Mary Abraham v. State of Kerala and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **WEDNESDAY, THE 04TH DAY OF MARCH 2020 / 14TH PHALGUNA, 1941** ## **WP(C).No.6503 OF 2020(K)** ## **PETITIONERS:** **MARY ABRAHAM AGED 73 YEARS W/O. PROF. ABRAHAM GEORGE, NIRMALA BHAVAN, KEERUKUZHI P. O., PANDALAM THEKKEKARA VILLAGE, ADOOR TALUK, PATHANAMTHITTA DISTRICT - 689 502. BY ADV. SRI.K.SHAJ** ## **RESPONDENTS:** **1 STATE OF KERALA REPRESENTED BY THE CHIEF SECRETARY, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM - 695 001. 2 THE DISTRICT COLLECTOR PATHANAMTHITTA DISTRICT - 689 645. 3 THE REVENUE DIVISIONAL OFFICER ADOOR, PATHANAMTHITTA DISTRICT - 691 523. 4 THE TAHSILDAR ADOOR TALUK, PATHANAMTHITTA DISTRICT - 691 523. 5 THE VILLAGE OFFICER PANDALAM THEKKEKARA VILLAGE, ADOOR TALUK, PATHANAMTHITTA DISTRICT - 689 502.** ## **SRI.K.J.MANU RAJ, GOVT.PLEADER** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 04.03.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** W.P(C) No.6503 of 2020 2 **ALEXANDER THOMAS, J. =========================== W.P(C) No.6503 of 2020 ===========================** Dated this the 04[th] day of March, 2020 ## **JUDGMENT** The case set up in this Writ Petition (Civil) is as follows: The property belonging to the petitioner is situated in two survey numbers, was classified as “Nilam” in the BTR even though it was converted in the year 1987 and 1988 pursuant to Exts.P-2 & P-3 orders issued by the 3[rd] respondent-RDO under the Kerala Land Utilization Order and was categorized as “purayidam” in the data bank. The petitioner sought for change in the BTR vide Ext.P-5 application dated 22.01.2014 submitted before the 3[rd] respondent-RDO. The 3[rd] respondent RDO instead of referring the application to the 4[th] respondent-Tahsildar to make a fresh assessment of the land in the BTR under the Kerala Land Tax Act sought for a report of the 4[th] respondent-Tahsildar, who reported the fact that the property was converted prior to the enactment of the Kerala Conservation of Paddy Land and Wetland Act, 2008. Thereafter, the RDO referred the matter to the 2[nd] respondent-District Collector, who vide Ext.P-8 order rejected Ext.P-5 application on the ground that there are no W.P(C) No.6503 of 2020 3 laws for change in BTR and it could be done in particular cases as per the judgments of this Court and that the property could be cultivated with the same cultivation that was being conducted in the property immediately three years prior to Exts.P-2 & P-3 orders. It is in the light of these averments and contentions, the petitioner has filed the instant Writ Petition with the following prayers: - _“A) to call for the records leading to the issuance of Exhibits P8 order and to quash the same by finding that the second respondent didn't have any power to pass orders on Exhibit P5 application filed under Section 6A of the Kerala Land Tax Act;_ - _B) to declare that the petitioner is not liable to pay any amount as fees as per the provisions of Section 27A of the Kerala Conservation of Paddy Land and Wet Land Act, 2008, brought in by the Amendment Act 29 of 2018, as the land was converted as a garden land in 1987 and 1988 pursuant to Exhibits P2 and P3 orders under Clause 6 of the KLU Order in 1987 and 1988 respectively and on 22/01/2014, when Exhibit P5 application was filed before the third respondent;_ - _C) to issue a writ in the nature of mandamus or any other appropriate writ, direction or order commanding the third respondent to refer Exhibit P5 application to the fourth respondent to make necessary additions in respect of her property in the BTR and Revenue Records leading to fresh assessment of Land Tax within a time as stipulated by this Hon'ble Court;_ - _D) to pass such other writ order or direction that this Hon'ble Court may deem fit and proper in the facts and circumstances of the case; and_ - _E) to award the cost of this petition.”_ 2. Heard Sri.K.Shaj, learned counsel appearing for the petitioner & Sri.K.J.Manu Raj, learned Government Pleader appearing for the respondents. W.P(C) No.6503 of 2020 4 3. It is beyond any dispute that the subject property has been converted as garden land or purayidam, long prior to 12.08.2008 (which the date of coming into force of the provisions contained in the Kerala Conservation of Paddy Land and Wetland Act, 2008). As a matter of fact, it is common ground that the 3[rd] respondent-Revenue Divisional Officer has by virtue of the enabling provisions contained in the Rule 6(2) of the Kerala Land Utilisation Order, 1967 has already granted permission for conversion of the subject properties to be used for various purposes other than agricultural purposes, as per Ext.P-2 proceedings issued as early as on 12.10.1987 and Ext.P-3 proceedings issued as early as on 18.03.1988. Thereafter, now the petitioner has sought for fresh assessment of the subject property under Sec.6A of the Kerala Land Tax Act, 1961 before the revenue official concerned, in order to reclassify the land as garden land or purayidam by making additional entries in the Basic Tax Register, instead of the earlier BTR entries as Nilam or Paddy land, as the case may be. If so happened that such an application should have been filed by the petitioner before the 4[th] respondent-Tahsildar concerned. But it appears that the petitioner has filed Ext.P-5 application dated 22.01.2014 before the 3[rd] respondent-RDO, who did not have any jurisdiction to entertain the said plea, going by the provisions contained in the Kerala Land Tax Act, 1961 W.P(C) No.6503 of 2020 5 and the Rules framed thereunder. Pursuant to Ext.P-5 application dated 22.01.2014, the 3[rd] respondent-RDO had called for a report of the 4[th] respondent-Tahsildar, who has furnished a favourable report as per Ext.P-6 report dated 28.01.2014. Thereafter, for reasons not known to this Court, the 3[rd] respondent-RDO has adopted the same procedure of referring Ext.P-5 application to the 2[nd] respondent-District Collector for decision in the matter. It is beyond any dispute that the 2[nd] respondentDistrict Collector does not have any original jurisdiction in the matter for taking action under Sec.6A of the Kerala Land Tax Act, 1961 and the Rules framed thereunder. Now the 2[nd] respondent-District Collector has considered the matter on merits and has issued an order in the nature of the impugned Ext.P-8 order dated 20.01.2015 stating that the plea of the petitioner for re-assessment of the subject property in terms of Sec.6A of the Kerala Land Tax Act, 1961 cannot be acceded to and the 2[nd] respondent has even gone to the extraneous extent in Ext.P-8 that there are no enabling provisions in law to grant the request of the petitioner for fresh assessment of the subject property for land taxation purposes for such reclassification of the subject property in the BTR, etc. 4. After hearing both sides, it is only to be held that the matter in issue is fully covered in favour of the petitioner and against the respondents W.P(C) No.6503 of 2020 6 as per the dictum laid down by this Court, more particularly, by the Division Bench of this Court in cases as in _**Local Level Monitoring Committee, 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)] that in a case where favourable orders are obtained by the property holder in terms of the 6(2) of the Kerala Land Utilisation Order, 1967, for converting the said land as garden land or purayidam, etc., then the property holder is legally entitled to maintain an application under Sec.6A of the Kerala Land Tax Act, 1961 before the competent revenue officials like the Tahsildar, seeking for re-assessment of the subject property in terms of the said provision, so as to make additional entries in the BTR to rightly and properly show the land as garden land or purayidam instead of the previous BTR entries as Nilam or paddy land, etc. In that regard, the Division Bench of this Court in **Mariumma’s case** (supra) [2015 (2) KLT 516 (DB)] has held that once enabling order is passed under Rule 6(2) of the Kerala Land Utilisation Order, 1967 permitting conversion of the land, then the earlier entries in the BTR showing the land as Nilam or paddy land, etc., will become superfluous and redundant and the competent revenue officials concerned like the W.P(C) No.6503 of 2020 7 Tahsildar concerned is obliged in law to make a fresh assessment of the subject property under Sec.6A of the Kerala Land Tax Act, as aforestated. Therefore, it is only to be held that the impugned decision at Ext.P-8 is vitiated both on the ground of lack of jurisdiction but also on the ground of illegality and unreasonableness. Accordingly, Ext.P-8 proceedings issued by the 2[nd] respondent-District Collector will stand quashed and rescinded. Further it is ordered that the competent authority among respondents 2 & 3 will ensure that Ext.P-5 application is forwarded to the 4[th] respondent-Tahsildar for appropriate action as aforestated and this shall be done by respondents 2 & 3, within two weeks from the date of production of a certified copy of this judgment. In case, for any reason whatsoever, Ext.P-5 application is not forwarded to the 4[th] respondentTahsildar, within the said time limit, then the petitioner may file an appropriate application under Sec.6A of the Kerala Land Tax Act before the 4[th] respondent seeking for orders of re-assessment of the subject property and for consequential additional entries in the BTR to show the land as purayidam or garden land and to show the previous entries as Nilam or paddy land, in respect of the properties covered by Exts.P-1, P-2 & P-3 proceedings. On the petitioner filing such an application before the 4[th] respondent-Tahsildar, necessary orders in this regard shall be duly W.P(C) No.6503 of 2020 8 passed by the 4[th] respondent-Tahsildar, after affording reasonable opportunity of being heard to the petitioner and within a time limit of three weeks from the date of submission of such application, along with the certified copy of this judgment, in compliance with the orders and findings in this judgment and in compliance with the dictum laid down by the Division Bench of this Court in the aforecited judgment and without insisting for the petitioner any amounts as per the amended provisions of the 2008 Act, including Sec.27A thereof and the Rules framed thereunder, etc. With these observations and directions, the above Writ Petition (Civil) stands finally disposed of. **Sd/ALEXANDER THOMAS JUDGE** vgd W.P(C) No.6503 of 2020 9 ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 THE TRUE COPY OF LAND TAX RECEIPT DATED 07.02.2019 ISSUED BY THE FIFTH RESPONDENT VILLAGE OFFICER, PANDALAM THEKKEKARA VILLAGE OFFICER IN RESPECT OF THE PROPERTIES OF THE PETITIONER.** **EXHIBIT P2 THE TRUE COPY OF ORDER NO.B2-6078/87/B2 DATED 12.10.1987 OF THE THIRD RESPONDENT.** **EXHIBIT P3 THE TRUE COPY OF ORDER NO.K.DIS.636/88 DATED 18.03.1988 OF THE THIRD RESPONDENT. EXHIBIT P4 THE TRUE COPY OF EXTRACT OF THE RELEVANT PAGE OF THE DATA BANK SHOWING THE PROPERTIES OF THE PETITIONER.** **EXHIBIT P5 THE TRUE COPY OF APPLICATION SUBMITTED BY THE PETITIONER ON 22.1.2014 TO THE THIRD RESPONDENT. EXHIBIT P6 THE TRUE COPY OF REPORT NO.R1/1809/2014 DATED 28.01.2014 SUBMITTED BY THE FOURTH RESPONDENT TO THE THIRD RESPONDENT. EXHIBIT P7 THE TRUE COPY OF LETTER NO.839/2014/B4.1L.DIS DATED 22.05.2014 ISSUED BY THE THIRD RESPONDENT TO THE SECOND RESPONDENT. EXHIBIT P8 THE TRUE COPY OF ORDER NO.C4-20265/2014 DATED 20.01.2015 ISSUED BY THE SECOND RESPONDENT.**