| ||THE 3RD RESPONDENT DATED 09/2023| ||REFERRING EXHIBIT P6 PROCEEDINGS|