M.K. Shivadasan & Others v. Revenue Divisional Officer, Chengannur & Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN** **FRIDAY, THE 11TH DAY OF OCTOBER 2019 / 19TH ASWINA, 1941** ## **WP(C).No.14829 OF 2019(C)** ## **PETITIONERS:** - **1 M.K.SHIVADASAN, S/O.KUNJUKUNJU, SIVAMANGALAM, AREEKARA MURI, MULAKUZHA VILLAGE, CHENGANNUR, ALAPPUZHA DISTRICT - 689 505, (REPRESENTED BY POWER OF ATTORNEY HOLDER K.R.RAJAPPAN), S/O.K.V.RAMACHANDRAN, CHAITHANYA, AREEKARA P.O., MULAKUZHA, CHENGANNUR, ALAPPUZA DISTRICT - 689 505.** - **2 RAJESH RAJAPPAN, S/O.K.R.RAJAPPAN, RAJAMANGALAM (CHAITHANYA), AREEKARA MURI, MULAKUZHA VILLAGE, CHENGANNUR, ALAPPUZHA DISTRICT - 689 505, (REPRESENTED BY POWER OF ATTORNEY HOLDER K.RAJAPPAN), -DO- -DO-** - **3 NISHA SHIVADASAN, W/O.RAJESH RAJAPPAN, SIVAMANDIRAM, AREEKARA MURI, MULAKUZHA VILLAGE, CHENGANNUR, ALAPPUZHA DISTRICT - 689 505, PRESENT ADDRESS P.B.NO.21551, MANAMA, KINGDOM OF BAHRAIN, (REPRESENTED BY POWER OF ATTORNEY HOLDER K.R.RAJAPPAN), -DO- -DO-** **BY ADVS. SRI.P.RAVINDRAN (SR.) SMT.APARNA RAJAN SRI.SREEDHAR RAVINDRAN** ## **RESPONDENTS:** - **1 THE REVENUE DIVISIONAL OFFICER, CHENGANNUR - 689 121.** - **2 THE MUNICIPAL SECRETARY, CHENGANNUR MUNICIPALITY, CHENGANNUR, ALAPPUZHA DISTRICT -689 121.** - **3 CHENGANNUR MUNICIPALITY REPRESENTED BY ITS SECRETARY, CHENGANNUR, ALAPPUZHA DISTRICT - 689 121.** ## **WP(C).No.14829 OF 2019 2** - ***4 ADDL.R4. GOVERNMENT OF KERALA, REPRESENTED BY ITS CHIEF SECRETARY, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM - 695 001.** - ***5 ADDL.R5. THE SECRETARY, DEPARTMENT OF REVENUE, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM - 695 001.** - ***6 ADDL.R6. THE SECRETARY, DEPARTTMENT OF LOCAL SELF GOVERNMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM - 695 001.** - ***ADDL.R4 TO R6 ARE IMPLEADED AS PER ORDER DATED 04/09/2019 IN I.A.NO.3/2019 IN WPC.14829/2019.** - **R2-3 BY SRI.S.HARIKRISHNAN,SC,CHENGANNUR MUNICI** **SRI.S.HANIL KUMAR, SR.GP** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 11.10.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C).No.14829 OF 2019 3** ## **JUDGMENT** The petitioners have approached this Court impugning Exts.P13, P15 and P17 communications issued to them by the respondent - Chengannur Municipality alleging that the requirements therein are completely untenable and therefore, unlawful. 2. The petitioners say that they are the owners of 23.66 Ares of land in Chengannur village comprised of in Resurvey No.190/6, 190/6-1, 186/2-1-1, 190/62, 186/2-1-2 & 186/40 and that it has not been included as a Paddy Land or as a Wet Land in the Data Bank prepared by the Local Level Monitoring Committee (LLMC for short) under the provisions of the _Kerala Conservation of Paddy Land & Wetland Act_ (hereinafter referred to as 'the Paddy Land Act' for short). 3. The petitioners submit that they have, in any event, obtained Ext.P12 order **WP(C).No.14829 OF 2019 4** from the 1[st] respondent-Revenue Divisional Officer (RDO for short) under Clause 6 of the Kerala Land Utilization Order (KLU Order for short) permitting the land to be used for other purposes and therefore, that the Municipality could not have directed them to produce further orders from the RDO, as has been done through Exts.P13, P15 and P17. The petitioners, therefore, pray that this Court quash these communications and direct the Chengannur Municipality to take a decision on their application for building permit without any further delay. 4. The learned Standing Counsel appearing for the Chengannur MunicipalityShri.S.Harikrishnan,in response to the afore submissions made on behalf of the petitioners by their learned Counsel Shri.Sreedhar Ravindran, submitted that Exts.P13, P15 and P17 have been issued by way of abundant caution, since even though the petitioners have obtained Ext.P12 ## **WP(C).No.14829 OF 2019 5** Order, the nature of the property has not been altered in the Basic Tax Register (BTR for short) and the Revenue Records. He says that it is only, therefore, that in Ext.P17 the petitioners were asked to approach the competent Authorities and obtain the nature of the land altered appropriately in such documents. He, therefore, prays that Exts.P13, P15 and P17 be left uninterdicted. 5. The learned Senior Government Pleader-Shri.S.Hanil Kumar, submitted that even though the petitioners have obtained Ext.P12 Order, it is obvious that the nature of the property remains as a 'Nilam' (Paddy Land) in the BTR and Revenue Records. He says, therefore, that going by the 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 v. Mariumma**_ ## **WP(C).No.14829 OF 2019 6** _**[2015(2)KLT 516]**_ the petitioners must make an application under Section 6(A) of the Land Tax Act, 1961, before the competent Tahsildar, so as to make necessary additions to the BTR and Revenue Records, leading to a fresh assessment of Land Tax, which, he says will also be to the benefit of the petitioners. 6. On a consideration of the afore submissions, it becomes undoubted that the apprehension of the Municipality, as voiced in Exts.P13, P15 and P17, can presently be seen to be only partially relevant. This is because, since the petitioners have obtained Ext.P12 Order, under the provisions of the KLU Order, from the 1[st] respondent–RDO, then there is no requirement for them to go back to the said Authority and seek further orders to obtain the building permit. 7. However, the objection regarding the nature of the property remaining as a ## **WP(C).No.14829 OF 2019 7** Paddy Land in BTR and the Revenue Records appear to be justified and I am, therefore, of the view that the petitioners must be given an opportunity to move an application under the Land Tax Act, so as to enable the properties to be properly assessed in terms of _**Mariumma**_ (Supra). Resultantly, I order this writ petition and quash Exts.P13, P15 and P17, to the extent to which the petitioners have been asked to produce further Order from the RDO under the KLU Order or under the Paddy Land Act, but leave liberty to the petitioners to approach the competent Tahsildar under the Land Tax Act with an application for re-assessment of their property and for additions in the BTR and the Revenue Records. If this is done by the petitioners within a period of one month from the date of receipt of a copy of this judgment, the competent Tahsildar will consider the same and take an appropriate action thereon, ## **WP(C).No.14829 OF 2019 8** after affording the petitioners an opportunity of being heard, as expeditiously as is possible, but not later than one month from the date on which such applications are received by him. As far as the Municipality is concerned, they are at liberty to consider the petitioners' applications _de hors_ the impugned orders in this case, which have been already quashed, and without waiting for the reassessment of land tax as ordered above; and to issue appropriate orders in terms of law, after following all due procedures. **Sd/-** ## **DEVAN RAMACHANDRAN** **JUDGE** **MC/19.10.19** **WP(C).No.14829 OF 2019 9** ## **APPENDIX OF WP(C) 14829/2019** ## **PETITIONER'S/S EXHIBITS:** |**EXHIBIT P1**|**TRUE COPY OF THE BUILDING PERMIT ISSUED BY**| |---|---| ||**THE 1ST RESPONDENT DATED 13/5/15.**| |**EXHIBIT P2**|**TRUE COPY OF THE MODIFIED BUILDING PERMIT**| ||**ISSUED BY THE 1ST RESPONDENT DATED 23/3/16.**| |**EXHIBIT P3**|**TRUE COPY OF THE NOTICE ISSUED BY THE 1ST**| ||**RESPONDENT DATED 9/6/16.**| |**EXHIBIT P4**|**TRUE COPY OF THE JUDGMENT IN W.P.(C)**| ||**NO.24351/16 DATED 29/9/16.**| |**EXHIBIT P5**|**TRUE**<br>**COPY**<br>**OF**<br>**THE**<br>**JUDGMENT**<br>**IN**| ||**W.A.NO.2174/2016 DATED 17/11/16.**| |**EXHIBIT P6**|**TRUE COPY OF THE ORDER OF THE REVENUE**| ||**DIVISIONAL OFFICER DATED 28/11/16.**| |**EXHIBIT P7**|**TRUE COPY OF THE JUDGMENT IN W.P.(C)**| ||**NO.39274/2016 DATED 6/2/17.**| |**EXHIBIT P8**|**TRUE COPY OF THE CIRCULAR ISSUED BY THE**| ||**GOVERNMENT DATED 22/12/2016.**| |**EXHIBIT P9**|**TRUE COPY OF THE ORDER REJECTING THE**| ||**APPLICATION DATED 24/03/2017.**| |**EXHIBIT P10**|**TRUE COPY OF THE JUDGMENT IN W.P.(C)**| ||**NO.13194/2017 DATED 16/8/2017.**| |**EXHIBIT P11**|**TRUE**<br>**COPY**<br>**OF**<br>**THE**<br>**JUDGMENT**<br>**IN**| ||**W.A.NO.2163/2017 DATED 19/2/2018.**| |**EXHIBIT P12**|**TRUE COPY OF THE ORDER OF THE REVENUE**| ||**DIVISIONAL OFFICER DATED 31/8/2017.**| |**EXHIBIT P13**|**TRUE COPY OF THE NOTICE OF THE 2ND**| ||**RESPONDENT DATED 9/4/2019.**| |**EXHIBIT P14**|**TRUE COPY OF THE REPRESENTATION SUBMITTED**| ||**BY THE PETITIONERS BEFORE THE 2ND**| ||**RESPONDENT DATED 17/4/19.**| |**EXHIBIT P15**|**TRUE COPY OF THE COMMUNICATION OF THE 2ND**| ||**RESPONDENT DATED 20/4/19.**| |**EXHIBIT P16**|**TRUE COPY OF THE COMMUNICATION OF THE**| ||**VILLAGE**<br>**OFFICER,**<br>**CHENGANNUR**<br>**DATED**| ||**03/05/2019.**| **WP(C).No.14829 OF 2019 10** **EXHIBIT P17 TRUE COPY OF THE COMMUNICATION OF THE 2ND RESPONDENT DATED 9/5/19. EXHIBIT P-18 PHOTOCOPY OF THE NOTICE EXHIBITED IN THE NOTICE BOARD OF THE MUNICIPALITY REQUIRED ALL APPLICANTS NOT TO SUBMIT ANY APPLICATIONS TILL 31.03.2019** **RESPONDENT'S/S EXHIBITS:** **EXHIBIT-R2(A) TRUE COPY OF THE APPLICATION DATED 15/03/2019 WHICH WAS ACTUALLY RECIEVED AT THE MUNICILAL OFFICE ON 01/04/2019 EXHIBIT-R2(B) TRUE COPY OF THE ACKNOWLEDGMENT DATED 01/04/20190 ISSUED BY THE MUNICIPAL OFFICE, CHENGANNUR EXHIBIT R2(C) TRUE COPY OF THE APPLICATION DT.18.07.2019 SUBMITTED BEFORE THE 1ST RESPONDENT TOGETHER WITH LOCATION SKETCH.** **EXHIBIT R2(D) TRUE COPY OF THE TREASURY CHELAN REMITTANCE DT.18.07.2019 IN TERMS OF RULE 12(3) OF THE AMENDED KERALA CONSERVATION OF PADDY LAND AND WETLAND RULES, 2008. EXHIBIT R2(E) TRUE COPY OF THE REPRESENTATION DT 20.07.2019 SUBMITTED BEFORE THE 2ND RESPONDENT ON BEHALF OF THE PETITIONERS.** **MC** **(TRUE COPY) PA TO JUDGE**