Sajitha T.M. and Afzal Mohammed Khan v. Tahsildar, Kottayam Taluk; Revenue Divisional Officer, Civil Station, Kottayam District

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS MONDAY, THE 24TH DAY OF AUGUST 2020 / 2ND BHADRA, 1942** ## **WP(C).No.16260 OF 2020(F)** ## **PETITIONERS:** **1 SAJITHA T.M. AGED 52 YEARS W/O.ANSHAD M.KHAN, LANTERN, KAJIKUZHY, MUTTAMBALAM P.O., KOTTAYAM DISTRICT, PIN-686004. 2 AFZAL MOHAMMED KHAN, AGED 30 YEARS S/O.ANSHAD M.KHAN, LANTERN, KANJIKUZHY, MUTTAMBALAM P.O., KOTTAYAM DISTRICT, PIN-686004. BY ADVS. SRI.ADITHYA RAJEEV SHRI.SREEDEV U** ## **RESPONDENTS:** **1 TAHASILDAR, KOTTAYAM TALUK, TALUK OFFICE, KOTTAYAM DISTRICT, PIN-686001. 2 REVENUE DIVISIONAL OFFICER, CIVIL STATION, KOTTAYAM DISTRICT, PIN-686002.** ## **SRI.SAIGI JACOB PALATTY, SR.GOVT.PLEADER** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 24.08.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 2 W.P.(C) No.16260 of 2020 **ALEXANDER THOMAS, J. =============================== W.P.(C) No.16260 of 2020 =============================== Dated this the 24[th] day of August, 2020** ## **JUDGMENT** The prayers in the above writ petition(civil) are as follows:- _“i)to issue a writ of Certiorari calling for the records leading to the issuance of Ext-P9 order and quash the same._ _ii)to issue a writ of Mandamus directing the 1[st] respondent to effect correction in the Basic tax Register in relation to the property comprised in Re-sy No.42/190 in Muttambalam Village in Kottayam Taluk of Kottayam District, owned by the petitioners;_ _iii)to grant such other relief's as this Honourable Court may deem fit in the circumstances of this case._ 2. Heard Sri. Adithya Rajeev, learned counsel appearing for the petitioners and Sri. Saigi Jacob Palatti, learned Senior Government Pleader appearing for the respondents. 3. In this case it is beyond any dispute that the petitioners have in fact filed the requisite application on 18.03.2017 seeking the benefit of Rule 6(2) of the KLU order before the District Collector as can be seen from Item No.1 of the reference of Ext.P2 as well as the document marked as Ext.P2 in Ext.P7 W.P.(C) No.24357/2019. On the said 3 ## W.P.(C) No.16260 of 2020 application the District Collector has passed Ext.P2 proceedings dated 09.06.2015, granting permission to the petitioners under Rule 6(2) of the KLU Order, for the purpose of using the said property for other agricultural purposes, but with a rider that the petitioners shall not use it for any non-agricultural purposes, including for the purpose of constructing any building. Being aggrieved by Ext.P2 proceedings dated 09.06.2015 issued by the District Collector to the limited extent it has imposed such riders and conditions, the petitioners have approached this Court by filing W.P.(C) No.21967/2017, which this Court disposed of as per Ext.P3 judgment dated 14.12.2017, wherein it has been held that such restricted conditions cannot be imposed by the notified Collector under Rule 6(2) of the KLU Order. Going by the well settled legal proceedings in that regard by placing reliance on the judgments cited in Ext.P3 judgment as in _**Shivadasan v. Revenue Divisional Officer (2017 (3) KLT 822),**_ this Court has held that the impugned restrictions in Ext.P2 that petitioners cannot use the said property for any nonagricultural purposes and that they cannot use such property for constructing buildings etc. was quashed. 4. In view of Ext.P3 judgment, the petitioners have thus secured statutory permission under Rule 6 (2) of the KLU Order, in terms of 4 ## W.P.(C) No.16260 of 2020 Ext.P2 as modified by Ext.P3 judgment to use subject property for any non-agricultural purposes including for construction of buildings. Thereafter, the petitioners have filed Ext.P4 application dated 17.07.2019 before the 1[st] respondent RDO seeking for orders under Section 6A of the Kerala Land Tax Act to secure additional entries in the BTR to show correctly the changed nature of the land as garden land/purayidom, instead of the earlier BTR entries as Nilam/Paddy land. 5. This Court as per Ext.P7 judgment dated 24.09.2019 in W.P. (C) No.24357/2019 filed by the petitioners herein has directed that the said Ext.P4 application shall be decided by the respondent Tahsildar strictly on the basis of the legal principles laid down by the Division Bench of this Court in cases as in Ext.P5 judgment. Now the 1[st] respondent Tahsildar has issued the impugned Ext.P9 order dated 11.03.2020 holding that though the petitioners have secured permission under Rule 6(2) of the KLU Order from the notified Collector as per Ext.P2 order as modified by Ext.P3 judgment, the petitioners have to necessarily pay the amounts as conceived as per the amended provisions of the 2008 Act including Section 27A thereof and the Rules framed thereunder, presumably referring to Rule 12(17) of the Rules. The matter in issue is no longer res-integra and is fully covered against the 5 ## W.P.(C) No.16260 of 2020 respondents and in favour of the petitioner. 6. It has been held by the Division Bench of this Court in _**LLMC**_ , _**Kizhakkambalam Grama Panchayat v. Mariumma**_ [2015 (2) KLT 516 (DB)], wherein it has been held that in such a case, where the applicant secures the necessary permission under Rule 6(2) of the Kerala Utilization Order, 1967, then such an applicant is legally entitled to maintain a request under Sec.6A of the Kerala Land Tax Act, 1961 before the competent Revenue Divisional Officer concerned like Tahsildar to demand for a re-assessment of such property, so that additional entries are made in the BTR concerned to show that the land as garden land/purayidom instead of the earlier BTR entries as nilam/paddy land' as the case may be, without having to pay the amounts as per Sec.27A of the Act. 7. It has also been held by this Court in decisions as in the case covered by the judgment dated 27.07.2020 in W.P.(C) No. 14531/2020 (paragraph 11 to 13 thereof), as follows:- “ 11. It has also to borne in mind the legislature has specifically mandated Sub Sec (13) of Sec.27A that it is only those application received for change of nature of unnotified land from the date of commencement of the Kerala Conservation of Paddy Land and Wetland (Amendment) Act, 2018 (viz, 30-12-2017) that shall be considered and disposed of only in accordance with the provisions of the said Act. Therefore in other words application for change of user of the land received by the notified Collector before 30-12-2017 has to be considered only in terms of Rule 6(2) of the KLU Order and not in terms of Sec.27A 6 ## W.P.(C) No.16260 of 2020 ## and the rules framed thereunder. 12. Rule 12(17) of the Kerala Conservation of Paddy Land and Wetland Rules 2008 provides as follows: _(17)_ "2018 ല�ക�രള ല�ൽവയൽ തണ�ർതട സ�രകണ _**(**_ ക�ദഗത� _**)**_ ��യമ� പ�ബ��ത�ൽ വനത�ന മൻപ$ _**,** 1967-_ ല� ക�രള ഭവ���കയ�ഗ ഉതരവ$ പ��ര� വ�ട$ ലവയ�ക�� മറ$ ആവശ�ങൾക-� ���� പര�വർത�ല.ടത�ൻ ��യമപരമ�യ� അനമത� വ�ങ�യത$ സ�ബന�ച ഉതരവ�ൾ ഹ�ജര�കനപക� അപ��രമള ഭമ�-$ ല8വ�9 കരഖ�ള�ൽ സ;��വ വ�ത�യ��� വരതനത��$ ല>ഡ9ള�ൽ പ8ഞ�ര�കന ഫ�സ�ലB _**25%**_ ��ര-�ൽ അടവ$ വരകതണത�ണ$ _**.”**_ 13. Since it is specifically mandated in Sec.27A(13) by the legislature that it is only those applications received for change of nature of the unnotified land from the date of commencement of the Amendment Act (viz, 30-12-2017) that has to be considered and decided in terms of the said Act, and in view of the abovesaid well settled legal positions mentioned herein above, it has only to be held that Rule 12(17) is ultra vires the provisions contained in Sec.27A(13) and is unenforceable. It is all the more so, as this Court has repeatedly held in various decisions that in a case that the party has filed requisite application under Rule 6(2) of the KLU Order before 30-12-2017 and the same has to be considered in terms of Rule 6(2) of the KLU Order and not in terms of Sec.27A of the Act and without compelling the party to pay the amounts as conceived as per the amended provisions of the 2008 Act, including Sec.27A thereof and the rules framed thereunder including Rule 12(17) thereof. The position in that regard is declared and ordered in this case as well.” 8. Hence it is only to be held that the impugned order passed by the 1[st] respondent as per Ext.P9 is not only against the legal position well settled by this Court but also clearly in defiance of the legislative mandate made by the Legislature as per Section 27A (13). The 1[st] respondent Tahsildar has not placed any reliance on Rule 12(17) of the Rules. It has already been held by this Court that Rule 12(17) cannot be questioned into service in respect of the case, where the application for change of user of land has been actually filed before the notified 7 ## W.P.(C) No.16260 of 2020 Collector under Rule 6(2) of the KLU Order before 30.12.2017 (date of coming into force of the amended provisions of the 2008 Act). Section 27A and the Rules framed thereunder would apply only in case where the application for change of user of land has been filed on or after 30.12.2017 (date of coming into force of the amended provisions of the 2008 Act) as can be seen from the explicit mandate contained under Section 27A (13). Therefore, such a provision as per Rule 12(17) is clearly ultra vires the provisions contained in Section 27A (13) and hence is illegal and unenforceable. The position in that regard is declared and ordered in this case as well. It is beyond any doubt that in this case the petitioners have filed the requisite application under Rule 6(2) of the KLU Order as early as on 18.03.2015 (see item No.1 of Ext.P2) and Ext.P2 permission has been secured on 09.06.2017, which has also been modified by this Court as per Ext.P3 judgment dated 14.12.2017 in W.P. (C) No.21965/2017. 9. Hence this is a case wherein, the application has been filed not only before the cut off dated of 30.12.2017 but also where the actual permission has also been secured before the cut off date of 30.12.2017. Accordingly it is ordered that the impugned Ext.P9 order dated 11.03.2020 issued by the 1[st] respondent will stand quashed and set aside 8 ## W.P.(C) No.16260 of 2020 and correspondingly, Ext.P4 application dated 17.07.2019 filed by the petitioners will stand remitted to the 1[st] respondent Tahsildar for consideration and decision afresh. The 1[st] respondent will immediately ascertain as to whether the subject property covered by Ext.P4 application dated 17.07.2019 is the same or part of the property covered by Ext.P2 and if the subject property covered by Ext.P4, is the same as one covered by Ext.P2, then the 1[st] respondent will immediately afford reasonable opportunity of being heard to the petitioners and then should pass orders allowing the request in Ext.P4 so that the subject property can be subjected to fresh assessment in terms of Section 6A of the Kerala Land Tax Act so as to secure additional entries in the BTR to show correctly the changed of user of land as garden land/purayidom, instead of the earlier BTR entries as Nilam/Paddy land, without much delay, preferably within a period of one month from the date on which the petitioners produce a copy of this judgment, and strictly in accordance with the dictum laid down by the Division Bench of this Court in cases as in Mariyumma's case (supra) [2015 (2) KLT 516 (DB)] and without compelling petitioners in any manner to pay the amounts as conceived as per the amended provisions of the 2008 Act including Section 27A thereof and the Rules framed thereunder including Rule 12(17) thereof 9 W.P.(C) No.16260 of 2020 and strictly in accordance with the abovesaid observations and findings made by this Court herein above. 10. The petitioners will produce certified copy of the judgment along with the copy of 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 Writ Petition (Civil) will stand finally disposed of. **Sd/-** ## **ALEXANDER THOMAS** **JUDGE** **hmh** 10 W.P.(C) No.16260 of 2020 ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 A TRUE COPY OF THE JUDGMENT OF THIS HON'BLE COURT DATED 26.02.2015 IN W.P(C)NO.6085 OF 2015.** - **EXHIBIT P2 A TRUE COPY OF THE ORDER NO.E9-26929/2014 DATED 09.06.2015 ISSUED BY THE DISTRICT COLLECTOR, KOTTAYAM.** - **EXHIBIT P3 A TRUE COPY OF THE JUDGMENT OF THIS HON'BLE COURT DATED 14.12.2017 IN W.P(C) 21965 OF 2017.** **EXHIBIT P4 A TRUE COPY OF THE REPRESENTATION DATED NIL SUBMITTED BEFORE THE 1ST RESPONDENT ON 17.07.2017. EXHIBIT P5 A TRUE COPY OF THE JUDGMENT OF THIS HON'BLE COURT DATED 12.03.2019 IN W.A.NO.47 OF 2019. EXHIBIT P6 THE A TRUE COPY OF THE BUILDING PERMIT BEARING NO.PW3-BA(95404)/2018 DATED 17.05.2018 ISSUED BY THE KOTTAYAM MUNICIPALITY. EXHIBIT P7 A TRUE COPY OF THE JUDGMENT DATED 24.09.2019 IN WP(C)NO.24357 OF 2019 OF THIS HON'BLE COURT. EXHIBIT P8 A TRUE COPY OF THE JUDGMENT DATED 16.06.2020 IN CON.CASE(C)NO.415 OF 2020 BEFORE THIS HON'BLE COURT. EXHIBIT P9 A TRUE COPY OF ORDER NO.K3.7192/14 DATED 24.03.2020 ISSUED BY THE 1ST RESPONDENT.** **RESPONDENT'S/S EXHIBITS: NIL**