WP(C) No.5768/2020 (U)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **THURSDAY, THE 27TH DAY OF FEBRUARY 2020 / 8TH PHALGUNA, 1941** ## **WP(C).No.5768 OF 2020(U)** ## **PETITIONER:** **RAHUL GOPI AGED 28 YEARS** **S/O.GOPIDAKSHAN, PATTATHIPARAMBIL HOUSE, KOTTAMURY P O, THRISSUR DISTRICT.** **BY ADVS. SHRI.ESM.KABEER SRI.N.B.ANOOP SMT.K.M.AMINABEEVI SMT.C.SHEEBA** ## **RESPONDENTS:** - **1 THE DISTRICT COLLECTOR CIVIL STATION, AYYANTHOLE P O, THRISSUR-680003.** - **2 THE REVENUE DIVISIONAL OFFICER, CIVIL STATION, AYYANTHOL P O, THRISSUR-680003.** - **3 THE TAHSILDAR, CHALAKUDY TALUK, CHALAKUDY P O, THRISSUR DISTRICT680307,** - **4 THE VILLAGE OFFICER, KURUVILASSERY VILLAGE OFFICE, KURUVILLASSERY O, THRISSUR DISTRICT-680732.** - **5 THE LOCAL LEVEL MONITORING COMMITTEE, MALA GRAMA PANCHAYAT, REPRESENTED BY ITS CONVENER, (THE AGRICULTURAL OFFICER, KRISHI BHAVAN, MALA, VADAMA P O, THRISSUR DISTRICT-680732.** ## **OTHER PRESENT:** **SRI.SAIGI JACOB PALATTY, SR.GOVT.PLEADER** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 27.02.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** W.P.(C)No.5768/2020 2 ## **ALEXANDER THOMAS, J.** ------------------------------------------W.P.(C)No.5768 of 2020 ---------------------------------------------Dated this the 27[th] day of February, 2020 ## **JUDGMENT** The case set up in this Writ Petition (Civil) is as follows:- “ _The Writ petition is filed praying to lift the conditions imposed in Exhibit P5 that the conditions under Section 27A of the Kerala Conservation of Paddy Land and Wet Land Act, 2008 are applicable only to petitions under Clause 6(2) of the Kerala Land Utilization Order filed after 30-12-2017.The 2[nd] respondent was directed to dispose of Exhibit P3 representation submitted by the petitioner for permission to use his property for other purposes. The petition was dated 13-05-2017 which is Exhibit P3 in Exhibit P4 judgment dated 08-11-2017. The impugned order Exhibit P5 was passed on 23-042018 in which it was referred about Exhibit P4 judgment. In Exhibit P5 it is also found from the reports of the respondent 3 to 5 that the property is a dry land and the property was not included in the Data Bank. Inspite of the fact that the application was dated 13-052017 as disclosed from Exhibit P4 judgment dated 08-11-2017, even then the 2[nd] respondent has imposed conditions under Section 27A of the Kerala Conservation of Paddy Land and Wet Land Act, 2008. Section 27A based on the circulars Nos.41/2017 and 13/2018 referred as 5 and 6 in Exhibit P5 came into force on_ W.P.(C)No.5768/2020 3 _30-12-2017. So the conditions imposed in Exhibit P5 are not applicable to the petitioner's property._ 2. The main contention urged by the petitioner is as follows:- - _“A. Exhibit P4 judgment dated 08-11-2017 refers to Exhibit P3 petition dated 13-05-2017 under Clause 6(2) of the Kerala Land Utilisation Order. Applications filed before 30-12-2017 Section 27A of the Kerala Conservation of Paddy Land and Wet Land Act, 2008 is not applicable._ - _B. The decision reported in 2019 (2) KLT page 262 Renji K. Paul_ - _& another vs. Revenue Divisional Officer, Muvattupuzha and 2019 (4) KHC 400 this Court held that the Section 27A and 27C of the Act is not applicable to applications before 30-12-2017._ _C. In view of the said decisions and other decisions the conditions under Section 27A as well as condition No.4 in Exhibit P5 is unsustainable._ ” 3. It is in the light of these factual averments and contentions, the petitioner has filed the instant Writ Petition (Civil) with the following prayers:- _i. To call for the records relating to Exhibit P1 to P5 and to issue a writ of certiorari quashing conditions imposed in Exhibit P5 order as per Section 27A of the Kerala Conservation of Paddy Land and Wet Land Act, 2008 and Condition No.4 in the order. ii. To issue a writ of mandamus directing the 2[nd] respondent to reconsider Exhibit P3 representation in the light of the decision reported in 2019(2) KLT page 262 Renji K. Paul & another vs. Revenue Divisional Officer, Muvattupuzha and 2019(4) KHC 400 Geo Peter vs. Revenue Divisional Officer, Muvattupuzha._ _iii. To issue a writ order or direction directing the 3[rd] respondent to reassess land tax under Section 6A of the Land Tax Act of the petitioner's property and permit him to use the property for other purposes._ W.P.(C)No.5768/2020 4 4. Heard Sri. E.S.M. Kabeer, learned counsel appearing for the petitioner and Sri. Saigi Jacob Palatty, learned Senior Government Pleader appearing for the respondents. 5. It appears that there is no serious dispute that the subject property was converted as purayidom/garden land much prior to the coming into force of the Kerala Conservation of Paddy Land and Wet Land Act, 2008. The petitioner has submitted Ext.P3 application dated 13.5.2017 under Rule 6(2) of the Kerala Land Utilisation Order, 1967, before the 2[nd] respondent RDO seeking for formal orders in the matter of the conversion of the subject property as garden land/purayidom etc. It is also not in dispute that Ext.P3 application dated 13.5.2017 has been filed before the 2[nd] respondent RDO much prior to 30.12.2017 (date of coming into force of the amended provisions of the 2018 Act introducing Section 27A thereof). 6. Therefore, it has been held by this Court in the series of cases as in _**Renji K. Paul and another**_ v. _**Revenue Divisional Officer**_ [2019 (2) KLT 262], _**Geo Peter**_ v. _**Revenue Divisional Officer**_ [2019 (3) KLT 262], _**Salim**_ v. _**State of Kerala**_ [2019 (3) KLT 604 (DB)] etc.,that in a case where the subject property has been converted as garden land/purayidom prior to coming into force of the 2008 Act and where Rule 6(2) application under the Kerala Land Utilisation Order, 1967 has been preferred before the respondent RDO prior to 30.12.2017 (date of coming into force of 2018 amendments to the 2008 Act), then the case of the applicant therein/property holder is to be considered strictly as per the provisions contained in Rule 6(2) of the Kerala Land Utilisation Order, 1967 and W.P.(C)No.5768/2020 5 in which case none of the adverse or detrimental conditions flowing out from the amended provisions of the 2008 Act or the amended provisions of the Rules framed thereunder can be invoked or pressed into service as against the property holder. This has also been reiterated in the recent judgment of the Division Bench of this Court in _**Tahsildar, Thodupuzha Taluk and another**_ v. _**Renjith George**_ [2020 (1) KHC 865], wherein it has been held that, in respect of such a property, none of the adverse or detrimental conditions flowing out from the amended provisions of the 2008 Act or the amended provisions of the Rules framed thereunder can be invoked or pressed into service as against the property holder and the case has been considered in terms of the provisions contained in Rule 6(2) of the Kerala Land Utilisation Order, 1967 and in such a case, after obtaining such orders under Rule 6(2) of the KLU Order for permission for conversion of the land as a purayidom/ garden land, the applicant will also be entitled to maintain a request under Section 6A of the Kerala Land Tax before the competent revenue official concerned ( Tahsildar) seeking for re-assessment of the subject property in order to ensure that additional entries are made in the Basic Tax Register (BTR) for showing the nature of the land as purayidom/garden land instead of the previous entry as Nilam/Paddy land, going by the dictum laid down by the dictum laid down by the Division Bench of this Court in the case in _**LLMC, Kizhakkambalam Grama Panchayath and others** v._ _**Mariumma and another** [2015(2) KLT 516 (DB)]._ 7. Now pursuant to the directions issued by this Court in Ext.P4 judgment dated 8.11.2017 in W.P.(C)No.17248/2017 filed by the petitioner herein, the 2[nd] respondent RDO has now passed Ext.P5 order, wherein it has been W.P.(C)No.5768/2020 6 stipulated that as per condition No.4 thereof, the petitioner will have to pay the amounts due under Section 27A for making additional entries in the Basic Tax Register (BTR) to show the land as Purayidom/garden land etc. The said impugned condition in Ext.P5 is illegal and ultra vires for the above said reasons as it amounts to flagrant violation of the above said dictum laid down by this Court in the aforecited judgments. In that view of the matter, it is ordered that the impugned Ext.P5 proceedings to the extent it orders that the petitioner should pay the due amounts payable under Section 27A of the 2008 amended Act will stand quashed and set aside. The impugned Ext.P5 order in all other aspects will stand affirmed and upheld. For the sake of clarity, the matter will stand remitted to the 2[nd] respondent RDO to pass revised orders in Ext.P5 so as to delete condition No.4 thereof. Such revised orders in relation to Ext.P5 shall be issued by the 2[nd] respondent RDO, within two weeks from the date of receipt of a certified copy of this judgment. Thereafter, the petitioner will be at liberty to maintain an application under Section 6A of the Kerala Land Tax before the 3[rd] respondent Tahsildar seeking for re-assessment of the subject property in order to make additional entries in the BTR to show the reclassification of the land as purayidom/garden land instead of the earlier entry as 'Nilam/Paddy land', as the case may be. On the petitioner making such application before the 3[rd] respondent under Section 6A of the Kerala Land Tax Act, the 3[rd] respondent will do the needful, without much delay, preferably within a period of three weeks from the date of production of a certified copy of this judgment. While doing so, the 3[rd] respondent Tahsildar will strictly follow the above said directives issued in the various judgments cited hereinabove and it shall be ensured that the W.P.(C)No.5768/2020 7 petitioner shall not be compelled to pay any amount for making such additional entries in the Basic Tax Register (BTR). With these observations and directions, the above Writ Petition (Civil) will stand disposed of. sd/- **ALEXANDER THOMAS, JUDGE.** acd W.P.(C)No.5768/2020 8 ## **APPENDIX** **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF THE TAX RECEIPT DATED 03.05.2016** **EXHIBIT P2 TRUE COPY OF THE RELEVANT EXTRACT OF THE DATA BANK.** **EXHIBIT P3 TRUE COPY OF THE PETITION UNDER CLAUSE 6(2) OF THE KERALA LAND UTILIZATION ORDER DATED 13.05.2017.** **EXHIBIT P4 TRUE COPY OF THE JUDGMENT IN WPC NO.17248/2017 DATED 08.11.2017.** **EXHIBIT P5 TRUE COPY OF THE ORDER ISSUED BY THE 2ND RESPONDENT DATED 23.04.2018.**