Abraham Sebastian & Sandhya G. Varma v State of Kerala and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** ## **WEDNESDAY, THE 04TH DAY OF MARCH 2020 / 14TH PHALGUNA, 1941** ## **WP(C).No.6575 OF 2020(V)** ## **PETITIONERS:** - **1 ABRAHAM SEBASTIAN,AGED 61 YEARS 23/631, SANKOORIKKAL, HOC GREAT WATERS, ELANJIKAYIL ROAD, ALUVA, ERNAKULAM.** - **2 SANDHYA G.VARMA,KATTIL KOVILAKATH, THANNIPARAMBU MADATHIL, AMARAVATHI EAST, CHERTHALA, ALAPPUZHA -688524.** - **BY ADVS. SMT.K.P.SANTHI SMT.TARA PREM** ## **RESPONDENTS:** - **1 STATE OF KERALA,REPRESENTED BY THE SECRETARY TO GOVERNMENT, REVENUE DEPARTMENT, SECRETARIAT, G.P.O., THIRUVANANTHAPURAM, PIN-695001.** - **2 THE DISTRICT COLLECTOR,CIVIL STATION, AYYANTHOLE P.O., THRISSUR-680004.** - **3 THE REVENUE DIVISIONAL OFFICER,CIVIL STATION, AYYANTHOLE P.O., THRISSUR-680004.** - **4 THE SECRETARY,SREENARAYANAPURAM GRAMA PANCHAYAT, P.O.SHANTIPURAM, THRISSUR-680668.** - **5 THE LOCAL LEVEL MONITORING COMMITTEE, KRISHI BHAVAN, S.N.PURAM P.O., THRISSUR-680665, REPRESENTED BY ITS CONVENER.** - **6 THE TAHSILDAR,KONDUNGALLUR TALUK OFFICE, FIRST FLOOR, MINI CIVIL STATION, VADAKKENADA, KODUNGALLUR P.O., THRISSUR-680664.** ## **OTHER PRESENT:** **SRI.K.J.MANU RAJ, GOVT.PLEADER** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 04.03.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** W.P.(C)No.6575/2020 2 ## **ALEXANDER THOMAS, J.** ------------------------------------------- W.P.(C)No.6575 of 2020 ---------------------------------------------Dated this the 4[th] day of March, 2020 ## **JUDGMENT** The main prayer in the above Writ Petition (Civil) is as follows: _“(i) issue a writ of mandamus or such other wirt, direction or order compelling the 4[th] respondent to reconsider Exhibits P7 application in the light of Exhibits P3 tp P5, affording opportunity of hearing to the petitioners within a time frame to be fixed by this Honourable Court granting permission to develop the land.”_ 3. Heard Sri. K.P.Santi, learned counsel appearing for the petitioner and Sri. K.J. Manuraj learned Government Pleader appearing for R1 to R3, R 5 and R6. In the nature of the orders proposed to be passed in this Writ Petition, notice to R4 will stand dispensed with. 4. According to the petitioners, the subject property was converted as purayidom or garden land much prior to 12.8.2008, which is the date of coming into force of the Kerala Conservation of Paddy Land and Wet Land Act, 2008. That the petitioners have thereupon filed Ext.P1 application dated 23.2.2017 under Rule 6 (2) of the Kerala Land Utilisation Order, 1967 (KLU Order, 1967) before the 2[nd] respondent District Collector seeking for orders for permission for conversion of the subject property as purayidom/garden land and for its use for any non-agricultural purpose. W.P.(C)No.6575/2020 3 Since the said application was not considered, the petitioners had filed W.P.(C)No.10108/2017 before this Court, which was finally disposed of by this Court as per Ext.P2 judgment dated 23.11.2017 whereby the respondent authority was directed to consider and pass orders on Ext.P1 application dated 23.2.2017, in accordance with the provisions contained in Rule 6 (2) of the KLU Order, 1967 on the plea of the petitioner for conversion of the said property as aforestated. The fact that the petitioner has filed Ext.P1 application under Rule 6 (2) of the KLU order, 1967 on 23.2.2017 is also evident and manifest from the appendix of Ext.P2 judgment in W.P.(C)No.10108/2017, wherein it has been clearly stated that the document marked as ExhibitP1 therein is the said application dated 23.2.20217 submitted by the petitioners to the 2[nd] respondent therein (2[nd] respondent herein). It appears that, since the property was wrongly included in the Land Data Bank prepared as per the provisions of the 2008 Act, though it was converted prior to 2008 Act, the petitioner has filed yet another formal application before the 5[th] respondent Local Level Monitoring Committee seeking for deletion of the subject property from the Land Data Bank. Further it appears that the Agricultural Officer concerned, who is the Convenor of the 5[th] respondent Local Level Monitoring Committee had called for the satellite pictures for the subject property from the expert agency concerned, viz., The Kerala State Remote Sensing and Environment Centre (KSREC), Thiruvananthapuram and the W.P.(C)No.6575/2020 4 said expert agency as per Ext.P3 dated 1.6.2017 has forwarded the satellite pictures of the petitioner’s subject property to the Agricultural Officer concerned, who is the ex officio convenor of the 5[th] respondent Local Level Monitoring Committee. A copy of Ext.P3 was also filed through the learned Government Pleader before this Court in Ext.P2 W.P.(C)No.10108/2017 as can be seen from a reading of Ext.P4 memo dated 10.8.2017 submitted by the learned Government Pleader. Thereafter, it appears that the Agricultural Officer concerned, who is the Convenor of the 5[th] respondent Local Level Monitoring Committee has issued Ext.P5 proceedings dated 30.1.2018 stating that after due enquiry it has been found that the subject property of the petitioner is to be deleted from the Land Data Bank prepared as per the provisions of the 2008 Act and the subject property was converted as garden land or purayidom about 30 years ago. However, it is seen that formal steps have not been taken by the 5[th] respondent or the competent official concerned to actually delete the subject property of the petitioners covered by Ext.P5 from the Land Data Bank. The petitioners have thereafter submitted Ext.P7 application dated 6.2.2020 before the 4[th] respondent Sree Narayanapuram Grama Panchayath seeking for grant of building permit to construct their residential building in the subject property covered by Exts.P1 and P5. The 4[th] respondent Secretary of the said Grama Panchayath has issued Ext.P8 communication dated 12.2.2020 informing the petitioners that W.P.(C)No.6575/2020 5 necessary permission should be obtained from the 2[nd] respondent RDO for use of the said property for construction of residential building etc. 5. One of the main complaints of the petitioners is that even though this Court had rendered Ext.P2 judgment as early as on 23.11.2017, directing the 2[nd] respondent to consider and pass orders on Ext.P1 application dated 23.2.2017 under Rule 6(2) of the KLU Order, 1967, no decision in that regard has been taken. It is by now well settled by a series of rulings of this Court that where the subject property has been converted as garden land or purayidam, prior to the coming into force of 2008 Act, even though it is continued to be shown as “nilam” or “paddy” land in the revenue records like BTR and where the formal application under Rule 6(2) of the Kerala Land Utilization Order, 1967, (KLU Order) has been filed by the property holder before 30.12.2017, (which is the date of coming into force of the amended provisions of the 2008 Act), which has introduced Sec. 27A thereof, then such a property holder is entitled to have his request for conversion considered in terms of Rule 6(2) of the KLU Order, 1967 and in such case, the property holder cannot be made to suffer the adverse and rigorous conditions prescribed as per the amended provisions of 2008 Act, including Sec. 27A thereof, which came into force on 30.12.2017 and the rules framed thereunder. In other words, such a property holder is entitled to seek for such formal conversion under Rule 6(2) of the KLU Order, 1967 and so long as he has filed the said application W.P.(C)No.6575/2020 6 before 31.12.2017 and in such a case, he cannot be mulcted and compelled to pay the amounts conceived as per the amended provisions of the 2008 Act including Sec.27A thereof and the amended rules framed thereunder. It has also been held by the Division Bench of this Court in the decisions as in _**LLMC, Kizhakkambalam Grama Panchayath and others v. Mariumma and another**_ [2015(2) KLT 516 (DB)], _**Tahsildar, Thodupuzha Taluk & Anr. v. Renjith George**_ [2020 (1) KHC 865(DB)], etc. that after such a property holder gets orders under Rule 6(2) of the KLU Order from the statutory officer like the RDO, then thereafter the property holder is also legally entitled to maintain an application under Sec. 6A of the Kerala Land Tax Act, 1961, for securing additional entries in respect of the subject property to show that the property is garden land or purayidam, instead of the earlier BTR entries as “nilam” or “paddy land” (see _**Renji K. Paul and another**_ v. _**Revenue Divisional Officer**_ [2019 (2) KLT 262], _**Geo Peter**_ v. _**Revenue Divisional Officer**_ [2019 (3) KLT 262], _**Salim**_ v. _**State of Kerala**_ [2019 (3) Klt 604 (DB)], _**Tahsildar, Thodupuzha Taluk and another**_ v. _**Renjith George**_ [2020 (1) KHC 865]etc). In the instant case, it is beyond any dispute that the subject property has been converted as garden land or purayidom much long prior to coming into force of the 2008 Act as can be seen from the expert findings of the 5[th] respondent Local Level Monitoring Committee in Ext.P5 proceedings. It is also beyond any dispute that the petitioners have indeed filed Ext.P1 application as early as on W.P.(C)No.6575/2020 7 23.2.2017 before the 2[nd] respondent District Collector seeking for necessary orders under Rule 6(2) of the KLU Order, 1967. The fact that the petitioners have filed Ext.P1 application as early as 23.2.2017 is also clear from Ext.P2 judgment as stated above and inspite the directions in Ext.P2 judgment, no decision has been so far taken in that regard, it is pointed out. Ordinarily the order under Rule 6(2) of the KLU Order 1967 is to be rendered by the 3[rd] respondent Revenue Divisional Officer concerned, who is also notified to exercise all the powers of the Collector for the purpose of the Kerala Land Utilisation Order, 1967. Since Ext.P1 application under Rule 6(2) of the KLU Order has been filed before 30.12.2017 (which is coming into force of the amended provisions of the 2008 Act introducing Section 27A thereof, there is no necessity to subject the petitioners to a rigorous procedure prescribed as per Section 27A of the ameded Act, which also entails payment of huge amounts etc. 6. Accordingly, it is ordered that Ext.P1 application dated 23.2.2017 will stand remitted to the 3[rd] respondent Revenue Divisional Officer, Thrissur, for consideration and decision afresh. Since Ext.P1 application was earlier filed before the 2[nd] respondent and there has been unnecessary delay in the matter, it is ordered that a copy of Ext.P1 application as produced in this W.P.(C) shall be treated as the said application dated 23.2.2017 for the consideration of the 3[rd] respondent RDO. The learned counsel for the petitioners will ensure that a self W.P.(C)No.6575/2020 8 attested copy of Ext.P1 application as produced in this writ petition is forwarded to 3[rd] respondent Revenue Divisional Officer along with the certified copy of this judgment and upon which the 3[rd] respondent will treat the said application as one filed in 23.2.2017 under Rule 6(2). This Court is issuing such direction only to ensure that unnecessary further delay is avoided and more so as the fact that Ext.P1 application under Rule 6(2) of the KLU order under KLU Order, 1967 has been field on 23.2.2017 is also manifestly clear from Ext.P2 judgment, more particularly, its appendix as aforestated. On receipt of the papers in that regard, the 3[rd] respondent will take up the matter for consideration raised in Ext.P1 application and after following the requisite procedure and after affording reasonable opportunity of being heard to the petitioners, will pass orders on Ext.P1 application on the plea of the petitioners for conversion of the subject property as garden land or purayidom to enable its use by the petitioners for any non-agricultural purposes, without any further delay, at any rate, within a period of six weeks from the date of production of a certified copy of this judgment and in the light of proceedings already issued by the Convenor of the 5[th] respondent Local Level Monitoring Committee and without making the petitioners to pay the amounts as per the amended provisions of the Act and the amended Rules, including Rule 12(17). In that regard, it is also ordered that 5[th] respondent Local Level Monitoring Committee and the other competent officials concerned will ensure that W.P.(C)No.6575/2020 9 steps are taken to delete the subject property covered by Ext.P5 from the Land Data Bank, within one month from the date of production of a certified copy of this judgment, taking note of the considered decision already rendered as per Ext.P5 proceedings. After orders are passed by the 3[rd] respondent RDO on Ext.P6 application under Rules 6(2) of the KLU Order, the petitioners will be entitled to maintain an application under Rule 6A of the Kerala Land Tax Act, 1961 before the competent revenue officials concerned, viz., 6[th] respondent Tahsidlar, seeking for fresh assessment of the subject property so as to make additional entries in the BTR to show the property as garden land or purayidom instead of earlier BTR entries as nilam or paddy land etc., and upon receipt of such application, the 6[th] respondent will pass necessary orders thereon in the light of the dictum laid down by the decisions as in _**Mariyumma's case** supra_ [2015(2) KLT 516 (DB) and in _**Tahsildar, Thodupuzha Taluk and another**_ v. _**Renjith George**_ [2020 (1) KHC 865 (DB)]etc., and without making the petitioners to pay the amounts as per the amended provisions of the 2008 Act and the amended Rules, including Rule 12(17) thereof. With these observations and directions, the above Writ Petition (Civil) will stand disposed of. Sd/- ## **ALEXANDER THOMAS, JUDGE.** acd W.P.(C)No.6575/2020 10 ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF THE APPLICATION DATED 23.2.2017 SUBMITTED TO 2ND RESPONDENT.** **EXHIBIT P2 TRUE COPY OF THE JUDGMENT DATED 23.11.2017 IN W.P.(C) NO.10108 OF 2017 OF THIS HONOURABLE COURT.** - **EXHIBIT P3 TRUE COPY OF THE REPORT DATED 1.6.2017 OF THE KERALA STATE REMOTE SENSING AND ENVIRONMENT CENTRE (KSREC).** - **EXHIBIT P4 TRUE COPY OF THE REPORT DATED 27.07.2017 OF THE AGRICULTURAL OFFICER, SREENARAYANAPURAM GRAMA PANCHAYAT.** - **EXHIBIT P5 TRUE COPY OF THE REPORT DATED 30.1.2018 OF THE AGRICULTURAL OFFICER, SREENARAYANAPURAM.** **EXHIBIT P6 THE RELEVANT PAGES OF THE BASIC TAX REGISTER SHOWING THE STATUS OF THE LAND.** **EXHIBIT P7 TRUE COPY OF THE APPLICATION DATED 6.2.2020 SUBMITTED TO THE 4TH RESPONDENT. EXHIBIT P8 TRUE COPY OF THE ORDER DATED 12.02.2020 BY THE 4TH RESPONDENT.**