Varghese John & Elzy Varghese John v. Revenue Divisional Officer, Thrissur & Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE** **WEDNESDAY, THE 30TH DAY OF SEPTEMBER 2020 / 8TH ASWINA, 1942** ## **WP(C).No.30714 OF 2019(L)** ## **PETITIONERS:** **1 VARGHEESE JOHN, S/O JOHN, RESIDING AT ARINGADA HOUSE, KOMBAZHA, VANIYAMPARA P.O.PANANCHERY VILLAGE, THRISSUR TALUK, THRISSUR DISTRICT-678 686, REPRESENTED BY POWER OF ATTORNEY , JOHNSON ABRAHAM, AGED 53 YEARS, ARINGADA HOUSE, KOLAKODE, PARUVASSERY P.O.VADAKKENCHERY, ALATHUR TALUK, PALAKKAD DISTRICT-678 543. 2 ELZY VARGHEESE JOHN, W/O VARGHEESE JOHN, RESIDING AT ARINGADA HOUSE, KOMBAZHA, VANIYAMPARA P.O.PANANCHERY VILLAGE, THRISSUR TALUK, THRISSUR DISTRICT-678 686, REPRESENTED BY POWER OF ATTORNEY , JOHNSON ABRAHAM, AGED 53 YEARS, ARINGADA HOUSE, KOLAKODE, PARUVASSERY P.O.VADAKKENCHERY, ALATHUR TALUK, PALAKKAD DISTRICT-678 543.** **BY ADVS. SRI.BABY MATHEW SHRI.IGNATIUS M.** ## **RESPONDENTS:** **1 REVENUE DIVISIONAL OFFICER, THRISSUR, OFFICE OF THE REVENUE DIVISIONAL OFFICER, THRISSUR680 020. 2 TAHASILDAR (LA), TALUK OFFICE, THRISSUR-680 020.** ## **WP(C).No.30714 OF 2019(L)** ..2.. **3 VILLAGE OFFICER, PANANCHERY VILLAGE, THRISSUR TALUK, PANANCHERY P.O.TRISSUR DISTRICT-680 652.** **R1-3 BY GOVERNMENT PLEADER** ## **M H HANILKUMAR SPL GP** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 30.09.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **WP(C).No.30714 OF 2019(L)** **==> picture [37 x 9] intentionally omitted <==** ## **JUDGMENT** ## **Dated this the 30th day of September 2020** This writ petition was filed challenging a decision of the Tahsildar (LR), Trissur, insisting the petitioners to pay 25 per cent of the fees prescribed in the schedule for regularisation of the land converted prior to 12.08.2008. 2. The petitioners' case is that since the petitioners had obtained an order from the Revenue Divisional Officer under the Kerala Land Utilization Order prior to incorporation of 27A into the Act 28 of 2008, they are not liable to pay. 3. Sec.27A of the Act 28 of 2008 for regularisation of unnotified land came into force with effect from 30.12.2017. The petitioners had obtained an order for utilization of the land for other purposes, from the District Collector under the Kerala Land Utilization Order on 24.08.2015. The short question therefore is whether the petitioners are liable to pay 25 per cent of the fees prescribed under the schedule for regularisation as referable under Rule 12(17) the Kerala ..4.. ## **WP(C).No.30714 OF 2019(L)** Conservation of Paddy Land and Wetland Rules, 2008. 4. Sec. 27A was incorporated by Act 29 of 2018 w.e.f 30.12.2017, it stipulates that if any owner of an unnotified land desires to utilise such land for residential or commercial or for other purpose, he shall apply to the Revenue Divisional Officer (RDO)for the same. The RDO will have to consider such application on payment of requisite fee as prescribed in the schedule. Rule 12(17) was incorporated consequent upon the incorporation of Sec.27A, which states that the owner of the land, who was obtained any order under the Kerala Land Utilization Order shall remit 25 per cent of the fees prescribed under the schedule for regularisation relatable to Sec.27A. 5. Sec.27A does not speak about the land which has been permitted to be utilised under the Kerala Land Utilization Order prior to 30.12.2017. It only speaks about a land remains unnotified under the data bank and converted prior to 12.08.2008. 6. The learned counsel for the petitioner submits Rule 12(17) is beyond the power delegated to the Government and not in consonance with Sec.27A. It is further submitted that this Court had considered the ## **WP(C).No.30714 OF 2019(L)** **==> picture [37 x 9] intentionally omitted <==** same issue in **Fr.Jose Uppani v. District Collector in [ 2020 (3) KLT 492] .** 7. Per contra, the learned Special Government Pleader submits that without there being a challenge to Rule 12(17), the petitioners cannot raise any contention in regard to the validity of the Rule. Therefore, it is submitted that the petitioners are bound to pay the amount as demanded based on Rule 12(17). 8. The learned Single Judge of this Court in **Fr.Jose Uppani v. District Collector in [ 2020 (3) KLT 492]** refers to this aspect without there being any challenge to Rule 12(17). In paragraph 9, it was held as follows: _**In a case where the subject property has been converted as 'garden land' or 'purayidom' prior to 12.08.2008 (date of coming into force of the 2008 Act) and where the party concerned has filed the requisite application under Rule 6(2) of the Kerala Land Utilization Order, 1967 for conversion of the property and for its use for any non-agricultural purposes, before 30.12.2017 (which is the date of coming in to force of the amended provisions of the 2008 Act, which has introduced S.27A thereof), then the statutory revenue authorities are obliged the duty to treat such a case, strictly within the purview of Rule 6(2) of the KLU Order, 1967 and in such a case, the party cannot be mulcted to pay the higher amounts conceived as per**_ ..6.. ## **WP(C).No.30714 OF 2019(L)** _**the amended provisions of the Act including S.27A thereof, which has come into force on 30.12.2017 and the amended Rules framed there under. Further, it has also been categorically held by the judgments of the Division Bench of this Court as in Mariumma's case (2015 (2) KLT 516 (D.B)) and Renjith's case (2020 (2) KLT 13) that in such a case where the property holder has filed application under Rule 6(2) of the KLU Order before 30.12.2017, then the party is also equally entitled to maintain an application under Section 6A of the Kerala Land Tax Act, 1961 for securing additional entries in the BTR to show the property as 'garden land' or 'purayidom' instead of the earlier BTR entries as 'nilam' or 'paddy land' and without having to pay the higher amounts conceived as per the amended provisions of the 2008 Act including S.27A thereof and the amended Rules framed there under.**_ 9. It was further held in paragraph 13 as follows; _**Accordingly, It is only to be ordered that the impugned directions in Ext.P5 issued by the 2[nd] respondent Tahsildar that the petitioner should necessarily pay the higher amounts as conceived in terms of the provisions contained in the amended provisions of 2008 Act including S.27A thereof and the amended Rules framed there under, more particularly, Rule 12(17) thereof, is illegal, ultra vires and unenforceable in view of the abovesaid aspects and it is accordingly, ordered and declared. Consequently, it is ordered that the said impugned restrictions imposed by the 2[nd] respondent Tahsildar in Ext.P5 proceedings directing the petitioner to pay the higher amounts in terms of the said amended provisions of the Act and the Rules, will stand set aside and quashed.**_ 10. It is clear that the learned Single Judge has declared Rule ..7.. ## **WP(C).No.30714 OF 2019(L)** 12(17) is unenforceable. The learned counsel for the petitioners also submits that the judgment of the learned Single Judge in **Fr.Jose Uppani** **v. District Collector in [ 2020 (3) KLT 492]** was appealed by the State before the Division Bench of this Court. The Division Bench in W.A. 876/2020 affirmed the decision of the learned Single Judge. The learned Government Pleader submits that the State had taken steps to file SLP before the Apex Court. 11. As matter stands now, the declaration of law by the learned Single Judge is that Rule 12(17) is unenforceable. In such circumstances, I am of the view that the impugned decision has to be set aside. Accordingly, it is set aside. The application for change of basic tax shall be considered by the Tahsildar (LR) in accordance with law, without any delay, at any rate, within a period of two months. This writ petition is disposed of as above. ## **Sd/-** ## **A.MUHAMED MUSTAQUE** **JUDGE** ## **PR** ## **WP(C).No.30714 OF 2019(L)** ..8.. ## **APPENDIX** ## **PETITIONERS EXHIBITS:** **EXHIBIT P1 TRUE COPY OF THE SALE DEED NO 3835/1998 OF OLLUKARA SUB REGISTRAR OFFICE** **EXHIBIT P1 A TRUE COPY OF THE SALE DEED NO 4801/1987** - **EXHIBIT P2 TRUE COPY OF THE GOOGLE MAP OF THE PETITIONERS LAND** **EXHIBIT P3 TRUE COPY OF THE ORDER NO D1-6054/2013 DATED 24.8.2015 OF 1ST RESPONDENT REVENUE DIVISIONAL OFFICER, TRISSUR** **EXHIBIT P4 TRUE COPY OF THE APPLICATION DATED 4.10.2019 FOR CHANGE OF NATURE OF LAND SUBMITTED BEFORE THE 2ND RESPONDENT** **EXHIBIT P5 TRUE COPY OF THE LETTER DATED 6.11.2019 ISSUED FORM THE 2ND RESPONDENTS OFFICE**