M/S. SIENNA BHAVAN REP. BY ITS SUPERIOR FR.JOSEPH MATHEW v. Revenue Divisional Officer, Fort Kochi; Thahasildar, Kanayannur Taluk; Village Officer, Kakkanad Village

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **FRIDAY, THE 07TH DAY OF AUGUST 2020 / 16TH SRAVANA, 1942** ## **WP(C).No.15627 OF 2020(C)** ## **PETITIONER:** **M/S. SIENNA BHAVAN REP. BY ITS SUPERIOR FR.JOSEPH MATHEW, AGED 40 YEARS, S/O.MATHEW, RESIDING AT SIENNA BHAVAN, RAJAGIRIVALLEY P.O., KAKKANAD - 682 039.** **BY ADV. SRI.BABY THOMAS** ## **RESPONDENTS:** **1 THE REVENUE DIVISIONAL OFFICER, REVENUE DIVISIONAL OFFICE, FORTKOCHI, KOCHI - 682 001.** **2 THAHASILDAR, KANAYANNUR TALUK, TALUK OFFICE, ERNAKULAM - 681 011.** **3 THE VILLAGE OFFICER, KAKKANAD VILLAGE, KAKKANAD - 682 030.** ## **OTHER PRESENT:** ## **SR GP SRI SAIGI JACOB PALATTY** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 07.08.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** WP(C).No.15627 OF 2020(C) 2 ## **ALEXANDER THOMAS, J.** ------------------------------------------W.P.(C)No.15627 of 2020 ---------------------------------------------Dated this the 07[th] day of August, 2020 ## **JUDGMENT** The case of the petitioner is that the subject property though continues to be described as 'nilam/paddy land' in the Basic Tax Register (for short 'BTR') has been converted as 'garden land/purayidom' long prior to 12.08.2008 (date of coming into force of the Kerala Conservation of Paddy Land and Wetland Act, 2008) (State Act 28 of 2008) (for short '2008 Act'). Further that the petitioner had submitted the requisite application under Rule 6(2) of the Kerala Land Utilisation Order (the KLU Order) as early as on 02.05.1986 (referred to as item No.1 in Ext.P-1) before the 1[st] respondentRevenue Divisional Officer (for short 'RDO') seeking for necessary permission for change of user of the land and after the due process the said application dated 02.05.1986 was duly allowed by the 1[st] respondent-Revenue Divisional Officer as per Ext.P-1 proceedings dated 15.07.1986. Further that there are WP(C).No.15627 OF 2020(C) 3 twelve items of properties in Ext.P-1 and that in respect of ten items of property out of the twelve properties, alteration have been made in the BTR and only two items of properties have been shown in the BTR as 'nilam/paddy land'. Those two items of properties have been included in the land data bank prepared as per the provisions of the 2008 Act, as per Ext.P-2 wherein it is shown as converted land. Further that those two items of property have been included in Ext.P-2 land data bank as 'converted land' prior to the State Act 28 of 2008. Aggrieved thereby, petitioner has filed Ext.P-3 application dated 06.07.2020 in Form No.5 before the 1[st] respondent-Revenue Divisional Officer, seeking for exclusion of the said two items of property from the land data bank. Petitioner has also filed the consequential application as per Ext.P-4 dated 06.07.2020 before the 2[nd] respondent-Tahsildar, seeking for orders under Section 6A of the Kerala Land Tax Act, 1961, for assessment of those two properties, so as to secure additional entries in the BTR to show correctly the nature of the properties as 'garden land/purayidom' instead of the earlier BTR entries as 'nilam/paddy land'. WP(C).No.15627 OF 2020(C) 4 It is in the light of these aspects that the petitioner has filed the instant writ petition (civil) with the following prayers:- _“(i). To issue a writ of mandamus order or direction to the 1st respondent RDO to consider and pass orders on Ext P3application dated 06.07.2020 to remove the property from Data bank._ _(ii). To issue a writ of mandamus order or other appropriate writ or direction directing the 2ndrespondent to consider and pass appropriate orders on Exhibit P4 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.P1orderwithout 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._ _(iii). 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 the petitioner obtained permission under clause 6 (2) even before the coming in to force of the Conservation of Paddy Land and wet Land Act 2008._ _(iv). 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 Sri.Baby Thomas, learned counsel appearing for the petitioner and Sri. Saigi Jacob Palatty, learned Senior Government Pleader appearing for the respondents 1 to 3. 3. It is by now well settled by a series of ruling of this 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)] that in a case where the subject WP(C).No.15627 OF 2020(C) 5 property has been converted prior to coming into force of the 2008 Act and where the requisite application under Rule 6(2) of the Kerala Land Utilization Order, 1967 has been submitted by the party concerned before 30.12.2017 (date of coming into force of the amended provisions of the 2008 Act) introducing Sec.27A thereof, etc., then none of the detrimental and adverse conditions flowing out from the said amended provisions can be pressed into service as against the party concerned and the respondent-RDO is statutorily obliged to consider the said plea for conversion on the basis of the provisions contained in Rule 6(2) of the Kerala Land Utilization Order, 1967. This aspect of the matter has also been reiterated by a recent judgment of the Division Bench of this Court in _**Thasildar, Thodupuzha Taluk and another v. Renjith George**_ [2020 (1) KHC 865 (DB)] that in a case where the subject property has been converted prior to the coming into force of the 2008 Act and where Rule 6(2) application under the Kerala Land Utilization Order, 1967 has been submitted before 30.12.2017, then the said plea of the party has to be considered in terms of the provisions contained in Rule 6(2) of the Kerala Land Utilization Order and that none of the adverse provisions WP(C).No.15627 OF 2020(C) 6 contained in the amended provisions of the 2008 Act can be pressed into service as against such a party. Moreover, the Division Bench has also reiterated in **Renjith’s case** (supra) [2020 (1) KHC 865 (DB)] that in respect of such a property, the party is also legally entitled to maintain an application Sec.6A of the Kerala Land Tax Act for re-assessment of the subject property, so as to make additional entries in the Basic Tax Register to show the classification of the land as purayidam or garden land, instead of the earlier BTR entries as paddy land or Nilam, as the case may be, in view of the earlier dictum laid down by another Division Bench of this Court in _**LLMC, Kizhakkambalam Grama Panchayath and others v. Mariumma and another**_ [2015 (2) KLT 516 (DB)]. 4. The specific case of the petitioner is that the petitioner has already secured statutory permission under Rule 6(2) of the Kerala Land Utilisation Order, 1967, (for short 'KLU Order') from the 1[st] respondent-Revenue Divisional Officer, as per Ext.P-1 issued as early as on 15.07.1986, in respect of application filed on 02.05.1986, referred to as item No.1 in Ext.P-1. Further that the subject matter of the case involves only two items of such properties involved in Ext.P-1, which WP(C).No.15627 OF 2020(C) 7 has been included in the land data bank as 'converted land'. In a case where the party has already secured statutory permission under Rule 6(2) of the KLU Order even before 12.08.2008 (date of coming into force of the 2008 Act), then such a case would stand on a better and higher pedestal compared to a case of a party who has filed the requisite application under Rule 6(2) of the KLU Order prior to 30.12.2017 (date of coming into force of the amended provisions of the 2008 Act) which has introduced Section 27A thereof and who secures such permission from the Revenue Divisional Officer after the cut off date of 30.12.2017. Therefore, where the party has already secured permission under Rule 6(2) of the KLU Order, then there is no question of compelling the party to pay any amounts as conceived as per the amended provisions of the 2008 Act, which has introduced Section 27A thereof and the amended Rules including Rule 12(17) thereof, even for the purpose of getting orders of fresh assessment under Section 6A of the Kerala Land Tax Act, for securing additional entries in the BTR, as aforestated. The position in that regard is ordered and declared in this case as well. Accordingly the following orders and directions are passed:- WP(C).No.15627 OF 2020(C) 8 (a) The 1[st] respondent-Revenue Divisional Officer will take up the matters in Ext.P-3 application dated 06.07.2020 filed in Form No.5 for consideration, without much delay and after ensuring the conduct of inspection by the 3[rd] respondent-Village Officer with due prior notice to the petitioner to ascertain about the nature and lie of the property and the ground realities in respect of the subject properties as on 12.08.2008 and as to whether the subject properties were cultivable and suitable for cultivation as on 12.08.2008 and whether the subject properties would fulfill the definition of paddy land as per the Act as on 12.08.2008 or whether the subject properties have been converted prior to 12.08.2008, etc., and copies of the inspection reports should also be given to the petitioner in advance. Thereafter, the 1[st] respondent-Revenue Divisional Officer will afford reasonable opportunity of being heard to the petitioner through his authorised representative/ counsel, if any, and then should pass orders on Ext.P-3 dated 06.07.2020, on the plea of the petitioner for excluding the subject properties from the land data bank, and also taking note of Ext.P-1 proceedings dated 15.07.1986, issued by none other than the 1[st] respondentRevenue Divisional Officer, under Rule 6(2) of the KLU Order. Orders on Ext.P-3 application should, thus, be passed by the 1[st] respondent-Revenue Divisional Officer, without much delay, preferably within a period of two months from the date of production of a certified copy of this judgment. A copy of the proceedings so issued by the 1[st] respondent on Ext.P-3 should also be served to the petitioner without any further delay. WP(C).No.15627 OF 2020(C) 9 (b) Thereafter, the 2[nd] respondent-Tahsildar will take up the matters in Ext.P-4 application dated 06.07.2020 and may ascertain as to whether the subject properties covered by Ext.P-4 is the same or part of the properties covered by Ext.P-1 proceedings dated 15.07.1986 issued by the 1[st] respondent-Revenue Divisional Officer, under Rule 6(2) of the KLU Order, and if it is found that the subject property is the same or part of the subject property covered by Ext.P-1, then the 2[nd] respondent will pass orders on Ext.P-4 application granting fresh assessment of the subject property under Section 6A of the Kerala Land Tax Act, so as to secure additional entries in the BTR to show correctly the changed nature of the property as 'garden land/purayidom' instead of the earlier BTR entries as 'nilam/paddy land', and after affording reasonable opportunity of being heard to the petitioner, within one month therefrom and without compelling the petitioner to pay the amounts as conceived as per the amended provisions of the 2008 Act, which has introduced Section 27A thereof and the amended Rules framed thereunder including Rule 12(17) thereof, etc. and strictly in the light of the dictums laid down by the Division Bench of this Court as per the decisions as in _**LLMC, Kizhakkambalam Grama Panchayath and others v. Mariumma and another**_ [2015 (2) KLT 516 (DB)]. 5. The petitioner will produce certified copies of this judgment as well as copies of the memorandum of the writ WP(C).No.15627 OF 2020(C) 10 petition (civil) along with all the exhibits before respondents 1 & 2 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** Skk//0809 WP(C).No.15627 OF 2020(C) 11 ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF ORDER UNDER CLAUSE 6(2) ISSUED BY THE 1ST RESPONDENT RDO.** **EXHIBIT P2 TRUE COPY OF THE RELEVANT PAGE OF THE DATA BANK.** **EXHIBIT P3 THE TRUE COPY OF THE FORM 5 APPLICATION TO REMOVE THE LAND FROM DATA BANK.** **EXHIBIT P4 THE TRUE COPY OF THE APPLICATION DATED 06/07/2020 FOR RE ASSESSMENT OF LAND TAX ACT UNDER SECTION 6A OF THE LAND TAX ACT 1961.** **RESPONDENTS' EXHIBITS: NIL**