W.P.(C) No.11831 of 2020 (D) Antony Paul and Jessy Antony v. Revenue Divisional Officer, Mudavur; Tahsildar (Land Records), Kothamangalam; Village Officer, Kothamangalam

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **WEDNESDAY, THE 17TH DAY OF JUNE 2020 / 27TH JYAISHTA, 1942** ## **WP(C).No.11831 OF 2020(D)** ## **PETITIONERS:** **1 ANTONY PAUL AGED 61 YEARS S/O. O.P.PAULOSE,OLIAPURAM HOUSE, MALAYINKEEZHU, KOTHAMANGALAM P.O.,686 691** **2 JESSY ANTONY AGED 59 YEARS W/O.ANTONY PAUL, OLIAPURAM HOUSE, MALAYINKEEZHU, KOTHAMANGALAM P.O.,686 691** ## **BY ADVS.** **SRI.RINNY STEPHEN CHAMAPARAMPIL SMT.ASHA ELIZABETH MATHEW** ## **RESPONDENTS:** - **1 THE REVENUE DIVISIONAL OFFICER R.D.O.OFFICE, MUDAVUR P.O., MUVATTUPUZHA-686 669** - **2 THE TAHSILDAR (LAND RECORDS) TALUK OFFICE, KOTHAMANGALAM (P.O) -686 691** - **3 THE VILLAGE OFFICER, VILLAGE OFFICE, KOTHAMANGALAM (P.O) -686 691** ## **SRI.K.J.MANU RAJ, GOVT.PLEADER** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 17.06.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C).No.11831 OF 2020(D)** 2 ## **ALEXANDER THOMAS, J. =========================== W.P(C) No.11831 of 2020** **===========================** Dated this the 17[th] day of June, 2020 ## **JUDGMENT** The case set up in this Writ Petition (Civil) is as follows: _The petitioners are constrained to approach this Hon'ble Court seeking direction for consideration of Ext.P15 application submitted by them under Section 6A of the Kerala Land Tax Acr, 1961 for reassessing their land as Garden Land/Purayidom without insisting for any payment on the basis of Ext.P4 KLU Order issued by the 1[st] respondent on Ext.P1 application dated 13/02/2017 as evident from Ext.P3 judgment dated 16/08/2017 in W.P.(C)No.26980/2017. The petitioners are also aggrieved_ _by Condition No.2 imposed in Ext.P4 KLU Order to pay the amount prescribed under the Paddy Land Amendment Act as they are not liable to pay any such amount as their application under the KLU Order was submitted much before the cut of date I.e.13/12/2017. The 1[st] petitioner is the husband of the 2[nd] petitioner. The 1[st] petitioner is the title holder of 2.83 Ares of land comprised in Survey No.877/2 of Kothamangalam Village. The 2[nd] petitioner owns an equal extent of 2.83 Ares of land comprised in Survey No.i.e.877/2of Kothamangalam Village. The said_ **WP(C).No.11831 OF 2020(D)** 3 _land with total extent of 5.66 Ares (14 cents) lie as a compact contingent plot. Even though, the said land is classified as Nilam in BTR, it is lying as Purayidom/Garden land for the last more than seven decades. The petitioners submitted Ext.P1 KLU Application on 13/02/2017 before the 1[st] respondent seeking permission to make use of their land for non-agricultural purposes. On Ext.P1 application, the 1[st] respondent called for a report from the 3[rd] respondent, who submitted Ext.P2 report on 1/02.2017. In spite of the receipt of Ext.P2 Report, the 1[st] respondent kept Ext.P1 application pending. Hence, the Petitioners filed WP(C)No.26980/2017 which was disposed of by judgment dated 16/08/2017 directing the Petitioners to obtain a report from LLMC and from the KSREC and to place it before the 1[st] respondent who was directed to pass orders of Ext.P1 application within two months from the date of receipt of LLMC report. The LLMC Report along with the KSREC Report with a covering letter dated 05/03/2018 was placed by the petitioners before the 1[st] respondent. Thereafter, the 1[st] respondent issued Ext.P4 Order dated 12/11/2018 under Rule 6(2) of the KLU Order permitting the petitioners to make use of their land for non-agricultural purposes. Subsequently. The petitioners submitted Ext.P5 Application for assessment before the 2[nd] respondent, which is not being consdiered demanding amount as per the Paddy land Amendment Act, which the petitioners are not liable to pay._ It is in the light of these averments and **WP(C).No.11831 OF 2020(D)** 4 ## contentions, the petitioner has filed the instant Writ Petition (Civil) with the following prayers: - _“i) Issue a Writ of Certiorari or any other appropriate Writ, Order or direction calling for all the records leading to Ext.P4 KLU Order dated 12/11/2018 and quash Condition No.3 imposed therein that the petitioners are liable to pay the amount as per the Kerala Conservation of Paddy Land and Wet Land (Amendment) Act, 2018 and the stipulation that before obtaining building permit, the petitioners shall get the revenue records corrected in accordance with the existing statutory provisions_ - _ii) Issue a Writ of Mandamus or any other appropriate Writ, Order or direction commanding the 2[nd] respondent to reassess and reclassify the petitioner' 5.66 Ares of land comprised in Survey No.877/2 of Kothamangalam Village covered by Ext.P4 KLU Order as Purayidom/Garden land without insisting for payment of any amount prescribed under Section 27A of the Kerala Conservation of Paddy Land and Wet Land Act, 2008 or under the Rules framed thereunder especially Rule 12(17) of the Kerala Conservation of Paddy Land and Wet Land Rules, 2008_ - _iii) Issue an appropriate Writ, Order or Direction declaring that the petitioners are entitled to get their land covered by Ext.P4 Order reassessed and reclassified as Purayidom/Garden Land without payment of any amount prescribed under the Kerala Conservation of Paddy Land and Wet Land Act, 2008 or under the Rules framed thereunder especially Rule 12(17) of the Kerala Conservation of Paddy Land and Wet Land Rules, 2008 and that Condition No.3 in Ext.P4 Order requiring the petitioners to pay the amount prescribed under the Kerala Conservation of Paddy Land and Wet Land (Amendment) Act, 2018 is illegal and unsustainable in the eye of law_ - _iv) Pass such Other appropriate Writs, Orders or Directions as this Hon'ble Court may deem just and proper to issue in the circumstances of the case.”_ 2. Heard Sri.Rinny Stephen Chamaparampil, learned counsel appearing for the petitioners and Sri.K.J.Manu Raj, learned Government Pleader appearing for the respondents. 3. According to the petitioners, each of them owned 2.83 Ares of property each, thus having a total extent of 5.66 Ares, which is **WP(C).No.11831 OF 2020(D)** 5 approximately around 14 cents and that the said property continues to be classified as 'Nilam/Paddy Land' in the Basic Tax Register (BTR) and that the said properties have been converted as 'garden land of purayidom' much prior to 12.08.2008 (which is the date of coming into force of the 2008 Act). Further that, the petitioners have duly submitted Ext.P-1 joint application dated 13.02.2017 under Rule 6(2) of the Kerala Land Utilization Order before the 1[st] respondent-Revenue Divisional Officer seeking for statutory permission for change of user of the land. That Ext.P-2 is a report dated 16.02.2017 submitted by the 3[rd] respondentVillage Officer on the matters in Ext.P-1 application since no further action was forthcoming on Ext.P-1 application, the petitioners were constrained to approach this Court by filing W.P(C)No.26980/2017 which culminated in Ext.P-3 judgment dated 16.08.2017 in that W.P(C), whereby this Court had directed that the application made by the petitioner on 13.02.2017 (which is Ext.P-4 therein/Ext.P-1 herein) should be considered and orders passed by the respondent-Revenue Divisional Officer under Rule 6(2) of the Kerala Land Utilization Order within the time limit mentioned therein. But this Court had also directed that the petitioner should approach the Local Level Monitoring Committee and with the help of the satellite pictures of the subject property, should get a report from the LLMC regarding the nature and lie of the property, so as to disclose the ground realities regarding the said property. Petitioners had thereupon completed the said formalities of **WP(C).No.11831 OF 2020(D)** 6 obtaining satellite pictures and the LLMC had also given report in the matter and in compliance with Ext.P-3 judgment, the petitioners had duly forwarded the said report of the LLMC to the 1[st] respondent-Revenue Divisional Officer as per covering letter dated 05.03.2018 (referred to as paper No.1 in Ext.P-4). Thereafter, the 1[st] respondent-Revenue Divisional Officer has now passed Ext.P-4 order dated 12.11.2018 granting permission under Rule 6(2) of the Kerala Land Utilization Order for change of user of the land, but with the condition that the petitioner will have to pay the higher amounts as conceived as per the amended provisions of the 2008 Act in view of Sec.27A thereof and the Rules framed thereunder. It is this order, the petitioners essentially challenges the restrictive conditions imposed in Ext.P-4. Further, the petitioner also seeks direction to the 2[nd] respondent-Tahsildar to act upon, where Ext.P-5 application dated 04.06.2020 for re-assessment of the subject property in terms of Sec.6A of the Kerala Land Tax Act for securing additional BTR entries to show the changed nature of the 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 **WP(C).No.11831 OF 2020(D)** 7 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 in 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. Further, in the aforesaid judgments of the Division Bench of this Court in **Mariyumma’s case** (supra) and _**Renjth George's case**_ (supra), it has also been held that in such a case where the property holder has filed the application under Rule 6(2) before 30.12.2017 and after securing such orders under Rule 6(2), the party concerned is also entitled to get the subject property assessed/re-assessed under Sec.6A of the Kerala **WP(C).No.11831 OF 2020(D)** 8 Land Tax Act, so as to secure additional entries in the BTR to show the change nature of the land as garden land or purayidam instead of the earlier BTR entries as paddy land or Nilam. 6. In the instant case, it appears that the petitioner has filed the requisite Rule 6(2) application as early as on 13.02.2017 as per Ext.P-1 herein, which appears to be the same as Ext.P-4 referred to in Ext.P-3 judgment dated 16.08.2017. However, it appears that the 1[st] respondentRevenue Divisional Officer has not made mention of the date on which the petitioner has filed the Rule 6(2) application except by vaguely stating as per reference No.1 of Ext.P-4 that the petitioner has submitted an application on 05.03.2018. The petitioner would assert that the so called application dated 05.03.2018 referred to as paper No.1 in Ext.P-4 is only the covering letter on the basis of which the petitioner had sent the report of the Local Level Monitoring Committee to the 1[st] respondent-RDO, as directed by this Court in Ext.P-3 judgment and that as a matter of fact, the petitioner has submitted the requisite Rule 6(2) application on 13.02.2017, which is Ext.P-1 herein and Ext.P-4 in Ext.P-3 W.P(C). If the petitioner has in fact filed the requisite Rule 6(2) application before the cut-off date of 13.02.2017 (before the date of coming into force of the 2008 Act) and as a matter of fact, the subject property covered by Ext.P-4 proceedings is the same as the one covered by Ext.P-3 judgment and Ext.P-1 application herein, then it goes without saying that the impugned conditions imposed **WP(C).No.11831 OF 2020(D)** 9 in Ext.P-4 that the petitioner will have to pay the higher amounts in terms of the amended provisions of the 2008 Act and the Rules framed thereunder is highly illegal and _ultra vires_ in the light of the legal principles well settled by this Court in the aforecited series of judgments. The legal position in that regard is accordingly declared and ordered. 7. Accordingly, it is ordered that Ext.P-4 to the limited extent it directs the petitioner to pay the higher amounts, as per the amended provisions of the 2008 Act including Sec.27A thereof and the amended Rules framed thereunder including Rule 12(17) thereof will stand set aside and quashed and the matter will stand remitted to the 1[st] respondent-RDO to consider only the limited factual question, as to whether Rule 6(2) application has been filed by the petitioner before the cut-off date of 30.12.2017. If it is found that the subject property covered by Ext.P-4 is the same as the subject property covered by Ext.P-3 judgment as well as Ext.P-1 herein, which is the same as Ext.P-4 in Ext.P-3 W.P(C), then the 1[st] respondent will immediately pass revised orders under Rule 6(2) of the Kerala Land Utilization Order. It is made clear that the substantive decision taken by the 1[st] respondent-RDO in Ext.P-4 granting permission to the petitioner under Rule 6(2) is affirmed and only the restrictive conditions in Ext.P-4 in the matter of payment of higher amounts alone is interfered with by this Court. Ordinarily this Court would not have remitted the matter to the 1[st] respondent and this Court is remitting this **WP(C).No.11831 OF 2020(D)** 10 matter only on account of the submission made by the learned Government Pleader that the application referred to in Ext.P-4 is seen as the one submitted on 05.03.2018. It is not known as to why the 1[st] respondentRDO has omitted to mention about Ext.P-4 application dated 13.02.2017 produced in Ext.P-3 W.P(C). Needless to say, while passing such orders there is no question of petitioner being compelled to pay the amounts as conceived as per the amended provisions of the 2008 Act including Sec.27A thereof and the amended provisions of the Rules including Rule 12(17) thereof, in case, the petitioner has filed the Rule 6(2) application before the cut-off date of 30.12.2017. Revised orders in this regard should be duly passed by the 1[st] respondent-Revenue Divisional Officer, after affording a reasonable opportunity of being heard to the petitioner and within three weeks from the date of production of a certified copy of this judgment. 8. Thereafter, the petitioner may produce copy of such revised orders passed under Rule 6(2) of the Kerala Land Utilization Order by the 1[st] respondent-RDO before the 2[nd] respondent-Tahsildar and thereupon, the 2[nd] respondent will consider the matters raised in Ext.P-5 application dated 04.06.2020, in the light of the abovesaid revised proceedings of the 1[st] respondent-RDO in relation to Ext.P-4 and after affording reasonable opportunity of being heard to the petitioner through his authorized representative/counsel, if any, should pass orders of re-assessment of the **WP(C).No.11831 OF 2020(D)** 11 subject property under Sec.6A of the Kerala Land Tax Act, so as to secure additional entries in the Basic Tax Register to show the changed nature of the land as garden land or purayidom instead of the earlier BTR entries as ‘Nilam/Paddy Land’, within one month from the date of production of such revised order of the 1[st] respondent-Revenue Divisional Officer along with the certified copy of this judgment. It is made clear that in case, the subject property covered by Ext.P-4 is the same as Ext.P-3 judgment, then there is no question of the 2[nd] respondent compelling the petitioner to pay any higher amounts as conceived as per the amended provisions of the 2008 Act including Sec.27A thereof and the amended provisions of the Rules including Rule 12(17) thereof. 9. The petitioner will produce certified copies of this judgment along with copies of the Memorandum of this W.P(C) with all the exhibits before both the 1[st] respondent-Revenue Divisional Officer and the 2[nd] 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** vgd **WP(C).No.11831 OF 2020(D)** 12 ## **APPENDIX** **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 A TRUE COPY OF THE APPLICATION UNDER RULE 6 (2) OF THE KLU ORDER SUBMITTED BY THE PETITIONERS ON 13.02.2017 BEFORE THE 1ST RESPONDENT** **EXHIBIT P2 A TRUE COPY OF THE REPORT DATED 16.02.2017 SUBMITTED BY THE 3RD RESPONDENT BEFORE THE 1ST RESPONDENT** **EXHIBIT P3 A TRUE COPY OF THE JUDGMENT DATED 16.082017 OF THIS HON'BLE IN WP(C) NO.26980/2017** **EXHIBIT P4** **A TRUE COPY OF THE KLU ORDER DATED 12.11.2018 ISSUED BY THE 1ST RESPONDENT** **EXHIBIT P5 A TRUE COPY OF THE APPLICATION DATED 04.06.2020 SUBMITTED BY THE PETITIONERS BEFORE THE 2ND RESPONDENT UNDER SECTION 6A OF THE KERALA LAND TAX ACT**