Mathew Augustine v. Tahasildar (Land Records) & The Village Officer

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** ## **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** ## **THURSDAY, THE 16TH DAY OF JULY 2020 / 25TH ASHADHA, 1942** ## **WP(C).No.13946 OF 2020(P)** ## **PETITIONER:** **MATHEW AUGUSTINE, AGED 49 YEARS, S/O.AUGUSTINE, PLATHOTTATHIL, MOONNANI, PALA P.O., KOTTAYAM DISTRICT - 686 575.** **BY ADVS. SRI.RINNY STEPHEN CHAMAPARAMPIL SRI.THOMAS J.ANAKKALLUNKAL** ## **RESPONDENTS:** |**1**|**THE TAHASILDAR(LAND RECORDS)**| |---|---| ||**MINI CIVIL STATION, GROUND FLOOR,**| ||**PALA RAMAPURAM RD., PALA - 686 575.**| |**2**|**THE VILLAGE OFFICER**| ||**VILLAGE OFFICE, LALAM, PALA - 686 575.**| ||**SRI.SAIGI JACOB PALATTY, SR.GOVT.PLEADER**| **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 16.07.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ALEXANDER THOMAS, J. --------------------------------------W.P. © No. 13946 of 2020 --------------------------------------Dated this the 16[th] day of July, 2020 ## J U D G M E N T The case set up in this Writ Petition (Civil) is as follows: _The petitioner is constrained to approach this Court for the third time in a row seeking direction for consideration of Ext.P6 application submitted under Section 6A of the Kerala Land Tax Act, 1961, for reassessment of land tax and consequent corrections in the Basic Tax Register (BTR) on the basis of Ext.P-5 order under Rule 6 (2) of the KLU Order issued on Ext.P-2 application dated 15.7.2015 .The petitioner is the title holder of 1.67 Ares of land in Re-Sy.No.125/30-1 and 1.68 Ares of land in Re-Sy.No.125/30 totaling to 3.35 Ares (8.20 cents) of land in Lalam Village in Meenachil Taluk. As on the date of the coming into force of the Kerala Conservation of Paddy Land and Wet Land Act, 2008, it was lying as Purayidom. In BTR, the said land is classified as nilam & was classified as "Converted Land before 10 years with Toddy Shop" in Data Bank, which has been subsequently excluded by the Local Level Monitoring Committee (LLMC), Pala Municipality. Seeking permission for different utilization, the_ W.P. © No. 13946 of 2020 ..3.. _petitioner submitted Ext.P-2 application on 15.7.2015 before the RDO, Pala under Rule 6 (2) of the Kerala Land Utilization Order (KLU Order). Aggrieved by its non-consideration, the petitioner filed W.P.(C) No.23205/2015 wherein Ext.P-2 herein was referred as Ext.P-4, which was disposed of by judgment dated 17.8.2015 by directing the RDO, Pala to consider Ext.P-2 herein (Ext.P4 in W.P. (C) No.23205/2015) within 2 months from the date of receipt of copy of judgment. Instead of passing orders under Rule 6(2) of the KLU Order, the RDO, Pala issued an order holding that the petitioner has to submit application under the 'Unauthorized Reclamation Rules'. The petitioner filed W.P.(C).No.23494/2017 challenging the said order which was disposed of by judgment dated 12.2.2019 by quashing the order impugned therein and by directing the RDO, Pala to reconsider Ext.P-2 herein (Ext.P-9 in W.P.(C) No. 23494/2017) within 3 months from the date of production of a copy of judgment. Much belatedly, the RDO, Pala issued Ext.P-5 order allowing Ext.P-2 application under Rule 6 (2) of the KLU Order by permitting the petitioner to make use of his aforesaid for non-agricultural purposes. For conducting reassessment and for making consequent corrections in BTR by_ W.P. © No. 13946 of 2020 ..4.. _classifying the land as purayidom, the petitioner submitted Ext.P6 application before the 1[st] respondent. The 1[st] respondent is bound to consider Ext.P-6 application de hors the provisions of the Paddy Land Act as amended by Act 29 of 2018 and the Rules made there under especially Rule 12(17) thereof._ It is in the light of the abovesaid averments and contentions that the petitioner has filed the instant Writ Petition (Civil) with the following prayers: “ _i. Issue a Writ of Mandamus, or any other appropriate Writ, Order or Direction commanding the 1" respondent to consider Exhibit P6 application and to pass orders thereon expeditiously within a time frame to be fixed by this Hon'ble Court as provided under Section 6A of the Kerala Land Tax Act, 1961 and to order to carry out consequent corrections in the revenue records by classifying the Petitioner's 1.67 Ares of land comprised in Re-Survey No.125/30-1 and 1.68 Ares of land in Re-Survey No.125/30 totaling to 3.35 Ares (8.20 cents) of Lalam Village in Meenachil Taluk as 'Purayidom' on the basis of Exhibit P5 Order in the light of the Judgment in_ _**LLMC Kizhakkambalam Grama Panchayat Vs. Mariumma & Anr. (2015 (3) KHC 19 DB)** without insisting for payment of any amount prescribed under Section 27A of the Kerala Conservation of Paddy Land and Wet Land Act, 2008 or under Rule 12(17) of the Kerala Conservation of Paddy Land andWet Land Rules, 2008._ _ii. Issue an appropriate Writ, Order or Direction declaring that the 1[st] respondent is bound to consider Exhibit P6 application and pass orders thereon as provided under Section 6 A of the Kerala Land Tax Act, 1961 and to make consequent corrections in the revenue records by classifying the Petitioner's 1.67 Ares of land comprised in Re-Survey No.125/30-1 and 1.68 Ares of land in Re-Survey No.125/30 totaling to 3.35 Ares (8.20 cents) of Lalam Village in Meenachil Taluk as Purayidom on the basis of Exhibit P5 Order in the light of the Judgment in_ _**LLMC Kizhakkambalam Grama Panchayat Vs. Mariumma & Anr. (2015 (3) KHC 19 DB)** and_ _**Tahisldar, Thodupuzha Taluk & Anr. Vs. Renjith George (2020(1) KHC 865 DB)** without insisting for payment of any amount prescribed under Section 27A of the Kerala Conservation of Paddy Land and Wet_ W.P. © No. 13946 of 2020 ..5.. _Land Act, 2008 or under Rule 12(17) of the Kerala Conservation of Paddy Land and Wet Land Rules, 2008._ _iii. Pass such other appropriate Writs, Orders or Directions as this Hon'ble Court deem just and proper to issue in the circumstances of the case.”_ 2. Heard Sri.Rinny Stephen Chamaparampil, learned counsel appearing for the petitioner and Sri.Saigi Jacob Palatty, learned Senior Government Pleader appearing for the respondents. 3. In the instant case it is indisputable that the petitioner has filed the requisite application under Rule 6(2) of the Kerala Land Utilization Order, 1967 (KLU Order) on 15.7.2015 as per Ext.P-2, which is also referred to as Ext.P-4 in Ext.P-3 WP(C).No.23205/2015. The petitioner has already undergone the travails of two litigative writ proceedings as can be seen from Ext.P-3 judgment rendered by this Court on 17.8.2015 in WP(C).No.23205/2015, as well as Ext.P-4 judgment dated 12.2.2019 in WP(C).No.23494/2017. Ultimately it is seen that, since the petitioner has admittedly Ext.P-1 application under Rule 6(2) of the KLU Order before the cut-off date of 30.12.2017 (date of coming into force of the amended provisions of the Kerala Conservation of Paddy Land and Wet Land Act, 2008, which has W.P. © No. 13946 of 2020 ..6.. introduced Sec. 27A thereof), the Revenue Divisional Officer concerned has fairly accepted the correct legal position and has acted upon the said application and has granted the said request under Rule 6(2) of the KLU Order, as can be seen from Ext.P-5 proceedings dated 23.4.2020 issued by the RDO, Pala, Kottayam District. A reading of Ext.P-5 would make it clear that the RDO concerned has exercised his statutory powers of discretion under Rule 6(2) of the KLU Order by granting permission for change of user of land for any non-agricultural purposes, and rightly without compelling the petitioner to pay the amounts as conceived as per the provisions of the amended provisions of the 2008 Act including Sec.27A thereof, and the Rules framed thereunder including Rule 12(17) thereof. Now the petitioner has filed the consequential application as per Ext.P-6 in the prescribed proforma seeking re-assessment of subject property covered by Ext.P-5, in terms of Sec.6A of the Kerala Land Tax Act, 1961, so as to secure additional entries in the Basic Tax Register (BTR) to show the changed nature of land as garden land/purayidam instead of the earlier BTR entries as nilam/paddy land. 4. It is by now well established by a series of rulings of this W.P. © No. 13946 of 2020 ..7.. Court as in _**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)]**_ that in a case where the subject property has been converted as ‘garden land’ or ‘purayidam’ prior to 12.8.2008 (date of coming into force of the 2008 Act) and where the party concerned has filed the requisite application under Rule 6(2) of the Kerala Land Utilization Order, 1967, for conversion of the property and for its use for any non-agricultural purposes, before 30.12.2017 (which is the date of coming into force of the amended provisions of the 2008 Act, which has introduced Sec. 27A thereof), then the statutory revenue authorities are obliged the duty to treat such a case strictly within the purview of Rule 6(2) of the KLU Order, 1967, and in such a case, the party cannot be mulcted to pay the higher amounts conceived as per the amended provisions of the Act including Sec. 27A thereof, which has come into force on 30.12.2017 and the amended Rules framed thereunder. Further, it has also been categorically held by the judgments of the Division W.P. © No. 13946 of 2020 ..8.. Bench of this Court as in _**Mariumma’s case (supra) [2015 (2) KLT 516 (DB)] and Renji's case (supra) [2019 (2) KLT 262]**_ that in such a case where the property holder has filed application under Rule 6(2) of the KLU Order before 30.12.2017, then the party is also equally entitled to maintain an application under Sec.6A of the Kerala Land Tax Act, 1961, for securing additional entries in the BTR to show the property as ‘garden land’ or ‘purayidam’ instead of the earlier BTR entries as ‘nilam’ or ‘paddy land’ and without having to pay the higher amounts conceived as per the amended provisions of the 2008 Act including Sec. 27A thereof and the amended Rules framed thereunder, including Rule 12(17) thereof. 5. This Court has held 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 W.P. © No. 13946 of 2020 ..9.. 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 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. 6. Accordingly it is ordered and declared that, in case the property covered by Ext.P-6 application dated 1.7.2020 filed by the petitioner under Section 6A of the Kerala Land Tax Act, 1961, before the 1[st] respondent Tahsildar is the same as the one covered by Ext.P-5 order dated 23.4.2020 issued by the RDO, Pala, granting permission under Rule 6(2) of the KLU Order, then the petitioner is legally entitled to get the BTR entries in respect of the said property altered by securing additional entries as afore stated, and without having to pay the amounts as conceived as per the amended provisions of the 2008 Act and the amended Rules framed thereunder, including Rule 12(17) thereof. 7. Hence it is ordered that the 1[st] respondent Tahsildar W.P. © No. 13946 of 2020 ..10.. will take up the matters raised by the petitioner in Ext.P-6 application dated 1.7.2020, and after affording reasonable opportunity of being heard to the petitioner through authorised representative/counsel if any, and if it is ascertained that the subject property covered by Ext.P-6 application is the same the one covered by Ext.P-5 order passed by the RDO, then orders should be passed by the 1[st] respondent Tahsildar granting re-assessment of the subject property under Sec.6A of the Kerala Land Tax Act, so as to secure additional entries in the BTR to show correct the changed nature of land as ‘garden land’ or ‘purayidam’ instead of the earlier BTR entries as ‘nilam’ or ‘paddy land’, within one month from the date of production of a certified copy of this judgment and strictly in accordance with the dictum laid down by the Division Bench of this Court in the cases as in _**Mariumma’s case (supra) [2015**_ _**(2) KLT 516 (DB)] and Renji's case (supra) [2019 (2) KLT 262]**_ , and without compelling the petitioner to pay any amounts as conceived as per the amended provisions of the 2008 Act including Sec.27A thereof, and the amended Rules framed thereunder, including Rule 12(17) thereof. Thereafter the 1[st] respondent will also pass consequent directions to the 2[nd] respondent Village W.P. © No. 13946 of 2020 ..11.. Officer to actually carry out such alterations in the BTR. 8. The petitioner will produce a certified copies of this judgment along with copies of memorandum of this WP(C) with all exhibits before the respondents 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. 13946 of 2020 ..12.. ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **EXHIBIT P1** **A TRUE COPY OF THE PROPERTY TAX RECEIPT DATED 30/06/2020 ISSUED FROM THE VILLAGE OFFICER, LALAM.** **EXHIBIT P2** **A TRUE COPY OF HE KLU APPLICATION SUBMITTED BY THE PETITIONER ON 15/07/2015 BEFORE THE REVENUE DIVISIONAL OFFICER, PALA.** **EXHIBIT P3** **A TRUE COPY OF THE JUDGMENT DATED 17/08/2015 IN W.P.(C) NO.23205/2015.** **EXHIBIT P4** **A TRUE COPY OF THE JUDGMENT DATED 12/02/2019 OF THIS HON'BLE COURT IN W.P (C) NO.23494/2017.** **EXHIBIT P5** **TRUE COPY OF ORDER NO.L3-2253/19 DATED 23/4/2020 ISSUED BY THE RDO, PALA.** **EXHIBIT P6** **A TRUE COPY OF THE APPLICATION DATED 01/07/2020 SUBMITTED BY THE PETITIONER IN FORM NO.A BEFORE THE 1ST RESPONDENT.**