Full Judgment
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN WEDNESDAY, THE 10TH DAY OF NOVEMBER 2021 / 19TH KARTHIKA, 1943 PETITIONER: ROSS DELIGHTS, EDAYAR INDUSTRIAL DEVELOPMENT AREA, MUPPATHADAM POST, ALWAYE, PIN-683 110 REPRESENTED BY ITS MANAGING PARTNER MRS. GRACE GEORGE, W/O. GEORGE KUNJAPRAMBIL, AGED 23 YEARS, CC 49/841 F, ELAMAKKARA P.O., EDAPPALLY SOUTH VILLAGE, ERNAKULAM. BY ADV P.SAREENA GEORGE RESPONDENTS: 1 THE TAHSILDAR, PARAVUR TALUK, TALUK OFFICE, PIN-683 513. 2 THE VILLAGE OFFICER, KOTTUVALLY VILLAGE, ERNAKULAM DISTRICT-683 519. 3 LOCAL LEVEL MONITORING COMMITTEE REPRESENTED BY AGRICULTURAL OFFICER, KRISHI BHAVAN, KOTTUVALLY, PIN-683 519. 4 THE REVENUE DIVISIONAL OFFICER, FORT KOCHI, KOCHI-682001. SRI.RIYAL DEVASSY, GOVERNMENT PLEADER THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 10.11.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: -2-
JUDGMENT
This writ petition is filed seeking the following reliefs:- “i. Issue a writ of Certiorari or any other appropriate writ,
order to quash Exhibit P19 issued by the 1 st respondent
Tahsildar. ii. Declare that 3.10 Ares of land comprised in Sy.No.341/1/7/15, 16.86 Ares of land comprised in Sy.No.341/1/4/9 and 14.15 Ares (35 cents) of property of which 10.92 Ares of land comprised in Sy.No.382/82/18, 2.83 Ares of land is comprised in Sy.No.382/5B/2/22 covered by Thandaper No.31632 of Kottuvally Village, Paravur Taluk is purayidam/dry land. iii. Issue a Writ of Mandamus or any other writ or direction directing the 1st respondent to take up and process Exhibit P16 to P18 series applications on the strength of Exhibit P12 and Exhibit P14 and to reassess the tax and make necessary additions and corrections in the BTR and revenue records with respect to 3.10 Ares of land comprised in Sy.No.341/1/7/15, 16.86 Ares of land comprised in Sy.No.341/1/4/9 and 14.15 Ares (35 cents) of property of which 10.92 Ares of land is comprised in Sy.No.382/82/18, 2.83 Ares of land is comprised in Sy.No.382/5B/2/22 covered by Thandaper No.31632 of Kottuvally Village, Paravur Taluk as purayidam/dry land.”
2. Heard the learned counsel for the petitioner and the learned Government Pleader appearing for the respondents. -3-
3. It is submitted that the petitioner is a partnership firm
in ownership in possession of 14.15 Ares (35 cents) of property of which 10.92 Ares of land is situated in Sy.No.382/82/18, 2.83 Ares of land is comprised in Sy.No.382/5B/2/22 and 0.40 Ares of land is comprised in Sy.No.382/5A/1/21 of Kottuvally Village by virtue of Sale Deed No.2861/2006 of Paravoor S.R.O. (Ext.P1). The petitioner is also in ownership and possession of 16.86 Ares of land comprised in Sy.No.341/1/4/9 of Kottuvally Village by virtue of Sale Deed bearing No.5261/2006 of Paravoor S.R.O (Ext.P2) and 3.10 Ares of land comprised in Sy.No.341/1/7/15 of Kottuvally Village by virtue of Sale Deed No.5263/2006 of Parvoor S.R.O. (Ext.P3). The details of the properties are specifically mentioned in Exts.P1 to P3. It is submitted that certain extent of the property had been classified as Nilam in the Basic Tax Register.
4. The petitioner had made an application under Clause 6(2) of the Kerala Land Utilisation Order seeking permission for using the property for other purposes. However, by Ext.P12 order,
the request made by the petitioner was considered and an order
was passed under Section 27A of the Kerala Conservation of -4-
Paddy Land and Wetland Act, 2008, permitting the petitioner to use the property for other purposes, however, requiring the petitioner to remit the fees in terms of the Schedule of Fees provided in the 2008 Act. The petitioner had preferred W.P.(C) No.34778 of 2019 challenging Ext.P12 order. The contention was that the application was one submitted by the petitioner on 04.07.2017 and therefore the said application could have been considered only under Clause 6(2) of the Kerala Land Utilisation Order, since Section 27A of the Kerala Conservation of Paddy
Land and Wetland Act, 2008 had been incorporated by amendment only with effect from 30.12.2017.
5. The said contention raised by the petitioner was accepted in Ext.P14 judgment. The operative portion of the said
judgment reads thus:
“In such circumstances, I am of the view that the direction in the impugned order of the Revenue Divisional Officer directing the petitioner to remit necessary fees under Section 27A of Act 28 of 2008 is legally unsustainable. The petitioner's application has to be treated as one squarely coming under the provisions of Clause 6 of the KLU order. Therefore, the direction in the impugned order directing the petitioner to effect payment -5- under Section 27A is set aside. The local authority is free to act on the order passed by the Revenue Divisional Officer for giving permission under the Building Rules without insisting payment under Section 27A of Act 28 of 2008. The writ petition is disposed of as above.”
6. The learned counsel for the petitioner submits that
thereafter, Exts.P16 to P18 applications were submitted for effecting corrections/alterations in the Basic Tax Register in Form A under the provisions of Section 6A of the Kerala Land Tax Act. The applications, accompanied by Ext.P14 judgment were produced before the Tahsildar(LR). However, by Ext.P19 order, the Tahsildar(LR) informed the petitioner that Ext.P12 proceedings had not attained finality and that it was only after the final orders are passed by the RDO permitting the conversion that the Tahsildar(LR) would take action under Section 6A of the Kerala Land Tax Act.
7. The learned counsel for the petitioner submits that in the light of Ext.P14 judgment, the contention taken in Ext.P19 is completely untenable and amounts to contempt of the orders of this Court.
8. The learned Government Pleader submits, on -6-
instructions, that it was only due to that technical reason that Clause 6(2) order has not been passed by the RDO that the stand in Ext.P18 was taken by the Tahsildar (LR).
9. I have considered the contentions advanced on either
side. Ext.P12 order considered the relevant aspects of the matter and permitted the conversion of the property for non-agricultural use. However, the application was considered as one filed under Section 27A of the 2008 Act and the petitioner was directed to remit the fees for the issuance of the final order in terms of the said provisions.
10. This Court, in Ext.P14 judgment, accepted the specific
contention of the petitioner that there is no requirement for payment of fees, since, as on the date of the application submitted by the petitioner, the provisions of Section 27A was not even available in the statute and that therefore, the application ought to have been considered under Clause 6(2) of the Kerala Land Utilisation Order. The petitioner was granted a declaration that the application was one squarely coming under the provisions of Clause 6(2) of the Kerala Land Utilisation Order.
11. In the above factual situation, I am of the opinion that -7- the further contention taken in Ext.P19 that further orders have to be passed by the RDO under Clause 6(2) of the Kerala Land
Utilisaton Order before the applications submitted by the petitioner in Form A under Section 6A of the Kerala Land Tax Act can be considered by the Tahsildar(LR) is absolutely fallacious and unsustainable. Ext.P19 is, therefore, set aside.
12. There will be a direction to the 1 st respondent to take
up, consider and pass orders on Exts.P16 to P18 applications submitted by the petitioner within two months from the date of receipt of a copy of this judgment. In case the 1 st respondent finds that the property in respect of which Exts.P16 to P18 applications are submitted in the property covered by Ext.P12 order, appropriate steps for correction of the BTR shall be taken and the category of land shall be duly corrected as dry land/purayidam and reassessment of tax shall be carried out accordingly.
The writ petition is ordered accordingly. Sd/- ANU SIVARAMAN JUDGE bpr -8- APPENDIX PETITIONER'S EXHIBITS EXHIBIT P1 TRUE COPY OF SALE DEED NO. 2861/2006 DATED EXHIBIT P2 TRUE COPY OF SALE DEED BEARING NO. 5261/2006 OF PARAVUR SRO. EXHIBIT P3 TRUE COPY OF SALE DEED NO. 5263/2006 OF PARAVOOR SRO. EXHIBIT P4 TRUE COPY OF THANDAPER ACCOUNT STATEMENT REGARDING PROPERTIES COVERED BY EXHIBIT P1-P3. EXHIBIT P5 TRUE COPY OF APPLICATION DATED 04/07/2017 SUBMITTED BY THE PETITIONER BEFORE THE 4TH RESPONDENT. EXHIBIT P5(A) TRUE COPY OF ENDORSEMENT RECEIVING OF EXHIBIT P5 LETTER SUBMITTED BY THE PETITIONER BEFORE THE 4TH RESPONDENT. EXHIBIT P6 TRUE COPY OF MAHAZAR AND REPORT DATED 9-8-2017 OF VILLAGE OFFICER, KODUVALLY. EXHIBIT P7 TRUE COPY OF ENQUIRY REPORT OF 3RD RESPONDENT AGRICULTURAL OFFICER WITH REGARD TO 10.92 ARES OF LAND COMPRISED IN SURVEY NO. 382/8-2-18. EXHIBIT P8 TRUE COPY OF ENQUIRY REPORT OF AGRICULTURAL OFFICER WITH REGARD TO 2.83 ARES OF LAND COMPRISED IN SURVEY NO. 382/5B-2-22. EXHIBIT P9 TRUE COPY OF ENQUIRY REPORT OF AGRICULTURAL OFFICER WITH REGARD TO 3.10 ARES OF LAND COMPRISED IN SURVEY NO. 341/1-7-15. EXHIBIT P10 A TRUE COPY OF ENQUIRY REPORT OF AGRICULTURAL OFFICER WITH REGARD TO 16.86 ARES OF LAND COMPRISED IN SURVEY NO. 341/1-4-9. -9- EXHIBIT P11 TRUE COPY OF APPLICATION DATED 28-5-2018 SUBMITTED TO 4TH RESPONDENT. EXHIBIT P12 TRUE COPY OF ORDER DATED 10-4-2019 ISSUED BY THE 4TH RESPONDENT RDO. EXHIBIT P13 TRUE COPY OF THE NOTICE DATED 28-11-2019 BEARING NO. 2227/18. EXHIBIT P14 TRUE COPY OF JUDGEMENT DATED 15-12-2020, IN W.P.(C) NO.34778/2019 ISSUED BY THIS HON'BLE COURT. EXHIBIT P15 TRUE COPY OF THE LETTER DATED 09.02.2021 SUBMITTED BY THE PETITIONER BEFORE THE TAHSILDAR EXHIBIT P16 TRUE COPY OF FORM A APPLICATION WITH REGARD
TO 10.92 ARES COMPRISED IN SURVEY 382/ 8- 2- 18, AND 2.83 ARES OF LAND COMPRISED IN SY. NO. 382/5B/2/22 COVERED BY EXHIBIT P1 SALE DEED.
EXHIBIT P17 TRUE COPY OF FORM A APPLICATION WITH REGARD TO 16.86 ARES COMPRISED IN SURVEY 341/1-4-9 COVERED BY EXHIBIT P2 SALE DEED. EXHIBIT P18 A TRUE COPY OF FORM A APPLICATION WITH REGARD TO 3.10 ARES COMPRISED IN SURVEY 341/1-7-15 COVERED BY EXHIBIT P3 SALE DEED. EXHIBIT P19 TRUE COPY OF NOTICE DATED 10-3-2021 ISSUED BY THE 1ST RESPONDENT. EXHIBIT P20 TRUE COPY OF LETTER DATED 16-8-2021 SUBMITTED BEFORE THE 1ST RESPONDENT. EXHIBIT P21 TRUE COPY OF ACKNOWLEDGMENT RECEIPT DATED 25-8-2021 ISSUED FROM THE TALUK OFFICE PARAVUR.