MUKKADAIL JOSEPH LUIZ v. State of Kerala and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **FRIDAY, THE 26TH DAY OF JUNE 2020 / 5TH ASHADHA, 1942** ## **WP(C).No.12655 OF 2020(F)** ## **PETITIONER:** **MUKKADAIL JOSEPH LUIZ 3-D,LINK HORIZEN, MARINE DRIVE, NEAR TAJ RESIDENCY, ERNAKULAM, HIGH COURT P.O.-682 031** |||**BY ADV. SRI.ROY CHACKO**| |---|---|---| |**RESPONDENTS**<br>**:**||| |**1**||**STATE OF KERALA**| |||**REPRESENTED BY SECRETARY,**| |||**DEPARTMENT OF AGRICULTURE, SECRETARIAT,**| |||**THIRUVANANTHAPURAM-695 001.**| |**2**||**THE DISTRICT COLLECTOR,**| |||**COLLECTORATE, ERNAKULAM-682 030.**| |**3**||**THE TAHSILDAR,**| |||**TALUK OFFICE KANAYANNOOR, ERNAKULAM-682 011.**| |**4**||**THE VILLAGE OFFICER,**| |||**THIRUVANKULAM VILLAGE, THIRUVANKULAM-682 305.**| |||**SRI.K.J.MANU RAJ, GOVT.PLEADER**| **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 26.06.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## ALEXANDER THOMAS, J. ------------------------------------W.P.(C) No. 12655 of 2020 ------------------------------------Dated this the 26[th] day of June, 2020 ## J U D G M E N T The case set up in this Writ Petition (Civil) is as follows: The petitioner is the owner in possession of an extent of 10.40 Ares of landed properties comprised in re-survey no.295/7 of Thiruvankulam village. The petitioner's predecessors filed Ext.P-2 under Kerala Land Utilization Order, 1967 (KLU Order) and the petitioner filed Ext.P-3 reminder on 24.7.2017 and 29.1.2018 respectively. The District Collector granted permission as per Ext.P-5. The petitioner filed application for re-assessment of basic land tax and consequential change of classification in the Basic Tax Register. The 3[rd] respondent Tahsildar rejected the application stating a reason that Exts.P-3 and P-4 are after 30.12.2017, the date on which the amendment to the Kerala Conservation of Paddy Land and Wet Land Act, 2008, came into force and directed to produce fresh orders under Section 27A of the above Act. Actually Ext.P-2 was pending from 24.7.2017 and Ext.P-3 is only a reminder and Ext.P-5 proceeding is taking note W.P.(C) No. 12655 of 2020 ..3.. of Ext.P-2. It is in the light of the abovesaid averments and contentions that the petitioner has filed the instant Writ Petition (Civil) with the following prayers: “ - a) Issue a writ of certiorari or any other appropriate writ, direction or order calling for the records relating to Ext P7 and quash the same. - b) Issue a writ of mandamus or any other appropriate writ, direction or order directing the 3[rd] respondent to reconsider Ext P6, application under Section 6A of the Kerala Land Tax Act, - - 1961 and re-assess the basic tax relating to 10.40 Ares in re survey no.29 _5/7_ of Thiruvankulam village in Kanayannoor Taluk, relying on Ext P5 and direct to change the categorization of the subject lands relying on Mariumma's case reported in 2015(2) KLT 516 and Fr. Jose Upani's case reported in 2020 (3) KLT 492. - c) Issue such other writ, order or direction as this Honourable Court deems fit and proper to grant in the facts and circumstances of the case.” 2. Heard Sri.K.C.Vncent, learned counsel appearing for the petitioner and Sri.K.J.Manu Raj, learned Government Pleader appearing for the respondents. 3. In the instant case there is no dispute whatsoever that though the subject property continues to be described as paddy land/nilam in the Basic Tax Register (BTR), the same has been converted as garden land/purayidam much prior to 12.8.2008 (date of coming into force of the Kerala Conservation of Paddy Land and Wet Land Act, 2008). The subject property has been W.P.(C) No. 12655 of 2020 ..4.. included in the draft data bank as converted land prior to 2008 and later the petitioner has secured formal orders for excluding the subject property from the land data bank, about which reference is made as Item No.4 in Ext.P-5 proceedings dated 8.5.2019. The petitioner’s predecessor has submitted application dated 24.7.2017 under Rule 6(2) of the Kerala Land Utilization Order, 1967, (KLU Order) before the 2[nd] respondent District Collector seeking for formal permission for change of user of land for any non agricultural purposes, and the said application has been duly acknowledged by the 2[nd] respondent District Collector as per Ext.P-2 receipt dated 24.7.2017. Later, the petitioner purchased the property from the predecessor and the petitioner thereupon had send a reminder letter dated 29.1.2018 to the 2[nd] respondent to finalize action on the application dated 24.7.2017 as acknowledged in Ext.P-2 receipt. Ext.P-3 is the receipt dated 3.2.2018 which has acknowledged the said letter dated 29.1.2018 submitted by the petitioner to the 2[nd] respondent. This Court as per Ext.P-4 judgment dated 12.4.2018 (filed by the petitioner herein) has directed the District Collector to consider and pass orders on the W.P.(C) No. 12655 of 2020 ..5.. said application strictly in terms of the provisions contained in the KLU Order, and before that the respondent Local Level Monitoring Committee was directed to consider the application of the petitioner for exclusion of subject property from the land data bank. This Court also directed in Ext.P-4 judgment that in the event of the petitioner securing favourable orders on his application filed under Rule 6(2) of the KLU Order, then he is equally entitled to maintain a further application before the land tax authorities for alteration of entries in the BTR. Thereafter, the 2[nd] respondent District Collector after affording reasonable opportunity of being heard to the petitioner and after consideration of all relevant aspects including inspection reports, has issued Ext.P-5 proceedings dated 8.5.2019 ordering that statutory permission is granted to the petitioner to use the subject property for any non agricultural purposes in terms Rule 6(2) of the KLU Order. 4. A reading of Ext.P-5 proceedings dated 8.5.2019 would make it clear that the reference No.1 therein is the application filed by the petitioner’s predecessor therein dated 24.7.2017 under Rule W.P.(C) No. 12655 of 2020 ..6.. 6(2) of the KLU Order, and reference No.2 therein is the abovesaid letter send by the petitioner dated 3.2.2018 which is acknowledged in Ext.P-3. Thereafter the petitioner has submitted Ext.P-6 application dated 5.7.2019 before the 3[rd] respondent Tahsilar seeking for formal orders of re-assessment of subject property under Section 6A of the Kerala Land Tax Act, 1961, for securing additional entries in the BTR to correctly show the changed nature of land as garden land/purayidam instead of earlier BTR entries as paddy land/nilam. Now, very surprisingly the 3[rd] respondent Tahsildar has passed impugned Ext.P-7 rejection order dated 10.6.2020 ordering that even though the petitioner has secured Ext.P-5 permission from the 2[nd] respondent District Collector, the petition/application directly submitted by the petitioner who is the subsequent owner is seen submitted only on 3.2.2018, which is referred to as item No.2 in Ext.P-5. Therefore the very application of the petitioner filed under Rule 6(2) of the KLU Order as well as Ext.P-5 order passed by the 2[nd] respondent District Collector are filed after the cut-off date of 30.12.2017, and therefore the petitioner will have to pay higher amounts as conceived as per the W.P.(C) No. 12655 of 2020 ..7.. provisions of the 2008 Act. 5. After hearing both sides, this Court is really at a total loss to understand the rationale of the stand of the 3[rd] respondent Tahsildar in passing an order in the nature of Ext.P-7. To say the least, the said act is the one which is rendered in defiance of Ext.P-5 order passed by none other than the 2[nd] respondent District Collector who is not only the head of revenue administration in the district, but who is also the overall head of district administration. That apart, the 3[rd] respondent should have been surely aware of the fact that reference no.1 of Ext.P-5 is the application submitted by the petitioner’s predecessor, as the said property was not by then purchased by the petitioner. That apart, Ext.P-5 proceedings would also show that the file number is L10-18707/17 and therefore any reasonable and prudent person should be knowing that the application under Rule 6(2) of the KLU Order has been filed much before the cut-off date of 30.12.2017. This, the Court would say as the said file number is the same as the one shown in Ext.P-2 receipt dated 24.7.2017. It is trite that once a property holder alienates or transfers his rights and interests over a property to W.P.(C) No. 12655 of 2020 ..8.. another by execution and registration of a sale deed, then as per the provisions of Section 8 of the Transfer of Property Act, 1882, all the rights and interests of the purchaser of a property will stand conveyed to the purchaser after the execution and registration of sale deed in terms of the provisions contained in the Registration Act, 1908. Therefore, at the relevant time the petitioner's predecessor alone had the right to file an application under Rule 6(2) of the KLU Order, as the petitioner had purchased the property only subsequently. So, the petitioner's predecessor has rightly invoked his right by filing application on 24.7.2017 under Rule 6(2) of the KLU Order. The said rights and interests that the petitioner's predecessor had for prosecuting further proceedings in pursuance of the said application will also get transferred and vested with the petitioner who has purchased the said property on the basis of a registered sale deed. Therefore, it is trite that the petitioner would step into the shoes of his predecessor for getting the said application dated 24.7.2017 filed under Rule 6(2) of the KLU Order considered by the 2[nd] respondent District Collector. All what the petitioner has done is to give yet another petition on 3.2.2018 to the W.P.(C) No. 12655 of 2020 ..9.. 2[nd] respondent District Collector after the petitioner had purchased the property. As a matter of fact, there was no necessity for the petitioner to have submitted such a letter, and at best it is to be seen only as a reminder on the part of the petitioner to apprise the 2[nd] respondent District Collector to finalize action on the application dated 24.7.2017, and also the factum that now there is a change of ownership of subject property. 6. It is by now well established by a series of rulings 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)], LLMC Kizhakkambalam Grama Panchayat v. Mariumma [2015 (2) KLT 516 (DB)]**_ that in a case where the subject property has been converted as ‘garden land’ or ‘purayidam’ prior to 12.8.2008 (date of coming into force of the 2008 Act) and where the party concerned has filed the requisite application under Rule 6(2) of the Kerala Land Utilization Order, 1967 for conversion of the property and for its use for any non-agricultural purposes, before 30.12.2017 (which is the date of W.P.(C) No. 12655 of 2020 ..10.. coming into force of the amended provisions of the 2008 Act, which has introduced Sec. 27A thereof), then the statutory revenue authorities are obliged the duty to treat such a case strictly within the purview of Rule 6(2) of the KLU Order, 1967 and in such a case, the party cannot be mulcted to pay the higher amounts conceived as per the amended provisions of the Act including Sec. 27A thereof, which has come into force on 30.12.2017 and the amended Rules framed thereunder. Further, it has also been categorically held by the judgments of the Division Bench of this Court as in _**Mariumma’s case (supra) [2015 (2) KLT 516 (DB)] and Renji's case (supra) [2019 (2) KLT 262]**_ that in such a case where the property holder has filed application under Rule 6(2) of the KLU order before 30.12.2017, then the party is also equally entitled to maintain an application under Sec.6A of the Kerala Land Tax Act, 1961, for securing additional entries in the BTR to show the property as ‘garden land’ or ‘purayidam’ instead of the earlier BTR entries as ‘nilam’ or ‘paddy land’ and without having to pay the higher amounts conceived as per the amended provisions of the 2008 Act including Sec. 27A thereof and the amended Rules W.P.(C) No. 12655 of 2020 ..11.. framed thereunder. 7. In the light of these aspects it is only to be ordered and declared that, the stand of the 3[rd] respondent Tahsildar in Ext.P-7 in rejecting Ext.P-6 application is highly illegal and ultra vires. Accordingly, the impugned Ext.P-7 rejection order dated 10.6.2020 issued by the 3[rd] respondent Tahsildar will stand set aside and quashed. Consequently, Ext.P-6 application dated 5.7.2019 submitted by the petitioner will stand remitted to the 3[rd] respondent Tahsildar for consideration and decision afresh. The 3[rd] respondent Tahsildar will immediately afford reasonable opportunity of being heard to the petitioner through authorised representative/counsel if any, and then should pass orders on the plea of the petitioner for re-assessment of subject property in terms of Section 6A of the Kerala Land Tax Act, 1961, for securing additional entries in the BTR to correctly show the changed nature of land as garden land/purayidam instead of the earlier BTR entries as paddy land/nilam, without any further delay at any rate within a period of one month from the date of production of a certified copy of this judgment, and strictly in the light of the W.P.(C) No. 12655 of 2020 ..12.. dictum laid down by the Division Bench of this Court in the decisions as in _**Mariyumma's case supra and Renji's case supra**_ and without compelling the petitioner to pay any amounts as conceived as per the amended provisions of the 2008 Act, including Section 27A thereof, and the amended rules framed there under. This is subject to the condition that the subject property covered by Ext.P-6 application dated 5.7.2019 filed under Section 6A of the Kerala Land Tax Act, 1961, is the same property as the one covered by Ext.P-5 proceedings dated 8.5.2019 rendered by the 2[nd] respondent District Collector. 8. The petitioner will produce a certified copy of this judgment along with copy of memorandum of this WP(C) with all exhibits before both the 2[nd] respondent District Collector and the 3[rd] respondent Tahsildar for necessary information. 9. This Court has held in _**Fr.Jose Upani v. District Collector [2020 (3) KLT 492]**_ that recently it has come to the notice of this Court in various cases that revenue officials are consistently acting in derogation of the well settled legal principles laid down by this Court in the matter of exercise of discretion W.P.(C) No. 12655 of 2020 ..13.. where applications under Rule 6(2) of the KLU Order has been filed before the cut-off date of 30.12.2017, and that in spite of the well settled legal position the competent officials are demanding that even in cases where the party has filed the requisite Rule 6(2) application before the cut-off date of 30.12.2017, that they will have to pay the amounts as conceived as per the provisions of the 2008 Act including Section 27A thereof, and the amended rules framed there under, and the said impugned action of the revenue officials have been held by this Court as highly illegal and ultra vires, and it would also lead to defiance of the rule of law and constitutionalism, if not checked properly. With these observations and directions, the above Writ Petition (Civil) will stand finally disposed of. Sd/- ALEXANDER THOMAS, JUDGE MMG W.P.(C) No. 12655 of 2020 ..14.. ## **APPENDIX** **PETITIONER'S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF TAX RECEIPT DT 23.06.2020** **EXHIBIT P2** **A TRUE COPY OF THE RECEIPT DATED 24.07.2017 FOR THE APPLICATION UNDER CLAUSE 6 OF THE KERALA LAND UTILIZATION ORDER** **EXHIBIT P3** **A TRUE COPY OF THE APPLICATION UNDER CLAUSE 6 OF THE KLU ORDER DATED 29.01.2018 FILED BY THE PETITIONER , WITH RECEIPT DATED 03.02.2018** **EXHIBIT P4** **A TRUE COPY OF THE JUDGMENT IN W.P(C) NO.12233 OF 2018 DATED 12.04.2018** **EXHIBIT P5** **A TRUE COPY OF THE PROCEEDINGS NO.L1018707,UNDER KLU ORDER,DATED 08.05.2019** **EXHIBIT P6 A TRUE COPY OF APPLICATION IN FORM A WITH COVERING LETTER DATED 05.07.2019** **EXHIBIT P7 A TRUE COPY OF THE COMMUNICATION DATED 10.06.2020 ISSUED BY THE TAHSILDAR (L.R.)**