R. Bindu, K. Nandakumar, and K. Unnikrishnan v. Revenue Divisional Officer, Punaloor; Tahsildar (LR), Kottarakkara

**WP(C) NO. 9300 OF 2021** **1** ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN** **FRIDAY, THE 12[TH] DAY OF AUGUST 2022 / 21ST SRAVANA, 1944** ## **WP(C) NO. 9300 OF 2021** ## **PETITIONER/S:** 1 R.BINDU AGED 54 YEARS D/O.RADHAMMA, GEETHAM, ETHIKARA MURI, MYLAKKADU P.O., ADICHANELLOOR VILLAGE, KOLLAM - 691 571. 2 K.NANDAKUMAR AGED 52 YEARS S/O.N.K.MENON, VADAKKE KODIYATTU HOUSE, KIZHAKKEKARA, PULAMON P.O., KOTTARAKKARA, KOLLAM - 691 531. 3 K.UNNIKRISHNAN AGED 50 YEARS S/O.N.K.MENON, BINDU NIKETHAN, KIZHAKKEKKARA, KOTTARAKKARA VILLAGE, KOTTARAKKARA TALUK - 691 506. BY ADVS. SAJU JOHN SRI.JELSON J.EDAMPADAM ## **RESPONDENT/S:** 1 THE REVENUE DIVISIONAL OFFICER PUNALOOR - 691 305. 2 THE TAHSILDAR (LR) KOTTARAKKARA - 691 506. SMT.DEEPA NARAYANAN, SR.GP THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 12.08.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **WP(C) NO. 9300 OF 2021** **2** **P.V.KUNHIKRISHNAN, J -------------------------------------------W.P.(C) No.9300 of 2012** ## **-------------------------------------Dated this the 12[th] day of August, 2022** ## **JUDGMENT** The above writ petition is filed with following prayers : i) issue a writ of certiorari or any other appropriate writ, order or direction calling for the records leading to Ext P3 to P5 and quash the same. ii) issue a writ of mandamus or any appropriate writ, order or direction directing the 2[nd] respondent to reconsider the applications filed by the petitioners in the light of District Collector v. Fr.Jose Uppani, 2020(4) KLT 612 (DB) LLMC Kizhakkamabaklam Grama Panchayath v Mariumma and another, 2015(2) KLT 516, Tahsildar v Renjith George, 2020(2) KLT 13 and M/s Sealand Builders Pvt Ltd v. The Revenue Divisional Officer, 2020(5)KLT 56, and issue an order directing the 2[nd] respondent to make necessary additions and correction in the BTR and revenue records by **WP(C) NO. 9300 OF 2021** **3** changing the classification of petitioners property in Kottarakkara Village, covered by Ext P1 order, without insisting on any payment from the petitioner. iii) grant such other reliefs as this Hon’ble Court deems fit and proper in the circumstances of this case including the cost of this writ petitioner.”[sic] 2. The petitioners' mother had obtained Ext.P1 order under Kerala Land Utilization Order from the Revenue Divisional Officer, Kollam with respect of the property owned by her. The said properties were bequeathed to the petitioners vide various settlement deeds. Thereafter, the petitioners had approached the Revenue authorities for correction in the BTR. Since, there was no action, they approached this Court and as per Ext.P2 judgment, this Court was pleased to declare that the provisions of the Act 28 of 2008 have no application to the property of the petitioners. Thereafter, for constructing the residential building in their respective properties, the petitioners approached the 1[st] respondent. But, it is the case of **WP(C) NO. 9300 OF 2021** **4** the petitioners that the 1[st] respondent relying on Rule 12(17) of Act 28 of 2008 directed the petitioners to remit huge amount for permission to construct house in their property. It is the case of the petitioners that Exts.P3 to P5 orders of the 1[st] respondent are illegal in the light of Ext.P2 judgment. Hence, this writ petition. 3. Heard the learned counsel for the petitioners and the learned Government Pleader . 4. This Court perused Ext.P2 judgment. It will be better to extract the relevant portion of Ext.P2 judgment. “4. The law has been declared by this Court as per the decision rendered in Praveen Vs. State of Kerala [2010 (2) KLT 617] to the effect that before effecting entry in the BTR physical nature of the property has to be considered. The law has been declared as per the decision rendered in JafarKhan Vs. K.A. Kochumarakkar & Ors. [2012 (1) KHC 523] that the provisions of the Conservation of Kerala paddy land and Wet land Act are applicable only in respect of the land which are lying as 'paddy land' or 'wet land' as on the date of commencement of the 'Act'. A learned Single Judge of this Court directed the concerned Tahasildar to effect changes in the BTR on the basis of physical **WP(C) NO. 9300 OF 2021** **5** nature of the property concerned. The dispute was raised by the Revenue Department contending that Tahasildar does not have any such power and the appeal preferred therefrom came to be dismissed as per the decision reported in 2014 (1) KLT 161 [Revenue Divisional Officer VS. Jalaja Dileep]. The respondents have taken up the matter before the Apex Court by way of SLP No. 3172 of 2014 (as mentioned in paragraph 4 of the statement), but no interim stay has been obtained by the department. The nature of contention raised in the statement is to the effect that the respondents do not have any power under the Statute for effecting changes in the BTR. After declaring the law by this Court and also by giving direction to the concerned authority enabling him to do the needful, this Court does not find any justification for the concerned respondent in weeping over the absence of power for effecting correction. This Court fails to understand the nature of grievance or question of law raised before the Apex Court in the pending SLP, however this Court does not intend to express any opinion in this regard. Since the respondents have not obtained any interim stay, the decision rendered by the Division Bench of this Court stands as it is. So far there is no dispute as to the fact that property involved herein was converted years back, prior to Act 28 of 2008, the provisions of the said Act are not applicable to the case in hand. It is declared accordingly. In the said circumstances, there will be a direction to the second respondent to effect necessary changes in the BTR as to the nature of land, which shall be effected, at the earliest, at any rate, within one month from the **WP(C) NO. 9300 OF 2021** **6** date of receipt of a copy of this judgment. The petitioner shall produce a copy of this judgment along with copy of the writ petition before the second respondent for further steps.” 5. In the light of the above judgment, this Court clearly held that there is no dispute as to the fact that the properties involved herein was converted years back prior to Act 28 of 2008 and therefore, the provisions of the said Act are not applicable to the case in hand. This Court declared so in the above judgment. If that is the case, according to me, Exts.P3 to P5 orders will not stand. The petitioners are free to submit an application before the 2[nd] respondent to reassess the basic tax as per the Kerala Land Tax Act. Therefore, this writ petition is allowed in the following manner : - 1) Exts.P3 to P5 orders are set aside. - 2) The petitioners are free to submit a representation before the 2[nd] respondent for assessing tax as per the Kerala Land **7** **WP(C) NO. 9300 OF 2021** Tax Act. - 3) If such a representation is received, the 2[nd] respondent will consider the same, in the light of Exts.P1 and P2 as expeditiously as possible, at any rate, within two months from the date of receipt of a copy of this judgment. SD/- **P.V.KUNHIKRISHNAN JUDGE** SKS **WP(C) NO. 9300 OF 2021** **8** ## **APPENDIX OF WP(C) 9300/2021** PETITIONER EXHIBITS EXHIBIT P1 - TRUE COPY OF THE K.DIS.3682/06/A DATED 26/12/2006 OF THE RDO, KOLLAM UNDER CLAUSE 6 OF THE KLUO. EXHIBIT P2 - TRUE COPY OF THE JUDGMENT DATED 20/01/2015 OF THIS HON'BLE COURT IN W.P.(C) NO.31207/2014. EXHIBIT P3 TRUE COPY OF THE ORDER NO.A5688/2020 DATED 01/12/2020 OF THE 1ST RESPONDENT TO THE 1ST PETITIONER. EXHIBIT P4 TRUE COPY OF THE ORDER NO.A5690/2020 DATED 01/12/2020 OF THE 1ST RESPONDENT TO THE 2ND PETITIONER. EXHIBIT P5 TRUE COPY OF THE ORDER NO.A5689/2020 DATED 01/12/2020 OF THE 1ST RESPONDENT TO THE 3RD PETITIONER.