T. L. Varkey v. State of Kerala & Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** ## **THURSDAY, THE 28TH DAY OF MAY 2020 / 7TH JYAISHTA, 1942** ## **WP(C).No.10487 OF 2020(I)** ## **PETITIONER:** **T.L.VARKEY AGED 71 YEARS** **S/O. T.V. LONAN, THOTTUNKATHARA, JOY HOME, SMARTO ROAD, KADAVANTHRA, KOCHI.** **BY ADV. SMT.K.P.SANTHI** ## **RESPONDENTS:** - **1 STATE OF KERALA REPRESENTED BY THE SECRETARY TO GOVERNMENT, REVENUE DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM-695001.** - **2 THE REVENUE DIVISIONAL OFFICER, FORT KOCHI-682001.** - **3 THE LOCAL LEVEL MONITORING COMMITTEE KRISHI BHAVAN, VYTTILA, ERNAKUAM -682020, REPRESENTED BY ITS CONVENER.** - **4 THE SECRETARY, CORPORATION OF KOCHI, PARK AVENUE ROAD, KOCHI-682011.** - **5 THE TAHSILDAR, KANAYANNUR TALUK, PARK AVENUE ROAD, KOCHI-682011.** **BY ADVS.** **SRI.K.J.MANU RAJ, GOVT.PLEADER, SRI.S.SUDHEESH KUMAR,SC** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 28.05.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** W.P(C). No. 10487 of 2020 2 ALEXANDER THOMAS, J. -----------------------------------W.P(C). No. 10487 of 2020 -----------------------------------Dated this the 28[th ] day of May, 2020 ## **JUDGMENT** The case set up in this writ petition (C) is as follows: The petitioner is the owner, title holder in possession and enjoyment of 13.46 Ares in Survey No.832/1 of Elamkulam Village, Kanayannur Taluk, Ernakulam District, as per registered documents. The land is classified as converted land in the draft data bank (Ext.P1). The 2[nd] respondent issued proceedings on 24.10.2019 granting permission to the petitioner under the provisions of Kerala Land Utilization Order but, making it clear that this will not amount to change in status of land in the basic tax register (Ext.P2). The petitioner submitted application for building permit to the 4[th] respondent based on Exhibit P2. However, the 4[th] respondent as per letter dated 04.12.2019 to the 2[nd] respondent has sought clarification regarding the status of the land in the BTR (Ext.P3). The petitioner submitted representation dated 14.02.2020 to the 5[th] respondent requesting to change the status of the land in W.P(C). No. 10487 of 2020 3 the revenue records (Ext.P4). Exhibit P4 is pending before the 5[th] respondent. Application under Rule 6(2) of KLU Order was filed on 30.11.2017. Permission is also granted by the 2[nd] respondent as per Exhbibit P1. Therefore, 5[th] respondent will have to be directed to change the status of the land in BTR. It is in the light of these averments and contentions, that the petitioner has filed this Writ Petition (C) seeking the following prayers: - _i) Issue a writ of mandamus or such other writ, direction or order compelling the 5[th] respondent to consider Exhibit P4 application, affording opportunity of hearing to the petitioner, within a time frame to be fixed by this Honourable Court._ - _ii) Declare that the petitioner is entitled to be granted building permit._ - _iii) Issue such other writ, direction or order as is deemed just and necessary in the facts, features and circumstances of the case._ 2. Heard Smt.K.P.Santhi, learned counsel appearing for the petitioner, Sri.K.J.Manu Raj, learned Government Pleader appearing for respondent Nos.1 to 3 and 5 and Sri.S.Sudheesh Kumar, learned Standing Counsel for Kochi Corporation appearing for R4. 3. It is beyond any serious dispute that the subject property has been converted as garden land or purayidam much prior to 12-08-2008 (date of coming into force of the Kerala Conservation of W.P(C). No. 10487 of 2020 4 Paddy Land and Wetland Act, 2008). It is also not in dispute that the petitioner had duly submitted requisite application under Rule 6(2) of the Kerala Land Utilisation Order (KLU Order), 1967 before the 2[nd] respondent RDO as early as on 30-11-2017 (referred to as paper No.1 in Ext.P2) and the said application dated 03-11-2017 has been allowed the said request of the petitioner under Rule 6(2) of the KLU Order, by the 2[nd] respondent RDO as per Ext.P2 proceedings dated 24-10-2019. The fact that the petitioner has duly filed such application under Rule 6(2) of the KLU Order is evident from paper No.1 in Ext.P2, wherein it is clearly stated that the said application has been filed on 30-11-2017. Hence it is clear that the said application under Rule 6(2) has been filed prior to the cut off date of 30-12-2017, which is the date of coming into force of the amended provisions of the 2008 Act, which was introduced Sec.27A thereof. 4. Accordingly, it appears that the 2[nd] respondent has not charge any amount as conceived in the amended provisions of the 2008 Act as per Sec.27 A and the amended provisions of the rules, while passing orders as per Ext.P2. 5. Now the petitioner has filed the consequential application W.P(C). No. 10487 of 2020 5 as per Ext.P4 dated 14-02-2020 before the 5[th] respondent Tahsildar, seeking to fresh assessment/reassessment of the subject property under Sec.6A of the Kerala Land Tax Act for securing additional entries in the BTR to show the change in the nature of the land as garden land or purayidam instead of the earlier BTR entries as nilam or paddy land. 6. 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], _**Renjith.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 W.P(C). No. 10487 of 2020 6 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. 7. Further it has been also held that in those decisions more particularly in the aforestated Division Bench decisions in _**Mariumma’s case**_ (supra) [2015 (2)KLT 516] and _**Renjith's case**_ (supra) [2020 (1) KHC 865 (DB)], etc., 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. 8. Accordingly, it is ordered and declared that since the petitioner has filed the requisite Rule 6 (2) application before the cut off date of 30-12-2017 and as the petitioner has now already secured W.P(C). No. 10487 of 2020 7 permission under Rule 6(2) of the KLU Order as per Ext.P2, the petitioner is entitled to maintain an application under Sec.6A of the Kerala Land Tax Act for fresh assessment/reassessment of the subject property for securing such additional entries in the BTR to show the change in nature of the land, without having to pay any amount as conceived as per the amended provisions of the 2008 Act, introduced Sec.27A thereof, and amended provisions of the rules and including Rule 12 (17). In this regard, it is to be noted that this Court has also held in various decisions as in judgment dated 19-03-2020 in W.P(C) No.8645/2020, that in such cases the party cannot even be mulcted to pay the amounts as conceived in the amended rules as per Rule 12 (17) etc,. 9. In that view of the matter, it is ordered that the 5[th] respondent Tahsildar will take up for consideration the matters raised by the petitioner in Ext.P4 application dated 14-02-2020 and after affording reasonable opportunity of being heard to the petitioner through authorised representative or counsel if any, should pass orders for reassessment/fresh assessment of the subject property under Sec.6A of the Kerala Land Tax Act, 1961, so as to W.P(C). No. 10487 of 2020 8 make additional entries in the BTR for showing the change in nature of the land as garden land or purayidam instead of the earlier BTR entries as nilam or paddy land, without much delay preferably within a period of six weeks from the date of production of the certified copy of this judgment and without making the petitioner pay any amount as conceived as per the amended provisions of the act and the amended provisions of the rules as aforesaid. 10. The petitioner may produce certified copy of this judgment along with a copy of the memorandum of this W.P(C) with all the Exhibits to the 5[th] respondent Tahsildar 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** KAS W.P(C). No. 10487 of 2020 9 ## **APPENDIX** **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF THE RELEVANT PAGE OF THE DRAFT DATA BANK** **EXHIBIT P2 TRUE COPY OF THE PROCEEDINGS DATED 24.10.2019 OF THE 2ND RESPONDENT.** **EXHIBIT P3 TRUE COPY OF LETTER DATED 4.12.2019 OF THE 4TH RESPONDENT. EXHIBIT P4 TRUE COPY OF THE APPLICATION DATED 14.02.2020 SUBMITTED TO THE 5TH RESPONDENT.** ## **RESPONDENT'S/S EXHIBITS: NIL** **//TRUE COPY//** **PA TO JUDGE**