ROCILIN v. State of Kerala & others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **TUESDAY, THE 23RD DAY OF JUNE 2020 / 2ND ASHADHA, 1942** ## **WP(C).No.12272 OF 2020(H)** ## **PETITIONER/S:** **ROCILIN, D/O. PAULSON, PAATHADAN HOUSE, ERAYAMKUDY P O, KALLOOR, CHALAKUDY TALUK, THRISSUR-680308, REPRESENTED BY POWER OF ATTORNEY HOLDER CHERIAN ITTOOP, AGED 66 YEARS, S/O. CHERIAN, ELANJICKAL HOUSE, ELAMAKKARA P O, KOCHI-68206..** **BY ADVS.** **SRI.THOMAS JOHN AMBOOKEN SRI.B.SAJEEV KUMAR SMT.BLOSSOM MATHEW** ## **RESPONDENT/S:** - **1 STATE OF KERALA, REPRESENTED BY SECRETARY, DEPARTMENT OF REVENUE, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695001.** - **2 THE DISTRICT COLLECTOR, ERNAKULAM, CIVIL STATION, KAKKANAD, KOCHI-682030.** - **3 THE REVENUE DIVISIONAL OFFICER FORT KOCHI, REVENUE DIVISION OFFICE, FORT KOCHI, KOCHI-682001.** - **4 THE TAHSILDAR(LR) KANAYANNUR TALUK, ERNAKULAM, KOCHI-682011.** - **5 THE VILLAGE OFFICER, ELAMKULAM VILLAGE OFFICE, ELAMKULAM, KOCHI-682020.** ## **OTHER PRESENT:** **SRI.SAIGI JACOB PALATTY, SR.GOVT.PLEADER** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 23.06.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C).No.12272 OF 2020(H)** **2** ## **ALEXANDER THOMAS, J.** **----------------------------------------W.P.(C.) No.12272 of 2020 ----------------------------------------Dated this the 23[rd] day of June, 2020** ## **JUDGMENT** The case set up in the Writ Petition (Civil) is as follows : _That the petitioner obtained 4.06 ares of land comprised in Survey No.277/4 of Elamkulam village from her mother as per settlement deed No.3472/2013 of Ernakulam Sub Registry Office. Her mother obtained the properties as per sale deed No.460 of 1992 of the same Sub registry office. As on the date of the said sale deed itself, the property was lying as dry land and the same is discernible from the deed as well. It is urged that the said property is described as 'converted before 2008'-purayidam in the data bank, but by mistake the same is shown as 'nilam' in Ext.P1 Basic Tax Register. That the petitioner has not been able to carry out any construction or development over the said property as it is lying as nilam in the Basic tax register which is a mistake and is only to be rectified. The petitioner submitted Ext.P2 application dated 14/06/2017 before the 3[rd] respondent seeking permission to construct a building. Based on Ext.P2 application, after proper enquiry and Ext.P5 report, the 3[rd] respondent had passed Ext.P6 order under Clause 6 of the Kerala Land Utilization Order, 1967 permitting the petitioner's land to be utilised for any purpose_ **WP(C).No.12272 OF 2020(H)** **3** _other than agriculture. In spite of Exhibit P6 and even after the said order was made available to respondents 4 and 5, they have not taken any steps so far to rectify the mistake in the Basic tax register and consequently in the tax receipts issued. The petitioner in order to construct a building in the said property, as part of loan application applied for Ext.P7 possession certificate and received on 26.03.2020 in which the nature of the subject property is still shown as “nilam” for no proper reasons. That the petitioner then approached the 4[th] respondent in the last week of May, so as to submit Ext.P8 application under S.6A of the Kerala Land Tax Act to rectify the mistake which was not accepted stating the present pandemic situation. The petitioner tried to submit the same before R4 again on 02.06.2020 which was also refused to be accepted stating that in Exhibit P6 it is clearly stated that the said order is not to be construed as an order to change the nature of the land in BTR and also that an application under S.27 of Kerala Conservation of Paddy Land and Wet Land Act is to be filed before the 3[rd] respondent. It is urged that in the instant case applications were made prior to the cut off date prescribed for this purpose and hence the dictum laid down by this Court in the decision reported in 2020(2) KLT 13 is squarely applicable in this case._ 2. It is in the light of these averments and contentions that the petitioner has filed the instant W.P.(C.) with the following prayers : **WP(C).No.12272 OF 2020(H)** **4** _“1. Issue a writ of mandamus or any other writ, order or direction, directing the respondents 4 and 5 to rectify the mistake in the Basic tax register changing the nature of petitioner's property as 'nature changed as purayidam' in the light of Exhibit P6 in the present place of “Nilam”._ _2. To direct the 4[th] respondent to consider Exhibit P7 application as expeditiously as possible._ _3. Any other appropriate, Writ, Order or direction as deemed fit by this Honourable Court.”_ 3. Heard Sri.Thomas John Ambooken, learned counsel appearing for the petitioner and Sri.Saigi Jacob Palatty, learned senior Government Pleader appearing for respondents. 4. The petitioner has filed the requisite application under Rule 6(2) of the Kerala Land Utilization Order, 1967 as per Ext.P2 dated 14.6.2017 before the 3[rd] respondent-Revenue Divisional Officer seeking for such statutory permission for change of user of the land for nonagricultural purposes. Based on Ext.P3 report dated 23.6.2017 issued by the Agricultural Officer concerned, who is the ex-officio Convenor of the statutory Local Level Monitoring Committee as well as Ext.P5 proceedings dated 18.12.2017 of the Local Level Monitoring Committee, the 3[rd] respondent-RDO has allowed the said request of the petitioner contained in Ext.P2 application dated 14.6.2017 in terms of Ext.P6 proceedings dated 12.3.2019 granting statutory permission to the petitioner for change of user of the land for any non-agricultural purposes. However, for reasons which are not understandable to this Court, the 3[rd] respondent RDO has issued a condition as per condition No.2 of Ext.P6, that the said Ext.P6 order cannot be treated as one which would enable the petitioner to seek for consequential alteration of the BTR in terms of Sec.6A of the Kerala Land **WP(C).No.12272 OF 2020(H)** **5** Tax Act. Condition No.2 of the conditions given in the last paragraph of Ext.P6 reads as follows : “ ¨ ©JøÕí Ìß.¿ß.¦V æÜ Äø¢ ÎÞxáKÄßÈáU ¥ÈáÎÄßÏÞÏß ” µÃAÞAÞÕáKÄÜï. 5. The petitioner has now filed Ext.P8 application dated 28.5.2020 before the 4[th] respondent-Tahsildar seeking for consequential benefits of re-assessment of the subject property covered by Ext.P6 in terms of Sec.6A of the Kerala Land Tax Act to secure additional entries in the BTR to show the changed nature of land as garden land/purayidom instead of the earlier entries as nilam/paddy land. According to the petitioner, he has now been informed by the officials in the office of the 4[th] respondent-Tahsildar that in view of the abovesaid impugned Condition No.2 of Ext.P6, the 4[th] respondent may not be in a position to consider and grant the request of the petitioner under Sec.6A of the Kerala Land Tax Act, 1961 for alteration in the BTR to correctly show the changed nature of the land. 6. It is by now well settled by a series of rulings of this Court as in _**Geo Peter** v._ _**Revenue Divisional Officer**_ [2019 (3) KLT 838] _,_ _**Renjith K.Paul** v._ _**Revenue Divisional Officer**_ [2019 (2) KLT 262] _**,**_ that in a case where the subject property has been converted prior to 2008 Act and whether the property holder has submitted application under Rule 6(2) of the Kerala Land Utilization Order before 30.12.2017 (date of coming into force of the amended provisions of the 2008 Act introducing Sec.27A **WP(C).No.12272 OF 2020(H)** **6** thereof), then in such a case, the respondent RDO is legally obliged to consider the case of such a property holder, strictly in terms of the provisions contained in Rule 6(2) of the KLU Order and in such a case, none of the detrimental and adverse conditions flowing out from the amended provisions of the 2008 Act introducing Sec.27A thereof can in any manner affect such an applicant. 7. It is beyond any dispute whatsoever, that the petitioner has infact filed Ext.P2 application under Rule 6(2) of the Kerala Land Utilization Order, 1967 on 14.6.2017 before the cut-off date of 30.12.2017. Hence, it is clear that petitioner has infact filed Ext.P2 application under Rule 6(2) of the KLU order much before 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) and this crucial aspect of the matter is even admitted by the respondents, more particularly, the 3[rd] respondent as can be seen from reference No.1 of Ext.P6 proceedings dated 12.3.2019. Therefore, Ext.P2 application has to be considered strictly in terms of Rule 6(2) of the Kerala Land Utilization Order, 1967 and once the statutorily notified Collector, which also includes the RDO exercises the discretion to grant permission for change of user of the land, the condition as the one in the nature of Ext.P6 order is beyond his competence and is illegal. 8. It has been well settled by a series of rulings of this Court including the judgments of the Division Bench of this Court as in _**LLMC**_ , **WP(C).No.12272 OF 2020(H)** **7** _**Kizhakkambalam Grama Panchayat v. Mariumma**_ [2015 (2) KLT 516 (DB)] and _**Tahsildar, Thodupuzha Taluk v. Renjith George**_ [2020 (1) KHC 865 (DB)] that in a case where the party has filed the requisite Rule 6(2) application before the cut off date of 30.12.2017, then after securing such orders of permission under Rule 6(2) of the KLU order, he is entitled to file application under Sec.6A of the Kerala Land Tax Act for re-assessment of the property for alteration of the BTR entries, without having to pay the amounts as per Sec.27A. 9. Accordingly, it is ordered that condition No.2 imposed by the 3[rd] respondent-RDO in Ext.P6 proceedings dated 12.3.2019 is without any jurisdictional competence and is illegal and unreasonable and the same will stand rescinded and set aside. It is made clear that Ext.P6 to the extent it grants the statutory permission in favour of the petitioner for change of user of the land for any non-agricultural purposes will stand affirmed and is not in any manner affected by the abovesaid direction and what is intedicted by this Court is only the impugned condition No.2 of Ext.P6. 10. Further, it is ordered that the 4[th] respondent-Tahsildar will immediately take up for consideration Ext.P8 application dated 28.5.2020 and in case, the property covered by Ext.P8 application is the same as one covered by Ext.P6 proceedings of the 3[rd] respondent-RDO, then the 4[th] respondent after affording reasonable opportunity of being heard to the petitioner, should pass orders of re-assessment of the subject property in **WP(C).No.12272 OF 2020(H)** **8** terms of Sec.6A of the Kerala Land Tax Act so as to secure additional entries in the BTR to show correctly the changed nature of the land as garden land/purayidam instead of the previous BTR entries as nilam/paddy land, without any further delay, at any rate, within a period of 1 month from the date of production of a certified copy of this judgment and strictly in the light of the dictum laid down by the Division Bench of this Court in the judgments as in _**Mariumma’s case**_ (supra) _**and Renjith George's case**_ (supra) and without in any manner compelling the petitioner to pay the amounts conceived as per the amended provisions of the 2008 Act and the amended provisions of the Rules including Rule 12(17) thereof. 11. After orders are passed by the 4[th] respondent as directed above, it shall be ensured by the 4[th] respondent that necessary directions are given to the 5[th] respondent –Village Officer to actually carry out such alterations in the BTR and to accept land tax from the petitioner and to issue land tax receipt showing the alterations in the BTR description of the property, provided the property covered by Ext.P8 is the same as the one covered by Ext.P6. Consequential action in that regard should also be duly completed by the 5[th] respondent-Village Officer within 2 weeks from the date of receipt of orders to be passed by the 4[th] respondent-Tahsildar on Ext.P8 application. 12. The petitioner will produce a certified copy of this judgment **WP(C).No.12272 OF 2020(H)** **9** along with a copy of the memordandum of this W.P.(C.) with all the exhibits before the 4[th] 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** ## **SKS** **WP(C).No.12272 OF 2020(H)** **10** ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF THE RELEVANT EXTRACT OF THE DATA BANK** **EXHIBIT P2 TRUE COPY OF APPLICATION DATED 14.06.2017 SUBMITTED BY THE PETITIONER TO R3** **EXHIBIT P3 TRUE COPY OF THE REPORT DATED 23.06.2017 FORWARDED BY THE AGRICULTURAL FIELD OFFICER TO THE R3.** **EXHIBIT P4 TRUE COPY OF THE LETTER DATED 23.12.2017 ISSUED BY R3** **EXHIBIT P5 TRUE COPY OF THE REPORT DATED 18.12.2017 FORWARDED BY THE AGRICULTURAL FIELD OFFICER TO THE R3.** **EXHIBIT P6 TRUE COPY OF THE ORDER DATED 12.03.2019 PASSED BY R3** **EXHIBIT P7 POSSESSION CERTIFICATE DATED 26.03.2020 EXHIBIT P8 REPRESENTATION DATED 28.05.2020 SUBMITTED BY THE PETITIONER BEFORE R4**