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Kurian V.V. v. the State of Kerala

Kerala HC26 Aug 2022WP(C)/18829/2022

Case brief

AI extract

What is this about?

The High Court directed the Tahsildar to consider the petitioner's Form-A application for tax reassessment and the Panchayat to process the Building Permit application, disregarding subsequent orders, based on a prior clearance under the Kerala Land Utilisation Order.

What did the court decide?

Directed the 4th respondent to consider Form-A application for tax reassessment and the 7th respondent to process the Building Permit application, disregarding orders passed during pendency.

Kurian V.V. Vs the State of Kerala — Specific Performance | Kerala HC (2022)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE MR.JUSTICE N.NAGARESH

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FRIDAY, THE 26TH DAY OF AUGUST 2022 / 4TH BHADRA, 1944
WP(C) NO. 18829 OF 2022

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PETITIONER:

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KURIAN V.V.

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AGED 76 YEARS
S/O. VARKEY, VALLAMATTATHIL HOUSE, PANDIPPILLY P.O.,
MUVATTUPUZHA, ERNAKULAM DISTRICT-686673

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BY ADVS.
GEORGE MATHEW
PRAVEEN S.
ELSA DENNY PINDIS
M.D.SASIKUMARAN
SUNIL KUMAR A.G
DIPU JAMES
MATHEW K.T.
GEORGE K.V.
STEPHY K REGI

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RESPONDENTS:

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1 THE STATE OF KERALA REP. BY ITS SECRETARY, LOCAL SELF GOVERNMENT INSTITUTIONS, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM - 695 001.

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2 THE DISTRICT COLLECTOR,

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CIVIL STATION, KAKKANAD, ERNAKULAM DISTRICT - 682 030.

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3 THE REVENUE DIVISIONAL OFFICER, MINI CIVIL STATION, PATTIMATTOM - MUVATTUPUZHA ROAD, MUVATTUPUZHA, ERNAKULAM DISTRICT - 686 673.

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4 THE TAHSILDHAR, MUVATTUPUZHA TALUK, TALUK OFFICE, MINI CIVIL STATION, PATTIMATTOM - MUVATTUPUZHA ROAD, ERNAKULAM - 686 673.

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5 VILLAGE OFFICER, VILLAGE OFFICE, ARAKUZHA POST, MUVATTUPUZHA, ERNAKULAM - 686 672.

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6 ARAKUZHA GRAMA PANCHAYATH, GRAMA PANCHAYATH OFFICE, ARAKUZHA P.O., MUVATTUPUZHA TALUK, ERNAKULAM DISTRICT - 686 672

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REP. BY ITS SECRETARY.

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WP(C) NO.18829 OF 2022

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7 THE SECRETARY, ARAKUZHA GRAMA PANCHAYATH, GRAMA PANCHAYATH OFFICE, ARAKUZHA P.O., MUVATTUPUZHA TALUK, ERNAKULAM - 686 672.

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BY ADV SHRI.GOKUL DAS V.V.H., SC, ARAKUZHA GRAMA
PANCHAYAT

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SMT.SURYA BINOY- SR.GP

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THIS WRIT PETITION (CIVIL) HAVING COME UP FOR
ADMISSION ON 26.08.2022, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:

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WP(C) NO.18829 OF 2022

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JUDGMENT

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Dated this the 26^th day of August, 2022

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The petitioner, who is owner in possession of a property comprised in Survey Nos.766/4, 766/5B and 766/5A in Arakuzha Village of Muvattupuzha Taluk, seeks to quash Ext.P4 and to declare that the petitioner’s application is to be considered under Section 6A of the Kerala Land Tax Act, 1961 and not under the provisions of the Kerala Conservation of Paddy Land and Wetland (Amendment) Act, 2018. The petitioner further seeks to command respondents 6 and 7 to reconsider the application for Building Permit submitted by the petitioner dehors the entries in the Basic Tax Register, within a time frame.

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The petitioner states that the predecessor-ininterest of the property obtained orders under the Kerala Land Utilisation Order, 1967 as per Ext.P3, for using the land in question for non-agricultural purposes. Thereafter, the

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WP(C) NO.18829 OF 2022

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petitioner submitted an application for Building Permit before the Panchayat authorities. The Panchayat authorities took a stand that since the land is described as ‘Nilam’ in the Revenue records, necessary changes will have to be made by the petitioner in Revenue records, so as to get a Building Permit. Thereafter, the petitioner submitted Form 5 and Form 6 applications invoking the provisions of the Kerala Conservation of Paddy Land and Wetland Rules, 2008. The petitioner’s Form 5 application was allowed by Ext.R3(c) and the land was removed from Data Bank of Paddy Land and Wetland.

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The petitioner, subsequently, filed application for effecting necessary entries in the Revenue records and for reassessment of tax, invoking the provisions of the Kerala Land Tax Act, 1961.

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The petitioner states that the petitioner need not have filed Form 5 and Form 6 applications for effecting necessary entries in the Revenue records as the petitioner has

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WP(C) NO.18829 OF 2022

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already obtained permission under the Kerala Land Utilisation Order, 1967. As the petitioner has orders under the Kerala Land Utilisation Order in his favour which permitted the owner of the land to use the land for non-agricultural purposes, the Revenue Divisional Officer or Tahsildar cannot insist that the petitioner shall pay the fees as prescribed under the Kerala Conservation of Paddy Land and Wetland Act, 2008 for changing the nature of the land in Revenue records.

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The petitioner therefore urged that the Tahsildar is bound to consider Form A application submitted by the petitioner for re-assessment of tax inserting necessary entries in the Revenue records. The 6^th respondent is bound to consider the application for Building Permit submitted by the petitioner, since the land is covered by orders under the Kerala Land Utilisation Order.

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Senior Government Pleader entered appearance and resisted the writ petition. The Senior Government Pleader submitted that the petitioner, after obtaining permission under

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WP(C) NO.18829 OF 2022

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6

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the Kerala Land Utilisation Order, invoked Rule 4(d) of the Kerala Conservation of Paddy Land and Wetland Rules, 2008, and filed application for removal of land from the Data Bank. The petitioner also invoked Rule 12 of the Kerala Conservation of Paddy Land and Wetland Rules, 2008 and made application for effecting changes in the Revenue records. It is thereafter that the petitioner has moved the Tahsildar filing Form A application.

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As per the direction of the Commissioner of Land Revenue in letter No.LRC A4-4038/21 dated 21.03.2022, the land with any remarks in Data Bank has to be excluded on filing of Form 5. A direction was accordingly given to the petitioner to submit Form-5 application on 03.06.2022. He submitted Form-5 application. It was forwarded to the Agricultural Officer for enquiry and report. After obtaining report from the Agricultural Officer, the petitioner's property in Re-Survey Nos.766/5 and 766/4 was removed from the Data Bank.

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WP(C) NO.18829 OF 2022

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Pursuant to Ext.P9 report of the Village Officer in respect of 22.26 Ares in Survey No.766/4, the petitioner was

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directed to submit a project report and plan showing the water conservancy measures proposed in the property duly certified by the Village Officer. The petitioner was also directed to remit the fees with respect to the property in Re-Survey No.766/5. The petitioner submitted an objection to the manner in which the Fair Value was calculated.

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The petitioner's applications have thus already been acted upon. The petitioner must establish that his properties are covered by Ext.P3 Kerala Land Utilisation Order and that Ext.P3 order has been complied with. The permission in Ext.P3 was to utilise the land for agriculture and other purpose.

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Standing Counsel for the Panchayat authorities submitted that as long as the land remains described as paddy land/wetland in the Revenue records, the application for Building Permit cannot be considered without effecting

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WP(C) NO.18829 OF 2022

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necessary changes.

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I have heard the learned counsel for the petitioner, the learned Senior Government Pleader for respondents 1 to 5 and the learned counsel appearing for respondents 6 and 7.

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The petitioner’s land has been subjected to a proceeding under the Kerala Land Utilisation Order by the predecessor-in-interest of the land and the authorities have granted permission to utilise the land for non-agricultural purposes also as per Ext.P3. The proceedings as per Ext.P3 have been taken under the Kerala Land Utilisation Order, 1967. In Ext.P3, there is a specific finding of the District Collector that

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the land would not fall under the ambit of the Kerala Conservation of Paddy Land and Wetland Act, 2008.

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In the circumstances, there was no necessity for the petitioner to file Form-5 and Form-6 applications under the Kerala Conservation of Paddy Land and Wetland Rules, 2008. However, the petitioner’s Form-5 application to remove the land from Data Bank was allowed and it was decided to remove the

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WP(C) NO.18829 OF 2022

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land from Data Bank. For changing the nature of the land in Revenue records, the petitioner was required to pay fees payable under the Act, 2008.

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Respondents 6 and 7 have returned the application for Building Permit submitted by the petitioner on the ground that the land is described as ‘paddy land’ in Revenue records. The return of the application for Building Permit is based on the provisions of the Kerala Conservation of Paddy Land and Wetland Act, 2008, presumably in view of Section 14 thereof.

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When the 2^nd respondent–District Collector has categorically held in Ext.P3 order that the land in question does not fall under the ambit of the Kerala Conservation of Paddy Land and Wetland Act, 2008, respondents 6 and 7 are not justified in driving the petitioner to resort to the provisions of the Act, 2008. The application for Building Permit submitted by the petitioner is liable to be considered dehors the provisions of the Act, 2008 in view of Ext.P3.

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WP(C) NO.18829 OF 2022

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As far as the prayers of the petitioner for re-assessment of land tax, this Court is of the view that since Ext.P3 proceedings are issued and there are already constructed buildings in the land, the Tahsildar has to consider the issue of re-assessment of land tax if the petitioner makes an application under the provisions of the Kerala Land Tax Act, 1961. The fact that the petitioner has submitted a Form-6 application under the provisions of the Rules, 2008 cannot be a reason not to consider an application under the Kerala Land Tax Act, 1961.

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In the circumstances, the writ petition is disposed of directing the 4^th respondent-Tahsildar to consider Ext.P7 Form-A application submitted by the petitioner and re-assess the tax and make additional entries in the Revenue records, in accordance with law. The 7^th respondent shall process the Building Permit application submitted by the petitioner and issue Building Permit, if the petitioner is otherwise eligible, subject to the petitioner getting additional entries made in the

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WP(C) NO.18829 OF 2022

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Revenue records. It is made clear that since Exts.R3(d) to R3(f) are passed during the pendency of the writ petition, this Court makes it clear that the Tahsildar shall consider the Form-A application without regard to those orders and the Panchayat also shall process the application for Building Permit without regard to Exts.R3 (d) to R3(f).

sd/-

N.NAGARESH

JUDGE

hmh

WP(C) NO.18829 OF 2022

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APPENDIX OF WP(C) 18829/2022

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PETITIONER EXHIBITS

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Exhibit P1TRUE COPY OF BASIC TAX RECEIPT
NO.KL07071003174/2021 DTD. 12.07.2021
ISSUED BY 5TH RESPONDENT.
Exhibit P2TRUE COPY OF RELEVANT PAGES OF
NOTIFICATION NO.70452/RD3/ 2012 DTD.
23.02.2012.
Exhibit P3TRUE COPY OF ORDER NO.L5-42943/13 DTD.
NIL ISSUED BY 2ND RESPONDENT.
Exhibit P4TRUE COPY OF LETTER NO.A2-386/22 DTD.
26.03. 2022 ISSUED BY 7TH RESPONDENT TO
PETITIONER.
Exhibit P5TRUE COPY OF REPORT NO. 40/21 DTD.
30.04.2022 FROM 5TH RESPONDENT TO 3RD
RESPONDENT.
Exhibit P6TRUE COPY OF CERTIFICATE NO. A2-479/22
DTD. 02.06.2022 ISSUED BY 7TH
RESPONDENT.
Exhibit P7TRUE COPY OF APPLICATION FORM A ALONG
WITH COVERING LETTER DATED 12.8.2022
SUBMITTED WITH 4TH RESPONDENT.
RESPONDENT’S
EXHIBITS
EXHIBIT R3(A)TRUE COPY OF THE DIRECTION ISSUED TO
THE VILLAGE OFFICER PURSUANT TO THE
REPORT OF THE VILLAGE OFFICER BEARING
NO.40/21 DATED 30.04.2022 IN RESPECT OF
LAND IN SY.NO.766/4
EXHIBIT R3(B)TRUE COPY OF THE DIRECTION ISSUED TO
THE VILLAGE OFFICER PURSUANT TO THE
REPORT OF THE VILLAGE OFFICER BEARING
NO.41/21 DATED 30.04.2022 IN RESPECT OF
LAND IN SY.NO.766/5
EXHIBIT R3©TRUE COP OF THE PROCEEDIN BEARING
NO.A17-5815/22/KDIS DATED 01.07.20222
EXHIBIT R3(D)TRUE COPY OF THE LETTER BEARING
NO.A17.5816/22 DATED 01.07.2022 ISSUED
BY THE 3RD RESPONDENT TO THE PETITIONER

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WP(C) NO.18829 OF 2022

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EXHIBIT R3(E)TRUE COPY OF THE LETTER BEARING
NO.A17.5815/22 DATED 01.07.2022 ISSUED
BY THE RDO WITH RESPECT TO THE PROPERTY
COVERED BY R3©
EXHIBIT R3(F)TRUE COPY OF THE LETTER ISSUED BY THE
PETITIONER DATED 06.07.2022

Kurian V.V. v. the State of Kerala

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Kurian V.V. v. the State of Kerala

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