Partly allowed

The Revenue Divisional Officer v. M/S. Poothotta Resorts Pvt. Ltd. Rep by Its Director Shaji K Mathew

Kerala HC20 Dec 2022WA/1670/2022

Case brief

AI extract

What is this about?

A writ appeal filed by revenue authorities challenging a single Judge's order directing land tax reassessment. The High Court allowed the appeal in part, modifying the order to first require the petitioner to apply for removal of the property from the paddy land data bank under the 2008 Act, and only then reconsider tax reassessment.

What did the court decide?

The writ appeal allowed in part. Petitioner directed to file an application in Form-5 for removal of the property from the data bank within one month. Reassessment of land tax to be considered only af

The Revenue Divisional Officer Vs M/S. Poothotta Resorts… — Landlord and Tenant | Kerala HC (2022)

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W.A. No. 1670/2022

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR

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THE HONOURABLE MR. JUSTICE SHAJI P.CHALY

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TUESDAY, THE 20^TH DAY OF DECEMBER 2022 / 29TH AGRAHAYANA, 1944

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WA NO. 1670 OF 2022

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JUDGMENT DATED 24.03.2021 IN WP(C) 7575/2021 OF HIGH COURT OF

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KERALA

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APPELLANTS/RESPONDENTS 1 TO 3 IN W.P.©:

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1 THE REVENUE DIVISIONAL OFFICER

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REVENUE DIVISIONAL OFFICE, FORT KOCHI, KOCHI – 682 001.

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2 THE TAHSILDAR KANAYANNUR TALUK, TALUK OFFICE, ERNAKULAM, PIN – 681 011.

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3 THE VILLAGE OFFICER MARADU, NETTOOR, MARADU, PIN – 682 040. BY ADV. SRI. S. RENJITH, SPL. GOVERNMENT PLEADER

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RESPONDENTS/PETITIONER:

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M/S. POOTHOTTA RESORTS PVT LTD., REP BY ITS DIRECTOR SHAJI K MATHEW,

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S/O K C MATHEW, 1ST FLOOR, ANJANA COMPLEX, KUNDANNUR, VYTTILA, PIN – 682 304. BY ADVS.

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R1 BY SRI. ARAVINDA KUMAR BABU T.K. ANU S NAIR(K/1645/1999)

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THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 20.12.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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W.A. No. 1670/2022

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S. MANIKUMAR, CJ & SHAJI P. CHALY, J.

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W.A. No. 1670 of 2022

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--------------------------------------------------------Dated this the 20^th day of December, 2022.

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JUDGMENT

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SHAJI P. CHALY, J.

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The above appeal is preferred by respondents 1 to 3 in W.P. (C) No. 7575 of 2021 challenging the judgment of a learned single Judge dated 24.03.2021, whereby the learned single Judge allowed the writ petition as follows:

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“Seeking re-assessment of tax and correction in the Basic Tax Register regarding the nature of property, the petitioner has filed Ext P3 application before the 2nd respondent. Permission to convert the user of land was granted to the petitioner under the Kerala Land Utilization Order, 1967 as is evidenced by Ext P2, the proceedings of the Land Revenue Commissioner.

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The petitioner is required to submit an application in Form A as required under the Kerala Land Tax Rules. On the petitioner filing such a petition, the 2nd respondent shall consider the same along with Ext P3, ascertain the property covered under Ext P2, and pass appropriate orders, expeditiously. Let orders be passed within a period of three months from the date of receipt of a copy of this judgment.”

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It is, thus, challenging the legality and correctness of the judgment

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of the learned single Judge, the appeal is filed.

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Brief material facts for the disposal of the appeal are as

W.A. No. 1670/2022

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follows:

According to the respondent/writ petitioner, the predecessor in interest of the property of the petitioner filed an application under Clause 6(2) of the Kerala Land Utilisation Order, 1967 even before the coming into force of the Kerala Conservation of Paddy Land and Wetland Act, 2008 (‘Act, 2008’ for short) and secured Exhibit P2 order. As per the proceedings of the Commissioner of Land Revenue, Thiruvananthapuram, an extent of 1.0027 hectares in R.S. No.795, 3.5578 hectares in R.S. No.797/1 and 1.1097 hectares in R.S. No. 797/1 of Manakunnam Village, Kanayannur Taluk was permitted to be converted. Thereafter, the petitioner has submitted Exhibit P3 application dated 27.01.2021 seeking re-assessment of the land tax of the property covered by Exhibit P2 order; but, no action has been taken on the said application by the Tahsildar, Kanayannur Taluk, the second appellant. It is, thus, seeking appropriate directions, the writ petition was filed.

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The learned single Judge, after considering the rival submissions, has allowed the writ petition and directed to re-assess the land tax in accordance with the provisions of the Kerala Land Tax Act, 1961 and the Kerala Land Tax Rules, 1972 within a period of one month from the date of receipt of a copy of the judgment.

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The paramount contention advanced by the appellants in

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W.A. No. 1670/2022

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the writ appeal is that the property in question is included in the data bank prepared as per the provisions of the Act, 2008. It is further pointed out that the learned single Judge has disposed of the writ petition before a counter affidavit could be filed by the appellants, and without taking note of the law that once a property is included in the data bank, as per the Act, 2008, then necessarily the land cannot be re-assessed, without removing the same from the data bank.

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It is further pointed out that the learned single Judge has not considered Section 14 of the Act, 2008, which prohibits any construction in the paddy land and wetland. Other contentions are also raised. Be that as it may, in the appeal, it is stated that since a contempt petition was filed for non-adherence to the directions issued a contempt petition, C.O.C 1816 of 2021 was filed, consequent to which Annexure 1 produced along with the appeal was passed, declining reassessment of land tax.

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We have heard the learned Special Government Pleader Sri. S. Renjith for the appellants, and Sri. Aravinda Kumar Babu T.K for respondent, and perused the pleadings and material on record.

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Apparently, on the basis of the directions issued by this Court in W.P.(C) No. 7575 of 2021 filed by the respondent, this Court has directed the Tahsildar to take a decision in the application

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W.A. No. 1670/2022 :5 :

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submitted by the writ petitioner under the Kerala Land Tax Act, 1961. The Tahsildar, after considering the application submitted by the petitioner, has passed Annexure I order dated 18.10.2021 holding that since the property is included in the data bank constituted as per the provisions of the Act, 2008 and since it has been recorded in the data bank published and notified by the Udayamperoor Grama Panchayat that the property situated in R.S. Nos. 797/1, 797/1-2 and 797/1 as paddy land; the land tax pertaining to a property included as a paddy land in the notified data bank can be determined only after removing the same from the data bank.

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From the order of the Tahsildar, Kanayannur Taluk— second appellant, it is clear that the Village Officer has submitted a report in the subject issue and according to the report, the property of the applicant having an extent of 3.84.91 hectares comprised in re-Survey Nos. 797/1, 797/1-2 and 795/1 of Manakunnam Village is recorded as nilam in the Basic Tax Register and included in the data bank as paddy land. It is further reported by the Village Officer that upon site inspection, the land was found remaining as bunds and canals, and some portions are filled up.

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It is an admitted fact that Exhibit P2 order was secured by the predecessor-in-title of the property as early as on 10.03.2006 i.e.,

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W.A. No. 1670/2022 :6 :

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much before the introduction of the Act, 2008. It is to be noted that, as per Section 2(xii) of the Act, 2008 "paddy land" is defined to mean all types of land situated in the State where paddy is cultivated at least once in a year or suitable for paddy cultivation but uncultivated and left fallow, and includes its allied constructions like bunds, drainage channels, ponds and canals. So also conversion is defined to mean a situation whereby land that has been under paddy farming and its allied constructions like drainage channels, ponds, canals, bunds, and ridges are put to use for any other purpose.

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This is a case where on the basis of the order, even according to the Village Officer, the property was filled up and there are water channels in some areas. The crucial question to be considered is whether the property is suitable for paddy cultivation and left uncultivated and left fallow. That apart it was on the basis of the report of the Village Officer that there are a number of coconut trees aged more than 20 years standing in the property in question the Land Revenue Commissioner has passed Exhibit P2 order under the provisions of the Kerala Land Utilization Order. The findings rendered by the Land Revenue Commissioner so in the order are not under challenge anywhere, or even assailed in the present appeal. But, fact remains, the property is included in the

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W.A. No. 1670/2022 :7 :

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data bank prepared as per the provisions of the Act, 2008. However, if a property is wrongly included in the data bank constituted as per the Act, 2008, then an aggrieved person is at liberty to file an application for removal of the same from the data bank on the ground of wrong inclusion.

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From Exhibit P2 order passed by the Land Revenue Commissioner and the order passed by the Tahsildar on the application submitted by the writ petitioner for the re-assessment of the land tax, it is clear that the property is included in the data bank without taking into account the nature of the land as it stands today, and as to whether it is a cultivable paddy land Therefore, it can only be said to be a wrong inclusion of the property in the data bank constituted as per the provisions of the Act, 2008.

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Anyhow, since the property is included in the data bank

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as per the provisions of the Act, 2008, then necessarily an application has to be submitted by the petitioner for removing the same from the data bank in terms of the provisions of Rule 4d of the Rules, 2008, which when translated from vernacular reads thus:

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“(4d) Any person aggrieved by the contents in the data bank so displayed may submit objections regarding that before the Revenue Divisional Officer in an application form contained in Form-5 and Revenue Divisional Officer shall give an Acknowledgment receipt for the applications thus received and the details regarding such application shall be maintained in a

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Accordingly, this appeal is allowed in part and the order

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of the learned single Judge is modified as follows:

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The respondent/writ petitioner shall file an application in Form-5 for the removal of the property from the data bank in terms of the provisions of Rule (4d) of the Rules, 2008 within a month from the date of receipt of a copy of this judgment.

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If the application is received as directed, the statutory authority under the Act, 2008 and the Rules thereto shall consider the same, taking into account that it is a wrong inclusion of the property in the data bank constituted as per the Act, 2008 and pass orders at the earliest and at any rate within two months thereafter.

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On production of an order as directed above, the authority under the Land Tax Act, 1961 shall reconsider the application submitted by the petitioner for re-assessment of the land tax in accordance with the provisions of the Act, 1961 and pass orders within one month thereafter.

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sd/-

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S. MANIKUMAR, CHIEF JUSTICE.

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sd/- SHAJI P. CHALY, JUDGE.

W.A. No. 1670/2022

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The words ‘Rule 4d of the Rules, 2008’, mentioned in paragraph Nos. 12 and 13 of the judgment in W.A. No. 1670 of 2022 dated 20.12.2022 is corrected as ‘Rule 4(4d) of the Kerala Conservation of Paddy Land and Wetland Rules, 2008 as per order dated 05.01.2023 in W.A. No. 1670/2022.

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sd/- Joint Registrrar

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W.A. No. 1670/2022

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APPENDIX OF WA 1670/2022

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APPELLANT’S ANNEXURES:

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Annexure I TRUE COPY OF THE ORDER DATED 18-10-2021 OF TAHSILDAR(LR), KANAYANNUR ALONG WITH THE TRANSLATION. Annexure II TRUE COPY OF THE RELEVANT PAGES OF THE DATA BANK OF UDAYAMPEROOR GRAMA PANCHAYATH. Annexure III TRUE COPY OF THE ORDER IN CONTEMPT OF APPEAL NO. 2 OF 2022.

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RESPONDENTS’ ANNEXURES: NIL

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True Copy

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PS To Judge.

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The Revenue Divisional Officer v. M/S. Poothotta Resorts Pvt. Ltd. Rep by Its Director Shaji K Mathew

Case brief

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The Revenue Divisional Officer v. M/S. Poothotta Resorts Pvt. Ltd. Rep by Its Director Shaji K Mathew

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