M/S Sunshine Corporation v The State of Kerala and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE VIJU ABRAHAM** **MONDAY, THE 13[TH] DAY OF MARCH 2023 / 22ND PHALGUNA, 1944** ## **WP(C) NO. 19545 OF 2017** ## **PETITIONER:** **M/S. SUNSHINE CORPORATION REPRESENTED BY ITS MANAGING PARTNER, SRI.ANTONY GEORGE, CHURCH ROAD ALLEPPEY-688011** **BY ADV SRI.K.P.SREEKUMAR** ## **RESPONDENTS:** |**1**|**THE STATE OF KERALA**| |---|---| ||**REPRESENTED BY ITS SECRETARY TO GOVERNMENT,**| ||**REVENUE DEPARTMENT, GOVT. SECRETARIAT,**| ||**THIRUVANANTHAPURAM-695 001**| |**2**|**THE REVENUE DIVISIONAL OFFICER**| ||**ALLEPPEY-688561**| |**3**|**THE TAHSILDAR**| ||**AMBALAPPUZHA TALUK, ALLEPPEY - 688 561**| |**4**|**THE VILLAGE OFFICER**| ||**SOUTH ARYAD VILLAGE, ALLEPPEY 688538**| |**ADD.R5**|**THE CONVENOR**| ||**LOCAL LEVEL MONITORING COMMITTEE, OFFICE OF THE**| ||**AGRICULTURAL OFFICER, ALLEPPEY-688538.**| ||**ADDL.R5 IMPLEADED AS PER ORDER DATED 19.6.2017 IN**| ||**IA NO.9221/2017**| |**ADDL.R6**|**ALLEPPEY MUNICIPALITY**| ||**ALLEPPEY, PIN-688561, REPRESENTED BY ITS SECRETARY.**| ||**IS IMPLEADED AS PER ORDER DATED 19.02.2018 IN IA**| ||**NO.2920/2018**| ||**R6 BY ADV.SRI.AZAD BABU, SC, ALAPPUZHA MUNICIPALITY**| **OTHER PRESENT:** WP(C) No.19545 of 2017 2 ## **GP-SRI.SYAMANTHAK B.S.** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR HEARING ON 13.03.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** WP(C) No.19545 of 2017 3 ## **VIJU ABRAHAM, J.** **................................................................. W.P.(C) No.19545 of 2017 .................................................................** Dated this the 13[th] day of March, 2023 ## **JUDGMENT** Petitioner has approached this Court aggrieved by the issuance of Ext.P3 order. Petitioner has sought for a further direction to the 3[rd] respondent to issue necessary order granting the request of the petitioner in accordance with Ext.P1 judgment. 2. Petitioner is a partnership firm which purchased a total extent of 105.65 Ares of land in Aryad South Village, Alappuzha District. Out of the above 105.65 Ares of land the petitioner firm surrendered a portion of the abovesaid property for the construction of Municipal road and exchanged a portion of the property to the Church and granted 8 cents of land by way of 'Kudikidappu' from the area held by them. The remaining extent now in the ownership and possession of the petitioner firm is 84.57 Ares of dry land. At the time of re-survey the aforesaid 84.57 Ares of land was included in resurvey 11 in Block No.177B of Aryad South Village and the property was lying as dry land for the past more than 70 years and it was never cultivated with paddy or any other cultivation during the past more than 70 years. The WP(C) No.19545 of 2017 4 Village Officer has certified in the possession certificate dated 27.05.2010 that the said property is a dry land. It is the submission of the petitioner that the property is not included in the draft data bank prepared as per the provisions of the Kerala Conservation of Paddy Land and Wetland Act, 2008. It is also the contention of the petitioner that the Agricultural Field Officer, Krishi Bhavan, Alappuzha has issued a certificate stating that the petitioner's land is not put to any agricultural use. In the basic tax register maintained in the village office except an extent of 11 cents of land in old survey No.29/30A the remaining property was shown as paddy land. After the resurvey the respondents prepared a new basic tax register and thandapper register and in those registers also the entire property of the petitioner firm is shown as paddy land. Petitioner aggrieved by the same submitted an application before the 2[nd] respondent to correct the mistaken entry regarding the nature of property in the survey records. The 2[nd] respondent in connection with an enquiry of the petitioner's application seeking change of category of the land, called for a report from the Village Officer and in the said report the property was shown as dry land. Against the refusal of the petitioner's request to change the category of land from nilam to dry land the petitioner filed W.P.(C) No.11580 of 2015 and this Court as per Ext.P1 judgment dated 23.12.2015 was pleased to dispose of the writ petition holding that in WP(C) No.19545 of 2017 5 view of the fact that the petitioner's land is not included in the draft data bank and that it is located in an industrial zone the petitioner is free to utilize the land in accordance with law and it would not come into the ambit of either the Land Utilisation Order or the Kerala Conservation of Paddy Land and Wetland Act. It was further observed that if the petitioner wants to assess the land tax, they are free to approach the Tahsildar for re-assessment of land tax in terms of Section 6A of the Land Tax Act based on the declaration contained in the said judgment. In Ext.P1 this Court was pleased to observe that no restriction under the Kerala Conservation of Paddy Land and Wetland Act and the Kerala Land Utilisation Order would apply to the petitioner's land and the petitioner to free to use it as a dry land. Thereafter the petitioner filed Ext.P2 application on 22.01.2016 before the Tahsildar, Ambalappuzha who is the 3[rd] respondent herein requesting to assess that the land tax in respect of the abovesaid property by treating it as dry land and to permit the petitioner to remit the land tax accordingly. By application dated 01.02.2017 the petitioner requested to the 3[rd] respondent to make necessary changes in the revenue records by correcting the mistake and describing the land as dry land instead of nilam. But by Ext.P3 order the request of the petitioner for changing the category of land in the revenue records from nilam to dry land has been rejected. It is aggrieved by the same WP(C) No.19545 of 2017 6 the present writ petition has been filed. 3. The specific case of the petitioner is that in Ext.P4 report submitted by the Village Officer before the Sub Collector, Alappuzha it is specifically reported that the property has been converted long years back and that in the property there are coconut trees having more than 40 years age and further that the property is totally nonsuitable for paddy cultivation. It is also reported that by the side of the said property there is a municipal road in existence. The said report of the village officer was submitted as early as on 28.09.2013. The petitioner would submit that in Ext.P3 there is no specific finding that the property was lying as a paddy land at the time of coming into force of the Kerala Conservation of Paddy Land and Wetland Act, 2008 and the reason for rejecting the application is that in the document produced by the petitioner as document Nos.2728/76 and 2820/76 the property is referred to as waterlogged and marshy and that is the reason why the application was rejected. It is settled position of law that only for the reason that there is waterlogging in the land the property cannot be treated as paddy land. (See the judgment in _**Jessy Abraham v. Land Revenue Commissioner, 2022 (1) KLT 461)**_ . It is also to be taken into consideration that in Ext.P4 report submitted by the Village Officer there is a categoric finding that this property has been converted long back and there are coconut trees standing in the WP(C) No.19545 of 2017 7 property having more than 40 years age. Even in the KSRSEC report submitted by the Government Pleader along with a memo dated 14.12.2017 in the 1967 data itself the plot was observed under mixed plantation and settlement. It is also observed that the property is observed under wetland condition. But fact remains that in 1967 data the plot was observed under mixed vegetation and settlement. This finding of the KSRSEC cannot be brushed aside. It has not come on record even till date that the property has been included in the draft data bank or the final data bank. 4. Another important aspect to be considered in this case is the declaration given by this Court in Ext.P1 judgment. In Ext.P1 judgment there is a specific finding by this Court that the petitioner is free to utilise the land in accordance with law as it would not come within the ambit of either the Land Utilisation Order or Conservation of Paddy Land and Wetland Act and that if the petitioner wants to assess the land tax, the petitioner is free to approach the Tahsildar for reassessment of the land tax in terms of Section 61 of the Land Tax Act which has now been done by the petitioner, based on the declaration by this Court. It is also declared in Ext.P1 judgment that no restriction under the Land Utilisation Order or Conservation of Paddy Land and Wetland Act would apply to the petitioner's land and the petitioner is free to use it as a dry land for all practical purposes. It is WP(C) No.19545 of 2017 8 also ordered that if any application is filed by the petitioner, the Tahsildar will consider the application within one month from the date of receipt of a copy of the application. It could be seen that the declaration given in Ext.P1 judgment has become final. What has been now done in Ext.P3 is that the application has been rejected quite contrary to the declaration given in Ext.P1 judgment and only based on the description of the property in the title deeds produced along with the application. In the KSRSEC report also it is specifically reported that as on 1967 the property was lying as mixed plantation and settlement. 5. All the above aspects were not taken into consideration by the 3[rd] respondent while rejecting the application as per Ext.P3 order. Hence I am of the view that the respondents cannot now go beyond Ext.P1 judgment wherein a specific declaration has been given by this Court that the provisions of the Kerala Land Utilisation Order or the Kerala Conservation of Paddy Land and Wetland Act are not applicable to the petitioner's land and the petitioner is free to use the property as dry land for all practical purposes. It is not even stated as on date that the petitioner's property has been included in the data bank as paddy land. In view of the above I am of the opinion that the rejection of the petitioner's application as is evident from Ext.P3 is unsustainable and is only liable to be set aside. Therefore, there will WP(C) No.19545 of 2017 9 be a direction to the 3[rd] respondent to re-consider Ext.P2 application taking into consideration the declaration given in Ext.P1 judgment and also the report of the KSRSEC that even as on 1967 the property was lying as mixed plantation and settlement. A fresh decision in the matter shall be taken by the 3[rd] respondent within a period of two months from the date of receipt of a copy of this judgment after affording an opportunity of being heard to the petitioner. With the abovesaid direction the writ petition is disposed of . Sd/- **VIJU ABRAHAM** **JUDGE** cks WP(C) No.19545 of 2017 10 ## **APPENDIX OF WP(C) 19545/2017** PETITIONER EXHIBITS EXHIBIT P1 TRUE COPY OF THE JUDGMENT OF THE HON'BLE COURT DATED 23/12/2015 IN WOC 11580/2015EXHIBIT P2 TRUE COPY OF THE APPLICATION DATEED 22/1/2016 FILED BY THE PETITINER BEFORE THE 3RD RESPONDENT. EXHIBIT P3 TRUE COPY OF THE ORDER DATE 16/3/2017 ISSUED BY THE 3RD RESPPONDENT.