Sisily George v. State of Kerala; George Joseph v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **MONDAY, THE 29TH DAY OF JUNE 2020 / 8TH ASHADHA, 1942** ## **WP(C).No.12532 OF 2020(N)** ## **PETITIONER:** **SISILY GEORGE** **MANNOOPARAMBIL PANNACKAL, AYMANAM VILLAGE, PULIKUTTYSERY P.O., KOTTAYAM, PRESENTLY RESIDING AT MANNOOPARAMBIL PANNACKAL HOUSE, CHERATTUKUZHI ROAD, UPHILL P.O., MALAPPURAM-676505.** **BY ADVS. SRI.ROY CHACKO SRI.K.C.VINCENT** ## **RESPONDENTS:** |**1**|**STATE OF KERALA**| |---|---| ||**REPRESENTED BY SECRETARY, DEPARTMENT OF REVENUE,**| ||**SECRETARIAT, THIRUVANANTHAPURAM-695001.**| |**2**|**THE REVENUE DIVISIONAL OFFICER,**| ||**COLLECTORATE, KOTTAYAM-686002.**| |**3**|**THE TAHSILDAR,**| ||**TALUK OFFICE, KOTTAYAM-686002.**| |**4**|**THE VILLAGE OFFICER,**| ||**AYMANAM VILLAGE-686015.**| ||**BY SRI.SAIGI JACOB PALATTY, SR.GOVT.PLEADER**| **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 29.06.2020, ALONG WITH WP(C).12529/2020(M), THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** W.P.(C)Nos.12529/2020 & 12532/2020 2 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **MONDAY, THE 29TH DAY OF JUNE 2020 / 8TH ASHADHA, 1942** ## **WP(C).No.12529 OF 2020(M)** ## **PETITIONER:** **GEORGE JOSEPH** **MANOOPARAMBIL PANNACKAL, AYMANAM VILLAGE, PULIKUTTYSERY P.O., KOTTAYAM, PRESENTLY RESIDING AT MANNOOPARAMBIL PANNACKAL HOUSE, CHERATTUKUZHI ROAD, UPHILL P.O., MALAPPURAM-676505.** **BY ADVS. SRI.ROY CHACKO SRI.K.C.VINCENT** ## **RESPONDENTS:** **1 STATE OF KERALA REPRESENTED BY SECRETARY, DEPARTMENT OF REVENUE, SECRETARIAT, THIRUVANANTHAPURAM-695001. 2 THE REVENUE DIVISIONAL OFFICER, COLLECTORATE, KOTTAYAM-686002. 3 THE TAHSILDAR, TALUK OFFICE, KOTTAYAM-686002. 4 THE VILLAGE OFFICER, AYMANAM VILLAGE-686105.** **BY SRI.SAIGI JACOB PALATTY, SR.GOVT.PLEADER** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 29.06.2020, ALONG WITH WP(C).12532/2020(N), THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** W.P.(C)Nos.12529/2020 & 12532/2020 3 ## **ALEXANDER THOMAS, J.** ------------------------------------------W.P.(C)Nos.12529 of 2020 & 12532 of 2020 ---------------------------------------------Dated this the 29[th] day of June, 2020 ## **JUDGMENT** As the petitioners are spouses and the issue raised in these two writ petitions is the same and also the subject properties are lying contiguously these writ petitions (civil) are disposed of on the basis of this common judgment. The case set up in Writ Petition (Civil) No.12529 of 2020 is as follows:- _The petitioner is the owner in possession of 31.06 Ares in re-survey 307/1, 97.08 Ares in 307/1-1 and 61.46 Ares in 307/1-3 in Block No.8 of Aymanam village in Kottayam Taluk. The subject lands were granted with KLU permission on 08.07.1983 and the land categorised as fully converted land in 1990 as per the Data Bank. The petitioner submitted Ext.P-4 application. But it is informed from the office of the Tahsildar that Ext.P-4 application can only be considered on production of order under Section 27A of the Kerala Conservation of Paddy_ W.P.(C)Nos.12529/2020 & 12532/2020 4 _Land and Wetland Act, 2008, or on payment of fee as scheduled in the Rules. The law governing the field is now settled by the judgments in Mariumma's case reported in 2015 (2) KLT 516, Geo Peter V. Revenue Divisional Officer, reported in 2019 (3) KLT 838 and Fr.Jose Upani V. District Collector, reported in 2020(3) KLT 492. In view of the above judgments the petitioner is not bound to obtain further permissions either under the 2008 Act or to pay any amounts under the Rules._ The prayers in Writ Petition (Civil) No.12529 of 2020 are as follows:- _"a) Issue a writ of mandamus or any other appropriate writ, direction or order directing the 3rd respondent to consider and pass orders on Ext P4 application under section 6A of the Kerala land Tax Act, 1961, and to reassess the basic land tax on the strength of Ext P2, in the light of the judgment of this Honourable Court in Fr. Jose Upani v. District Collector, reported in 2020(3) KLT 492._ _b) Issue a writ of mandamus or any other appropriate writ, order or direction directing the 4th respondent to make necessary entries in the Basic Tax Register showing the category of 31.06 Ares in re-survey 307/1, 97.08 Ares in 307/1-1 and 61.46 Ares in 307/1-3 in Block No. 8 of Aymanam village in Kottayam Taluk, owned by the petitioner as Purayidom/Garden land._ _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.”_ The case set up in Writ Petition (Civil) No.12532 of 2020 is as follows:- _The petitioner is the owner in possession of 81.70 Ares_ W.P.(C)Nos.12529/2020 & 12532/2020 5 _in re-survey 307/1-2 in Block No. 8 of Aymanam village in Kottayam Taluk. The subject lands were granted with KLU permission on 08.07.1983 and the land categorised as fully converted land in 1990 as per the Data Bank. The petitioner submitted Ext.P-4 application. But it is informed from the office of the Tahsildar that Ext.P-4 application can only be considered on production of order under Section 27A of the Kerala Conservation of Paddy Land and Wetland Act, 2008 or on payment of fee as scheduled in the Rules. The law governing the field is now settled by the judgments in Mariumma’s case reported in 2015(2) KLT 516, Geo Peter v. Revenue Divisional Officer, reported in 2019 (3) KLT 838 and Fr. Jose Upani v. District Collector, reported in 2020(3) KLT 492. In view of the above judgments the petitioner is not bound to obtain further permissions either under the 2008 Act or to pay any amounts under the Rules._ The prayers in Writ Petition (Civil) No.12532 of 2020 are as ## follows:- _"a) Issue a writ of mandamus or any other appropriate writ, direction or order directing the 3rd respondent to consider and pass orders on Ext.P4 application under section 6A of the Kerala land Tax Act, 1961, and to reassess the basic land tax on the strength of Ext P2, in the_ W.P.(C)Nos.12529/2020 & 12532/2020 6 _light of the judgment of this Honourable Court in Fr. Jose Upani v. District Collector, reported in 2020(3) KLT 492._ _b) Issue a writ of mandamus or any other appropriate writ, order or direction directing the 4th respondent to make necessary entries in the Basic Tax Register showing the category of 81.70 Ares in re-survey 307/1-2 in Block No. 8 of Aymanam village in Kottayam Taluk, owned by the petitioner as Purayidom/Garden land._ _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.Roy Chacko, learned counsel appearing for the petitioners and Sri. Saigi Jacob Palatty, learned Senior Government Pleader appearing for the respondents, in both these cases. 3. The case of the petitioners in these two writ petitions is to the effect that the subject properties concerned in these two cases, though continues to be described as 'nilam/paddy land' in the Basic Tax Register (BTR), and that the subject properties have been duly converted as 'garden land/purayidom', after securing necessary statutory permission from the 2[nd] respondent-Revenue Divisional Officer in terms of Rule 6(2) of the Kerala Land Utilisation Order, 1967, as can be seen from Ext.P-2 proceedings dated 08.07.1983, in respect of both the properties and that such conversion has, thus, been duly effected much prior to 12.08.2008 W.P.(C)Nos.12529/2020 & 12532/2020 7 (date of coming into force of the Kerala Conservation of Paddy Land and Wetland Act, 2008. It is the specific case of the petitioners that since the subject properties have already secured necessary statutory permission for conversion as per Rule 6(2) of the Kerala Land Utilisation Order, 1967, in terms of Ext.P-2 proceedings issued as early as on 08.07.1983 by the 2[nd] respondent-Revenue Divisional Officer, there is no question of the petitioners again having to secure a second permission as per the provisions contained in Section 27 A(1) of the Kerala Conservation of Paddy Land and Wetland Act, 2008, etc. Further that, immediately after issuance of Ext.P-2 proceedings dated 08.07.1983, it was the bounden duty of Revenue Officials like the 3[rd] respondent-Tahsildar, to themselves initiate action under Section 6A of the Kerala Land Tax Act, 1961, to re-assess the said properties and secure additional entries in the BTR to show the change of nature of the land as 'garden land/purayidom' instead of the earlier BTR entries as 'nilam/paddy land' and that more so particularly as the land tax payable in terms of the provisions contained in the Kerala Land Tax Act, 1961, and the Kerala Land Tax Rules, framed thereunder in respect of a 'purayidom/garden W.P.(C)Nos.12529/2020 & 12532/2020 8 land' is higher than that chargeable for 'paddy land/nilam'. That, now the petitioners have filed Ext.P-4 application dated 15.06.2020 as produced in both these cases before the 3[rd] respondent-Tahsildar, Kottayam, seeking for re-assessment of those properties covered by Ext.P-2 under Section 6A of the Kerala Land Tax Act, 1961, to secure such additional entries in the BTR to correctly show the change in nature of the land. 4. The complaint of the petitioners is that they could reliably learn that officials of the 3[rd] respondent are taking the stand that the petitioners will have to again get fresh permission under Section 27A(1) of the amended provisions of the Kerala Conservation of Paddy Land and Wetland Act, 2008, etc. 5. 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], _**Renji K.Paul v. Revenue Divisional Officer**_ [2019 (2) KLT 262], _**Salim v. State of Kerala**_ [2019 (3) KLT 604 (DB)] that in a case where the subject property has been converted prior to coming into force of the 2008 Act and where the requisite application under Rule 6(2) of the Kerala Land Utilization Order, 1967 has been submitted by the party W.P.(C)Nos.12529/2020 & 12532/2020 9 concerned before 30.12.2017 (date of coming into force of the amended provisions of the 2008 Act) introducing Sec.27A thereof, etc., then none of the detrimental and adverse conditions flowing out from the said amended provisions can be pressed into service as against the party concerned and the respondent-Revenue Divisional Officer is statutorily obliged to consider the said plea for conversion on the basis of the provisions contained in Rule 6(2) of the Kerala Land Utilization Order, 1967. This aspect of the matter has also been reiterated by a recent judgment of the Division Bench of this Court in _**Thasildar, Thodupuzha Taluk and another v. Renjith George**_ [2020 (1) KHC 865 (DB)] that in a case where the subject property has been converted prior to the coming into force of the 2008 Act and where Rule 6(2) application under the Kerala Land Utilization Order, 1967 has been submitted before 30.12.2017, then the said plea of the party has to be considered in terms of the provisions contained in Rule 6(2) of the Kerala Land Utilization Order and that none of the adverse provisions contained in the amended provisions of the 2008 Act can be pressed into service as against such a party. Moreover, the Division Bench has also reiterated in **Renjith’s** W.P.(C)Nos.12529/2020 & 12532/2020 10 **case** (supra) [2020 (1) KHC 865 (DB)] that in respect of such a property, the party is also legally entitled to maintain an application Sec.6A of the Kerala Land Tax Act for re-assessment of the subject property, so as to make additional entries in the Basic Tax Register to show the classification of the land as purayidam or garden land, instead of the earlier BTR entries as paddy land or Nilam, as the case may be, in view of the earlier dictum laid down by another Division Bench of this Court in _**LLMC, Kizhakkambalam Grama Panchayath and others v. Mariumma and another**_ [2015 (2) KLT 516 (DB)]. 6. This Court has held in the afore cited judgments that even in a case, where the property owner files the requisite application under Rule 6(2) of the Kerala Land Utilisation Order, 1967, before the cut off date of 30.12.2017, then notwithstanding the fact that orders had not been passed on such application before the cut off date still the notified Collectors under the Kerala Land Utilisation Order, 1967, are statutorily obliged to consider such applications filed before the said cut off date of 30.12.2017, strictly in terms of the provisions contained in Rule 6(2) of the Kerala Land Utilisation Order, 1967, and in such a case, the party W.P.(C)Nos.12529/2020 & 12532/2020 11 cannot be mulcted to undergo the rigorous procedure and to pay the higher amounts as conceived as per the amended provisions of the Kerala Conservation of Paddy Land and Wetland Act, 2008, including Section 27A thereof and the amended Rules framed thereunder including Rule 12(17) thereof. 7. In the instant case, if, as a matter of fact, the subject properties covered by Ext.P-4 is the same as the one covered by Ext.P-2, issued under Rule 6(2) of the Kerala Land Utilisation Order, 1967, then the case of the petitioners would stand on a much higher or better pedestal compared to the petitioners who are covered by judgments in tune with the aforecited decisions of this Court. 8. In such a case, there is no question of the petitioners having to again secure a second permission under Section 27A of the Kerala Conservation of Paddy Land and Wetland Act, 2008, or to pay any amounts as conceived as per Section 27A or the amended Rules framed thereunder including Rule 12(17) thereof. The position in that regard is declared and ordered provided the subject property covered by Ext.P-4 application dated 15.06.2020, in these two cases, is the same as the one covered by Ext.P-2 W.P.(C)Nos.12529/2020 & 12532/2020 12 proceedings dated 08.07.1983 rendered by the 2[nd] respondentRevenue Divisional Officer under Rule 6(2) of the Kerala Land Utilisation Order, 1967. 9. Accordingly, the following directions and orders were passed:- (A) The 3[rd] respondent-Tahsildar, Taluk Office, Kottayam, will immediately take-up the matters raised in Ext.P-4 applications produced in these cases and may conduct an enquiry through a subordinate revenue official like the 4[th] respondentVillage Officer with due prior notice to the petitioners to ascertain the limited factual issue as to whether the said subject properties covered by Ext.P-4 application dated 15.06.2020, filed under Section 6A of the Kerala Land Tax Act, 1961, are the same properties covered by Ext.P-2 proceedings dated 08.07.1983, issued by the 2[nd] respondent-Revenue Divisional Officer under Rule 6(2) of the Kerala Land Utilisation Order, 1967, and the said report should be furnished by the 4[th] respondent-Village Officer to the 3[rd] respondent-Tahsildar, within four weeks from the date of production of a certified copy of this judgment and copies of such inspection report should also be furnished to the petitioners, in W.P.(C)Nos.12529/2020 & 12532/2020 13 advance. In that regard, the Village Officer will also ascertain the details regarding Ext.P-2 order dated 08.07.1983, from the office of the 2nd respondent-Revenue Divisional Officer, Kottayam. (B) Thereafter, the 3[rd] respondent-Tahsildar, will afford reasonable opportunity of being heard to the petitioners and in case the subject properties covered by Ext.P-4 application dated 15.06.2020 are the same as those covered by Ext.P-2 proceedings dated 08.07.1983, issued by the 2[nd] respondent-Revenue Divisional Officer under Rule 6(2) of the Kerala Land Utilisation Order, 1967, then the 3[rd] respondent-Tahsildar, after affording a reasonable opportunity of being heard to the petitioners through their authorised representative/counsel, if any, should pass orders of re-assessment of the of those subject properties under Section 6A of the Kerala Land Tax Act, 1961, so as to secure additional entries in the BTR to show correctly the changed nature of the properties as 'garden land/purayidom' instead of the existing BTR entries as 'nilam/paddy land' without any further delay, at any rate, within a period of one month from the date of receipt of the said report of the 4[th] respondent -Village Officer and strictly in terms of the dictum laid down by the Division Bench of this Court W.P.(C)Nos.12529/2020 & 12532/2020 14 in cases as in **Renjith's case** (supra) [2020 (1) KHC 865 (DB)], **Mariumma's case** (supra) [2015 (2) KLT 516 (DB)], etc., and without making the petitioners to pay any amounts as conceived as per the amended provisions of the Kerala Conservation of Paddy Land and Wetland Act, 2008, including Section 27 A thereof and the amended provisions of the Rules framed thereunder including Rule 12(17) thereof. 10. Petitioners will produce certified copies of this judgment as well as a copies of the memorandum of this writ petition (civil) along with all the exhibits before the 2nd respondent-Revenue Divisional Officer, Kottayam, the 3[rd] respondent-Tahsildar, Taluk Office, Kottayam and the 4[th] respondent-Village Officer, Aymanam Village, for necessary information and further action. With these observations and directions, the above Writ Petition (Civil) will stand finally disposed of. ## **Sd/-** ## **ALEXANDER THOMAS, JUDGE** Skk//14072020 W.P.(C)Nos.12529/2020 & 12532/2020 15 ## **APPENDIX OF 12532/2020** **PETITIONER'S EXHIBITS:** **EXHIBIT P1 A TRUE COPY OF THE TAX RECEIPT RELATING TO RE-SURVEY NO.307/1-2 DATED 12.11.2019.** **EXHIBIT P2** **A TRUE COPY OF THE PROCEEDINGS OF THE REVENUE DIVISIONAL OFFICER, KOTTAYAM DATED 08.07.1983.** **EXHIBIT P3 A TRUE COPY OF THE RELEVANT PAGE OF THE DATA BANK.** **EXHIBIT P4 TRUE COPY OF THE APPLICATION UNDER THE KERALA LAND TAX ACT IN FORM A ALONG WITH THE COVERING LETTER DATED 15.06.2020 AND RECEIPT DATED 17.05.2020.** **RESPONDENTS' EXHIBITS: NIL** W.P.(C)Nos.12529/2020 & 12532/2020 16 ## **APPENDIX OF WP(C) 12529/2020** **PETITIONER'S EXHIBITS:** **EXHIBIT P1 A TRUE COPY OF THE TAX RECEIPT RELATING TO RE-SURVEY NO.307/1-1 DATED 12.11.2019.** **EXHIBIT P1(A) A TRUE COPY OF THE TAX RECEIPT RELATING TO RE-SURVEY NO.307/1-3, DATED 12.11.2019. EXHIBIT P1(B) A COPY OF THE COMMUNICATION DATED 10.0.2015 FROM THE ADDITIONAL TAHSILDAR, KOTTAYAM ALONG WITH FORM 93 AND FORM 7.** **EXHIBIT P2 A TRUE COPY OF THE PROCEEDINGS OF THE REVENUE DIVISIONAL OFFICER, KOTTAYAM DATED 08.07.1983.** **EXHIBIT P3 A TRUE COPY OF THE RELEVANT PAGE OF THE DATA BANK.** **EXHIBIT P4 TRUE COPY OF THE APPLICATION UNDER THE KERALA LAND TAX ACT IN FORM A ALONG WITH THE COVERING LETTER DATED 15.06.2020 AND RECEIPT DATED 17.05.2020.** **RESPONDENTS' EXHIBITS: NIL**