WP(C).Nos. 15325/2020(M) and 15336/2020(N) - M/S Rajagiri College of Social Science (represented by Fr. Jose Kuriedath) and M/S Rajagiri Educational and Charitable Trust (represented by Fr. Jose Kuriedath) v. Revenue Divisional Officer, Fort Kochi; Thahasildar, Kanayannur Taluk; Village Officer, Kakkanad

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **FRIDAY, THE 07TH DAY OF AUGUST 2020 / 16TH SRAVANA, 1942** ## **WP(C).No.15325 OF 2020(M)** ## **PETITIONER:** **M/S. RAJAGIRI COLLEGE OF SOCIAL SCIENCE REP. BY ITS MANAGER FR.JOSE KURIEDATH, AGED 75 YEARS, S/O.JOSEPH, NOW RESIDING AT SH PROVINCIAL HOUSE, RAJAGIRI, KALAMASSERY, RAJAGIRI P.O., PIN-683 104.** **BY ADV. SRI.BABY THOMAS** ## **RESPONDENTS:** - **1 THE REVENUE DIVISIONAL OFFICER, REVENUE DIVISIONAL OFFICE, FORTKOCHI, KOCHI-682 001.** - **2 THAHSILDAR. KANAYANNUR TALUK, TALUK OFFICE, ERNAKULAM-681 011.** **3 THE VILLAGE OFFICER, KAKKANAD VILLAGE, KAKKANAD-682 021.** ## **OTHER PRESENT:** ## **SR GP SRI SAIGI JACOB PALATTY** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 07.08.2020, ALONG WITH WP(C).15336/2020(N), THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 2 WP(C)Nos.15325/2020(M)& 15336/2020(N) # **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **FRIDAY, THE 07TH DAY OF AUGUST 2020 / 16TH SRAVANA, 1942** **WP(C).No.15336 OF 2020(N)** ## **PETITIONER:** **M/S. RAJAGIRI EDUCATIONAL AND CHARITABLE TRUST REP. BY ITS PRESIDENT FR.JOSE KURIEDATH, AGED 75 YEARS, S/O.JOSEPH, NOW RESIDING AT SH PROVINCIAL HOUSE, RAJAGIRI, KALAMASSERY, RAJAGIRI P.O., PIN-683 104.** **BY ADV. SRI.BABY THOMAS** ## **RESPONDENTS:** - **1 THE REVENUE DIVISIONAL OFFICER, REVENUE DIVISIONAL OFFICE, FORTKOCHI, KOCHI-682 001.** **2 THAHASILDAR, KANAYANNUR TALUK, TALUK OFFICE, ERNAKULAM-681 011.** **3 THE VILLAGE OFFICER, KAKKANAD VILLAGE, KAKKANAD-682 021.** ## **OTHER PRESENT:** ## **SR GP SRI SAIGI JACOB PALATTY** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 07.08.2020, ALONG WITH WP(C).15325/2020(M), THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 3 WP(C)Nos.15325/2020(M)& 15336/2020(N) # **ALEXANDER THOMAS, J.** ------------------------------------------W.P.(C)Nos.15325 & 15336 of 2020 ---------------------------------------------Dated this the 07[th] day of August, 2020 ## **JUDGMENT** As the nature of the issues raised in these cases are broadly similar, the aforecaptioned writ petitions (civil) are disposed of on the basis of this common judgment. The prayers in Writ Petition (Civil) No.15325/2020 are as follows:- _“(i). To issue a writ of mandamus order or direction to the 1st respondent RDO to consider and pass orders on Ext P4application dated 06.07.2020 to remove the property from Data bank._ _(ii). To issue a writ of mandamus order or other appropriate writ or direction directing the 2ndrespondent to consider and pass appropriate orders on Exhibit P5 application to re assess the Land tax under Sec.6A of the Kerala Land Tax Act and to correct the Basic Tax Register showing the subject property covered by Ext.P2 certificate without insisting for payment of any fee as provided under section 27 A (3) and Rule 12 (9) and Rule 12 (17) of the Kerala Conservation of Paddy Land and Wet Land Act 2008._ _(iii). To declare that the petitioner is not liable to pay any fees under the new act (Act 29 of 2018) as the said act is not applicable to the case of the petitioner as the petitioner obtained permission under clause 6 (2) even before the coming in to force of the Conservation of_ 4 WP(C)Nos.15325/2020(M)& 15336/2020(N) _Paddy Land and wet Land Act 2008._ _(iv). To issue any other writs order or direction which this Hon’ble Court may deem fit on the facts and circumstances of the case.”_ The prayers in Writ Petition (Civil) No.15336/2020 are as follows:- _“(i). To issue a writ of mandamus order or direction to the 1st respondent RDO to consider and pass orders on Ext P4application dated 06.07.2020 to remove the property from Data bank._ _(ii). To issue a writ of mandamus order or other appropriate writ or direction directing the 2ndrespondent to consider and pass appropriate orders on Exhibit P5 application to re assess the Land tax under Sec.6A of the Kerala Land Tax Act and to correct the Basic Tax Register showing the subject property covered by Ext.P2 certificate without insisting for payment of any fee as provided under section 27 A (3) and Rule 12 (9) and Rule 12 (17) of the Kerala Conservation of Paddy Land and Wet Land Act 2008._ _(iii). To declare that the petitioner is not liable to pay any fees under the new act (Act 29 of 2018) as the said act is not applicable to the case of the petitioner as the petitioner obtained permission under clause 6 (2) even before the coming in to force of the Conservation of Paddy Land and wet Land Act 2008._ _(iv). To issue any other writs order or direction which this Hon’ble Court may deem fit on the facts and circumstances of the case.”_ 2. Heard Sri.Baby Thomas, learned counsel appearing for the petitioner and Sri. Saigi Jacob Palatty, learned Senior Government Pleader appearing for the respondents 1 to 3 in both these cases. 5 WP(C)Nos.15325/2020(M)& 15336/2020(N) 3. The case set up by the petitioner in both these cases is to the effect that the subject properties involved in these two cases though continues to be described as 'nilam/paddy land' in the Basic Tax Register (BTR) as per the revenue records, the same has been converted as 'garden land/purayidom' long prior to 12.08.2008 (date of coming into force of the Kerala Conservation of Paddy Land and Wetland Act, 2008) (State Act 28 of 2008). Further that the requisite applications under Rule 6(2) of the Kerala Land Utilisation Order (the KLU Order) were submitted before the 1[st] respondent-Revenue Divisional Officer for necessary permission for change of user of the land and permission was also obtained from the 1[st] respondent-Revenue Divisional Officer in respect of the properties covered in these two writ petitions (civil). Further that the petitioner is not having copies of such application and the copies of such proceedings issued by the 1[st] respondent-Revenue Divisional Officer granting such permission under Rule 6(2) of the KLU Order. But, when the petitioner had to approach the Educational authorities concerned for establishment of educational institutions, they had to get certificate from the 1[st] 6 WP(C)Nos.15325/2020(M)& 15336/2020(N) respondent-Revenue Divisional Officer regarding land tax dues in order to show that the buildings could be constructed in the said lands for establishing the educational institutions concerned. Thereupon the petitioner had made request before the 1[st] respondent-Revenue Divisional Officer, who after ascertaining the records have issued Ext.P-2 certificate dated 10.09.2007 in W.P.(C) No.15325/2020 and Ext.P-2 certificate dated 11.01.2001, issued by the 1[st] respondent-Revenue Divisional Officer in W.P.(C) No.15336/2020. That, in the abovesaid certificates as per Ext.P-2, it has been certified by the 1[st] respondent-Revenue Divisional Officer that the land can be utilised for construction of building for educational purposes, etc. The petitioner would assert that the said certificates as per Ext.P-2 has been issued by the 1[st] respondent-Revenue Divisional Officer on being satisfied that the subject properties have already secured the necessary statutory permission under Rule 6(2) of the KLU Order. Further, the case of the petitioner in both these cases is that the subject properties have been included in the land data bank prepared as per the provisions of the State Act 28 of 2008 as converted land prior to 12.08.2008. 7 WP(C)Nos.15325/2020(M)& 15336/2020(N) 4. It is pointed out by the counsel for the petitioner that eventhough it is the admitted case of the respondents that the properties have been converted prior to 12.08.2008, then the properties should not have been included in the land data bank for the reason that only properties which would fulfill the definition of 'paddy land' or 'wetland' as on 12.08.2008 could be included in the land data bank. Ext.P-3 is the data bank details produced in these cases. That, thereupon petitioner had filed Ext.P-4 application dated 06.07.2020 in Form No.5, in both these two writ petitions, before the 1[st] respondent-Revenue Divisional Officer, seeking for orders for exclusion of the subject properties from the land data bank. Further that since the petitioner had already secured necessary permission under Rule 6(2) of the KLU Order, they have also filed applications referred to as Ext.P-5 in both these cases before the 2[nd] respondentTahsildar, seeking or fresh assessment of the subject property so as to secure alterations in the BTR to show the changed nature of the land as 'garden land/purayidom' instead of the earlier BTR entries as 'nilam/paddy land'. 5. Since the specific case of the petitioner is that the 8 WP(C)Nos.15325/2020(M)& 15336/2020(N) subject properties have been shown as 'converted land' in Ext.P-3 land data bank and that the properties have been converted prior to 12.08.2008, they can certainly maintain applications as per Ext.P-4 before the 1[st] respondent-Revenue Divisional Officer, in the matter of exclusion of the subject properties from the land data bank which is to be considered on merits. However, the petitioner can maintain the request as per Ext.P-5 in these cases for fresh assessment of the subject properties under Section 6A of the Kerala Land Tax Act, 1961, only if it can be ascertained that the subject properties have already secured necessary statutory permission under Rule 6(2) of the KLU Order. Otherwise the parties should be able to establish that the requisite application under Rule 6(2) of the KLU Order has been filed before the cut off date of 30.12.2017 (date of coming into force of the amended provisions of the 2008 Act) which has introduced Section 27A thereof, etc. 6. This Court need not get into further details of all those aspects, as it is for the 1[st] respondent to factually ascertain as to whether statutory permission under Rule 6(2) of the KLU Order has already been granted to the subject properties 9 WP(C)Nos.15325/2020(M)& 15336/2020(N) ## concerned, as stated by the petitioner in both these cases. 7. Accordingly, the following directions and orders are passed:- (a) The 1[st] respondent-Revenue Divisional Officer will take up the matters in Ext.P-4 application in both these cases and should ensure that effective inspections of the subject properties covered in both these cases are duly conducted by the 3[rd] respondent-Village Officer to ascertain the ground realities in respect of the subject properties as on 12.08.2008 and as to whether the subject properties were cultivable and suitable for cultivation as on 12.08.2008 and whether the subject properties would fulfill the definition of paddy land as per the Act as on 12.08.2008 or whether the subject properties have been converted prior to 12.08.2008, etc., and such inspection should be conducted with due prior notice to the petitioner in these cases and copies of the inspection reports should also be given to the petitioner in these two cases in advance. Thereafter, the 1[st] respondentRevenue Divisional Officer will afford reasonable opportunity of being heard to the petitioner in these two cases through their authorised representative/counsel, if any, and should take a considered decision on the matters in Ext.P-4 application in these two cases, on their request for exclusion of the subject properties from the land data bank, without much delay, preferably within a period of three months from the date of production of a certified copy of this judgment. A copy of the proceedings so issued by the 1[st] 10 WP(C)Nos.15325/2020(M)& 15336/2020(N) respondent-Revenue Divisional Officer should be served to the petitioner in both these cases, without any further delay. (b) Further, the petitioner in both these cases shall file requisite representations before the 1[st] respondent-Revenue Divisional Officer to ascertain the details regarding the issuance of proceedings said to have been issued by the 1[st] respondent-Revenue Divisional Officer, for permission for exclusion of the subject properties from the land data bank, under Rule 6(2) of the KLU Order in respect of the subject properties and thereupon, the 1[st] respondent-Revenue Divisional Officer shall examine the records and ascertain as to whether the subject properties have secured permission under Rule 6(2) of the KLU Order, and if so, copies of the application so filed by the petitioner in both these cases as well as copies of the proceedings so issued under Rule 6(2) of the KLU Order, if any, should be given to the petitioner in both the cases. Otherwise, petitioner in both these cases shall be informed accordingly. Thereafter, petitioner in both these cases shall produce copies of such proceedings, said to have been filed under Rule 6(2) of the KLU Order, before the 2[nd] respondent-Tahsildar along with a copy of this judgment, thereupon the 2[nd] respondent-Tahsildar shall ascertain as to whether the subject properties covered by Ext.P-5 in these cases is the same as the one covered by the said proceedings said to have been issued under Rule 6(2) of the KLU Order. If the property is one and same, then the 2[nd] respondent-Tahsildar, after affording reasonable 11 WP(C)Nos.15325/2020(M)& 15336/2020(N) opportunity of being heard to the petitioner in both these cases, should pass orders of fresh assessment of the subject properties in accordance with Section 6A of the Kerala Land Tax Act, 1961, so as to secure additional entries in the BTR to show the changed nature of the land as 'garden land/purayidom' instead of the earlier BTR entries as 'nilam/paddy land', within one month from the date of production of copies of the proceedings so issued under Rule 6(2) of the KLU Order, in respect of the subject properties. (c) In that regard, it is to be borne in mind by the 2[nd] respondent that in a case where the party has already secured necessary permission under Rule 6(2) of the KLU Order, either before 12.08.2008 or whether the party has filed application under Rule 6(2) of the KLU Order before 30.12.2017, and has obtained said permission under Rule 6(2) either before or after the cut off date of 30.12.2017, then in such cases, the parties cannot be compelled to pay any amounts as conceived as per the amended provisions of the Kerala Conservation of Paddy Land and Wetland Act, 2008, which included Section 27A thereof and the amended Rules including Rule 12(17) thereof, in view of the settled positions in that regard in decisions as in _**Geo Peter v. Revenue Divisional Officer**_ [2019 (3) KLT 838], _**LLMC, Kizhakkambalam Grama Panchayath and others v. Mariumma and another**_ [2015 (2) KLT 516 (DB)], _**Fr.Jose Uppani v. District**_ 12 WP(C)Nos.15325/2020(M)& 15336/2020(N) _**Collector**_ [2020(3) KLT 492], and _**District Collector v. Fr. Jose Uppani**_ [2020 (4) KLT 612], etc. 8. The petitioner will produce certified copies of this judgment as well as copies of the memorandum of the writ petition (civil) along with all the exhibits before respondents 1 & 2 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** Skk//0409 13 WP(C)Nos.15325/2020(M)& 15336/2020(N) ## **APPENDIX OF WP(C) 15325/2020** ## **PETITIONER'S EXHIBITS:** |**EXHIBIT P1**|**TRUE COPY OF THE BASIC TAX RECEIPT**| |---|---| ||**OF THE SUBJECT PROPERTY**| |**EXHIBIT P2**|**TRUE COPY OF CERTIFICATE ISSUED BY**| ||**THE RDO**| |**EXHIBIT P3**|**TRUE COPY OF THE RELEVANT PAGE OF**| ||**THE DATA BANK**| |**EXHIBIT P4**|**THE TRUE COPY OF THE FORM 5**| ||**APPLICATION TO REMOVE THE LAND FROM**| ||**DATA BANK**| |**EXHIBIT P5**|**THE TRUE COPY OF THE APPLICATION**| ||**DATED 06.07.2020 FOR RE ASSESSMENT**| ||**OF LAND TAX ACT UNDER SECTION 6A OF**| ||**THE LAND TAX ACT 1961**| **RESPONDENTS' EXHIBITS: NIL** 14 WP(C)Nos.15325/2020(M)& 15336/2020(N) ## **APPENDIX OF WP(C) 15336/2020** ## **PETITIONER'S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF THE BASIC TAX RECEIPT OF THE SUBJECT PROPERTY. EXHIBIT P2 TRUE COPY OF CERTIFICATE ISSUED BY THE RDO. EXHIBIT P3 TRUE COPY OF THE RELEVANT PAGE OF THE DATA BANK.** **EXHIBIT P4 THE TRUE COPY OF THE FORM 5 APPLICATION TO REMOVE THE LAND FROM DATA BANK. EXHIBIT P5 THE TRUE COPY OF THE APPLICATION DATED 06.07.2020 FOR RE ASSESSMENT OF LAND TAX ACT UNDER SECTION 6A OF THE LAND TAX ACT 1961.** ## **RESPONDENTS' EXHIBITS: NIL**