Con.Case(C)No.773 of 2020 in W.P.(C)No.33958/2018

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **TUESDAY, THE 25TH DAY OF AUGUST 2020 / 3RD BHADRA, 1942** ## **Con.Case(C)No.773 OF 2020 IN W.P.(C)No.33958/2018** **AGAINST THE JUDGMENT IN W.P.(C)No.33958/2018(T)OF HIGH COURT OF KERALA** ## **PETITIONERS/PETITIONERS IN WP(C):** |**1**|**KULDEEP BAID**| |---|---| ||**AGED 42 YEARS**| ||**SON OF BHIKAM CHAND BAID,39/4212,**| ||**MANIKATH BUILDING,RAVIPURAM ROAD,ERNAKULAM,**| ||**KOCHI-682016.**| |**2**|**SUNITHA BAID,**| ||**AGED 39 YEARS**| ||**WIFE OF KULDEEP BAID,39/4212,**| ||**MANIKATH BUILDING,RAVIPURAM ROAD,**| ||**ERNAKULAM,KOCHI-682016.**| |**3**|**DIPAK DUGAR,**| ||**AGED 46 YEARS**| ||**SON OF KAMAL SINGH DUGAR,27/1481A,**| ||**MANIKATH COMPLEX,VARGHESE THITTEL ROAD,**| ||**PANAMPILLY NAGAR SOUTH,**| ||**ERNAKULAM,KOCHI-682036.**| |**4**|**ANJU DUGAR,**| ||**AGED 44 YEARS**| ||**WIFE OF DIPAK DUGAR,27/1481A,**| ||**MANIKATH COMPLEX,VARGHESE THITTEL ROAD,**| ||**PANAMPILLY NAGAR SOUTH,ERNAKULAM,**| ||**KOCHI-682036.**| |**5**|**VINEET GANGADHARAN MENON,**| ||**AGED 37 YEARS**| ||**SON OF GANGADHARAN MENON,116/A,**| ||**PWRA,MEENCHIRA ROAD,PONEKKARA,**| ||**EDAPPALLY,KOCHI-682024.**| |**6**|**RATAN LAL JAIN BATNA,**| ||**AGED 66 YEARS**| ||**SON OF TOLARAM BAFNA,1/507,**| ||**BAFNA BHAVAN,TOWER ROAD, FORT KOCHI,**| ||**KOCHI-682001.**| Con. Case(C)No.773 of 2020 IN W.P.(C)No.33958/2018 2 **7 ANIL KUMAR BHURA, AGED 45 YEARS SON OF MAL CHAND BHURA, HIRA HOUSE, FIRST FLOOR, RAVIPURAM JUNCTION, M.G.ROAD, ERNAKULAM, KOCHI-682016. 8 SHRI JAIN SWETAMBER TERAPANTHI SABHA, KOCHI,39/412,MANIKKATH BUILDING, RAVIPURAM,ERNAKULAM,KOCHI-682016, REPRESENTED BY ITS SECRETARY KULDEEP BAID, AGED 42 YEARS,SON OF BHIKAM CHAND BAID, 39/4212, MANIKATH BUILDING, RAVIPURAM ROAD,ERNAKULAM, KOCHI-682016.** **BY ADVS. SRI.B.ASHOK SHENOY SMT.C.G.PREETHA SRI.P.S.GIREESH SRI.RIYAL DEVASSY SHRI.DR.ABHILASH O.U.** ## **RESPONDENT/ADDITIONAL RESPONDENT NO.7 IN WP(C):** **MOHAMMED SABIR V.A (AGE AND FATHER'S NAME -NOT KNOWN TO PETITIONERS),TAHSILDAR,KANAYANNUR TALUK, TALUK OFFICE,ERNAKULAM,KOCHI-682011.** **R1 BY SRI M.H.HANIL KUMAR, SPL.GOVT. PLEADER TO AAG** **THIS CONTEMPT OF COURT CASE (CIVIL) HAVING COME UP FOR ADMISSION ON 25.08.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** Con. Case(C)No.773 of 2020 IN W.P.(C)No.33958/2018 3 ## **JUDGMENT** The petitioners have filed this contempt case alleging noncompliance of the direction contained in Annexure A2 judgment of this Court in W.P.(C)No.33958 of 2018, whereby that writ petition was disposed of by declaring that the amended provisions of the Kerala Conservation of Paddy Land and Wetland Act, 2008, as inserted by the Kerala Conservation of Paddy Land and Wetland (Amendment) Ordinance, 2017, i.e., Ordinance No.41 of 2017, followed by the Kerala Conservation of Paddy Land and Wetland (Amendment) Act, 2018, i.e., Act 29 of 2018 have no application in respect of the property owned by the petitioners. Accordingly, Ext.P17 order to the extent of requiring the petitioners to pay 50% of the fair value of the land as fee was set aside. The petitioners were directed to approach the additional 7[th] respondent Tahsildar for correction of revenue records and thereafter, pursue Ext.P12 application for building permit, if the same was pending consideration before the 5[th] respondent Secretary of the 4[th] respondent Municipal Corporation. 2. On 17.06.2020, when this contempt case came up for admission, the learned Special Government Pleader sought time to file an affidavit explaining the facts and circumstances. The Con. Case(C)No.773 of 2020 IN W.P.(C)No.33958/2018 4 respondent has filed an affidavit dated 24.06.2020. The petitioners have filed reply affidavit dated 06.07.2020. 3. On 24.07.2020, when this contempt case came up for consideration, the learned counsel for the petitioners placed reliance on the judgment of a Division Bench of this Court dated 21.07.2020 in W.A.No.876 of 2020. The learned Special Government Pleader sought time to place on record a copy of the revised order issued by the respondent, pursuant to the directions contained in Annexure A2 judgment of this Court. 4. In **District Collector and another v. Fr. Jose Uppani and others [2020 (4) KHC 394]** the Division Bench of this Court reiterated that applications filed under the Kerala Land Utilisation Order, 1967, prior to the cut off date of 30.12.2017, i.e., prior to the date on which Section 27A of the Kerala Conservation of Paddy Land and Wetland Act was brought into force, has to be considered by the statutory authority in accordance with the procedure and terms and conditions contained under the Kerala Land Utilisation Order. The Division Bench held that Section 27C applies wherever a part of survey number of subdivision is permitted to be converted under Sections 8, 9, 10 or 27A of Act 2008, and in which case, a new subdivision shall be created for the extent for Con. Case(C)No.773 of 2020 IN W.P.(C)No.33958/2018 5 which such orders for conversion are issued. Therefore, Section 27C deals with a situation where an order is passed to convert the land as per the provisions of Act 2008. The rest of the provisions thereunder are consequential to sub-section (1) of Section 27C and therefore, only under the circumstances prescribed under subsection (1) of Section 27C, that procedure can be followed by the Tahsildar. A Division Bench of this Court in **LLMC, Kizhakkambalam Grama Panchayat v. Mariyumma [2015 (3) KHC 19]** held that, without defacing the entry contained in the Basic Tax Register, necessary additional entries can be made on the basis of the orders passed by the statutory authority under the Kerala Land Utilisation Order, 1967. Therefore, the Tahsildar should have considered the applications submitted by the writ petitioners in terms of the proposition of law laid down by the Division Bench in **Mariyumma** and not on the basis of the amended provisions of Section 27C, which has come into force only with effect from 30.12.2017. Paragraphs 5 to 7 of the said judgment read thus: “5. As we have pointed out earlier, Section 27A was brought into force on and with effect from 30.12.2017, to deal with change of nature of unnotified land, thus requiring any owner of an unnotified land desiring to utilise any paddy Con. Case(C)No.773 of 2020 IN W.P.(C)No.33958/2018 6 land for residential or commercial purpose or for other purpose, to apply to the Revenue Divisional officer for permission in such manner as may be prescribed. True a procedure is prescribed there under in the matter of consideration of such an application. Admittedly, the applications were filed by the writ petitioners under the Kerala Land Utilization Order, 1967, prior to the aforesaid cut off date. Therefore, the applications so submitted had to be considered by the statutory authority in accordance with the procedure, and terms and conditions contained under the Kerala Land Utilisation Order, 1967. It is also an admitted fact that the orders were passed by the statutory authority taking into account the provisions of the Kerala Land Utilization Order, 1967. Therefore in our view, none of the provisions contained under Section 27A of Act 2008, which has come into force only with effect from 30.12.2017, has any manner of binding force so far as the facts and circumstances of the appeals are concerned. It is also an admitted fact that the orders passed by the authority under the Kerala Land Utilization Order have become final and conclusive. Now the sole question is whether Section 27C of Act 2008 can be construed as an independent provision detached from Section 27A of Act 2008. In order to understand the purport of Section 27C, it is extracted as under: "27C. Change in records. **-** (1) Notwithstanding anything contained in any other law for the time being in force or in any judgment, decree or order of any Court, Tribunal or any other Authority, wherever a part of a survey number Con. Case(C)No.773 of 2020 IN W.P.(C)No.33958/2018 7 or subdivision is permitted to be converted under Section 8, 9, 10 or 27A of this Act, a new subdivision shall be created for the extent for which such orders for conversion are issued. (2) Where the paddy land or unnotified land is duly converted as per the provisions of this Act, the Tahsildar shall reassess the land tax under Section 6A of the Kerala Land Tax Act, 1961 (13 of 1961) and make necessary entries in revenue records relating to such lands. (3) Where such changes are recorded in revenue records, the number and date of the order and the authority granting sanction, the survey number of the lands for which sanction has been accorded, extent of the land in each survey number for which sanction has been accorded and the revised land tax shall be clearly recorded ensuring that the old entries are legible. (4) Tahsildar shall conduct periodical inspection to ensure that changes in revenue records are in accordance with sub-section (3). (5) No attempt shall be made to alter or change or modify the revenue records relating to the paddy land or wetland or unnotified land otherwise than in accordance with sub-section (3)." 6. On a reading of the said provision it is clear that, Section 27C applies, wherever a part of survey number of subdivision is permitted to be converted under Sections 8, Con. Case(C)No.773 of 2020 IN W.P.(C)No.33958/2018 8 9, 10 or 27A of Act 2008, and in which case, a new subdivision shall be created for the extent for which such orders for conversion are issued. Therefore it is clear that, Section 27C deals with a situation where an order is passed to convert the land as per the provisions of the Kerala Conservation of Paddy Land and Wetland Act, 2008. The rest of the provisions there under are consequential to Section 27C(1) and therefore only under the circumstances prescribed under Section 27C(1), the procedure can be followed by the Tahsildar. 7. However, it is an admitted fact that the application was submitted by the writ petitioners on the basis of the orders secured by them under the provisions of the Kerala Land Utilization Order, 1967. Therefore, the provisions of Section 27C have no application. The issue with respect to the alteration of the entries in the Basic Tax Register was considered by the Apex Court in **Revenue Divisional Officer, Fort Kochi v. Jalaja Dileep [2014 (1) KHC 96]** and held that the entries contained in the Basic Tax Register cannot be changed. However, the Division Bench of this Court in **LLMC, Kizhakkambalam Grama Panchayat v. Mariyumma [2015 (3) KHC 19]** has held that, without defacing the entry contained in the Basic Tax Register, necessary additional entries can be made on the basis of the orders passed by the statutory authority under the Kerala Land Utilization Order, 1967. It was accordingly that the applications were submitted by the writ petitioners before the Tahsildar. Therefore, the Tahsildar should have considered the applications submitted by the writ petitioners in terms of the proposition of law laid down by the Division Con. Case(C)No.773 of 2020 IN W.P.(C)No.33958/2018 9 Bench in **Mariyumma (supra)** and not on the basis of the amended provisions of Section 27C, which has come into force only with effect from 30.12.2017. It was exactly on the basis of the judgment of **Mariyumma (supra)** , learned Single Judge has held that, the order passed by the Tahsildar directing the writ petitioners to pay the amounts at the rate of 25% of the converted land, after securing orders from the Revenue Divisional Officer cannot be legally sustained. In fact, the issue in question was considered by this Court in **Tahsildar v. Renjith George [2020 (1) KHC 865]** and held that, when the provisions of the statute are clear and unambiguous, there is no power vested with the statutory authority to expand the scope of the provisions of law by issuing directions against the mandate of law. The proposition of law laid down by this Court in the judgment in **Renjit George (Supra)** squarely applies to the facts and circumstances of the appeals on hand also. Taking into account the law, facts and circumstances, we are of the considered opinion that the appellants have not made out any case for interference with the judgment of the learned Single Judge.” 5. Along with the memo filed by the learned Special Government Pleader dated 10.08.2020, a revised order passed by the Tahsildar (L.R.), Kanayannur bearing No.H3-16363/19 dated 30.07.2020, in compliance of the direction contained in Annexure A2 judgment of this Court, is placed on record. Con. Case(C)No.773 of 2020 IN W.P.(C)No.33958/2018 **==> picture [13 x 8] intentionally omitted <==** In such circumstances, taking note of the law laid down by the Division Bench in **Fr. Jose Uppani [2020 (4) KHC 394]** , this Contempt Case is closed in view of the revised order passed by the Tahsildar (L.R.), Kanayannur bearing No.H3-16363/19 dated 30.07.2020. **Sd/-** **ANIL K. NARENDRAN** JV **JUDGE** Con. Case(C)No.773 of 2020 IN W.P.(C)No.33958/2018 11 ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** |**ANNEXURE A1**|**TRUE COPY OF ORDER NO.K2-7164/17 DATED**| |---|---| ||**16.7.2018 ISSUED BY REVENUE DIVISIONAL**| ||**OFFICER,FORT KOCHI,TO PETITIONERS**| |**ANNEXURE A2**|**CERTIFIED COPY OF JUDGMENT DATED**| ||**17.7.2019 IN W.P(C)NO.33958 OF 2018**| ||**PASSED BY THIS HON'BLE COURT**| |**ANNEXURE A3**|**TRUE COPY OF APPLICATION DATED 21.8.2019**| ||**SUBMITTED BY PETITIONERS TO RESPONDENT**| |**ANNEXURE A4**|**TRUE COPY OF ORDER NO.K2-7164/2017 DATED**| ||**20.11.2019 ISSUED BY SUB COLLECTOR,FORT**| ||**KOCHI**| |**ANNEXURE A5**|**TRUE COPY OF ORDER NO.H3/16363/19 DATED**| ||**NIL ISSUED BY RESPONDENT TO**| ||**PETITIIONERS.**|