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2024 DIGILAW 315 (KER)

JAMNA NIZAMUDHEEN, W/O. NIZAMUDHEEN v. REVENUE DIVISIONAL OFFICER, REVENUE DIVISIONAL OFFICE

2024-03-06

MURALI PURUSHOTHAMAN

body2024
JUDGMENT : MURALI PURUSHOTHAMAN, J. Since common issues arise for consideration in these writ petitions, they are heard together and disposed of by this common judgment. The status of the parties referred to hereinafter will be as appears in W.P.(C) No.41944 of 2023. 2. The petitioners in these writ petitions are husband and wife. They have obtained orders under Clause 6(2) of the Kerala Land Utilisation Order, 1967 (hereinafter referred to as 'the KLU Order' for short) for utilising the properties other than for agricultural purposes (house construction). Pursuant thereto, the petitioners filed application under clause 6A of the Kerala Land Tax Act, 1961 (hereinafter referred to as 'the Act' for short) read with Rule 5(ii) of the Kerala Land Tax Rules, for fixing the land tax and for making necessary entries in the Basic Tax Register. The Thahsildar rejected the said application by Ext.P3. Ext.P3 in both writ petitions is similarly worded. 3. The petitioners have made available a copy of the English translation of Ext.P3 proceedings of the 2nd respondent Tahsildar, which is extracted hereunder: “PROCEEDINGS OF THAHASILDAR (LR), KANAYANNUR As per the directions from the Hon'ble High Court referred as item no.1 the RDO has granted permission under cl. 6(2) of KLU Order referred as item No.2 for using the property for any other purposes in Re. survey no.154/14 having an extent of 07.22 ares. The applicant has filed an application to refix the land tax as per reference no.3 and filed writ petition before the Hon'ble High court as per reference No.4. The Hon'ble High court has directed to consider the application within one month. A Notice refered as item No. 6 has been issued to the petitioner to appear for a personnel hearing scheduled on 10.10.2022 but there was no appearance for the petitioner As per ref.No.8 the Village officer has reported that the subject property is in the name of the petitioner and it is lying at Manakkapadu Junction, Sea-Port Air port road near to CISF quarters without proper boundaries and lying as water logged. As per ref.No.7 the Agricultural officer has reported that he had conducted a joint inspection with the village officer and it was found that the property and adjacent properties are lying as fallow land with full of grass and water logged. As per ref.No.7 the Agricultural officer has reported that he had conducted a joint inspection with the village officer and it was found that the property and adjacent properties are lying as fallow land with full of grass and water logged. It was also observed that the boundaries of the property were not fixed and there is no road to enter into the property. The property is included in the databank and it can be made suitable for paddy cultivation after making some changes. Therefore if permission is granted to use the property for any other purposes, it will lead to ecological problems and obstruct the free flow of water, therefore the LLMC has decided not to give permission to use the property for non-agricultural purposes. FINDINGS 1. As per the BTR the total extent of property comprised in Block No.10 in Re survey no.154/4 in Thiruvankulam village in Kanayannur taluk is 72.30 ares the said property is included as nilam in BTR. 2. It is reported by the village officer that as per the Thandaper register of Thiruvankulam village, the petitioner Jamna is having properties in Thandaper account 12280, comprised in survey no 154/4-1-3 having an extent of 06.71 Ares. 3. The property of the Petitioner is situated at Thripunithura municipality. The petitioner is paying the property tax as per the rate fixed in the municipality. The government has collected the property tax not on the basis of description of the property as 'nilam' or purayidam but on the basis of the property, whether it is situated in panchayath, municipality or corporation and the land owners are paying the tax as per the rate fixed by the government. Therefore there is no benefit to the government if the tax is re-fixed. 4. In the KLU order the RDO has incorporated a condition that this order is not for changing the nature of the land in the BTR. 5. The property of the petitioner and adjacent properties are lying as fallow land with full of grass and are water logged. It was also observed that the boundaries of the property were not fixed and there is no road to enter in to the property. The property is included in the databank. 6. The property is included in the databank and it can be made suitable for paddy cultivation after making some changes. It was also observed that the boundaries of the property were not fixed and there is no road to enter in to the property. The property is included in the databank. 6. The property is included in the databank and it can be made suitable for paddy cultivation after making some changes. Therefore if permission is granted to use the property for any other purposes, it will lead to ecological problems and obstruct the free flow of water, therefore the LLMC has decided not to give permission to use the property for non-agricultural purposes. 7. When the KLU permission was granted there is only a draft data bank dated 05.08.2019. 8. After 05.08.2019, after getting the KLU permission the property was not seen converted. 9. Ext.P2 application submitted by the petitioner for re-fixation of property tax is not in proper form. 10. As per the village records the extent of the property is 6.71 Ares but in the application the extent is shown as 7.22 Ares. 11. Even though notice has been issued to the petitioner for hearing there is no appearance for the petitioner. 12. The petitioner has not produced the sale deeds, non-liability certificate and the tax receipt along with the application. In the above said circumstances it is ordered as follows. ORDER The property in Re. Sy. No. 154/4-1-3 having an extent of 6.71 ares in Thiruvankulam village, Kanayannur Taluk is in the ownership of the petitioner as per village records and the property is described as nilam in the BTR. The Agricultural officer has reported that the property and adjacent properties are lying as fallow land with full of grass and are water logged and the property is included in the databank and if permission is granted to use the property for non-agricultural purposes, it will lead to ecological problems and obstruct the free flow of water, therefore the LLMC has decided not to give permission to use the property for non-agricultural purposes and the report of the village officer as per ref. No. 8 has reported that the properties and adjacent properties are seen as water logged. No. 8 has reported that the properties and adjacent properties are seen as water logged. The lack of proper application in Form A, the difference in the extent in the application and the village records, the condition in the KLU order that “the order is not issued for change of nature of land” it is informed that it is not possible to reflix the property tax and record it in the basic tax register and therefore the application filed under section 6A of the Land Tax Act was rejected.” 4. It is contended by the petitioners that the Tahsildar while passing Ext.P3 orders has exercised jurisdiction not vested in him under the provisions of the Land Tax Act and the Rules. It is submitted that the jurisdiction that has to be exercised by the Thahsildar under Section 6(2) of the Act is for fixation of land tax and making additional entries in the Basic Tax Register. Once the RDO has passed an order under clause 6(2) of the KLU Order, the revenue authorities are obliged to make necessary entries in the Basic Tax Register. It is further contended that in identical situation, the 2nd respondent has passed Ext.P6 order by correcting the entries in BTR in the very same survey number. 5. This Court has considered the issue of reassessment of land tax on the basis of the orders obtained under the KLU Order in the judgment in Mary Abraham v. State of Kerala and others [ 2020 (4) KLT 448 ]. This Court held that once enabling order is passed under Clause 6(2) of the Kerala Land Utilisation Order, 1967 permitting conversion of the land, the earlier entries in the BTR showing the land as Nilam, Paddy Land, etc. will become superfluous and redundant and the competent Revenue officials like the Tahsildar are obliged under law to make a fresh assessment of the property under Section 6A of the Kerala Land Tax Act, 1961. 6. will become superfluous and redundant and the competent Revenue officials like the Tahsildar are obliged under law to make a fresh assessment of the property under Section 6A of the Kerala Land Tax Act, 1961. 6. A Division Bench of this Court also considered the said issue in District Collector, Ernakulam and others v. Fr.Jose Uppani and others [ 2020 (4) KLT 612 ] and held that when an applicant has secured orders under the KLU Order prior to the cut-off date on which Section 27A was introduced to the Kerala Conservation of Paddy Land and Wetland Act, 2008, the competent Revenue officials are bound to consider the subsequent application submitted under the provisions of the Kerala Land Tax Act, 1961. 7. The petitioners have been issued with Ext.P1 order by the RDO according permission to utilise the land other than for agricultural purposes. Since the properties are still categorised as 'Nilam' in the BTR, they submitted applications under Section 6A of the Kerala Land Tax Act for re-assessment of land tax. The same has been rejected by the 2nd respondent by Ext.P3 orders. The applications of the petitioners under Clause 6(2) of the KLU Order were submitted on 01.12.2016, before the amendment to Section 27A(13) of the Kerala Conservation of Paddy Land and Wetland Act, 2008 with effect from 31.12.2007 and orders were issued after the introduction of the said provision in line with the decision in Line Properties Private Limited v. State of Kerala and Others [ 2019 (3) KLT 420 : 2019 (3) KHC 999 ]. Ext.P1 orders were passed on obtaining report from KSRSEC and the LLMC after site inspection. While exercising powers under the Land Tax Act, the Tahsildar cannot review or sit in appeal over the order passed by the RDO under Clause 6(2) of the KLU Order. Accordingly, I am of the view that Ext.P3 order requires a revisit by the 2nd respondent in the light of the observations herein above and in the light of the decisions cited above. The 2nd respondent shall also advert to Ext.P6 order stated to have been passed under similar circumstances. For the said purpose, Ext.P3 orders are set aside. Fresh orders shall be passed after hearing t he petitioners within a period of six weeks from the date of receipt of a copy of this judgment. The writ petitions are disposed of accordingly.