Prakash.G v. Tahasildar, VaiKOM Taluk & Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** ## **TUESDAY, THE 25TH DAY OF AUGUST 2020 / 3RD BHADRA, 1942** ## **WP(C).No.16673 OF 2020(H)** ## **PETITIONER:** **PRAKASH.G, AGED 49 YEARS, S/O. GOVINDAN.T.V, THOOKAMATTATHIL, PERUVA P O, MULAKKULAM VILLAGE, VAIKOM TALUK, KOTTAYAM DISTRICT.** **BY ADV. SRI.P.M.ZIRAJ** ## **RESPONDENTS:** - **1 THE TAHASILDAR, VAIKOM TALUK KOTTAYAM DISTRICT, PIN-686141.** - **2 THE REVENUE DIVISIONAL OFFICER, PALA, KOTTAYAM DISTRICT, PIN-686574.** - **3 MULAKULAM GRAMA PANCHAYATH, PERUVA P O, VAIKOM TALUK, KOTTAYAM DISTRICT, PIN-686610, REPRESENTED BY ITS SECRETARY.** - **4 THE SECRETARY MULAKULAM GRAMA PANCHAYATH, PERUVA P O, VAIKOM TALUK, KOTTAYAM DISTRICT, PIN-686610.** **SRI K J MANURAJ, GP SRI ALEX M SCARIA, SC** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 25.08.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ALEXANDER THOMAS, J. --------------------------------------W.P. © No. 16673 of 2020 --------------------------------------Dated this the 25[th] day of August, 2020 ## J U D G M E N T The case set up in this Writ petition (C) is as follows: _The application of petitioner dated 21.11.2017 under clause 6 of Kerala Land Utilization Order has been allowed by the 2[nd] respondent by exhibit P3 order and thereby permitted her to use the land for other purposes beneficial to her. But there is a condition in exhibit P3 that the said order is subject to the ordinance No. 26798/Leg/B2/2017/Law of Government of Kerala dated 30.12.2017. The said condition imposed by the 2[nd] respondent is illegal since the application of the petitioner is prior to the introduction of the Kerala Conservation of Paddy Land and_ _Wet Land Amendment Act 2018, which came in to effect only on 30.12.2017. So the application of the petitioner has to be considered under the provisions of Kerala land Utilization Order 1967. This position has been clarified by several judgments of this court. It is submitted that when in an earlier occasion petitioner approached the 4[th] respondent and submitted an application for construction of a building, the said application was not considered by the 4[th] respondent_ W.P. © No. 16673/2020 ..3.. _on the ground that petitioner did not remitted the prescribed fee and issued exhibit P4 communication regarding the same. Hence the petitioner approached this court with WPC No. 13044/2019 and this court pleased to set aside the condition in exhibit-P3 order and permitted the petitioner to use the said order in any manner that they may choose fit as per law. This court also made clear in this judgment that the petitioner will be the liberty to approach the 1[st] respondent appropriately under the Kerala Land Tax Act 1961. Subsequently petitioner submitted an application by attaching the exhibit-P5 judgment before the 1[st] respondent under section 6A of the Kerala Land Tax Act requesting to reassess the tax of property and make necessary changes in the entry regarding the assessment of tax and classification of the property. The said application was considered by the 1[st] and pass an order dated 30-3-2020 and thereby informed that the request of the petitioner will be considered only after production of receipt regarding payment of fee as prescribed under the Rule 12(17) of Kerala Conservation of Paddy land and wet Land Rules. The said is illegal and a violation of directions contained in exhibit P5 judgment._ It is in W.P. © No. 16673/2020 ..4.. the light of the above facts and circumstances, that the petitioner has filed the instant Writ Petition (C) seeking the following reliefs: “ _1. Issue a writ of certiorari or any other appropriate writ, order or direction by calling for the records leading to the issuance of Exhibit P7 order passed by the 1[st] respondent and set aside the condition therein to remit fee as provided under Rule 12 (17) of Kerala conservation of Paddy land and wet land (Amendment) Rules for re- assessment of land tax and change the entries in the Revenue records since the same as illegal._ _2. Direct the 1[st] respondent to make necessary entries regarding conversion of land in the revenue records including basic tax register without receipt of any fee under the provision of Kerala conservation of Paddy land and wet land (Amendment) Act 2018 and Rules._ _3. Issue a writ of mandamus or any other appropriate writ, order or direction to the fourth respondent to receive the application of petitioner for building permit and grant building permit within a reasonable period which this honourable court may deem fit and proper in the interest of justice and circumstances of the case without insisting to make any payment under the provision of Kerala conservation of Paddy land and wet land (Amendment) Act 2018._ _4. Declare that Ordinance No. 26798/Leg/B2/2017/Law of Government of Kerala dated 30.12.2017 not application to the petitioner since her application under clause 6 of Kerala Land Utilization Order is prior to the introduction of Kerala Conservation of Paddy Land and Wet Land (Amendment) Act 2018._ _5. Issue such other writ or orders or directions, which this Honourable court may deem fit and proper in the interest of justice and circumstances of the case.”_ 2. Heard Sri.P.M.Ziraj, learned counsel appearing for the petitioner, Sri.Saigi Jacob Palatty, learned Senior Government Pleader appearing for official respondent Nos.1 & 2 and Sri.Alex.M.Scaria, learned counsel appearing for the respondent Nos.3 & 4 (Mulakulam Grama Panchayat). W.P. © No. 16673/2020 ..5.. 3. In the instant case, it is indisputable that the subject property though continues to be described as ‘paddy land or nilam’ in the Basic Tax Register/BTR has been converted as ‘garden land or purayidam’ much prior to 12-08-2008 (date of coming into force of the Kerala Conservation of Paddy Land and Wetland Act, 2008). It is also beyond any dispute that the petitioner has in fact filed Ext.P1 application dated 22-11-2017 under Rule 6(2) of the Kerala Land Utilisation (KLU) Order, 1967 before the 2[nd] respondent RDO seeking for permission for change of use of the land for any non-agricultural purposes. When the same was not acted upon, it has resulted in Ext.P2 judgment dated 28-11-2017 in W.P(C) No.38197/2017 filed by the petitioner herein, wherein this Court directed the 2[nd] respondent RDO to consider and pass orders on Ext.P1 application dated 22-11- 2017 strictly in terms of the provisions contained in Rule 6(2) of the KLU Order within the time limit mentioned in the said judgment. 4. A reading of Ext.P2 judgment in W.P(C) No.38197/2017 would also make it clear like the day light that the application dated 22-11-2017 produced as Ext.P1 herein has been produced as Ext.P4 therein. Therefore, there is no dispute whatsoever that the W.P. © No. 16673/2020 ..6.. requisite application under Rule 6(2) of the KLU Order has been filed prior to 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). Thereafter the 2[nd] respondent RDO has passed Ext.P3 order dated 8.5.2018 granting statutory permission to the petitioner under Rule 6(2) of the KLU Order for change of use of the land for any non-agricultural purposes but adding a restrictive rider that the petitioner will also have to pay the amounts as conceived as per amended provisions of the 2008 Act, including Sec.27A thereof and the rules framed thereunder. The 4[th] respondent Secretary of the Panchayat has also issued Ext.P4 letter dated 19-11-2018, directing the petitioner that for consideration of his application for building permit, he will have to get necessary orders for conversion from the revenue authorities. The restrictive condition in Ext.P3 was challenged by the petitioner by filing W.P(C) No.13035/2019, which resulted in Ext.P5 judgment dated 10-12-2019 rendered by this Court in W.P(C) No.13035/2019, wherein this Court held that Ext.P3 to the limited extend it imposes the restrictive condition that the petitioner will have to pay the amounts as conceived as per the W.P. © No. 16673/2020 ..7.. Sec.27A of amended Act and the amended rules framed thereunder, is illegal and ultra vires inasmuch as the petitioner has filed the requisite Rule 6(2) application under the KLU Order, much before the cut off date of 30-12-2017. This Court also ordered in Ext.P5 judgment that on the petitioner filing the requisite application under Sec.6A of the Kerala Land Tax Act for reassessment of the subject property, then the respondent Tahsildar should consider the said request for the reassessment of the subject property so as to alter the BTR entries to correctly show the change nature of the land as ‘garden land or purayidam’ instead of the earlier BTR entries as ‘nilam or paddy land’ and in the light of the legal principles laid down by this Court in various cases. Thereupon the petitioner has filed Ext.P6 application dated 23-12-2019 before the 1[st] respondent Tahsildar, seeking for reassessment of the subject property in terms of Sec.6A of the Kerala Land Tax Act. Now the petitioner has been served with the impugned Ext.P7 order issued by the 1[st] respondent Tahsildar, ordering that the petitioner will have to necessarily pay the fees in terms of the amended rules framed under the amended act, more particularly Rule 12 (17) thereof. It is this restrictive condition in W.P. © No. 16673/2020 ..8.. Ext.P7 that is under challenge. 5. It is now well settled 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), LLMC, Kizhakkambalam Grama Panchayath v. Mariumma [2015 (2) KLT 516 (DB)], Tahsildar, Thodupuzha Taluk and another v. Renjith George [2020 (1) KHC 865 (DB)]**_ that where the subject property has been converted as garden 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 was introduced Sec.27 A thereof), then the property holder is entitled to get his request for conversion of the property strictly in terms of Rule 6(2) of the KLU order, 1967 and such a case the property holder cannot be mulcted to face the adverse and rigorous conditions prescribed as per the amended provisions of 2008 Act, including Sec.27A thereof as well as the rules framed thereunder. W.P. © No. 16673/2020 ..9.. 6. Further it has been also held that in those decisions more particularly in the aforestated Division Bench decisions in _**Mariumma’s case**_ supra and _**Renji's case**_ supra 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 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’. 7. This Court has also held in various cases that in such cases where the party has filed the requisite Rule 6(2) application under the KLU Order before the cut off date of 30-12-2017, then in such a case the party is entitled not only to get his application considered in terms of Rule 6(2) of the KLU Order and without having to pay the higher amounts as conceived as per the amended provisions of the act including Sec.27A thereof and the rules framed thereunder and further that in such a case party after securing orders under Rule 6(2) of the KLU Order, he is also equally entitled to maintain the consequential application under W.P. © No. 16673/2020 ..10.. Sec.6A of the Kerala Land Tax Act for subjecting the property for reassessment as conceived in the section for securing additional entries in the BTR to show correctly the change nature of the land as ‘garden land/purayidam’ instead of the earlier BTR entries as ‘nilam/paddy land’ and without having the petitioner to pay any amounts as conceived as per the amended provisions of the 2008 act, including Sec.27A thereof and the amended provisions of the rules, including Rule 12(17) thereof. 8. This position is now too well settled and this Court is at a loss to understand as to why the 1[st] respondent Tahsildar has taken the stand in Ext.P7 in order to unnecessarily drive the petitioner for yet another litigative proceedings before this Court, which could have been totally avoided if the 1[st] respondent Tahsildar had correctly understood the facts and had also properly comprehended the legal position govern in the field. This Court with the judgment in _**Fr.Jose Uppani v. District Collector [2020 (3) KLT 492]**_ had also occasioned to note that very many cases are coming before this Court, wherein the revenue officials like the District Collector, RDO, Tahsildar etc., are acting in a manner in violation of the dictum laid down by this W.P. © No. 16673/2020 ..11.. Court in the aforestated judgments, which results in unnecessary litigations and unnecessary wastage of the precious time of this Court. This case would also be a testimony to the fact that such illegal stand of the revenue officials are resulting in unnecessary and highly avoidable litigations. The party like the petitioner cannot be blamed for approaching this Court for the simple reason that they have no other remedy when they are confronted with an order in the nature of Ext.P7 and that too after two previous rounds of litigations. 9. Accordingly, it is ordered that Ext.P7 order issued by the 1[st] respondent Tahsildar to the extend that directs that the petitioner will have to pay the higher amounts as conceived as per the amended provisions of rules framed under the amended provisions of the 2008 Act, is illegal, ultra vires and the same will stand set aside. Exhibit P6 application submitted by the petitioner will stand remitted to the 1[st] respondent Tahsildar for consideration and decision afresh. The 1[st] respondent Tahsildar will immediately grant opportunity of being heard to the petitioner through his authorised representative or counsel if any, and then should pass orders on the plea for reassessment of the W.P. © No. 16673/2020 ..12.. subject property strictly in terms of Sec.6A of the Kerala Land Tax Act so as to secure additional entries in the BTR to correctly show the change nature of the land as ‘garden land or purayidam’ instead of the earlier BTR entries as ‘paddy land/nilam’, without any further delay, at any rate, within one month from the date of production of a certified copy of this judgment and strictly in terms of the dictum laid down by the Division Bench of this Court in cases as in _**Mariumma’s case**_ supra and _**Renji's case**_ supra. 10. After the petitioner secures orders of reassessment under Sec.6A of the Kerala Land Tax Act from the 1[st] respondent Tahsildar, necessary proceedings shall be issued by the 1[st] respondent Tahsildar in that regard, then the petitioner may produce a copy of the said proceedings so issued before the 4[th] respondent Secretary of the Mulakulam Grama Panchayat upon which the said official will afford reasonable opportunity of being heard to the petitioner and then will consider the application for building permit of the petitioner, in the light of Ext.P3 order as modified by Ext.P5 judgment as well as the orders to be passed by the 1[st] respondent Tahsildar as directedabove. Needless to say, such consideration then be with reference to the provisions W.P. © No. 16673/2020 ..13.. contained in the applicable statutory building rules. 11. The petitioner will produce certified copy of the judgment along with copy of the memorandum of W.P(C) with all the Exhibits before the 1[st] respondent Tahsildar for necessary information and further action. With these observations and directions the above Writ Petition (Civil) will stand disposed of Sd/- ALEXANDER THOMAS, JUDGE MMG W.P. © No. 16673/2020 ..14.. ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF THE APPLICATION DATED 22.11.2017 SUBMITTED BY THE PETITIONER BEFORE THE 2ND RESPONDENT.** **EXHIBIT P2 TRUE COPY OF THE JUDGMENT OF THIS HONOURABLE COURT DATED 28.11.2017 IN WPC NO.38197/2017. EXHIBIT P3 TRUE COPY OF THE ORDER OF THE 2ND RESPONDENT DATED 08.05.2018 UNDER CLAUSE 6(2) OF KERALA LAND UTILIZATION ORDER. EXHIBIT P4 TRUE COPY OF THE COMMUNICATION ISSUED BY THE 4TH RESPONDENT DATED 19.11.2018. EXHIBIT P5 TRUE COPY OF THE JUDGMENT DATED 10.12.2019 IN WP(C) NO. 13035/2019 ON THE FILE OF THIS HONOURABLE COURT. EXHIBIT P6 TRUE COPY OF THE APPLICATION DATED 23.12.2019 SUBMITTED BY THE PETITIONER BEFORE THE 1ST RESPONDENT. EXHIBIT P7 TRUE COPY OF THE ORDER DATED 30.03.2020 PASSED BY THE 1ST RESPONDENT. EXHIBIT P8 TRUE COPY OF THE JUDGMENT OF THIS HONOURABLE COURT DATED 24.06.2020 IN WP(C) NO. 12386 OF 2020.**