Mathews George and Leena Mathews v. State of Kerala and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE N.NAGARESH** **TUESDAY, THE 2[ND] DAY OF NOVEMBER 2021 / 11TH KARTHIKA, 1943** **WP(C) NO. 24165 OF 2020** ## **PETITIONERS:** **1 MATHEWS GEORGE, AGED 55 YEARS, S/O.M.M.GEORGE, PRESENTLY RESIDING AT MUPPATHIYIL, VALLEY VIEW, KAKKANAD-KOLLAMKUDIMUGHAL ROAD, THRIKKAKARA VILLAGE, KAKKANADU-682 030, KANAYANNUR TALUK, ERNAKULAM DISTRICT** **2 LEENA MATHEWS, AGED 49 YEARS, W/O. MATHEWS GEORGE, PRESENTLY RESIDING AT MUPPATHIYIL, VALLEY VIEW, KAKKANAD-KOLLAMKUDIMUGHAL ROAD, THRIKKAKARA VILLAGE, KAKKANADU-682 030, KANAYANNUR TALUK, ERNAKULAM DISTRICT** **BY ADVS. VARGHESE C.KURIAKOSE SRI.P.J.JOSE SHRI.SUSANTH SHAJI SHRI.ALBIN A. JOSEPH** ## **RESPONDENTS:** - **1 STATE OF KERALA, REP. BY SECRETARY, DEPT. OF LOCAL SELF GOVT., SECRETARIAT, TRIVANDRUM, PIN-695 001** **2 THE REVENUE DIVISIONAL OFFICER, O/O. REVENUE DIVISIONAL, MINI CIVIL STATION P.O., MUVATTUPUZHA, PIN-686 669** WP(C) No.24165/2020 : 2 : - **3 TAHSILDAR, MUVATTUPUZHA TALUK, TALUK OFFICE, MINI CIVIL STATION P.O., MUVATTUPUZHA, PIN-686 669** - **4 THE LOCAL LEVEL MONITORING COMMITTEE, REP. BY ITS CONVENER, AGRICULTURAL OFFICER, KRISHI BHAVAN, MAKKEDAMPU P.O., VALAKOM, ERNAKULAM DISTRICT-682 316** - **5 THE VILLAGE OFFICER, VALAKOM VILLAGE, MAKKEDAMPU P.O., VALAKOM, ERNAKULAM DISTRICT-682 316** **SRI.SYAMANTHAK B.S, GOVERNMENT PLEADER** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 02.11.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** WP(C) No.24165/2020 : 3 : ## **J U D G M E N T** ~ ~ ~ ~ ~ ~ ~ ~ ~ ## _**Dated this the 2[nd] day of November, 2021**_ The petitioners seek to direct the 3[rd] respondent to reassess the property covered by Ext.P1 as Purayidam and receive tax based on such reassessment. The petitioners also seek to correct the Basic Tax Entry which describes the property as paddy land. 2. The petitioners, who are husband and wife, jointly possess 3 Acres and 67 Cents of land. Ext.P3 and prior title documents describe the property as Purayidam. The land was originally a paddy land, but has not been cultivated with paddy for more than 60 years. The nature of the property had changed prior to the Kerala Land Utilisation Order, 1967. There are trees on the land aging 62 to 80 years. 3. In the Basic Tax Register, the land is still shown as Nilam. The land, however, was not included in the Data Bank. WP(C) No.24165/2020 : 4 : The Possession Certificates issued to the petitioners also describe the land as dry land. In the year 2017, the petitioners moved the Local Level Monitoring Committee (LLMC) for change of classification of land, by filing Ext.P7. The application is now pending before the 2[nd] respondentRDO. Though the 2[nd] respondent has not finally taken a decision on Ext.P7, the 2[nd] respondent has taken a stand that the petitioner has to invoke Section 27 A, B and C of the Kerala Conservation of Paddy Land and Wetland Act, 2008, since the property of the petitioners satisfies the definition of Unnotified land under Section 2 (xviiA) of the Act, 2008. 4. The petitioners have submitted Ext.P9 application under Section 6A of the Kerala Land Tax Act, 1961 to reassess the tax of the land. As no action was taken on Ext.P7, the petitioner filed WP(C) No.6562/2020. This Court disposed of the said writ petition directing the LLMC to conduct inspection and take a decision. The LLMC, after inspecting the site, took a stand as evidenced by EXt.P13 that the entry in BTR is not correct. The petitioner hence filed a WP(C) No.24165/2020 : 5 : fresh application, Ext.P14, to the Tahsildar invoking Section 6A of the Kerala Land Tax Act, 1961. However, the Tahsildar also has not taken any decision so far. Hence, the petitioners are before this Court. 5. The respondents resisted the writ petition. The respondents submitted that the land in question is of an extent of 1 Hectare 48 Ares 52 square metres comprised in Survey No.372/3 in Valakom Village, Muvattupuzha Taluk. The land is under the possession and enjoyment of the 1[st] petitioner as per Thandapper No.17819 of Valakam Village of Muvattupuzha Taluk. The land in Survey No.372/3 has been recorded as 'Nilam' in Revenue Records. The Valakam Village Officer reported that now the land is not used as paddy land. Even though the land is not used as paddy land, it is not possible to change the nature of land from wetland to dry land by reassessing the Land Tax under Section 6(A) of the Land Tax Act because the Land Tax is calculated only on the basis of extent of land which is same in the case of wet and dry lands. There is no change in the rate of tax according to the WP(C) No.24165/2020 : 6 : classification of land i.e., wet or dry. Hence, reassessment of Land Tax is not the proper procedure to change the nature of land in Revenue Records. 6. The Government has amended the Kerala Conservation of Paddy Land and Wetland Act, 2008 and made provisions for changing the nature of wetland which were converted on or before 12.08.2008 if the land is not included in Data Bank published. The petitioners can change the nature of land comprised in Survey No.372/3 of Valakom Village by submitting an application under section 27A of the Kerala Conservation of Paddy Land and Wetland (Amendment) Act, 2018 before the Revenue Divisional Officer and change the nature of land in Revenue records in accordance with law. 7. The learned counsel for the petitioners argued that Ext.P7 application referred to therein is dated 01.08.2017 with a clear indication of the fact that prior to the appointed day, the application was filed. As early as in 2017, the Village Officer as well as the Agricultural Officer had clearly opined WP(C) No.24165/2020 : 7 : that this is converted land. The Agricultural Officer has further given opinion that the land is not suitable for paddy cultivation. 8. The Local Level Monitoring Committee of Valakom Grama Panchayat has visited the petitioners' field-survey No.372/3 of Valakom Village and observed that the land was converted prior to implementation of the Kerala Conservation of Paddy Land and Wetland Act, 2008 and the aforesaid properties are not included in the Data Bank of Valakom Grama Panchayat. Hence, the LLMC has no role in this case. 9. The date of Ext.P19 is 01.08.1958. B-Schedule therein is the property subject matter of the present proceedings. The recitals of the document clearly state that it is Valamkuzhi purayidom with trees. Nowhere in the 1958 document it is stated that the property is paddy land. Ext.P20 is dated 04.05.1978. The same is executed by the brother of the 1[st] petitioner's father in favour of the father of the 1[st] petitioner. Ext.P20 also refers the property as Valamkuzhimala purayidom. Ext.21 is Rubber Plantation Certificate of the year 2002 and that too 3[rd] re-plantation. WP(C) No.24165/2020 : 8 : 10. The revenue entries of about one century back reflected an incorrect entry. Such incorrect entry can be corrected. In the judgment in _**LLMC v. Mariyumma and another** [2015 (3) KHC 19],_ this Court held that it would be open to the authorities to make appropriate additions to the Basic Tax Register. This is followed by a decision reported in _**Thomas George and others v. State of Kerala and others** [2020 KHC 649]._ 11. Even in a case where an application is filed before the cut of date of 30.12.2017, then notwithstanding the fact that orders may not have been passed on such application before the cut of date, this Court has held that such a party is legally entitled to get such an application considered strictly in accordance with the provisions contained in Rule 6(2) of the KLU order and in such a case, the party cannot be mulcted to face the rigorous procedure and to pay the higher amounts as conceived as per the amended provisions of the 2008 Act including Section 27A thereof and the amended Rules framed thereunder. In another Division Bench judgment in _**District**_ WP(C) No.24165/2020 : 9 : ## _**Collector, Ernakulam and others v. Fr. Jose Uppani and**_ _**others** [2020 (4) KHC 394]_ , it is held that the entries contained in the Basic Tax Register cannot be changed. The Division Bench of this Court in _**LLMC v. Mariyumma**_ (supra) has held that without defacing the entry contained in the Basic Tax Register, necessary additional entries can be made on the basis of the orders passed by the statutory authority under the Kerala Land Utilisation Order, 1967. 12. In this case, the application was submitted as early as in 2017. The land is admittedly not included in the Data Bank as paddy land. However, the wrong assessment continues. In such circumstances, based on the law laid down by this Court, the incorrect entry has to be corrected by incorporating an additional entry, contended the petitioners. 13. Heard the learned counsel for the petitioner and the learned Government Pleader representing the respondents. 14. The property in question is 1 Hectare and 48.52 Ares (3 Acres and 67 Cents) in Survey No.372/3 of Valakom Village. In Ext.P19, which is a previous title deed in respect of WP(C) No.24165/2020 : 10 : the property and which is of the year 1958, the land is described as Valamkuzhy Purayidam with standing trees. Ext.P19 is anterior to the Kerala Land Utilisation Order, 1967. In Ext.P20, which is another registered title deed of the year 1978 concerning the property, the land is described as Valamkuzhimala Purayidam. Ext.P20 is anterior to the Kerala Conservation of Paddy Land and Wetland Act, 2008. In Exts.P1, P3 and P4 deeds also, the property is described as Purayidam. Exts.P4 and P5 Possession Certificates issued by the Village Officer also describe the property as dry land. 15. The property, however, is described as 'Nilam' (Paddy Land) in the Basic Tax Register. The petitioner would submit that the property was not included in the Data Bank. However, the petitioner submitted Ext.P7 application on 01.08.2017 to the Local Level Monitoring Committee (LLMC) to change the classification in Data Bank. The LLMC recommended removal of the land from the Data Bank, as per the endorsement in Ext.P7. In fact, Ext.P13 communication of the Agricultural Officer would disclose that the land was not WP(C) No.24165/2020 : 11 : ## actually included in the Data Bank. 16. Thereafter, the petitioner submitted Exts.P9 and P14 applications before the Tahsildar invoking Section 6A of the Kerala Land Tax Act, 1961 to reassess the tax in the year 2020. The Tahsildar has taken a stand that the petitioner can only settle the matter by submitting an application under Section 27A of the Kerala Conservation of Paddy Land and Wetland (Amendment) Act, 2018. Conversion of land cultivated with food crops was exclusively governed by the Kerala Land Utilisation Order, 1967. Under Clause 6 of the KLU Order, 1967, permission of the Collector was required for conversion of such land. 17. The petitioner has no case that the land of the petitioner was subjected to any order under the KLU Order. The Kerala Conservation of Paddy Land and Wetland Act, 2008 came into force in the year 2008, which governs the paddy lands and wetlands in Kerala now. The Act was amended in the year 2018 by incorporating Section 27A. Section 27A (1) of the Kerala Conservation of Paddy Land and WP(C) No.24165/2020 : 12 : ## Wetland Act, 2008 reads as follows: ## “27A. **Change of nature of unnotified land-** (1) If any owner of an unnotified land desires to utilise such land for residential or commercial or for other purpose, he shall apply to the Revenue Divisional Officer for permission in such manner as may be prescribed.” The term 'Unnotified Land' is defined in Section 2 (xviiA) to mean the lands within the area of jurisdiction of the Committee which have been included as paddy land or wetland in the Basic Tax Register maintained in Village Offices, but are not notified as paddy land or wetland under sub-section (4) of Section 5 or where Data Bank has not been published under the provisions of Clause (i) of sub-section (4) of Section 5, the lands which have already been filled up on the date of commencement of this Act and are not paddy land according to the report of the Kerala State Remote Sensing Centre and the Local Level Monitoring Committee or where the report of the Kerala State Remote Sensing Centre is not available, lands which are not paddy land according to the WP(C) No.24165/2020 : 13 : report of the Local Level Monitoring Committee. 18. As the petitioners’ land is not included in the Data Bank and as it satisfies the definition of Unnotified Land, the petitioners have to resort to Section 27A, if they desire to use the land for residential, commercial or any other purpose. Without obtaining orders under Section 27A, the petitioners cannot seek to change the nature of the land as 'Nilam' in Revenue records including in the Basic Tax Register. The argument of the petitioners is that they had submitted applications before the enactment of Section 27A and hence the petitioners need not resort to Section 27A for changing the nature of the land in Basic Tax Register. 19. The reliance placed by the learned counsel for the petitioners on the judgment of this Court in _**District Collector, Ernakulam v. Fr. Jose Uppani and others** [2020 (4) KLT 612]_ and in _**Thomas George and others v. State of Kerala and others** [2020 (4) KLT 650]_ , is unfounded. In the judgment in _**District Collector, Ernakulam**_ (supra), WP(C) No.24165/2020 : 14 : admittedly, applications were filed for conversion of land under the Kerala Land Utilisation Order, 1967, prior to the cut off date. In the present case, neither the petitioners nor their predecessors have filed any application under the KLU. _**Thomas George**_ (supra) was a case where the petitioners therein had obtained order under Rule 6(2) of the KLU Order, but submitted application under Section 6(8) of the Kerala Land Tax Act belatedly. For the afore reason, the said judgment also cannot be of any assistance to the petitioners. The learned counsel for the petitioners further relied on another Division Bench judgment of this Court in _**Local Level Monitoring Committee constituted under Section 5 of the Kerala Conservation of Paddy Land and Wetland Act, 2008 in Kizhakkambalam Grama Panchayat and others v. Mariumma and another** [2015 (2) KLT 516]_ . in the said case, it was held that notwithstanding the direction of the Supreme Court in _**Jalaja Dileep's case**_ , if an order is passed by the authority under the KLU or Paddy Land Act, changing description of land, situation mandates fresh assessment WP(C) No.24165/2020 : 15 : under Section 6A of the Land Tax Act. In the said case, this Court directed fresh assessment under Section 6A of the Kerala Land Tax Act since there was an order obtained by the predecessors-in-interest under Rule 6(2) of the KLU Order, 1967. The said judgment also is of no avail for the petitioners since the petitioners or their predecessors have not obtained any order under the KLU. 20. The applications submitted by the petitioners prior to the cut off date were for removing their land from Data Bank. The petitioners or predecessors-in-interest of the property have not filed any application invoking the Kerala Land Utilisation Order. After the Kerala Conservation of Paddy Land and Wetland (Amendment) Act, 2018, the petitioners have to invoke Section 27A for using the land for other purposes. Without resorting to Section 27A, the petitioners cannot seek to change the nature of the land in Basic Tax Register. Section 6A of the Kerala Land Tax Act, 1961 is not intended to change the nature of any land. WP(C) No.24165/2020 : 16 : In the afore circumstances, the writ petition is devoid of merits and is accordingly dismissed. Sd/- **N. NAGARESH, JUDGE** aks/28.10.2021 WP(C) No.24165/2020 : 17 : ## **APPENDIX OF WP(C) 24165/2020** **PETITIONER'S EXHIBITS:** **EXHIBIT P1 TRUE PHOTOSTAT COPY OF THE DOCUMENT NO.490/2013 OF SRO MUVATTUPUZHA EXHIBIT P2 TRUE PHOTOSTAT COPY OF THE TAX PAID RECEIPT STANDING IN THE NAME OF THE 1ST PETITIONER** **EXHIBIT P3 TRUE PHOTOSTAT COPY OF THE ASSIGNMENT DEED NO.913/2019 OF SRO, MUVATTUPUZHA EXHIBIT P4 TRUE PHOTOSTAT COPY OF THE CERTIFICATE DATED 30.04.2016. EXHIBIT P5 TRUE PHOTOSTAT COPY OF THE POSSESSION CERTIFICATE DATED 16.02.2010 EXHIBIT P6 TRUE PHOTOSTAT COPY OF THE CERTIFICATE ISSUED BY THE 5TH RESPONDENT ON 19.08.2013 EXHIBIT P7 TRUE PHOTOSTAT COPY OF THE APPLICATION DATED 01.08.2017 TO THE 4TH RESPONDENT EXHIBIT P8 TRUE PHOTOSTAT COPY OF THE RECEIPT ISSUED BY THE 4TH RESPONDENT IN EXT P7 EXHIBIT P9 TRUE PHOTOSTAT COPY OF THE APPLICATION BEFORE THE 3RD RESPONDENT ON 05.02.2020 EXHIBIT P10 TRUE PHOTOSTAT COPY OF THE RECEIPT UNDER OFFICE NO.1682/20-F1 ISSUED BY THE 3RD RESPONDENT DATED 05.02.2020 EXHIBIT P11 TRUE PHOTOSTAT COPY OF THE JUDGMENT IN WC NO.6562/2020 BEFORE THE HONOURABLE COURT DATED 04.03.2020 EXHIBIT P12 TRUE PHOTOSTAT COPY OF THE REPRESENTATION SUBMITTED BY THE PETITIONERS BEFORE THE 4TH RESPONDENT EXHIBIT P13 TRUE PHOTOSTAT COPY OF THE COMMUNICATION DATED 25.08.2020 ISSUED BY THE 4TH RESPONDENT TO THE OFFICE OF THE ADVOCATE GENERAL EXHIBIT P14 TRUE PHOTOSTAT COPY OF THE REPRESENTATION DATED 03.11.2020 SUBMITTED BY THE PETITIONERS BEFORE THE 3RD RESPONDENT** WP(C) No.24165/2020 ## : 18 : **EXHIBIT P15 TRUE PHOTOSTAT COPY OF THE RECEIPT ISSUED BY THE 3RD RESPONDENT ON 03.11.2020 EXHIBIT P16 TRUE COPY OF THE TAX PAID RECEIPT DATED 09.04.2019. EXHIBIT P17 TRUE COPY OF THE TAX PAID RECEIPT DATED 13.08.2020 EXHIBIT P18 TRUE COPY OF THE TAX PAID RECEIPT DATED 06.07.2021 PERTAINING TO 1 Are 21 Sq.METER WHICH IS SUBJECT MATTER OF TAX PAID RECEIPT DATED 09.04.2019, 13.08.2020. EXHIBIT P19 TRUE PHOTOSTAT COYY OF THE TITLE DEED DATED 01.08.1958 BEARING REGN. No.1867/1958 OF SRO, MUVATTUPUZHA STANDING IN THE NAME OF HTE GRAND FATHER OF THE 1ST PETITIONER. EXHIBIT P20 TRUE PHOTOSTAT COPY OF THE DOCUMENT No.1847/1978 OF SRO, MUVATTUPUZHA DATED 04.05.1978. EXHIBIT P21 TRUE PHOTOSTAT COPY OF THE CERTIFICATE ISSUED BY RUBBER BOARD INDICATING THE NATURE OF THE PROPERTY AND RUBBER PLANTATION.** SR