Manu Kunjachan & Jessy Kunjachan vs State of Kerala & others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **TUESDAY, THE 18TH DAY OF AUGUST 2020 / 27TH SRAVANA, 1942** ## **WP(C).No.13499 OF 2020(J)** |**PETITIONERS**<br>**:**|| |---|---| |**1**|**MANU KUNJACHAN, AGED 25 YEARS,**| ||**S/O. K.A. KUNJACHAN, KANIYODIKKAL HOUSE,**| ||**MANU VILLA, M.A. BALAKRISHNAN ROAD, THRIKKANNARVATTOM**| ||**P.O., ERNAKULAM NORTH, KOCHI-18.**| |**2**|**JESSY KUNJACHAN, AGED 45 YEARS,**| ||**W/O. K.A. KUNJACHAN, KANIYODIKKAL HOUSE,**| ||**MANU VILLA, M.A. BALAKRISHNAN ROAD, THRIKKANNARVATTOM**| ||**P.O., ERNAKULAM NORTH, KOCHI-18.**| ||**BY ADVS.**| ||**SRI.BABU JOSEPH KURUVATHAZHA, SMT.K.S.ARCHANA**| |**RESPONDENTS**<br>**:**|| |**1**|**STATE OF KERALA,REPRESENTED BY ITS SECRETARY TO**| ||**GOVERNEMNT, DEPARTMENT OF REVENUE, GOVERNMENT**| ||**SECRETARIAT, THIRUVANANTHAPURAM-695 001.**| |**2**|**DISTRICT COLLECTOR,**| ||**ERNAKULAM CIVIL STATION, KAKKANAD, KOCHI-682 030.**| |**3**|**REVENUE DIVISIONAL OFFICER,FIRST FLOOR,**| ||**K.B. JACOB ROAD, FORT KOCHI, KOCHI-682 001.**| |**4**|**TAHSILDAR,TALUK OFFICE, ALUVA, ALUVA P.O.,**| ||**ERNAKULAM DISTRICT, PIN-683 301.**| |**5**|**VILLAGE OFFICER, ALUVA WEST VILLAGE, ALUVA P.O.,**| ||**ERNAKULAM DISTRICT, IN-683 101.**| |**6**|**ALUVA MUNICIPALITY, MUNICIPAL OFFICE,**| ||**ALUVA, ERNAKULAM DISTRICT, PIN-683 101,**| ||**REPRESENTED BY ITS SECRETARY.**| |**7**|**MUNICIPAL ENGINEER/EXECUTIVE ENGINEER**| ||**MUNICIPAL OFFICE, ALUVA, ERNAKULAM DISTRICT,**| ||**PIN-683 101.**| ||**SRI.K.J.MANU RAJ, GOVT.PLEADER,**| ||**SRI.K.T.THOMAS, SC**| **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 18.08.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ALEXANDER THOMAS, J. --------------------------------------W.P. © No. 13499 of 2020 --------------------------------------Dated this the 18[th] day of August, 2020 ## J U D G M E N T The case set up in this Writ Petition (Civil) is as follows: _As per Document No.1987/2005 of Sub Registry, Aluva, an extent of 24.05 Ares of property comprised in Re.Sy.No.22 and 33 of Block No.78 of Aluva West Village was owned by Mr.Moosa, and P.T.Unneen. Out of the 24.05 Ares of property owned by above named P.T.Unneen and Moosa, 20.34 Ares of property comprised in Re.Sy.No.22 of Block No.78 of Aluva West Village was wet land. Therefore Mr. P.T. Unneen and Moosa submitted the applications dated 7.11.1995 before the 3[rd] respondent under Clause 6 (2) of the Kerala Land Utilization Order, 1967, seeking permission to reclaim the wet land having the extent of 20.34 Ares and those applications dated 7.11.1995 were got investigated through the 4[th] respondent. Later, based upon the report of the 4[th] respondent, the 3[rd] respondent issued Exts.P1 and P2 orders, under Clause 6 (2) of KLU Order, 1967, and on the strength of those orders, the 50 cents of property comprised in Sy.No.22 of Block No.78 of Aluva West Village was reclaimed by Mr. Moosa and P.T. Unneen during 1996. Later, the petitioners purchased those properties as per_ W.P. © No. 13499/2020 ..3.. _Exts.P3 and P5 sale deeds and on the strength of Ext.P4 building permit issued by the 7[th] respondent, 1[st] petitioner completed the construction of the building as detailed in Ext.P8(a) photographs. In the meanwhile, the 6[th] respondent issued Ext.P6 partial occupancy certificate and collected the property tax from the 1[st] petitioner. Power supply was also provided to the building. However, on completing the entire construction as permitted in Ext.P4 building permit, and parking area in the property owned by the 2[nd] petitioner as per Ext.P5, 1[st] petitioner submitted the application before the 6[th] respondent for numbering the building and for the issuance of occupancy certificate, the 6[th] respondent insisted for correction in the BTR, since the nature of property was shown as wet land. Though the petitioners approached the 4[th] respondent with Ext.P9 representation, for effecting necessary correction in the BTR, the office of the 4[th] respondent insisted the petitioners to remit the fee as contemplated under Act 28 of 2008._ It is in the light of the abovesaid averments and contentions that the petitioners have filed the instant Writ Petition (Civil) with the following prayers: W.P. © No. 13499/2020 ..4.. - _i. Issue a writ of mandamus or any other appropriate writ, order or direction, commanding the 4[th] respondent to change the character/nature in the Basic Tax Register (BTR), of the properties purchased by the petitioners, as per Exts.P3 and P5 documents, as converted/developed land, without insisting the procedures to be followed under Act 28 of 2008, since the reclamation of those properties were done during 1996, on the strength of Exts.P1 and P2 orders issued by the 3[rd] respondent, as contemplated under Clause 6(2) of the Kerala Land Utilization Order, 1967;_ - _ii. Issue any appropriate writ, order or direction, declaring that the respondents 1 to 5 have no right/jurisdiction to compel the petitioners to remit the amount as contemplated under Section 27A of Act 28 of 2008, for effecting changes in the BTR, when the properties purchased by the petitioners, were duly reclaimed/developed, during 1996, on the strength of Exts.P1 and P2 orders dated 28.11.1995 issued by the 3[rd] respondent as per Clause 6(2) of the KLU Order, 1967;_ - _iii. Issue a writ of mandamus or any other appropriate writ, order or direction, commanding the 6[th] and 7[th] respondents to issue building number and occupancy certificate to the building constructed by the 1[st] petitioner, forthwith;_ - _iv. Issue a writ of mandamus or any other appropriate writ, order or direction, commanding the 4[th] respondent to consider and dispose of Ext.P9 representation, forthwith;_ - _v. Issue such other reliefs which this Hon'ble Court may deem just and fit in the circumstances of the case._ 2. Heard Sri.Babu Joseph Kuruvathazha, learned counsel appearing for the petitioners, Sri.K.J.Manu Raj, learned Government Pleader appearing for respondents 1 to 5 and Sri.K.T.Thomas, learned counsel appearing for respondents 6 & 7. 3. According to the petitioners, the subject properties though continue to be described as nilam/paddy land in the Basic Tax Register (BTR) have been converted to garden land/purayidam long prior to 12.8.2008 (date of coming into W.P. © No. 13499/2020 ..5.. force of the Kerala Conservation of Paddy Land and Wet Land Act, 2008). Further that, the predecessors of the petitioners had in fact filed the requisite applications under Rule 6(2) of the Kerala Land Utilization Order, 1967, (“The KLU Order”) before the 3[rd] respondent RDO seeking for statutory permission for change of user of land as early as in the year 1995, and had also secured such orders of permission under Rule 6(2) of the KLU Order as can be seen from Exts.P-1 & P-2 proceedings dated 28.11.1995 issued by the 3[rd] respondent RDO for a total extent of 50 cents covered by both Exts.P-1 & P-2. Later, the petitioners have purchased the said properties covered by Exts.P-1 & P-2 from the abovesaid predecessors as per Exts.P-3 & P-5 registered sale deeds dated 12.8.2015 & 8.2.2018 respectively of SRO, Aluva. Further that, since the petitioners' predecessors have already obtained the statutory permission in terms of Rule 6(2) of the KLU Order as per Exts.P-1 & P-2, the continued description of the property as nilam/paddy land in the BTR has become superfluous and redundant, and it is the statutory obligation of the 4[th] respondent Tahsildar to pass orders of fresh assessment in respect of subject property in terms of Section 6A of the Kerala Land Tax Act, 1961, W.P. © No. 13499/2020 ..6.. so as to secure additional entries in the BTR, to show the correct nature of land as garden land/purayidam instead of the earlier BTR entries as nilam/paddy land. For that purpose, the petitioners have filed Ext.P-9 application dated 27.5.2020 before the 4[th] respondent Tahsildar seeking for orders under Section 6A of the Kerala Land Tax Act, in respect of the subject properties covered by Exts.P-3 & P-5 title deeds as well as Exts.P-1 & P-2 permission proceedings under Rule 6(2) of the KLU Order. That, the 4[th] respondent Tahsildar has taken the stand that the said request as per Ext.P-9 can be considered only if the petitioners pay the amounts conceived as per the provisions of Section 27A of the Kerala Conservation of Paddy Land and Wet Land Act, 2008, and the rule framed there under including Rule 12(17) thereof. 4. The second complaint of the petitioners is regarding the alleged inaction on the part of the 6[th] respondent Secretary, Aluva Municipality, in granting occupancy certificate in respect of the construction completed by the petitioners in respect of the subject properties as referred to in Ext.P-4 building permit and Ext.P-6 partial occupancy certificate on the ground that, since the subject properties have been continued to be described as W.P. © No. 13499/2020 ..7.. nilam/paddy land, the 6[th] respondent can pass orders on the plea for occupancy certificate only if the petitioners get statutory permission from the competent revenue official concerned under Section 27A of the Act 28 of 2008 and the rules framed there under for change of user of land. 5. As regards the first aspect of the matter, the matter is no longer _res integra_ and is covered by a series of rulings of this Court. It has been held by this Court that in cases where the subject property which has been described in the BTR as nilam/paddy land has been converted as garden land/purayidam prior to 12.8.2008, then in such case where the party has filed the requisite application under Rule 6(2) of the KLU Order before the notified Collector like the District Collector/RDO concerned before the cut-off date of 30.12.2017 (date of coming into force of the amended provisions of the 2008 Act which has introduced Section 27A thereof), then even if orders have not been passed by the respondent RDO in such cases prior to 30.12.2017, still the respondent officer concerned is statutorily obliged to consider such applications strictly in terms of Rule 6(2) of the KLU Order, and in such a case the party cannot be compelled to pay the W.P. © No. 13499/2020 ..8.. amounts conceived as per the amended provisions of the 2008 Act which has introduced Section 27A thereof as well as the amounts prescribed as per the rules framed there under including Rule 12(17) thereof. ( _See_ _**Geo Peter v. Revenue Divisional Officer [2019 (3) KLT 838], Renji K.Paul v. Revenue Divisional Officer [2019 (2) KLT 262], Salim v. State of Kerala [2019 (3) KLT 604 (DB)], LLMC Kizhakkambalam Grama Panchayat v. Mariumma [2015 (2) KLT 516 (DB)]** etc.)_ 6. This aspect of the matter has also been dealt with by this Court in _**Fr.Jose Upani v. District Collector [2020 (3) KLT 492]**_ that recently it has come to the notice of this Court in various cases that revenue officials are consistently acting in derogation of the well settled legal principles laid down by this Court in the matter of exercise of discretion where applications under Rule 6(2) of the KLU Order has been filed before the cut-off date of 30.12.2017, and that in spite of the well settled legal position the competent officials are demanding that even in cases where the party has filed the requisite Rule 6(2) application before the cut-off date of 30.12.2017, that they will have to pay the W.P. © No. 13499/2020 ..9.. amounts as conceived as per the provisions of the 2008 Act including Section 27A thereof, and the amended rules framed there under, and the said impugned action of the revenue officials have been held by this Court as highly illegal and ultra vires, and it would also lead to defiance of the rule of law and constitutionalism, if not checked properly. 7. Further it has also been held that, in such cases after parties have secured orders under Rule 6(2) of the KLU Order, he/she is legally entitled to maintain an application under Section 6A of the Kerala Land Tax Act, to secure additional entries in the BTR, to show the correct nature of land as garden land/purayidam instead of the earlier BTR entries as nilam/paddy land, and that too without having to pay the amounts as conceived as per the amended provisions of the Kerala Conservation of Paddy Land and Wet Land Act, 2008, and the amended rules framed there under. This aspect of the matter has been dealt with by the Division Bench of this Court in the decision as in _**Geo Peter v. Revenue Divisional Officer [2019 (3) KLT 838], Renji K.Paul v. Revenue Divisional Officer [2019 (2) KLT 262], LLMC Kizhakkambalam Grama Panchayat**_ W.P. © No. 13499/2020 ..10.. ## _**v. Mariumma [2015 (2) KLT 516 (DB)] etc.**_ 8. Further it has also been held by this Court in quite a few decisions that, in a case where the party concerned has already secured orders under Rule 6(2) of the KLU Order from the notified Collector, even prior to the coming into force of the 2008 Act on 12.8.2008, in such a scenario the case of the party would stand on a higher pedestal than in cases where the party has filed application under Rule 6(2) of the KLU Order, before the cut-off date of 30.12.2017, and where orders have not been passed thereon. In a case where the party has already obtained the order even before 12.8.2008, then it is equally the statutory obligation of Tahsildar concerned to subject the property to fresh assessment in terms of Section 6A of the Kerala Land Tax Act, to secure additional entries in the BTR, to show the correct nature of land as garden land/purayidam instead of the earlier BTR entries as nilam/paddy land, so that the higher land tax for such converted garden land/purayidam is collected as the land tax for nilam/paddy land is on a lower rate. 9. The position in that regard is also declared and ordered in this case as well. However, the issue as to whether the W.P. © No. 13499/2020 ..11.. subject properties covered by Ext.P-9 application under Section 6A of the Kerala Land Tax Act is the same or part of the property covered by Exts.P-1 & P-2 etc is a question of fact, which need not be decided by this Court. That is a matter to be enquired into and ascertained by the 4[th] respondent Tahsildar. The 4[th] respondent Tahsildar will have to ascertain from the 3[rd] respondent RDO the matters relating to issuance of Exts.P-1 & P-2 proceedings issued as early as on 28.11.1995, and may ascertain as to whether the subject properties covered by Ext.P-9 application as well as Exts.P-3 & P-5 title deeds are the same or part of the properties covered by Exts.P-1 & P-2 proceedings. If it is ascertained that the property covered by Ext.P-9 application is the same or part of the properties covered by Exts.P-1 & P-2 proceedings, then necessarily the 4[th] respondent Tahsildar is obliged to pass orders on Ext.P-9 so as to ensure fresh assessment of subject properties and additional entries in the BTR without the petitioners having to pay any amounts as conceived as per the amended provisions of the 2008 Act including Section 27A thereof and the rules framed there under including Rule 12(17) thereof. W.P. © No. 13499/2020 ..12.. 10. As regards the second complaint of the petitioners, it is seen that the case of the petitioners is that they have already secured Ext.P-4 building permit issued by the 6[th] respondent Municipality as early as on 4.5.2017 to construct commercial building in the abovesaid subject properties which have been described in the BTR as nilam/paddy land. According to the petitioners they have secured Ext.P-6 partial occupancy certificate on 1.9.2018 and that they have duly completed the construction covered by Ext.P-4 building permit dated 4.5.2017, but orders have not been passed by the 6[th] respondent Municipal Secretary on the petitioners' application for grant of Ext.P-8 occupancy certificate on the ground that the petitioners will have necessarily obtain orders from the competent revenue officials concerned for change of user of land in accordance with Section 27A of the 2008 Act and the rules framed there under. 11. The said issue raised by the petitioners is no longer _res integra_ and in fact the 1[st] respondent State Government in the Local Self Government Department has already issued a Circular bearing No.406/2018 dated 13.8.2018. In the said Circular it has been clearly stipulated by the competent authority of the 1[st] W.P. © No. 13499/2020 ..13.. respondent Government in the Local Self Government Department that, in a case where building permit has already been issued by the local body concerned to effect construction in such properties prior to 30.12.2017, then the subsequent aspects relating to occupancy certificate, renewal of permit, etc is to be considered by the Secretary of the local body concerned, in accordance with the applicable building rules, and in such cases the same cannot be denied on the ground of description of property as nilam/paddy land in the BTR. So also it has been held by this Court that, in such cases where the building permit has already been issued by the Secretary of the local body concerned, or the party seeks for renewal of permit, occupancy certificate, etc then the local body concerned is estopped from contending that such steps cannot be taken by citing the nature of land and that in such cases, the request of the party concerned will have to be considered strictly in accordance with the provisions contained in the applicable building rules without placing any reliance on the nature of land as prescribed in the BTR. _(See_ _**Mahin v. Keezhmad Grama Panchayat [2020 (2) KLT 478], Soumini v. Naduvannur Grama Panchayath**_ W.P. © No. 13499/2020 ..14.. ## _**[2017 (1) KLT 168]** )_ 12. Taking note of the abovesaid aspects the following directions and orders are passed: 1. The 6[th] respondent Secretary, Aluva Municipality, will take up for consideration the matters in Ext.P-8 application dated 18.5.2020 for issuance of occupancy certificate in respect of the completed construction covered by Ext.P-4 building permit, and the 6[th] respondent may ascertain as to whether the subject properties covered by Ext.P-4 building permit is the same as the one covered by Exts.P-1, P-2, P-3 & P-5, and may conduct necessary inspection if required with due prior notice to the petitioners to ascertain whether the completed construction has been made in consonance with the terms and conditions of Ext.P-4 building permit and the applicable building rules, etc. 2. In case it is ascertained that the subject properties covered by Ext.P-4 is the same or part of the properties covered by Exts.P-1, P-2, P-3 & P-5, orders should be passed on Ext.P-8 in compliance with the directives in the abovesaid Government Circular dated 13.8.2018, without much delay preferably within a period of 3 weeks from the date of production of a certified copy of this judgment. W.P. © No. 13499/2020 ..15.. 3. Further it is ordered that the 4[th] respondent Tahsildar will take up for consideration the matters raised in Ext.P-9 application dated 27.5.2020, and may ascertain from the office of the 3[rd] respondent RDO regarding the issuance of Exts.P-1 & P-2 proceedings, and may also ascertain as to whether the subject properties covered by Exts.P-9 application, Exts.P-3 & P-5 title deeds etc would the same or part of the properties covered by Exts.P-1 & P-2 proceedings, and if it is so ascertained that the properties covered by Ext.P-9 is the same or part of the properties covered by Exts.P-1 & P-2, then the 4[th] respondent after affording reasonable opportunity of being heard to the petitioners should pass orders on Ext.P-9 for fresh assessment of subject properties in terms of Section 6A of the Kerala Land Tax Act, so as to secure additional entries in the BTR to correctly show the changed nature of land as garden land/purayidam, and if necessary after conducting due inspection of subject property, without much delay preferably within a period of 2 months from the date of production of a certified copy of this judgment. 4. Needless to say, in case the properties covered by Ext.P-9 are the same or part of the properties covered W.P. © No. 13499/2020 ..16.. by Exts.P-1 & P-2, then the petitioners cannot be compelled to pay any amounts as conceived as per the amended provisions of the 2008 Act including Section 27A thereof and the rules framed thereunder including Rule 12(17) thereof, in the light of the dictum laid down by the Division Bench of this Court in case in _**LLMC Kizhakkambalam Grama Panchayat v. Mariumma [2015 (2) KLT 516 (DB)] .**_ 5. In case the 4[th] respondent Tahsildar passes such orders of fresh assessment of subject properties in terms of Section 6A of the Kerala Land Tax Act on Ext.P-9 application, then thereafter the 4[th] respondent should give strict instructions and directions to the 5[th] respondent Village Officer to actually carry out the alteration in the BTR to correctly show the changed nature of land as garden land/purayidam, and then to collect land tax from the petitioners in respect of the subject properties and to issue land tax receipt showing such alteration in the BTR. This will have to be complied by the 5[th] respondent Village Officer within 3 weeks from the date of receipt of copy of proceedings of the 4[th] respondent Tahsidlar as afore directed. 13. The petitioners will produce certified copy of this W.P. © No. 13499/2020 ..17.. judgment along with copy of memorandum of this WP(C) with all exhibits before respondents 3, 4, 5 & 6 for necessary information and further action. With these observations and directions, the above Writ Petition (Civil) will stand finally disposed of. Sd/- ALEXANDER THOMAS, JUDGE MMG W.P. © No. 13499/2020 ..18.. ## **APPENDIX** ## **PETITIONERS' EXHIBITS:** **EXHIBIT P1 TRUE COPY OF THE ORDER NO.K.DIS.7512/95/K/(8) DATED 28.11.1995 ISSUED BY THE 3RD RESPONDENT. EXHIBIT P2 TRUE COPY OF THE ORDER NO.K.DIS.7512/95/K/11) DATED 28.11.1995 ISSUED BY THE 3RD RESPONDENT. EXHIBIT P3 TRUE COPY OF THE DOCUMENT NO.2606 OF 2015 DATED 12.8.2015 OF THE SUB REGISTRY, ALUVA. EXHIBIT P4 TRUE COPY OF THE BUILDING PERMIT DATED 4.5.2017 ISSUED BY THE 7TH RESPONDENT. EXHIBIT P4(A) TRUE COPY OF THE RECEIPT NO.0015951 DATED 4.5.2017 ISSUED BY THE 6TH RESPONDENT. EXHIBIT P5 TRUE COPY OF THE DOCUMENT NO.482/2018 DATED 8.2.2018 OF THE SUB REGISTRY, ALUVA. EXHIBIT P6 TRUE COPY OF THE PARTIAL OCCUPANCY CERTIFICATE DATED 1.9.2018 ISSUED BY THE 7TH RESPONDENT. EXHIBIT P7 TRUE COPY OF THE DEMAND NOTICE DATED 7.9.2018 ISSUED BY THE 6TH RESPONDENT. EXHIBIT P7(A) TRUE COPY OF THE RECEIPT DATED 15.5.2019 ISSUED BY THE KERALA STATE ELECTRICITY BOARD, ALUVA NORTH.** W.P. © No. 13499/2020 ..19.. ## **EXHIBIT P8** **EXHIBIT P8(A)** ## **EXHIBIT P9** **TRUE COPY OF THE REQUEST DATED 18.5.2020 OF THE IST PETITIONER SUBMITTEE BEFORE THE 6TH RESPONDENT.** **ORIGINAL PHOTOGRAPHS EVIDENCING THE BUILDING CONSTRUCTED BY THE IST PETITIONER AND THE PARKING AREA PROVIDED IN THE PROPERTY OF THE 2ND PETITIONER.** **TRUE COPY OF THE REPRESENTATION DATED 27.5.2020 SUBMITTED BY THE PETITIONERS BEFORE THE 4TH RESPONDENT.**