Moushmi v. Revenue Divisional Officer, Palakkad

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** ## **THE HONOURABLE MR.JUSTICE N.NAGARESH** **THURSDAY, THE 20[TH] DAY OF OCTOBER 2022 / 28TH ASWINA, 1944** ## **WP(C) NO. 27341 OF 2022** ## **PETITIONER:** **MOUSHMI AGED 31 YEARS D/O.K.G.MOHANDAS MOHANAM, MATTUMANTHA, C.N.PURAM, PALAKKAD DISTRICT - 678 005.** **BY ADVS. JACOB SEBASTIAN ANU JACOB K.V.WINSTON** ## **RESPONDENTS:** - **1 THE REVENUE DIVISIONAL OFFICER PALAKKAD, OFFICE OF THE REVENUE DIVISIONAL OFFICER PALAKKAD, PALAKKAD HEAD POST OFFICE, PALAKKAD DISTRICT - 678 001.** - **2 THE ADDITIONAL TAHSILDAR (LAND RECORDS) TALUK OFFICE, CIVIL STATION, PALAKKAD HEAD POST OFFICE, PALAKKAD DISTRICT, PIN - 678 001.** - **3 THE VILLAGE OFFICER KANNADI-I VILLAGE, KANNADI P.O, PALAKKAD DISTRICT, PIN - 678 701.** - **4 THE AGRICULTURAL OFFICER KANNADI PANCHAYAT, KANNADI P.O., ALAKKAD DISTRICT, PIN - 678 701.** ## **SMT.VIDYA KURIAKOSE GP** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 20.10.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 2 WP(C) No. 27341 of 2022 ## **J U D G M E N T** Dated this the 20[th] day of October, 2022 The petitioner is owner of 0.4827 Hectares of land (119.28 Cents) comprised in Old Survey Nos. 52/4 and 12 and 53/5, ReSurvery Block No. 51, Old Re-Survey Nos. 559/4 and 5 and 563/4, Re-Survey Nos. 559/15 and 16 and 563/8 of Kannadi-1 Village, Palakkad Taluk of Palakkad District. The petitioner states that the property is not included in the Data Bank. 2. According to the petitioner, the predecessors-in-interest of the property had approached the Revenue Divisional Officer filing application under the Kerala Land Utilisation Order, 1967 seeking to use the land for non agricultural purposes. The Revenue Divisional Officer thereupon issued Ext.P2 proceedings finding that there is no proper irrigation facility to the land and the land is not fit for cultivation. The Village Officer has further 3 WP(C) No. 27341 of 2022 reported that the land has been lying fallow for the past 45 years. 3. On 11.08.2022, the petitioner submitted an application before the Additional Tahsildar (LR) invoking Section 6A of the Kerala Land Tax Act, 1961 seeking re-assessment of Basic Tax in respect of the land. The application of the petitioner is not being acted upon. In such circumstances, the petitioner is before this Court seeking to declare that as the petitioner's plot is converted on the strength of an order issued in terms of KLU Order prior to coming into force of the Kerala Conservation of Paddy Land and Wetland Act, 2008, she could also seek change of records of Basic Tax Register in respect of the subject property without making any application as envisaged under Section 27C of the Kerala Conservation of Paddy Land and Wetland Act, 2008. 4. The counsel for the petitioner states that Ext.P2 order was issued by the Revenue Divisional Officer with a finding that the petitioner's land is not fit for paddy cultivation and it was lying fallow for the past 45 years. Even prior to 1967 when the Kerala 4 WP(C) No. 27341 of 2022 Land Utilisation Order was promulgated, the land was fallow. 5. The counsel for the petitioner pointed out that in an identical situation, this Court in **Iype Varghese v. Revenue Divisional Officer, Idukki and Others** [2020 (5) KLT 403] held that when an order in the nature of Ext.P2 is obtained by the applicant or predecessor, the legal position is that there is no question of again compelling the party to go through the rigmarole of the procedure under Section 27A(3) proviso to the Kerala Conservation of Paddy Land and Wetland Act, 2008. Therefore, without forcing the petitioner to invoke the provisions of the Kerala Conservation of Paddy Land and Wetland Act, 2008, the respondents are compellable to reassess the Basic Tax of the petitioner's land and make necessary entries in the Basic Tax Register. 6. Government Pleader entered appearance and resisted the writ petition. The Government Pleader pointed out that the predecessor of the property had submitted application under 5 WP(C) No. 27341 of 2022 Clause 6(2) of the KLU Order seeking permission for conversion of land. The predecessor approached this Court filing W.P.(C) No. 20033/2008. This Court as per judgment dated 28.01.2009 directed the 1[st] respondent to consider and pass orders in the application in the light of the dictum laid down in **Jayakrishnan v. District Collector and Others** [2008 (4) KHC 514]. The Government Pleader pointed out that in judgment in **Jayakrishnan** (supra) the dictum laid down is as follows; “in case of application by the exemption, the authorities shall first consider whether the land is paddy land or wetland. If it is found that it is paddy land, then the plea for conversion shall be dealt with in accordance with Act 28 of 2008. If it is found that it is not paddy land or wetland, the application shall be dealt with under the provisions of the Land Utilisation Order”. 7. In compliance of the judgment of this Court, Ext.P2 order was issued directing the applicant to confirm from authorities concerned whether the land has been included in the Data Bank as per the Act, 2008. The applicant was directed to file an affidavit to process the application. 6 WP(C) No. 27341 of 2022 8. The Government Pleader pointed out that the petitioner did not file such an application in spite of the directions given in Ext.P2. Therefore, no further orders were passed under Clause 6(2) of the Kerala Land Utilisation Order. In the circumstances, the petitioner cannot aspire for reassessment of Basic Tax in respect of her land by filing an application under the Kerala Land Tax Act, 1961. The petitioner is compellable to resort to the provisions of the Kerala Conservation of Paddy Land and Wetland Act, 2008 for getting her land converted and for re-assessment of Basic Tax. 9. I have heard the learned counsel for the petitioner and the learned Government Pleader representing the respondents. 10. Ext.P2 proceedings of the Revenue Divisional Officer, Palakkad would show that the predecessor-in-interest of the petitioner had submitted application invoking Clause 6(2) of the Kerala Land Utilisation Order. Ext.P2 would show that the Village Officer, Kannadi-1 had made enquiry in the matter and submitted a report wherein it was stated that there is no proper irrigation 7 WP(C) No. 27341 of 2022 facility to the land and the land is not fit for cultivation. The Village Officer further reported that the land has been lying fallow for the past 45 years. 11. This Court in the judgment in **Iype Varghese** (supra) dealt with an order in the nature of Ext.P3. This Court after considering a similar order held as follows; 8. after hearing both sides, this Court is of the considered view that, if a party like the petitioner's predecessor has indeed obtained an order in the nature of Ext.P1, after consideration of an application filed under Rule 6(2) of the KLU Order, that the property has been duly converted even prior to 04.07.1967 and that therefore, no permission under Rule 6(2) is required, then in such a case, such an order in the nature of Ext.P1 has to be treated as having the force of an order passed in terms of the proviso to Section 27A(3) of the act. The resort to the procedure under Section 27A(3) proviso and Rule 12(13) and Rule 14 would be applicable, only in a case where the party could not obtain an order of clarification as in the nature of Ext.P1 from the statutory notified collector under Rule 6(2) of the KLU Order. 9. If the party like the petitioner's predecessor has indeed obtained Ext.P1 order dated 13.07.1999 and that too, based on an application filed as early as on 07.06.1999 seeking for formal permission under Rule 6(2) of the KLU Order, then there is no question of again legally compelling the said party to go through the rigmarole of the procedure under Section 27A(3) proviso read with Rule 12(13) and Rule 12(14) of the rules. The legal position in that regard is declared and ordered. It is made clear that, it is only in a case where the party has not secured any such clarificatory orders issued by the statutory notified collector under Rule 8 WP(C) No. 27341 of 2022 6(2) of the KLU Order, on an application filed as per that provision before 30.12.2017, that claim under the proviso to Section 27A(3) has to be considered. This is so, as Section 27(13) mandates that it is only applications for permission filed on or after 30.12.2017 (date commencement of the amended provisions of the 2008 act which was introduced Section 27A thereof), that will have to be considered as per those provisions in the 2008 act. 12. In the above judgment, this Court found that when a person has obtained an order from the Revenue Divisional Officer, based on an application filed seeking formal permission under Rule 6(2) of the KLU Order, there is no question of again legally compelling the party to go through the rigmarole procedure under Section 27A(3) proviso in the Act, 2008. Ext.P2 is also a similar order and this Court is of the view that the petitioner is also entitled to similar relief. 13. The contention of the Government Pleader is that Ext.P2 order was passed on the basis of the judgment of this Court in W.P.(C) No. 20033/2008 wherein a direction was given to the Revenue Divisional Officer to consider and pass orders on the petitioner's application in the light of the law laid down by this Court in **Jayakrishnan (** supra). Ext.P2 order was conditional as to 9 WP(C) No. 27341 of 2022 the applicant confirming from the authorities concerned whether the land has been included in the Data Bank of paddy land and wetland as mentioned in Rule 4 of the Kerala Conservation of Paddy Land and Wetland Act, 2008 and filing an affidavit accordingly. 14. In this regard, it is to be noted that the land stands already excluded from the land Data Bank. This Court in **Iype Varghese** (supra) has held that if the petitioner or a predecessorin-interest of the petitioner had obtained an order after consideration of an application filed under Rule 6(2) of the KLU Order that the property was converted even prior to 04.06.1967, no permission under Rule 6(2) is required. Such an order has to retain force of an order passed in terms of the proviso to Section 27A(3) of the Act, 2008. In view of the categoric findings of this Court in the judgment in **Iype Varghese** , the petitioner is entitle to relief in this petition. Accordingly, the writ petition is disposed of directing the 2[nd] 10 WP(C) No. 27341 of 2022 respondent to consider Ext.P6-Form-A application submitted by the petitioner for fixation of rate of Basic Tax and pass appropriate order therein within a period of two months. **==> picture [142 x 36] intentionally omitted <==** Sd/- **N. NAGARESH JUDGE** ams/21.10.2022 11 WP(C) No. 27341 of 2022 ## **APPENDIX OF WP(C) 27341/2022** ## **PETITIONER'S EXHIBITS** **Exhibit P1 A TRUE COPY OF THE POSSESSION CERTIFICATE NO.64732638 RELATING TO THE LAND DATED 29/04/2022 ISSUED BY THE THIRD RESPONDENT.** **Exhibit P2 A TRUE COPY OF THE ORDER DATED 20/07/2009 ISSUED BY THE FIRST RESPONDENT.** **Exhibit P3 A TRUE COPY OF THE SALE DEED NO.1796/2010 OF SRO KUZHALMANNAM EXECUTED ON 28/06/2010 BY ABDUL RAZAK IN FAVOUR OF I.T.L.MOTORS PRIVATE LIMITED COMPANY.** **Exhibit P4 A TRUE COPY OF THE SALE DEED NO.957/2013 OF SRO KUZHALMANNAM EXECUTED ON 11/04/2013 BY I.T.L.MOTORS PRIVATE LIMITED COMPANY IN FAVOUR OF THE PETITIONER.** - **Exhibit P5 A TRUE COPY OF THE RELEVANT EXTRACT OF THE KANNADI PANCHAYAT PUBLISHED IN KERALA GAZETTE DATED 27/01/2021.** - **Exhibit P6 A TRUE COPY OF THE APPLICATION DATED 11/08/2022 SUBMITTED BY THE PETITIONER BEFORE THE SECOND RESPONDENT ALONG WITH ACKNOWLEDGMENT DATED 11/08/2022.** **Exhibit P7 A TRUE COPY OF THE JUDGMENT DATED 25/06/2019 IN WP(C) NO.16536/2018 OF THIS HON'BLE COURT.** **Exhibit P8 A TRUE COPY OF THE JUDGMENT DATED 16/12/2020 IN WP(C) NO.26007/2020 OF THIS HON'BLE COURT.**