V. Rajam v. State of Kerala and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **FRIDAY, THE 29TH DAY OF MAY 2020 / 8TH JYAISHTA, 1942** ## **WP(C).No.10558 OF 2020(T)** ## **PETITIONER:** **V.RAJAM AGED 60 YEARS** **W/O. M N RADHAKRISHNAN, MADHURAKKARAN HOUSE, MULANKUNNATH KAVU P.O, THRISSUR DIST** **BY ADV. SRI.LINDONS C.DAVIS** ## **RESPONDENTS:** **1 STATE OF KERALA REPRESENTED BY ITS SECRETARY REVENUE DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM 695 001 2 THE LAND REVENUE COMMISSIONER, COMMISSIONERATE OF LAND REVENUE, PUBLIC OFFICE BUILDING, MUSEUM JN, THIRUVANANTHAPURAM 695 033 3 SUB COLLECTOR, THRISSUR, CIVIL STATION, AYYANTHOLE, THRISSUR DIST, PIN 680 003 4 REVENUE DIVISIONAL OFFICER, THRISSUR, CIVIL STATION , AYYANTHOLE, THRISSUR DIST. PIN 680 003 5 TAHSILDAR, THRISSUR, CHEMBUKAVU POST, THRISSUR DIST PIN 680 020** ## **SRI.SAIGI JACOB PALATTY, SR.GOVT.PLEADER** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 29.05.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** W.P(C) No.10558 of 2020 2 ## **ALEXANDER THOMAS, J.** ## **=========================== W.P(C) No.10558 of 2020** **===========================** Dated this the 29[th] day of May, 2020 ## **JUDGMENT** The case set up in this Writ Petition (Civil) is as follows: The petitioner has made an application under the Kerala Land Utilization Order on 14.03.2017 and this Court was pleased to direct the District Collector to consider the same as per the judgment dated 08.06.2017 in W.P(C)No.19043/2017. In other words, the application of the petitioner as per the KLU Order is much before the commencement of Sec.27A introduced as per the Kerala Conservation of Paddy and Wet Land (Amendment) Act, 2018, which came to force with effect from 31.12.2017. Therefore, the petitioner's KLU Order application dated 14.03.2017 shall be considered as per the law exists prior to the introduction (Amendment) Act, 2018. But while allowing the KLU application of the petitioner, the Sub Collector has incorporated a condition to comply with the procedures as per Sec.27A as per the Kerala Conservation of Paddy and Wet Land (Amendment) Act, 2018. The KLU Order application shall be considered as per the law existing in one the date of application and therefore, the direction to comply with Sec.27A of Amendment Act is unjust and illegal. W.P(C) No.10558 of 2020 3 The petitioner has filed Ext.P-2 application dated 26.03.2018 in the prescribed proforma before the 5[th] respondent for correction of BTR by reassessment of the property. The 5[th] respondent is not willing to consider Ext.P-2 application for the reason of the abovesaid condition in Ext.P-1 KLU Order. It is in the light of these averments and contentions, the petitioner has filed the instant Writ Petition (Civil) with the following prayers: - _“i) To issue a Writ of certiorari or ay other appropriate writ or order or direction quashing Ext.P1 to the extent it which direct the petitioner to comply with the provisions of Section 27A of the Kerala Conservation of Paddy Land and Wet land (Amendment) Act, 2018 for reclassification of land in Basic Tax Register or for building permit;_ - _ii) To issue a Writ of mandamus or any other appropriate writ or order or direction directing the 5[th] respondent to consider and pass orders on Exhibit P2 application filed U/s 6A of The Kerala Land Tax Act 1961, making the additions in BTR and changing the description of land in Thandapper Account, by fresh assessment within a time frame without insisting for the compliance of Section 27A of the Kerala Conservation of Paddy Land and Wetland (Amendment) Act, 2018;_ - _iii) And to pass such other appropriate orders or directions as this Hon'ble Court deems fit and proper in the facts and circumstances of the case.”_ 2. Heard Sri.Lindons.C.Davis, learned counsel appearing for the petitioner and Sri.Saigi Jacob Palatty, learned Senior Government Pleader appearing for the respondents. 3. It is beyond dispute that the subject property has been converted as garden land or purayidom, much prior to 12.08.2008 (date of coming into force of the Kerala Conservation of Paddy Land and Wetland W.P(C) No.10558 of 2020 4 Act, 2008). It is also beyond dispute that the petitioner has filed the requisite statutory application under Rule 6 (2) of the Kerala Land Utilization (KLU) Order, 1967 before the 3[rd] respondent Sub-Collector/Revenue Divisional Officer as early as on 14.03.2017, as can be seen from reference No.1 of Ext.P-1 proceedings dated 19.02.2018 issued by the 3[rd] respondent. Thereafter, the 3[rd] respondent has allowed and granted permission under Rule 6(2) of the KLU Order for change of user of the land in relation to the subject property, as can be seen from Ext.P-1 proceedings dated 19.02.2018. Now the petitioner has filed the consequential application as per Ext.P-2 before the 5[th] respondentTahsildar for fresh assessment/re-assessment of the subject property under Sec.6A of the Kerala Land Tax Act, for securing additional entries in the Basic Tax Register (BTR) to show the changed nature of the land as garden land or purayidom, instead of the earlier BTR entries as ‘Nilam/paddy land’. 4. It is by now well settled by a series of rulings of this Court that where the subject property has been converted as Garden Land or Purayidam prior to 12.08.2008 (date of coming into force of the Kerala Conservation of Paddy Land and Wetland Act, 2008) and where the property holder has filed the requisite application under Rule 6(2) of the Kerala Land Utilization Order for change of user of the land, before W.P(C) No.10558 of 2020 5 30.12.2017 (date of coming into force of the amended provisions of the 2008 Act, which has introduced Sec.27A thereof), then in such a case, the property holder is entitled to get his request is considered I terms of Rule 6(2) of the KLU Order and in such a case none of the adverse provisions contained in the amended provisions of the 2008 Act, including Sec.27A thereof and the amended Rule framed thereunder cannot be enforced as against such a property holder. In other words, the application under Rule 6(2) of the KLU Order has to be considered strictly in terms of that provision and without insisting for the amounts conceived as per the amended provisions of the 2008 Act including Sec.27A thereof and the amended provisions of the Rules (refer _**Geo Peter v. Revenue Divisional Officer**_ [2019 (3) KLT 838], _**Renjith K.Paul v. Revenue Divisional Officer**_ [2019 (2) KLT 262], _**Tahsildar, Thodupuzha Taluk and another v. Renjth George**_ [2020 (1) KHC 865 (DB)] _**LLMC, Kizhakkambalam Grama Panchayath and others v. Mariumma and another**_ [2015 (2) KLT 516 (DB), etc.]. 5. In the instant case, as the petitioner has admittedly filed the requisite KLU application prior to 31.12.2017 (date of coming into force of the amended provisions of the Act, which has introduced Sec.27A thereof), he is entitled to get permission under Rule 6(2) of the KLU Order without paying the higher amounts conceived as per the amended provisions of the W.P(C) No.10558 of 2020 6 Act and the amended Rules and also he is entitled to maintain application under Sec.6A of the Kerala Land Tax Act before the Tahsildar concerned for alteration of BTR, without paying any such amounts. As a matter of fact, permission under KLU has already been granted by the 3[rd] respondent as per Ext.P-1 dated 19.02.2018 strictly in terms of Rule 6(2) of the KLU Order and without making the petitioner to pay higher amounts conceived as per the amended provisions of the 2008 Act and the amended Rules. The position in this regard is declared and ordered in this case as well. 6. Accordingly, it is ordered that the 5[th] respondent-Tahsildar will take up for consideration the matters raised by the petitioner in Ext.P-2 application dated 26.03.2018 and after affording reasonable opportunity of being heard to the petitioner through their authorized representative/counsel, if any, should pass orders of fresh assessment/reassessment of the subject property in terms of Sec.6A of the Kerala Land Tax Act for making additional entries in the Basic Tax Register (BTR), so as to show the correct nature of land as garden land or purayidom, instead of the earlier BTR entries as ‘Nilam or paddy land’, without much delay, preferably within a period of one month from the date of production of a certified copy of this judgment. Needless to say, the said consideration shall be strictly in terms of the dictum laid down by the judgments of the Division Bench of this Court as in **Mariyumma’s case** (supra) [2015 (2) W.P(C) No.10558 of 2020 7 KLT 516 (DB)], **Renjith K.Paul's** case (supra) [2019 (2) KLT 262] and without making the petitioner to pay any amounts as conceived as per Sec.27A thereof and the Rules framed thereunder. 7. The petitioner will produce a copy of the memorandum of this W.P(C) along with all the exhibits as well as the certified copy of this judgment before the 5[th] respondent, 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** vgd W.P(C) No.10558 of 2020 8 ## **APPENDIX** **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF THE PERMISSION ORDER NO.D 1- 15971/17 DATED 19-02-2018 UNDER THE KLU ORDER ISSUED BY THE 3RD RESPONDENT** **EXHIBIT P2 THE TRUE COPY OF THE APPLICATION FOR REASSESSMENT OF LAND TAX SUBMITTED BEFORE 5TH RESPONDENT.**