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2024 DIGILAW 1211 (KER)

Josphina Antony v. District Collector Thrissur

2024-09-24

MOHAMMED NIAS C.P.

body2024
JUDGMENT : The petitioner challenges Ext.P8 order passed by the Tahsildar(LR) dismissing the application preferred by the petitioner under Form A filed under Section 6 of the Kerala Land Tax Act, 1961. 2. The petitioner approached this Court earlier by filing W.P.(C.) No. 28273/2023 seeking a direction to consider the Form A application under Section 6(3) of the Kerala Land Tax Act, 1961 and to re-assess the land tax and to make additional entries in the Basic Tax Register in respect of the land stated to be in possession of the petitioner, comprising of 0.4280 Hectors of land in Survey No. 444/PT1 of Block No. 48 of Velukkara Village, Mukundapuram Taluk, Thrissur District, which she held along with her husband late Antony vide Sale Deed No. 499/1964. This Court directed the Tahsildar (LR) to consider the application submitted by the petitioner and to pass orders within six weeks from the date of receipt of the copy of the judgment. 3. The order so passed is Ext.P8 wherein the Tahsildar found that the description of land in Ext.P1 sale deed itself is that of ‘Nilam’, the Village records and the Revenue Records also show the same and the petitioner had not obtained orders under the Kerala Land Utilisation Order, 1967 or any order for changing the user of the land under the the provisions of the Kerala Conservation of Paddy Land and Wetland Act and Rules, 2008 (for short, the 'Paddy Act and Rules'). Accordingly, finding that the Tahsildar (LR) does not have the authority to change the classification of the land in the Village Records, in the absence of any orders in that regard passed either under the Kerala Land Utilisation Order, 1967 or under the provision of the Paddy Act and Rules, the application was rejected. 4. Challenging Ext.P8 order, the learned counsel for the petitioner relies on the judgment of this Court in Shameem P.K. And Others v. Revenue Divisional Officer, Idukki and Others [2021(2) KHC 373] to contend that even if the land is described as 'nilam' in Basic Tax Register, through process of law, is reclaimed and converted prior to 30.12.2017 as a dry land, such land need not have to undergo the process of Section 27A of the Kerala Conservation of Paddy Land and Wetland Act, 2008. At once, it has to be noticed that the same was a case where the demand was for a reassessment of land tax on the basis of the order obtained under the Kerala Land Utilisation Order, 1976. This Court found that whether the land is reclaimed and converted prior to 30.12.2017 as dry land, such land need not go under the process of Section 27A of Act 28 of 2008. There is no principle of law laid down in the said judgment which enables the petitioner to file an application under Form A contending that they have filled up the land prior to July 4, 1967. The same has to be considered on a case to case basis, on the basis of documents required to be produced under Sub-rule (13) of Rule 12 of the Kerala Conservation of Paddy Land and Wetland Rules. There is no warrant for presuming or assuming that the land was converted or filled up prior to July 4, 1967 merely going by the entries in any document and at any rate, the same has to be adjudicated on a proper application under Form 9 for the said purpose. The Revenue Divisional Officer is given the power to decide the entitlement of the petitioner under Form 9 of the Kerala Conservation of Paddy Land and Wetland Act and Rules, 2008. Absent such an adjudication, the application under the provisions of the Kerala Land Tax Act, 1961 before the Tahsildar (LR), who is not the authority under the Paddy Act to decide or to re-classify the land or to make changes with regard to the assessment on the assumption that the land was filled up before July 4, 1967, (the date of coming into force of the KLU Order,1967) is not called for. 5. The learned counsel for the petitioner also relies on the judgments of this Court in Raju Sebastian @ Adv. Raju Vadakkekara v. State of Kerala [2023 KHC Online 10390], Global Education Trust v. State of Kerala and Others [ 2020 (6) KHC 538 ], Aishabeevi and Another v. Superintendent of Police, Ernakulam and Others [ 2014 (3) KHC 678 ] and Mather Nagar Residents Association and Another v. District Collector, Ekm and Others [ 2020 (2) KHC 94 ] to substantiate his contentions. Nothing in the above judgments comes to the rescue of the petitioner for the reason that the factual adjudication contemplated to accept the contention of the petitioner that the land was filled up prior to July 4, 1967 which the Act entrusts on the Revenue Divisional Officer concerned has been done in the instant case. As stated earlier, the Revenue Records clearly show that the property comes within the Act as unnotified lands for which no orders for change of user were obtained either under the Kerala Land Utilisation Order or the Paddy Act. The age certificate produced, dated 18.09.2023 from the Panchayat also shows that the building is only 30 years old. In fact, there is no proof at all of any construction of the house prior to July 4, 1967. That apart, the document that the petitioner relies on also shows that the property is described as ‘nilam’. 6. Under such circumstances, the stand of the Tahsildar (LR) rejecting the application under Form A preferred by the petitioner cannot be said to be wrong or illegal in any manner. The challenge to Ext.P8 fails. The dismissal of this writ petition will not prevent the petitioner from making an appropriate application under Form 9 of the Paddy Act, if so advised. If filed, the same shall be considered on its merits subject to the provisions of the Act and Rules and independent of the rejection made under Ext.P8 in this case. Reserving such liberty, the writ petition is dismissed.