W.P.(C). Nos. 10342/2020 and 10343/2020 (P.A. Jose v. Tahsildar, Kanayannur Taluk; Hima Dani v. Tahsildar, Kanayannur Taluk)

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **TUESDAY, THE 26TH DAY OF MAY 2020 / 5TH JYAISHTA, 1942** ## **WP(C).No.10342 OF 2020(P)** ## **PETITIONER/S:** **P.A.JOSE, AGED 73 YEARS S/O.ANTONY, PAYYAPILLY HOUSE, VELOOR, KOTTAYAM, 686003** **BY ADV. SRI.BINOY VASUDEVAN** ## **RESPONDENT/S:** **1 THE TAHSILDAR, KANAYANNUR TALUK TALUK OFFICE, ERNAKULAM, 682018 2 THE VILLAGE OFFICER KAKKANAD VILLAGE, KAKKANAD.P.O, 682030** ## **OTHER PRESENT:** ## **SRI.K.J.MANU RAJ, GOVT.PLEADER** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 26.05.2020, ALONG WITH WP(C).10343/2020(P), THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ::2:: W.P.(C).Nos.10342 & 10343 Of 2020 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **TUESDAY, THE 26TH DAY OF MAY 2020 / 5TH JYAISHTA, 1942** ## **WP(C).No.10343 OF 2020(P)** ## **PETITIONER/S:** **HIMA DANI, AGED 37 YEARS W/O.DANI THOMAS, ALAPATT PALATHINGAL, PERINGAVU.P.O, THRISSUR DISTRICT-680018** **BY ADV. SRI.BINOY VASUDEVAN** ## **RESPONDENT/S:** **1 THE TAHSILDAR, KANAYANNUR TALUK TALUK OFFICE, ERNAKULAM, 682018 2 THE VILLAGE OFFICER, KAKKANAD VILLAGE, KAKKANAD.P.O,682030** ## **OTHER PRESENT:** **SRI.K.J.MANURAJ,GOVT.PLEADER** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 26.05.2020, ALONG WITH WP(C).10342/2020(P), THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ::3:: W.P.(C).Nos.10342 & 10343 Of 2020 ## **ALEXANDER THOMAS, J** . ----------------------------- W.P.(C).Nos.10342 & 10343 Of 2020 --------------------------------Dated this the 26[th] day of May, 2020. ## **J U D G M E N T** These cases are disposed of on the basis of this common judgment as same issue arises in these matters. W.P.(C).No. 10342/2020 will be taken as the lead case. 2. The case set up in W.P.(C).No.10342/2020 is as follows: The petitioner is the absolute owner in possession of a parcel of land having an extent of 58.25 Ares in Re.Sy.No.373/8 of Kakkanad Village in Kanayannur Taluk of Ernakulam District. The property is not included in the data bank prepared in terms of Act 28 of 2008. Hence the petitioner preferred applications under Clause 6(2) of the Kerala Land Utilisation Order, 1967 which was allowed by the Revenue Divisional Officer as evident from Exhibit P-3. Subsequently at his request, the Secretary of Thrikkakkara Municipality had granted development permit to him as evident by Ext.P-4. Still the property is described in the revenue records as ::4:: W.P.(C).Nos.10342 & 10343 Of 2020 paddy field as evident from Exhibit P-2 tax receipt. There was a confusion with respect to the procedure for correction the BTR after the introduction of Sec.27A of Paddy land and Wet Land Act. However, a Division Bench of this Court in _Tahsildar, Thodupuzha Taluk & another v. Renjith George_ [2020 (1) KHC 865] had declared that those persons who obtained permission under Clause 6(2) before the introduction of 27A need not follow the course under the said Act. Hence the petitioner preferred Exhibit P-5 application before the 1[st] respondent. This writ petition is being preferred feeling aggrieved by the inordinate delay on the part of the 1[st] respondent in not disposing the application. It is in the light of these aspects that the petitioner has filed the instant Writ Petition seeking the following prayers: - _“(i) Issue a writ of Mandamus or other appropriate Writ, Orders or directions, commanding the 1[st] respondent to change the Basic Tax Register in respect of the petitioner's property covered by Exhibit P-1 document by considering Exhibit P-5 application as expeditiously as possible at any rate within a time frame to be fixed by this Hon'ble Court;_ - _(ii) Render such other orders or directions as this Hon'ble Court may deem just, fit and necessary in the facts and circumstances of the case.”_ 3. The prayers in W.P.(C).No.10343/2020 are as follows: - _“(i) Issue a writ of Mandamus or other appropriate Writ, orders or directions, commanding the 1[st] respondent to change the Basic Tax Register in respect of the petitioner's property covered by Exhibits P-1 to P-4 documents by considering Exhibit P-9 application as expeditiously as possible at any rate within a time frame to be fixed by this Hon'ble court;_ - _(ii) Render such other orders or directions as this Hon'ble Court may deem just, fit and necessary in the facts and circumstances of the case.”_ ::5:: W.P.(C).Nos.10342 & 10343 Of 2020 4. Heard Sri.Binoy Vasudevan, learned counsel for the petitioners in these 2 cases and Sri.K.J.Manu Raj, learned Government Pleader appearing for the respondents in these cases. 5. It is beyond any dispute in these cases that the subject property has been converted as garden land/purayidam much prior to 12.8.2008 (the date of coming into force of the Kerala Conservation of Paddy Land and Wet Land Act, 2008) and the petitioners in these cases have also filed requisite applications under Rule 6(2) of the Kerala Land Utilisation Order, 1967 before the RDO concerned much before the cut off date of 30.12.2017 (date of coming into force of the amended provisions of the abovesaid 2008 Act, which was introduced as per Act 27A thereof). As a matter of fact, Ext-P3 produced in W.P.(C).No.10342/2020 is the order passed by the RDO on 10.2.2011 granting permission under Rule 6(2) of the KLU Order. Whereas in W.P.(C). No.10343/2020, Ext.P-6 order dated 10.2.2011 and Ext.P-7 dated 10.2.2011 are the orders passed by the RDO granting the said statutory permission under Rule 6(2) of the KLU order. Suffice to say, in these cases, not only the application under Rule 6(2), but ::6:: W.P.(C).Nos.10342 & 10343 Of 2020 also orders securing permission has been issued much prior to the cut off date of 30.12.2017 (date of coming into force of the amended provisions of the 2008 Act which was introduced as per Sec.27A thereof). 7. 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 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 ::7:: W.P.(C).Nos.10342 & 10343 Of 2020 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.]. 8. 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 Land Tax Act, so as to secure additional entries in the BTR to show the change of nature of the land as garden land or purayidam instead of the earlier BTR entries as paddy land or Nilam. 9. Now the petitioner in W.P.(C).No.10342/2020 has submitted Ext.P-5 application dated 18.3.2020 before R-1 Tahsildar ::8:: W.P.(C).Nos.10342 & 10343 Of 2020 seeking for orders under Sec.6A of the Kerala Land Tax Act for fresh assessment/re-assessment for securing additional entries in the BTR for showing the changed nature of the land as garden land/purayidam instead of earlier BTR entries as paddy land/nilam. Ext.P-9 is the application dated 18.3.2020 filed by the petitioner in W.P.(C).No.10343/2020 before the respondentTahsildar seeking the same benefit. In view of the dictum already laid down by this Court in _**LLMC, Kizhakkambalam Grama Panchayath and others v. Mariumma and another**_ [2015 (2) KLT 516 (DB)] and _**Geo Peter v. Revenue Divisional Officer**_ [2019 (3) KLT 838], since the subject property has been converted as garden land/purayidam prior to 2008 and as the requisite Rule 6(2) application of the KLU Order has been filed much before the cut off date of 30.12.2017, the petitioners in these cases are entitled to maintain such applications seeking the benefit of Rule 6A of the Kerala Land Tax Act seeking fresh assessment/re-assessment of the subject property so as to secure additional entries to show the changed nature of the land. It has been held that a party concerned is entitled to get the benefit of alteration in the BTR without having to pay any amount as conceived in Sec.27A there as ::9:: W.P.(C).Nos.10342 & 10343 Of 2020 well as per the amended provisions of the Rules. This Court has also held in the judgment dated 19.3.2020 in W.P. (C).No.8645/2020 that in such case, a party is also entitled to get the benefit of alteration of BTR without having to pay any amounts including those prescribed under Rule 12(17) of the amended Rules under the amended provisions of the Act. The position in that regard is ordered and declared in these cases as well. Accordingly, it is ordered that the 1[st] respondent-Tahsildar in W.P.(C). No.10342/2020 will take up for consideration Ext.P-5 application and should pass orders in terms of Sec.6A of the Kerala Land Tax Act for making additional BTR entries to show the changed nature of land as aforesaid and in the light of the dictum laid down by the Division Bench of this Court in _**LLMC, Kizhakkambalam Grama Panchayath and others v. Mariumma and another**_ [2015 (2) KLT 516 (DB)] and without making the petitioner to pay any amounts as conceived under the provisions of the amended provisions of the Act and the Rules and orders in that regard should be passed by the 1[st] respondent-Tahsildar after affording reasonable opportunity of being heard to the petitioner either in person or through authorised ::10:: W.P.(C).Nos.10342 & 10343 Of 2020 representative/counsel if any, within a period of one month from the date of receipt of a certified copy of this judgment. Further it is also ordered that the 1[st] respondent in W.P. (C).No.10343/2020 will also take up for consideration Ext.P-9 application dated 18.3.2020 filed by the petitioner therein seeking for seeking the benefit under Sec.6A of the Kerala Land Tax Act for fresh assessment or re-assessment of the property so as to secure additional entries in the BTR to show the changed nature of land in the place of earlier BTR entries and in the light of the dictum laid down by the Division Bench of this Court in the case in _**Mariumma's**_ case [2015 (2) KLT 516 (DB)] and without making the petitioner to pay any amounts as conceived under the provisions of the amended provisions of the Act and the Rules and orders in that regard should be passed by the 1[st] respondent-Tahsildar after affording reasonable opportunity of being heard to the petitioner either in person or through authorised representative/counsel if any, within a period of one month from the date of receipt of a certified copy of this judgment. The respective petitioners will ::11:: W.P.(C).Nos.10342 & 10343 Of 2020 ensure that copy of the memorandum of the writ petitions as well as certified copy of this judgment are produced before the Tahsildar concerned in these cases for necessary information and further action. With these observations and directions, both Writ Petitions will stand finally disposed of. **Sd/ALEXANDER THOMAS, Judge.** bkn/- ::12:: W.P.(C).Nos.10342 & 10343 Of 2020 ## **APPENDIX OF WP(C) 10342/2020** **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1** **TRUE COPY OF DOCUMENT NO.5042/2007 OF S.R.O. THRIKKAKARA** **EXHIBIT P2** **TRUE COPY OF THE LAND TAX RECEIPT DATED 13.03.2019 ISSUED BY THE 2ND RESPONDENT** **EXHIBIT P3 TRUE COPY OF THE ORDER NO.9016/K.DIS DATED 10.02.2011 OF RDO, FORT KOCHI** **EXHIBIT P4** **TRUE COPY OF THE DEVELOPMENT PERMIT NO.BA/754/16-17 DATED 09.05.2017 ISSUED BY THE SECRETARY OF THRIKKAKKARA MUNICIPALITY** **EXHIBIT P5 TRUE COPY OF THE APPLICATION PREFERRED ON 18.03.2020 BY THE PETITIONER BEFORE THE 1ST RESPONDENT** ::13:: W.P.(C).Nos.10342 & 10343 Of 2020 ## **APPENDIX OF WP(C) 10343/2020** ## **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1** **TRUE COPY OF DOCUMENT NO.1678/2007 OF S.RO.THRIKKAKARA** **EXHIBIT P2** **TRUE COPY OF DOCUMENT NO.1679/2007 OF S.R.O.THRIKKAKARA** **EXHIBIT P3** **TRUE COPY OF DOCUMENT NO.1332/2008 OF S.R.O.THRIKKAKARA.** **EXHIBIT P4** **TRUE COPY OF DOCUMENT NO.2846/2013 OF S.R.O.THRIKKAKARA** **EXHIBIT P5** **TRUE COPY OF THE LAND TAX RECEIPT DATED 13.3.2019 ISSUED BY THE 2ND RESPONDENT** **EXHIBIT P6 TRUE COPY OF THE ORDER NO.8597/K.DIS DATED 10.02.2011 OF RDO, FORT KOCHI** **EXHIBIT P7** **TRUE COPY OF THE ORDER NO.8663/K.DIS.DATED 10.2.2011 OF THE REVENUE DIVISIONAL OFFICER, FORT KOCHI** **EXHIBIT P8 TRUE COPY OF THE DEVELOPMENT PERMIT NO.BA/754/16-17 DATED 09.05.2017 ISSUED BY THE SECRETARY TO THRIKKAKARA MUNICIPALITY**