Kerala High Court
M/S. Sunshine Corporation vs The State Of Kerala on 13 March, 2023
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE VIJU ABRAHAM
MONDAY, THE 13TH DAY OF MARCH 2023 / 22ND PHALGUNA, 1944
WP(C) NO. 19545 OF 2017
PETITIONER:
M/S. SUNSHINE CORPORATION
REPRESENTED BY ITS MANAGING PARTNER,
SRI.ANTONY GEORGE, CHURCH ROAD
ALLEPPEY-688011
BY ADV SRI.K.P.SREEKUMAR
RESPONDENTS:
1 THE STATE OF KERALA
REPRESENTED BY ITS SECRETARY TO GOVERNMENT,
REVENUE DEPARTMENT, GOVT. SECRETARIAT,
THIRUVANANTHAPURAM-695 001
2 THE REVENUE DIVISIONAL OFFICER
ALLEPPEY-688561
3 THE TAHSILDAR
AMBALAPPUZHA TALUK, ALLEPPEY - 688 561
4 THE VILLAGE OFFICER
SOUTH ARYAD VILLAGE, ALLEPPEY 688538
ADD.R5 THE CONVENOR
LOCAL LEVEL MONITORING COMMITTEE, OFFICE OF THE
AGRICULTURAL OFFICER, ALLEPPEY-688538.
ADDL.R5 IMPLEADED AS PER ORDER DATED 19.6.2017 IN
IA NO.9221/2017
ADDL.R6 ALLEPPEY MUNICIPALITY
ALLEPPEY, PIN-688561, REPRESENTED BY ITS SECRETARY.
IS IMPLEADED AS PER ORDER DATED 19.02.2018 IN IA
NO.2920/2018
R6 BY ADV.SRI.AZAD BABU, SC, ALAPPUZHA MUNICIPALITY
OTHER PRESENT:
WP(C) No.19545 of 2017 2
GP-SRI.SYAMANTHAK B.S.
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR HEARING
ON 13.03.2023, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
WP(C) No.19545 of 2017 3
VIJU ABRAHAM, J.
.................................................................
W.P.(C) No.19545 of 2017
.................................................................
Dated this the 13th day of March, 2023
JUDGMENT
Petitioner has approached this Court aggrieved by the
issuance of Ext.P3 order. Petitioner has sought for a further direction
to the 3rd respondent to issue necessary order granting the request of
the petitioner in accordance with Ext.P1 judgment.
2. Petitioner is a partnership firm which purchased a total
extent of 105.65 Ares of land in Aryad South Village, Alappuzha
District. Out of the above 105.65 Ares of land the petitioner firm
surrendered a portion of the abovesaid property for the construction of
Municipal road and exchanged a portion of the property to the Church
and granted 8 cents of land by way of 'Kudikidappu' from the area held
by them. The remaining extent now in the ownership and possession
of the petitioner firm is 84.57 Ares of dry land. At the time of re-survey
the aforesaid 84.57 Ares of land was included in resurvey 11 in Block
No.177B of Aryad South Village and the property was lying as dry land
for the past more than 70 years and it was never cultivated with paddy
or any other cultivation during the past more than 70 years. The
Village Officer has certified in the possession certificate dated
27.05.2010 that the said property is a dry land. It is the submission of
the petitioner that the property is not included in the draft data bank
prepared as per the provisions of the Kerala Conservation of Paddy
Land and Wetland Act, 2008. It is also the contention of the petitioner
that the Agricultural Field Officer, Krishi Bhavan, Alappuzha has issued
a certificate stating that the petitioner's land is not put to any
agricultural use. In the basic tax register maintained in the village
office except an extent of 11 cents of land in old survey No.29/30A the
remaining property was shown as paddy land. After the resurvey the
respondents prepared a new basic tax register and thandapper
register and in those registers also the entire property of the petitioner
firm is shown as paddy land. Petitioner aggrieved by the same
submitted an application before the 2nd respondent to correct the
mistaken entry regarding the nature of property in the survey records.
The 2nd respondent in connection with an enquiry of the petitioner's
application seeking change of category of the land, called for a report
from the Village Officer and in the said report the property was shown
as dry land. Against the refusal of the petitioner's request to change
the category of land from nilam to dry land the petitioner filed W.P.(C)
No.11580 of 2015 and this Court as per Ext.P1 judgment dated
23.12.2015 was pleased to dispose of the writ petition holding that in
view of the fact that the petitioner's land is not included in the draft
data bank and that it is located in an industrial zone the petitioner is
free to utilize the land in accordance with law and it would not come
into the ambit of either the Land Utilisation Order or the Kerala
Conservation of Paddy Land and Wetland Act. It was further observed
that if the petitioner wants to assess the land tax, they are free to
approach the Tahsildar for re-assessment of land tax in terms of
Section 6A of the Land Tax Act based on the declaration contained in
the said judgment. In Ext.P1 this Court was pleased to observe that no
restriction under the Kerala Conservation of Paddy Land and Wetland
Act and the Kerala Land Utilisation Order would apply to the
petitioner's land and the petitioner to free to use it as a dry land.
Thereafter the petitioner filed Ext.P2 application on 22.01.2016 before
the Tahsildar, Ambalappuzha who is the 3rd respondent herein
requesting to assess that the land tax in respect of the abovesaid
property by treating it as dry land and to permit the petitioner to remit
the land tax accordingly. By application dated 01.02.2017 the
petitioner requested to the 3rd respondent to make necessary changes
in the revenue records by correcting the mistake and describing the
land as dry land instead of nilam. But by Ext.P3 order the request of
the petitioner for changing the category of land in the revenue records
from nilam to dry land has been rejected. It is aggrieved by the same
the present writ petition has been filed.
3. The specific case of the petitioner is that in Ext.P4 report
submitted by the Village Officer before the Sub Collector, Alappuzha it
is specifically reported that the property has been converted long
years back and that in the property there are coconut trees having
more than 40 years age and further that the property is totally non-
suitable for paddy cultivation. It is also reported that by the side of the
said property there is a municipal road in existence. The said report of
the village officer was submitted as early as on 28.09.2013. The
petitioner would submit that in Ext.P3 there is no specific finding that
the property was lying as a paddy land at the time of coming into force
of the Kerala Conservation of Paddy Land and Wetland Act, 2008 and
the reason for rejecting the application is that in the document
produced by the petitioner as document Nos.2728/76 and 2820/76 the
property is referred to as waterlogged and marshy and that is the
reason why the application was rejected. It is settled position of law
that only for the reason that there is waterlogging in the land the
property cannot be treated as paddy land. (See the judgment in Jessy
Abraham v. Land Revenue Commissioner, 2022 (1) KLT 461). It is
also to be taken into consideration that in Ext.P4 report submitted by
the Village Officer there is a categoric finding that this property has
been converted long back and there are coconut trees standing in the
property having more than 40 years age. Even in the KSRSEC report
submitted by the Government Pleader along with a memo dated
14.12.2017 in the 1967 data itself the plot was observed under mixed
plantation and settlement. It is also observed that the property is
observed under wetland condition. But fact remains that in 1967 data
the plot was observed under mixed vegetation and settlement. This
finding of the KSRSEC cannot be brushed aside. It has not come on
record even till date that the property has been included in the draft
data bank or the final data bank.
4. Another important aspect to be considered in this case is
the declaration given by this Court in Ext.P1 judgment. In Ext.P1
judgment there is a specific finding by this Court that the petitioner is
free to utilise the land in accordance with law as it would not come
within the ambit of either the Land Utilisation Order or Conservation of
Paddy Land and Wetland Act and that if the petitioner wants to assess
the land tax, the petitioner is free to approach the Tahsildar for
reassessment of the land tax in terms of Section 61 of the Land Tax
Act which has now been done by the petitioner, based on the
declaration by this Court. It is also declared in Ext.P1 judgment that no
restriction under the Land Utilisation Order or Conservation of Paddy
Land and Wetland Act would apply to the petitioner's land and the
petitioner is free to use it as a dry land for all practical purposes. It is
also ordered that if any application is filed by the petitioner, the
Tahsildar will consider the application within one month from the date
of receipt of a copy of the application. It could be seen that the
declaration given in Ext.P1 judgment has become final. What has
been now done in Ext.P3 is that the application has been rejected
quite contrary to the declaration given in Ext.P1 judgment and only
based on the description of the property in the title deeds produced
along with the application. In the KSRSEC report also it is specifically
reported that as on 1967 the property was lying as mixed plantation
and settlement.
5. All the above aspects were not taken into consideration
by the 3rd respondent while rejecting the application as per Ext.P3
order. Hence I am of the view that the respondents cannot now go
beyond Ext.P1 judgment wherein a specific declaration has been
given by this Court that the provisions of the Kerala Land Utilisation
Order or the Kerala Conservation of Paddy Land and Wetland Act are
not applicable to the petitioner's land and the petitioner is free to use
the property as dry land for all practical purposes. It is not even stated
as on date that the petitioner's property has been included in the data
bank as paddy land. In view of the above I am of the opinion that the
rejection of the petitioner's application as is evident from Ext.P3 is
unsustainable and is only liable to be set aside. Therefore, there will
be a direction to the 3rd respondent to re-consider Ext.P2 application
taking into consideration the declaration given in Ext.P1 judgment and
also the report of the KSRSEC that even as on 1967 the property was
lying as mixed plantation and settlement. A fresh decision in the matter
shall be taken by the 3rd respondent within a period of two months
from the date of receipt of a copy of this judgment after affording an
opportunity of being heard to the petitioner.
With the abovesaid direction the writ petition is disposed
of .
Sd/-
VIJU ABRAHAM
JUDGE
cks
APPENDIX OF WP(C) 19545/2017
PETITIONER EXHIBITS
EXHIBIT P1 TRUE COPY OF THE JUDGMENT OF THE
HON'BLE COURT DATED 23/12/2015 IN WOC
11580/2015-
EXHIBIT P2 TRUE COPY OF THE APPLICATION DATEED
22/1/2016 FILED BY THE PETITINER
BEFORE THE 3RD RESPONDENT.
EXHIBIT P3 TRUE COPY OF THE ORDER DATE 16/3/2017
ISSUED BY THE 3RD RESPPONDENT.
