M/S SEALAND BUILDERS PVT LTD v. Revenue Divisional Officer, Fort Kochi; Tahsildar, Kanayannur Taluk; Village Officer, Maradu

## **(C.R)** **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **MONDAY, THE 27TH DAY OF JULY 2020 / 5TH SRAVANA, 1942** ## **WP(C).No.14531 OF 2020(N)** ## **PETITIONER:** **M/S SEALAND BUILDERS PVT LTD** **REPRESENTED BY ITS DIRECTOR SHAJI K MATHEW, S/O.K.C.MATHEW, 1ST FLOOR, ANJANA COMPLEX, KUNDANNUR, VYTTILA, PIN-682 304.** **BY ADVS. SMT.ANU S NAIR SRI.BABY THOMAS** ## **RESPONDENTS:** - **1 THE REVENUE DIVISIONAL OFFICER REVENUE DIVISIONAL OFFICE, FORTKOCHI, -682 001.** - **2 THAHASILDAR, KANAYANNUR TALUK, TALUK OFFICE, ERNAKULAM-681 011.** - **3 THE VILLAGE OFFICER, MARADU, NETTOOR, MARADU-682 040.** **BY ADVS. SRI.K.J.MANU RAJ, GOVT.PLEADER** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 27.07.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 2 W.P(C) No. 14531 of 2020 ## ALEXANDER THOMAS, J. -----------------------------------W.P(C) No. 14531 of 2020 -----------------------------------Dated this the 27[th ] day July, 2020 ## **JUDGMENT** The prayers in the above Writ Petition (C) are as follows: - _“(i) To issue a writ of certiorari and call for the records related to Ext. P4 and to quash the same._ - _(ii) To issue a writ of mandamus order or direction to the 1st respondent to consider and pass orders on the application dated 25.09.2013 filed by the Petitioner under clause 6 (2) of The Kerala Land Utilisation Order 1967 forthwith._ - _(iii) To issue a writ of mandamus order or other appropriate writ or direction directing the 2[nd] respondent to consider and pass appropriate orders on Exhibit P5 application to re assess the Land tax under Sec.6A of the Kerala Land Tax Act and to correct the Basic Tax Register showing the subject property covered by Ext.P1 land tax, Ext. P3 judgment without insisting for payment of any fee as provided under section 27 A (3) and Rule 12 (9) and Rule 12 (17) of the Kerala Conservation of Paddy Land and Wet Land Act 2008._ - _(iv) To declare that the petitioner is not liable to pay any fees under the new act (Act 29 of 2018) as the said act is not applicable to the case of the petitioner as it has submitted application much before the introduction of the amended act 2018._ - _(v) To issue any other writs order or direction which this Hon’ble Court may deem fit on the facts and circumstances of the case.”_ 2. Heard Smt.Anu.S.Nair, learned counsel appearing for the petitioner and Sri.K.J.Manu Raj, learned Government Pleader appearing for the respondents. 3 ## W.P(C) No. 14531 of 2020 3. The case of the petitioner is that the subject property, though continues to be described as 'nilam/paddy land' in the Basic Tax Register (BTR) has been converted as 'garden land or purayidam' long prior to 12-08-2008 (date of coming into force of the Kerala Conservation of Paddy Land and Wetland Act, 2008). Further that the petitioner has filed the requisite application as early as on 25-09-2013 before the 1[st] respondent RDO, under Rule 6(2) of the KLU Order and has also filed the consequential application on 25-092013 before the 22[nd] respondent Tahsildar seeking for alteration in the BTR to show the changed nature of the land as 'garden land or purayidam'. Since no action was being taken thereon the petitioner was constrained to approach this Court by filing Writ Petition (Civil) as W.P(C) No.2763/2013, in which this Court has disposed of as per Ext.P3 judgment rendered as early as on 22-11-2013, whereby this Court has ordered that the said application dated 25-09-2013 [Ext.P4 in Ext.P3 W.P(C)] shall be considered and decided by the respondent RDO strictly in terms of the provisions contained in Kerala Land Utilisation Order in order to enable the petitioner to use the property for any non-agricultural purposes, within one month from the date of 4 W.P(C) No. 14531 of 2020 receipt of a copy of this judgment. 4. Thereafter the 1[st] respondent had passed Ext.P4 order dated 01-06-2014 ordering that since the decision of this Court in _**Jalaja Dileep v. State of Kerala**_ , has been challenged before the Apex Court, request in the said application dated 25-09-2013 filed by the petitioner (Ext.P4 in Ext.P3) will stand rejected etc,. Now the petitioner has again filed Ext.P5 application dated 22-05-2020 before the 2[nd] respondent Tahsildar seeking for fresh assessment/ reassessment of the subject property in terms of Sec.6A of the Kerala Land Tax Act, so as to secure additional entries in the BTR to show the changed nature of the land as 'garden land or purayidam' etc,. 5. It is pointed out that petitioner has filed the requisite application under Rule 6 (2) of the KLU Order on 25-09-2013, which is well before the cut off date of 30-12-2017 (date of coming into force of the amended provisions of the 2008 Act, which has introduced Sec.27A thereof) and that therefore the said application dated 25-092013 (Ext.P4 in Ext.P3) has to be considered strictly in terms of Rule 6(2) of the KLU Order etc,. It is in the above facts and circumstances that the petitioner has filed the instant writ petition with the 5 W.P(C) No. 14531 of 2020 aforementioned prayers. 6. Further the petitioner would also point out that the subject property of the petitioner has been converted as garden land or purayidam, prior to the 2008 Act. By way of abundant caution the petitioner has also filed Ext.P6 application dated 09-07-2020 before the 1[st] respondent RDO for formal orders for exclusion of the subject property from the land data bank. It is pointed out that since it is admitted by the respondents in Ext.P2 that the subject property has been converted as purayidam, the said property should not have been included in the land data bank at all and therefore, the very inclusion is illegal and wrong and therefore the property has to be formerly excluded from the land data bank, etc,. 7. It has been well settled in a series of rulings of this Court as in _**Geo Peter v. Revenue Divisional Officer**_ [2019 (3) KLT 838], _**Renjith.K.Paul v.Revenue Divisional Officer**_ [2019 (2) KLT 262), _**LLMC, Kizhakkambalam Grama Panchayath v. Mariumma**_ [2015 (2) KLT 516 (DB)], _**Tahsildar, Thodupuzha Taluk and another v. Renjith George**_ [2020 (1) KHC 865 (DB)], etc, that where the paddy land has been converted as garden 6 W.P(C) No. 14531 of 2020 land or purayidam much prior to 12-08-2008 ( the date of coming into force of the 2008 Act) and where the property holder has filed requisite application under Rule 6(2) of the Kerala Land Utilisation Order, 1967, before 30-12-2017 (which is the date of coming into force of the amended provisions of 2008 Act, which has introduced Sec.27 A thereof), then the property holder is entitled to get his request considered for conversion of the property strictly in terms of Rule 6(2) of the KLU order, 1967 and in such a case the provisions in Sec.27A of the 2008 Act and rules framed thereunder cannot have any application and the party cannot be compelled to pay any amounts as conceived as per amended provisions of the 2008 Act and the rules framed thereunder, even if such application is pending, provided the application under Rule 6(2) of the KLU Order has been filed before 30-12-2017. 8. Further it has been also held in those decisions, more particularly, in the aforestated Division Bench decisions in _**Mariumma’s case**_ (supra) [2015 (2)KLT 516] and _**Renjith's case**_ (supra) [2020 (1) KHC 865 (DB)], etc., that where the property holder thus secures orders under Rule 6(2) of the KLU order, 1967 from the RDO, then the property holder is equally entitled to 7 W.P(C) No. 14531 of 2020 maintain an application under Sec.6A of the Kerala Land Tax Act, 1961 for fresh assessment of the property by the Thahsildar for getting additional entries in the BTR to show the subject property as 'garden land' or 'purayidam', instead of the earlier BTR entries as 'nilam' or 'paddy land'. 9. It has also been reiterated by this Court in decisions as in _**Fr. Jose Uppani Vs District Collector** [2020 (3) KLT 492]_ , wherein it has been held that in such case the party has filed the requisite application under Rule 6(2) of the KLU Order before 30-122017 and the same has to be considered strictly in terms of Rule 6(2) of the KLU Order and without compelling the party 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. 10. The judgments rendered by this Court in cases as in W.P(C) No.8645/2020 and W.P(C)No.8307/2020 has been challenged by the State by filing Writ Appeal No.876/2020 & W.A No.918/2020. The Division Bench of this Court has passed common judgment dated 21-07-2020 dismissing W.A No.876/2020 & W.A 8 W.P(C) No. 14531 of 2020 No.918/2020 and thereby has affirmed correctness of the judgments of this Court in W.P(C) No.8645/2020 & W.P(C)No.8307/2020 etc,. It will be pertinent to refer the Division Bench of this Court in the abovesaid judgment dated 21-07-2020 has held paragraphs 5 to 7 thereof, as follows: “ _5. As we have pointed out earlier, Section 27A was brought into force on and with effect from 30.12.2017,to deal with change of nature of unnotified land,thus requiring any owner of an unnotified land desiring to utilise any Paddy land for residential or commercial purpose or for other purpose,to apply to the Revenue Divisional officer for permission in such manner as may be prescribed. True a procedure is prescribed there under in the matter of consideration of such an application . Admittedly, the applications were filed by the writ petitioners under the Kerala Land Utilization Order, 1967, prior to the aforesaid cut off date. Therefore, the applications so submitted had to be considered by the statutory authority in accordance with the procedure, and terms and conditions contained under the Kerala Land Utilisation order 1967. It is also an admitted fact that the orders were passed by the statutory authority taking into account the provisions of the Kerala Land Utilization Order, 1967. Therefore in our view, none of the provisions contained under Section 27A of Act 2008, which has come into force only with effect from 30.12.2017, has any manner of binding force so far as the facts and circumstances of the appeals are concerned. It is also an admitted fact that the orders passed by the authority under the Kerala Land Utilization Order have become final and conclusive. Now the sole question is whether Section 27C of Act 2008 can be construed as an independent provision detached from Section 27A of Act 2008. In order to understand the purport of Section 27C, it is extracted as under:_ _“_ _**27C. Change in records.-** (1) Notwithstanding anything contained in any other law for the time being in force or in any judgment, decree or order of any Court, Tribunal or any other Authority, wherever a part of a survey number or subdivision is permitted to be converted under Sections 8,9,10 or 27A of this Act, a new subdivision shall be created for the extent for_ which such _orders for conversion are issued._ _(2) Where the paddy land or unnotified land is duly_ 9 W.P(C) No. 14531 of 2020 _converted as per the provisions of this Act, the Tahsildar shall reassess the land tax under Section 6A of the Kerala Land Tax Act, 1961 (13 of 1961) and make necessary entries in revenue records relating to such lands._ _(3) Where such changes are recorded in revenue records, the number and date of the order and the authority granting sanction, the survey number of the lands for which sanction has been accorded, extent of the land in each survey number for which sanction has been accorded and the revised land tax shall be clearly recorded ensuring that the old entries are legible._ _(4) Tahsildar shall conduct periodical inspection to ensure that changes in revenue records are in accordance with subsection (3)._ _(5) No attempt shall be made to alter or change or modify the revenue records relating to the paddy land or wetland or unnotified land otherwise than in accordance with subsection(3).”_ _6. On a reading of the said provision it is clear that, Section 27C applies, wherever a part of survey number of subdivision is permitted to be converted under Sections 8,9,10 or 27A of Act 2008, and in which case, a new subdivision shall be created for the extent for which such orders for conversion are issued. Therefore it is clear that, Section 27C deals with a situation where an order is passed to convert the land as per the provisions of the Kerala Conservation of Paddy Land and Wetland Act, 2008. The rest of the provisions there under are consequential to Section 27C(1) and therefore only under the circumstances prescribed under Section 27C(1), the procedure can be followed by the Tahsildar._ _7. However, it is an admitted fact that the application was submitted by the writ petitioners on the basis of the orders secured by them under the provisions of the Kerala Land Utilization Order, 1967. Therefore, the provisions of Section 27C have no application. The issue with respect to the alteration of the entries in the Basic Tax Register was considered by the Apex Court in Revenue Divisional Officer, Fort Kochi Vs. Jalaja Dileep [2014(1) KLT 161 = 2014 (1) KHC 96] and held that the entries contained in the Basic Tax Register cannot be changed. However, the Division Bench of this Court in 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 Utilization Order, 1967. It was accordingly that the applications were submitted by the writ petitioners before the Tahsildar. Therefore, the Tahsildar should have considered the applications_ 10 W.P(C) No. 14531 of 2020 _submitted by the writ petitioners in terms of the proposition of law laid down by the Division Bench in Mariyumma (supra) and not on the basis of the amended provisions of Section 27C, which has come into force only with effect from 30.12.2017. It was exactly on the basis of the judgment of Mariyumma (supra), learned Single Judge has held that, the order passed by the Tahsildar directing the writ petitioners to pay the amounts at the rate of 25% of the converted land, after securing orders from the Revenue Divisional Officer cannot be legally sustained. In fact, the issue in question was considered by this court in Tahsildar Vs. Renjith George [2020(2) KLT 13] and held that, when the provisions of the statute are clear and unambiguous, there is no power vested with the statutory authority to expand the scope of the provisions of law by issuing directions against the mandate of law. The proposition of law laid down by this court in the judgment in Renjit George (Supra) squarely applies to the facts and circumstances of the appeals on hand also. Taking into account the law, facts and circumstances, we are of the considered opinion that the appellants have not made out any case for interference with the judgment of the learned Single Judge.”_ 11. It has also to borne in mind the legislature has specifically mandated Sub Sec (13) of Sec.27A that it is only those application received for change of nature of unnotified land from the date of commencement of the Kerala Conservation of Paddy Land and Wetland (Amendment) Act, 2018 (viz, 30-12-2017) that shall be considered and disposed of only in accordance with the provisions of the said Act. Therefore in other words application for change of user of the land received by the notified Collector before 30-12-2017 has to be considered only in terms of Rule 6(2) of the KLU Order and not in terms of Sec.27A and the rules framed thereunder. 12. Rule 12(17) of the Kerala Conservation of Paddy Land and 11 W.P(C) No. 14531 of 2020 Wetland Rules 2008 provides as follows: _(17)_ "2018 _**(**_ ക�ദഗത� _**)**_ ��യമ� ല�ക�രള ല�ൽവയൽ തണ�ർതട സ�രകണ പ��ബ��ത�ൽ വനത��! മ!ൻപ _**,** 1967-_ ല� ക�രള �$വ���കയ�ഗ ഉതരവ പ���ര� വ�ട ലവയയ�ക�� മററ ആവശ�ങൾകയ� ���� �ര�വർത�ല0ട!ത�ൻ ��യമ�രമ�യ� അ�!മത� വ�ങ�യത സ�ബന�ച ഉതരവ!�ൾ ഹ�ജര�യ!ന�ക� അപ���രമ!ള �$മ�യറ ലറവ��$ സസ��വ കരഖ�ള�ൽ വ�ത�യ��� വര!ത!നത�ന ലഷഡ�$ള�ൽ _**25% .”**_ �റഞ�ര�യ!ന ഫ�സ�നലറ ��രയ�ൽ അടവ വര!കതണത�ണ 13. Since it is specifically mandated in Sec.27A(13) by the legislature that it is only those applications received for change of nature of the unnotified land from the date of commencement of the Amendment Act (viz, 30-12-2017) that has to be considered and decided in terms of the said Act, and in view of the abovesaid well settled legal positions mentioned herein above, it has only to be held that Rule 12(17) is ultra vires the provisions contained in Sec.27A(13) and is unenforceable. It is all the more so, as this Court has repeatedly held in various decisions that in a case that the party has filed requisite application under Rule 6(2) of the KLU Order before 30-12-2017 and the same has to be considered in terms of Rule 6(2) of the KLU Order and not in terms of Sec.27A of the Act and without compelling the party to pay the amounts as conceived as per the amended provisions of the 2008 Act, including Sec.27A thereof and the rules framed thereunder including Rule 12(17) thereof. The 12 W.P(C) No. 14531 of 2020 position in that regard is declared and ordered in this case as well. 14. Hence it is only to be held that the decision taken by the 1[st] respondent RDO in Ext.P4 rejection order is illegal and ultra vires and the same stands interdicted and quashed. It is beyond any dispute that the petitioner has in fact filed the requisite application under Rule 6(2) of the KLU Order as early as on 25-09-2013 [Ext.P4 in Ext.P3 W.P(C)] as can be seen from Ext.P3 judgment and it can also be seen from a reading of the impugned Ext.P4 rejection order. 15. Accordingly the application dated 25-09-2013 filed by the petitioner under Rule 6(2) of the KLU Order (Ext.P4 in Ext.P3) will stand remitted to the 1[st] respondent RDO for consideration and decision afresh. Since the property has been included in the land data bank as “converted land” as per Ext.P2, formal orders will have to be obtained by the petitioner in Ext.P6 application for excluding the property from the land data bank. 16. Accordingly the following directions and orders are passed: - _(i) The impugned Ext.P4 order will stand set aside and quashed. Consequently, the application dated 25-09-2013 filed by the petitioner under Rule 6(2) of the KLU Order before the 1[st]_ 13 W.P(C) No. 14531 of 2020 _respondent RDO [referred to as Ext.P4 in Ext.P3 W.P(C)] will stand remitted to the 1[st] respondent for consideration and decision afresh._ - _(ii) The 1[st] respondent RDO will initially take up for consideration the matters in Ext.P6 application dated 09-07-2020, without much delay and should ensure that inspection is conducted by the 3[rd] respondent Village Officer to ascertain the ground realities in the subject property and as to whether the subject property has been converted prior to 12-08-2008 and after affording reasonable opportunity of being heard to the petitioner, should pass orders on Ext.P6 application on the request for exclusion of the subject property from the land data bank ordered in Ext.P2, without much delay preferably within a period of six weeks from the date of production of a certified copy of this judgment. In that regard it has to be borne in mind that as it is admitted by the respondents in Ext.P2 that the subject property of the petitioner had been converted as purayidam prior to 2008 Act, the very inclusion of the subject property in Ext.P2 land data bank appears to be illegal and unlawful._ - _(iii) After passing orders on Ext.P6 application the 1[st] respondent RDO will thereafter take up for consideration the matters in the application dated 25-09-2013 filed by the petitioner under Rule 6(2) of the KLU Order [referred to as Ext.P4 in Ext.P3 W.P(C)], without much delay and after affording reasonable opportunity of being heard to the petitioner through_ 14 W.P(C) No. 14531 of 2020 _authorised representative or counsel, if any, should pass orders thereon strictly in terms of the provisions contained in Rule 6(2) of the KLU Order 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, without much delay preferably within a period of six weeks from the date on which orders are passed on Ext.P6 application as aforedirected._ _(iv) In case petitioner gets permission under Rule 6(2) of the KLU Order on the abovesaid application dated 25-09-2013 from the 1[st] respondent RDO, then thereafter the petitioner will produce a copy of the said proceedings before the 2[nd] respondent Tahsildar, who thereafter will take up the matters in Ext.P5 application dated 22-05-2020 as well as the application dated 25-09-2013 [referred to Ext.P4 in Ext.P3 W.P(C)] and in case the subject property covered by Ext.P5 is the same as the one covered by the orders passed by the 1[st] respondent RDO under Rule 6(2) of the KLU Order, then the 1[st] respondent will afford reasonable opportunity of being heard to the petitioner and then should pass orders of reassessment of the subject property under Sec.6A of the Kerala Land Tax Act to secure additional entries in the BTR to show the changed nature of the property as garden land or purayidam, instead of the earlier BTR entries as 'nilam/paddy land', without much delay preferably within a period of one month from the date of_ 15 W.P(C) No. 14531 of 2020 _production of such orders passed by the 1[st] respondent granting permission under Rule 6(2) of the KLU Order 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 12(17) thereof and strictly in terms of the dictum laid down by the Division Bench of this Court in decisions as in_ _**Mariumma’s case** (supra) [2015 (2)KLT 516(DB)],_ _**Renjith's case** (supra) [2020 (1) KHC 865 (DB)] etc,._ 17. The petitioner will produce certified copies of the judgment along with copies of the memorandum of W.P(C) with all the Exhibits before the respondents for necessary information and further action. With these observations and directions the above Writ Petition (Civil) will stand disposed of. **Sd/-** ## **ALEXANDER THOMAS** ## **JUDGE** KAS 16 W.P(C) No. 14531 of 2020 ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1** **TRUE COPY OF THE BASIC TAX RECEIPT OF THE SUBJECT PROPERTY.** **EXHIBIT P2 TRUE COPY OF RELEVANT PAGE OF GAZATE NOTIFICATION DATED 01.02.2011.** **EXHIBIT P3 THE TRUE COPY OF THE JUDGMENT DATED 22.11.2013 IN WPC NO.27632/2013.** **EXHIBIT P4** **THE TRUE COPY OF THE ORDER NO.K28936/13 OF 1ST RESPONDENT REVENUE DIVISIONAL OFFICER DATED 01.06.2014.** **EXHIBIT P5** **THE TRUE COPY OF THE APPLICATION DATED 22.05.2020 UNDER SECTION 6A OF THE KERALA LAND TAX ACT 1961.** **EXHIBIT P6 APPLICATION DATED 09-07-2020 FILED IN FORM 5 TO REMOVE THE LAND FROM THE DATA BANK.** **RESPONDENT'S/S EXHIBITS: NIL**