BENNY JOSEPH v STATE OF KERALA & OTHERS

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **FRIDAY, THE 22ND DAY OF MAY 2020 / 1ST JYAISHTA, 1942** ## **WP(C).No.10130 OF 2020** ## **PETITIONER/S:** **BENNY JOSEPH, AGED 49 YEARS S/O. JOSEPH, CHOONDAKATTIL HOUSE, NAGAPPUZHA P O, MUVATTUPUZHA, ERNAKULAM DISTRICT-686668.** **BY ADV. SRI.GEORGE MATHEW** ## **RESPONDENT/S:** - **1 STATE OF KERALA REPRESENTED BY ITS SECRETARY, LOCAL SELF GOVERNMENT DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695001.** - **2 THE REVENUE DEPARTMENT, REPRESENTED BY ITS SECRETARY, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM - 695001.** - **3 THE DISTRICT COLLECTOR, CIVIL STATION, KAKKANADU-682030.** - **4 THE REVENUE DIVISIONAL OFFICER, MINI CIVIL STATION, VAZHAPPILLY, MUVATTUPUZHA, ERNAKULAM-686669.** - **5 THE TAHSILDAR, TALUK OFFICE MINI CIVIL STATION, VAZHAPPILLY, MUVATTUPUZHA, ERNAKULAM-686669.** - **6 THE LOCAL LEVEL MONITORING COMMITTEE KALLOORKAD GRAMA PANCHAYATH, KALLOORKAD - 686668, REPRESENTED BY CONVENOR, AGRICULTURE OFFICER, AGRICULTURE OFFICE, KALLOORKAD-686668.** - **7 THE VILLAGE OFFICER, VILLAGE OFFICE, KALLOORKAD, MUVATTUPUZHA, ERNAKULAM DISTRICT, 686668.** - **8 KALLOORKAD GRAMA PANCHAYATH REPRESENTED BY ITS SECRETARY, GRAMA PANCHAYATH** **WP(C).No.10130 OF 2020** **2** ## **OFFICE, KALLOORKAD-686668.** **9 THE SECRETARY KALLOORKAD GRAMA PANCHAYATH, GRAMA PANCHAYATH OFFICE, KALLOORKAD-686668.** ## **OTHER PRESENT:** **SRI.SAIGI JACAOB PALATTY, SR.GOVT.PLEADER** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 22.05.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C).No.10130 OF 2020** **3** ## **ALEXANDER THOMAS, J. ----------------------------------------W.P.(C.) No. 10130 of 2020 ----------------------------------------Dated this the 22[nd] day of May, 2020** ## **JUDGMENT** The case set up in the W.P.(C.) is as follows : That the petitioner is the owner in possession and enjoyment of properties comprised in Sy.Nos. 448/1-6, 448/1-8, 448/1-9, 448/1-10, 448/1-11 and 448/1-13 of Kalloorkad Village in Moovattupuzha Taluk of Ernakulam District as seen from Ext.P1 which is lying in the midst of fastly growing Kalloorkad town and is a reclaimed land. There are different types of trees standing in the subject property of more than 30 years of age. The neighbouring lands are also constructed with multistoried building and other cultivation. Thus the subject property and the adjoining lands has been converted much before 2008 and cultivation in the property has become impossible as seen from Ext.P2. The petitioner for making a livelihood applied with respondents 8 and 9 for issuance of a building permit and was rejected as per Ext.P4 without considering any of the aspects involved in the case. The law laid down by this Court makes it clear that the subject properties cannot be treated as paddy land for the purpose of the Kerala Conservation of Paddy and Wetland Act 2008. Challenging Ext.P4 and other reliefs the petitioner approached this **WP(C).No.10130 OF 2020** **4** Court through W.P.(c) No. 30160 of 2016 and after hearing all concerned the case was allowed as per Ext.P5 judgment, wherein specific directions have been issued after declaring that the subject land is not paddy land or wetland for the purpose of inclusion in the Land Data Bank prepared in accordance with Kerala Conservation of Paddy and Wet Land Act 2008. Thereafter 3rd respondent considered the issue and ignoring the direction in Ext.P5 and also the law laid down by this Court imposed conditions which were arbitrary, illegal and unjust, which was interfered with by this Court through Ext.P8. Based on directions in Ext. P8 petitioner submitted an application before 5th respondent and the same was disposed off as seen from Ext.P9 imposing conditions which are illegal. The order has been passed ignoring the nature of property and reports submitted in this regard. The nature of property is revealed for Exts.P6 and the discussion in Exts.P7 and P8 were also ignored. Roads have also come up in the area in between lands. Thus the reasons and conditions imposed by 5[th] respondent in Ext.P9 are arbitrary, illegal and unjust. 2. It is in the light of these averments and contentions that the petitioner has filed the instant W.P.(C.) with the following prayers : > _i) “to call for the records which lead to the issuance of Ext.P9 and issue a writ in the nature of certiorari or any other appropriate writ order or direction quashing the conditions imposed in Ext. P9 as the same is illegal; (ii) to declare that the conditions imposed in Ext.P9 as per Rule 12 (17) of Kerala Conservation of Paddy and Wetland Rules are opposed to law and illegal;_ > _(iii) to declare that Rule 12 (17) of Kerala Conservation of Paddy and Wetland Rules as ultra virus and unconstitutional._ > _(iv) to issue a writ in the nature of mandamus or any other appropriate writ, order or direction, directing the respondents to grant building permit_ **WP(C).No.10130 OF 2020** **5** _to the petitioner without imposing any condition; v) to issue such other order or direction, as this Hon’ble Court deems fit and proper to grant, in the nature and course of the proceedings.”_ 3. Heard Sri.George Mathew, learned counsel appearing for the petitioner and Sri.Saigi Jacob Palatty, learned senior Government Pleader appearing for respondents 1 to 7. In the nature of the orders proposed to be passed in this petition, notices to respondents 8 and 9 (Kalloorkad Grama Panchayath) will stand dispensed with. 4. There is no serious dispute in this case that the subject property has been converted as garden land or purayidom much prior to 12.8.2008 (which is the date of coming into force of the Kerala Conservation of Paddy Land and Wetland Act, 2008). Further, the petitioner has also submitted the requisite application under Rule 6(2) of the Kerala Land Utilization Order, 1967 prior to 30.12.2017 (date of coming into force of the amended provisions of the 2008 Act, which has introduced Sec.27A thereof). Further, pursuant to directions in Ext.P5 judgment, the 2[nd] respondent RDO had passed Ext.P7 order dated 12.11.2019, allowing the request for change of user of the land. While allowing the main request under Rule 6(2), 2[nd] respondent has proceeded to hold in Ext.P7 that the petitioner will also have to take recourse to the proceedings under Sec.27A(1) of the amended provisions of the 2008 Act, by which the petitioner would have been forced to pay the higher amounts conceived as per those amended provisions. The said restriction in Ext.P7 was challenged by the petitioner, in which this Court has rendered Ext.P8 judgment, whereby this Court held **WP(C).No.10130 OF 2020** **6** on the basis of a series of the reported judgments of this Court that the said condition compelling the petitioner to undergo through the rigorous process of Sec.27A (1) was struck down and quashed by this Court. This is because the petitioner has submitted the requisite Rule 6(2) KLU application before the cut-off date of 30.12.2017. 5. Thereafter, the petitioner had made the requisite application under Sec.6A of the Kerala Land Tax Act seeking for fresh assessment of the subject property to secure additional entries in the BTR to show the changes of land as garden land/purayidom instead of the earlier BTR entries as paddy land or nilam. The said application has now been disposed of by the 5[th] respondent Tahsildar as per the impugned Ext.P9 order dated 20.1.2020 with the condition that the petitioner will have to pay the higher amounts as per the provisions contained in Rule 12(17) which is part of the amended Rules framed under the provisions of the amended 2008 Act, which has introduced Sec.27A thereof. It is this condition in Ext.P9 that is under challenge. 6. It is also indisputable that this Court has held in a series of judgments as in _**Geo Peter** v._ _**Revenue Divisional Officer**_ [2019 (3) KLT 838] _,_ _**Renji K.Paul** v._ _**Revenue Divisional Officer**_ [2019 (2) KLT 262] _**, Salim** v._ _**State of Kerala**_ [2019 (3) KLT 604 (DB)], that where the subject property has been converted as garden land/purayidom prior to coming into force of the 2008 Act, where the property holder has **WP(C).No.10130 OF 2020** **7** submitted an application under Rule 6(2) of the Kerala Utilization Order, 1967, seeking for permission for conversion of the subject property as garden land/purayidom and for its use for any non agricultural purposes before 30.12.2017 (date of coming into force of the amended provisions of the 2008 Act introducing Sec.27A thereof) in such cases, the respondent officer concerned is obliged to pass orders giving the beneficial provisions of Rule 6(2) of the Kerala Utilization Order, 1967 of the party concerned, without in any manner imposing any of the adverse conditions flowing from the amended provisions of the 2008 Act, including Sec.27A thereof and the Rules framed thereunder. 7. Since, indisputably, the petitioner has filed the requisite Rule 6(2) KLU application much before the cut-off date of 30.12.2017, the petitioner is entitled to get his case considered under Sec.6A of the Kerala Land Tax Act in terms of the dictum laid down by the Division Bench of this Court in cases as in _**LLMC**_ , _**Kizhakkambalam Grama Panchayat v. Mariumma**_ [2015 (2) KLT 516 (DB)] and _**Tahsildar, Thodupuzha Taluk v. Renjith**_ [2020 (1) KHC 865 (DB)]. Therefore, the said impugned condition directing that the petitioner will have to pay the amounts as per the amended provisions of the Rules as made out in Ext.P9 would require interdiction. Accordingly, the said condition in Ext.P9 that the petitioner should necessarily pay the amounts in terms of the amended Rules as laid down in Ext.P9 will stand set aside and quashed. **WP(C).No.10130 OF 2020** **8** 8. The application of the petitioner under Sec.6A of the Kerala Land Tax Act will stand remitted to the 5[th] respondent, Tahsildar for passing appropriate orders under Sec.6A of the Kerala Land Tax Act and in the light of the dictum laid down by the Division Bench of this Court in cases as in _**Mariumma's**_ case (supra) [2015 (2) KLT 516 (DB)] and _**Renjith's**_ case (supra) [2020 (1) KHC 865 (DB)] and after affording reasonable opportunity of being heard to the petitioner, without much delay, preferably within a period of one month from the date of production of a certified copy of this judgment and without making the petitioner pay any amounts in terms of the provisions contained in the amended Rules. 9. In the judgment dated 19.3.2020 in W.P.(C.) No. 8645/2020, this Court has also _inter alia_ held that in such a case where the application under Rule 6(2) has been filed by the party before 30.12.2017 and after the party secures such orders under Rule 6(2), he is entitled to have his case considered under Sec.6A of the Kerala Land Tax Act for getting additional entries in the BTR, to show the correct nature of the property as garden land or purayidom, without having to pay the higher amounts in terms of Rule 12(17) of the amended Rules framed under the amended provisions of the Act. 10. The petitioner will produce copy of this judgment along with the copy of this judgment along with a copy of the memorandum of this W.P.(C.) along with all the exhibits to the 5[th] respondent, Tahsildar for **WP(C).No.10130 OF 2020** **9** necessary information and further action. With these observations and directions, the above W.P.(C.) will stand finally disposed of. Sd/- **ALEXANDER THOMAS, JUDGE** SKS **WP(C).No.10130 OF 2020** **10** ## **APPENDIX** **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF THE BASIC TAX RECEIPT NO. KL07071704962/2019 DATED 15.10.2019 ISSUED BY 7TH RESPONDENT.** **EXHIBIT P2 TRUE COPY OF RELEVANT PAGES OF DRAFT DATA BANK IN RESPECT OF THE SUBJECT PROPERTY.** - **EXHIBIT P3 TRUE COPY OF RECEIPT DATED 22.02.2016 ISSUED BY 3RD RESPONDENT.** - **EXHIBIT P4 TRUE COPY OF ORDER NO.C6-3011/16 DATED 25.08.2016 PASSED BY 9TH RESPONDENT.** - **EXHIBIT P5 TRUE COPY OF JUDGMENT DATED 08.01.2018 IN WP(C) NO.30160 OF 2016.** **EXHIBIT P6 TRUE COPY OF CERTIFICATE NO. KLD-19/2017-18 DATED 18.01.2018 ISSUED BY 6TH RESPONDENT. EXHIBIT P7 TRUE COPY OF ORDER/PROCEEDINGS NO. L589801/16 DATED 12.11.2019 ISSUED BY 3RD RESPONDENT. EXHIBIT P8 TRUE COPY OF JUDGMENT DATED 28.11.2019 IN WP(c) NO. 31459/2019 EXHIBIT P9 TRUE COPY OF PROCEEDINGS NO.F1-3338/2018 DATED 20.01.2020 PASSED BY 5TH RESPONDENT.**