T. N. Raveendranath Panickar v. District Collector, Idukki & Others

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **TUESDAY, THE 30TH DAY OF JUNE 2020 / 9TH ASHADHA, 1942** ## **WP(C).No.12775 OF 2020(V)** ## **PETITIONER/S:** **T. N. RAVEENDRANATHA PANICKAR,AGED 80 YEARS S/O.NARAYANA PANICKAR, ''SURABHI'', A-1, FACT NAGAR, TRIPUNITHURA (PO), ERNAKULAM-682301.** **BY ADV. SRI.K.PRAVEEN KUMAR** ## **RESPONDENT/S:** - **1 THE DISTRICT COLLECTOR, IDUKKI-685602. 2 THE REVENUE DIVISIONAL OFFICER, DEVIKULAM, IDUKKI-685613.** - **3 THE TAHASILDAR,(LAND RECORDS), THODUPUZHA, IDUKKI-685584.** - **4 THE VILLAGE OFFICER,THODUPUZHA VILLAGE, THODUPUZHA, IDUKKI-685584.** - **5 THE SECRETARY,REVENUE DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM-695001.** - **6 STATE OF KERALA, REPRESENTED BY ITS CHIEF SECRETARY, SECRETARIAT, THIRUVANANTHAPURAM-695001.** ## **SRI.K.J.MANU RAJ, GOVT.PLEADER** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 30.06.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** WP(C).No.12775 OF 2020 2 ## **ALEXANDER THOMAS., J, ---------------------------W.P.(C). No. 12775 of 2020** ## **-----------------------------------------** ## **Dated this the 30[th] day of June, 2020.** **….............................................** ## **JUDGMENT** ## The case set up in this writ petition is as follows:- _The petitioner is a senior citizen aged 80 years. He is the owner in absolute possession of 83.5 cents (33.78 Are) of land comprised in R.S. No.178/10-1 in Thodupuzha Village, Thodupuzha Taluk of Idukki District. He obtained Ext.P2 order dated 29.08.1989 for the conversion of the above land for other purposes. He applied for changes in revenue records as per Ext.P3 dated 08.04.16. Accordingly, the 3[rd] respondent called for report from the 4[th] respondent. He submitted Ext.P6 report dated 14.07.17 recommending reassessment. But no order was passed by the 3[rd] respondent. The petitioner approached this Court and as per Ext.P7 judgment, direction has been give to the 3[rd] respondent to complete proceedings under Section 6A of the Kerala Land Tax Act, 1961. Now that Ext.P8 order has been passed, allowing the request of the petitioner on payment of 25% of the schedule fees as provided under Rule 12(17) of the Kerala Conservation of Paddy Land and Wet Land (Amendment) Rules, 2008 (hereinafter referred to as 'the Rules'). Ext.P8 to the extent it insist for payment of 25% of schedule fees is highly illegal, arbitrary and against the decisions of this Court._ ## 2. In the light of these averments and contentions, the petitioner has filed the instant writ petition with following prayers:- - _I) Issue a writ of certiorari or any other appropriate writ, order or direction calling for the records leading to Ext.P8 and to quash the original of the same to the extent it insists for payment of 25% of the schedule fees as contemplated under Rule 12(17) of the Kerala Conservation of Paddy Land and Wet Land Rules, 2008 (as amended);_ WP(C).No.12775 OF 2020 3 - _II) Issue a writ of mandamus or any other appropriate writ order or direction commanding and compelling the 3[rd] respondent to carry out necessary additions and alteration in the revenue records concerning the subject land as per Section 6A of the Kerala Land Tax Act, 1961, without insisting for payment of 25% of schedule fees as provided under Rule 12(17) of the Kerala Conservation of Paddy Land and wetland Rules, 2008;_ - _III) Struck down the impugned provision viz; Rule 12(17) of the Kerala Conservation of Paddy Land and wetland Rules, 2008 (as amended and published vide GO(P) No.85/2018 Revenue dated 15-12-18), as it is arbitrary against the parent Act and ultravires to the Constitution of India._ 3. Heard Sri.K Praveen Kumar, learned counsel appearing for the petitioner and Sri. K.J. Manu Raj, learned Government Pleader appearing for the respondents. 4. According to the petitioner, the subject property though continues to be described as _nilam_ /paddy land in the Basic Tax Register, has been converted as garden land/ _purayidam_ , much prior to 12.08.2008 (date of coming into force of Kerala Conservation of Paddy Land and Wetland Act, 2008). Further that the petitioner had filed the requisite application under Clause 6(2) of the Kerala Land Utilisation Order (hereinafter referred to as 'the KLU Order') as early as on 30.061989 (referred to as item No.1 in Ext.P2) before the 2[nd] respondent, Revenue Divisional Officer, who after completing the procedural formalities, has issued Ext.P2 proceedings dated 29.08.1989 (permission to the petitioner to use WP(C).No.12775 OF 2020 4 the subject property for non-agricultural purposes including construction of a residential house in terms of Clause 6(2) of the KLU Order 1967). 5. The petitioner has submitted Ext.P3 application dated 08.04.2016 before the 3[rd] respondent Tahsildar, seeking for reassessment of subject property covered by Ext.P2 under Section 6A of the Kerala Land Tax Act, for securing additional entries in the BTR to show correctly the change in nature of the land as garden land/ _purayidam_ instead of the earlier BTR entries as _nilam_ /paddy land. The property has been included in Ext.P4 draft Data Bank as _'converted land_ ' prior to the 2008 Act. Petitioner's application for building permit for constructing a commercial building in the subject property has been rejected by the Secretary of the Thodupuzha Municipality by Ext.P5 proceedings, on the ground that the subject property covered by Ext.P2 can be used only for constructing a residential house and not for constructing a commercial building. Ext.P6 is the report dated 14.07.2017 submitted by the 4[th] respondent, Village officer to the 3[rd] respondent, Tahsildar, on the matters raised in Ext.P3 application and in P6 report. It is stated by the 3[rd] respondent, village Officer in Ext.P6 report that the subject property has been converted as WP(C).No.12775 OF 2020 5 _purayidam_ long ago and it is not used for any agricultural purposes and that the request in Ext.P3 may be considered. Since no action has been taken on Ext.P3 application, and being aggrieved by Ext.P5, petitioner has approached this Court by filing W.P.(C). No.16831 of 2018. This Court, as per Ext.P7 judgment dated 15.10.2019, disposed of W.P.(C). No.16831 of 2018, holding that the said stand in Ext.P5 rejection order is illegal and wrong and that in view of a catena of judgments of this Court , including that rendered by the Division Bench of this Court in _**Shahul Hameed V. Principal Secretary, Local Self Government & Others (DB)**_ [2018(1) KLT 1008] , the subject property covered by Ext.P2 could be used for any non-agricultural purposes, including for construction of residential building, commercial building etc., and accordingly the matter was directed to be reconsidered. In the judgment, this Court further held that since the petitioner has already secured Ext.P2 order of conversion under Clause 6(2) of the KLU Order as early as on 29.08.1989, petitioner can legally maintain an application under Section 6A of the Kerala Land Tax Act before the 3rd respondent, Tahsildar for reassessment of the subject property in terms of the said statutory provision so as to secure additional entries in the BTR to show correctly the change in WP(C).No.12775 OF 2020 6 nature of the land as garden land/ _purayidam._ This Court, by Ext.P7 judgment dated 15.10.2019, thereby has directed the 3rd respondent, Tahsildar to consider the application of the petitioner under Section 6A of the Kerala Land Tax Act, filed as per Ext.P3 herein and then to pass orders thereon, in the light of the findings made by this Court in that judgment and orders are directed to be passed by the 3rd respondent within a period of one month. 6. Now the 3rd respondent, Tahsildar has passed impugned Ext.P8 order dated 19.03.2020 wherein it is stated that the request of the petitioner for alteration in the BTR can be considered only if he pays the amounts as conceived as per the amended provisions of the Kerala Conservation of Paddy Land and Wetland Act, 2008 (hereinafter referred to as 'the Act') including Section 27A of the Act thereof and the amended Rules thereunder, more particularly Rule 12(17) of the amended Rules thereof. 7. 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 WP(C).No.12775 OF 2020 7 (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 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. 8. 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 WP(C).No.12775 OF 2020 8 property as garden land or purayidam, instead of the earlier BTR entries as nilam or paddy land. 9. In the instant case, there cannot be any dispute that petitioner has indeed filed the requisite application under Clause 6(2) of the KLU order as early as on 30.06.1989 and even Ext.P2 orders of permission has also been secured as early as on 29.08.1989 from none other than the 2nd respondent under the provisions of Clause 6(2) of the KLU order. Therefore, the case of the petitioner would stand on a higher pedestal than in the case of a party who has filed the requisite application under Clause 6(2) of the KLU order before the cut of date of 30.12.2017, and in whose case orders have not been passed by the statutory officer before the said cut of date of 30.12.2017. Therefore, it is only to be held that party like the petitioner who has secured Ext.P2 order, that too, years before the cut of date of 30.12.2017, is legally entitled to get rd reassessment of the subject property from the 3 respondent, Tahsildar, in terms of Section 6A of the Kerala Land Tax Act, provided the property covered by Ext.P2 is the same as the one covered by Ext.P3 application. The position in that regard is ordered and declared. Therefore, the impugned decision of the 3rd respondent in Ext.P8 that the petitioner should pay the higher amounts as conceived as WP(C).No.12775 OF 2020 9 per the amended provisions of the Act and the amended provisions of the Rules, including that of Rule 12(17) of the Rules thereof is illegal and _ultra vire_ s and to that extent, Ext.P8 will stand set aside and quashed. 10. Ext.P3 application, filed by the petitioner, would stand remitted to the 3rd respondent, Tahsildar for consideration and decision afresh. The 3rd respondent will immediately ascertain as to whether the subject property covered by Ext.P2 is the same as the one covered by Ext.P3 application and if it is so found that the property is one and the same, then the 3rd respondent will immediately afford reasonable opportunity of being heard to the petitioner, authorised representative, counsel, if any, and should then pass orders of reassessment of the subject property, in terms of Section 6A of the Kerala Land Tax Act so as to secure additional entries in the BTR to show the change in nature of the property as garden land/ _purayidam,_ instead of the earlier BTR entries as _nilam_ /paddy land, within one month from the date of production of a certified copy of this judgment and strictly in the light of the dictum laid down by this Court in decisions as in _**Mariumma’s case**_ (supra) [2015 (2)KLT 516] and _**Renjith's case**_ (supra) [2020 (1) KHC 865 (DB)] and without compelling the petitioner to pay WP(C).No.12775 OF 2020 10 any amounts as conceived as per the amended provisions of the 2008 Act, including Section 27A thereof and the amended Rules thereof including Rule 12(17 ) thereof, etc. After petitioner secures such orders of reassessment regarding alteration in the BTR, the petitioner may produce the same before the Secretary of the Thodupuzha Municipality concerned for proceeding further for the consideration of his building permit as already directed in Ext.P7 judgment. It is also needless to say that as already held and declared by this Court in Ext.P7 judgment, the property covered by Ext.P2 order could be used for any non-agricultural purposes including construction of buildings, residential, commercial etc., and subject to the compliance of the other requirements of the applicable statutory Building Rules concerned. Petitioner will produce a certified copy of this judgment, along with a copy of the memorandum of the writ petition with all the exhibits before the 3[rd] respondent, , for necessary information and further action. With these observations and directions, the above W.P.(Civil) will stand disposed of. ## **Sd/-** ## **ALEXANDER THOMAS** ## **JUDGE** ajt WP(C).No.12775 OF 2020 11 ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF THE TAX RECEIPT DATED 07.11.2017 IN RESPECT OF THE PROPERTY OF THE PETITIONER.** **EXHIBIT P2 TRUE COPY OF THE ORDER NO.B-4-3361/89/KDIS DATED 29.08.1989 OF THE 2ND RESPONDENT.** **EXHIBIT P3 TRUE COPY OF THE APPLICATION DATED 08.04.2016 SUBMITTED BY THE PETITIONER TO THE 3RD RESPONDENT.** **EXHIBIT P4 TRUE COPY OF THE RELEVANT EXTRACT OF THE DATA BANK SHOWING THE DETAILS OF THE PROPERTY OF THE PETITIONER.** - **EXHIBIT P5 TRUE COPY OF THE PROCEEDINGS NO.BA-57/17-18 DATED 19.04.2017 ISSUED BY THE THODUPUZHA MUNICIPALITY.** **EXHIBIT P6 TRUE COPY OF THE REPORT NO.395/17 OF THE 4TH RESPONDENT DATED 14.07.2017.** **EXHIBIT P7 TRUE COPY OF THE JUDGMENT DATED 15.10.2019 IN WP(c)NO.16831/2018 OF THIS HON'BLE COURT.** **EXHIBIT P8 TRUE COPY OF THE PROCEEDING NO.K2-13424/17 DATED 19.03.2020 OF THE 3RD RESPONDENT.**