Dr. Minnu Parackal v. State of Kerala and Others

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **THURSDAY, THE 02ND DAY OF JULY 2020 / 11TH ASHADHA, 1942** ## **WP(C).No.13077 OF 2020(H)** ## **PETITIONER:** **DR. MINNU PARACKAL, AGED 30 YEARS D/O JOSE VARKEY,PARACKAL HOUSE, PIRAVOM.P.O, ERNAKULAM-686664.** **BY ADV. SRI.GEORGE SEBASTIAN** ## **RESPONDENTS:** - **1 STATE OF KERALA, REPRESENTED BY ITS PRINCIPAL SECRETARY TO THE DEPARTMENT OF REVENUE, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695001.** - **2 THE REVENUE DIVISIONAL OFFICER, REVENUE DIVISIONAL OFFICE,MINI CIVIL STATION,MUDAVOOR.P.O, MUVATTUPUZHA.686669.** - **3 LOCAL LEVEL MONITORING COMMITTEE WITHIN THE LIMITS OF PIRAVOM MUNICIPALITY (CONSTITUTED UNDER ACT 28 OF 2008), REPRESENTED BY ITS CONVENOR,THE AGRICULTURAL OFFICER,KRISHIBHAVAN, PIRAVOM-686664.** - **4 THE TAHSILDAR(LAND RECORDS), TALUK OFFICE,MUVATTUPUZHA-686669.** - **5 THE VILLAGE OFFICER, VILLAGE OFFICE,PIRAVOM, ERNAKULAM DISTRICT,PIN-686664.** **BY ADV.** **SRI.SAIGI JACOB PALATTY, SR.GOVT.PLEADER** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 02.07.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C).No.13077 OF 2020** **2** ## **ALEXANDER THOMAS, J. ======================= W.P.(C) No. 13077 of 2020 ======================= Dated this the 02[nd] day of July, 2020** ## **J U D G M E N T** The case set up in this Writ Petition (Civil) is as follows: _Petitioner is the owner and in possession of an extent of 9.59 Ares of immovable property in survey No.818/381 of Piravom Village, Muvattupuzha Taluk in Ernakulam district. The said property is a garden land and not included in the data bank prepared under the provisions of Act 28 of 2008. The petitioner preferred Exhibit P P4 application dated 21.12.2017 under Rule 6(2) of the Kerala Land Utilization order before the 2[nd] respondent Revenue Divisional Officer. The same was received on the same date going by Exhibit P6 order of the 2[nd] respondent and Exhibit P8 order of the 4[th] respondent Tahsildar. This Court in paragraph No.20 of Exhibit P7 judgment also categorically finds that the application was submitted prior to 30.12.2017, By Exhibit P5 judgment dated 12.06.2018 in E.P.(c) No.11954/2018, this Court directed the 2[nd] respondent R.D.O. To dispose of Exhibit P4 application. BY Exhibit P6 dated 15.09.2018, R.D.O. Allowed the application but there was a direction to make the payment as per the amended provisions of the Act, namely Section 27A(3). The said condition was challenged in W.P.(c)No.7162/2019_ **WP(C).No.13077 OF 2020** **3** _and by judgment dated 27.06.2019 (Exhibit P7), this Court directed the 4[th] respondent Tahsildar for change of assessment in the basic tax register and specifically held in paragraph 20 of the judgment that since the application was submitted before the cut off date, no payments as per the amended Act and Rules can be imposed. The 4[th] respondent Tahsildar passed Exhibit P8 order in which a direction is issued to make the payment as per Rule 12(17), which is illegal and unjustifiable in view of the various judgments of this Court including Fr.jose Uppani Vs. District Collector 2020 (3) KLT 492._ It is in the light of the above averments and contentions, that the petitioner has filed the instant Writ Petition (Civil) with the following prayers : _“i To issue a writ of certiorari calling for the originals of Exhibit P8 and to quash the same to the extent it directs the payment of fees as per Rule (12(17) of the Kerala conservation of Pady Land and Wet Land Rules._ _ii To issue a writ of mandamus, order or direction to the 4[th] respondent to comply with Exhibit P7 judgment and to effect consequential correction in the basic tax register of the property of the petitioner within a time frame without insisting for payment as per Rule 12(17) of the Kerala conservation of Pady Land and Wet Land Rules._ _iii To declare that the Section 27A of Act 28 of 2008 and Rule 12 of the Kerala conservation of Pady Land and Wet Land Rules 2008 introduced by Act 29 of 2018 are illegal, unconstitutional, invalid and the same is beyond the legislative competence of the 1[st] respondent and the same violates Articles 14,21 and 300A of Constitution of Inida and Rule 12(17) mentioned above beyond the rule making power of the 1[st] respondent and ultravires of the Act._ _iv To grant such other reliefs as this Honourable_ **WP(C).No.13077 OF 2020** **4** _Court may deem fit and proper.”_ 2. Heard Sri. George Sebastian, learned counsel appearing for the petitioner and Sri.Saigi Jacob Palatty, the learned Senior Government Pleader appearing for the respondents. 3. The matter of issue in this case is already covered by Ext.7 judgment dated 27.06.2019 rendered by this Court in W.P. (C).No.7162/2019 filed by the petitioner herein on the previous occasion. It is beyond any doubt that, the subject property though continues to be described as paddy land/nilam in Basic Tax Register (BTR) has been converted as garden land/purayidam much prior to 12.08.2008 (dated of coming into force of the Kerala Conservation of Paddy Land and Wet Land Act, 2008). It is also beyond doubt that, petitioner has filed the requisite application under Rule 6(2) of the KLU Order, 1967 as per Ext.P4 dated 21.12.2017, which is clear from item No.1 of Ext.P6 order passed by the 2[nd] respondent-RDO, as well as from the documents produced in Ext.P7 writ proceedings, and as a matter of fact, this aspect is clearly admitted in item No.1 of Ext.P6 that the petitioner has in fact filed two applications one on 26.04.2017 and another on 21.12.2017. It is also admitted in the present **WP(C).No.13077 OF 2020** **5** impugned order as per Ext.P8 passed by the 4[th] respondentTahasildar that the petitioner has filed the said application under Rule 6(2)of the KLU Order on 26.04.2017 and 21.12.2017. Para 2 of the impugned Ext. P8 orders reads as follows; "പരരാമര്‍ശശം (3) പ്രകരാരമുള്ള വവിധവിനനരായതവില്‍ നവിര്‍ദദ്ദേശവിചവിരവിക്കുന പ്രകരാരശം അടവിസരാന ഭൂനവികുതവി രജവിസ് **റ** ്റവില്‍ മരാറ്റങ്ങള്‍ വരുത്തുനതവിനരായവി ദഡരാ. മവിന്നുപരാറയ്ക്കല്‍ എന കകവി പരരാമര്‍ശശം (4) പ്രകരാരശം ഈ കരാരനരാലയതവില്‍ അദപക സമര്‍പവിചവിട്ടുള്ളതശം ദകരള നനല്‍വയല്‍ തണണ്ണീര്‍തട (ദഭേദഗതവി) ചട്ടങ്ങളവിനല 12(17) പ്രകരാരമുള്ള തടര്‍ നടപടവി പരരാമര്‍ശശം (4) അദപക പ്രകരാരശം സസണ്ണീകരവിക്കുനതവിനന് പരരാമര്‍ശശം (5) പ്രകരാരശം ബഹ. അഡസദക്കേറ്റന് ജനറലവിനന നവിയദമരാപദദശശം ലഭേവിചവിട്ടുള്ളതമരാണന്. ദകരള നനല്‍വയല്‍ തണണ്ണീര്‍തട (ദഭേദഗതവി) ചട്ടങ്ങളവിനല 12(17) പ്രകരാരശം ദകരള നനല്‍വയല്‍ തണണ്ണീര്‍തട (ദഭേദഗതവി) നവിയമശം പ് **ര** ബലനതവില്‍ വന 30.12.2018 നന് മുന്‍പന് 1967 നല ദകരള ഭൂവവിനവിദയരാഗ ഉതരവു പ്രകരാരശം കരാര്‍ഷവിദകതര ആവശനങ്ങള്‍ക്കേരായവി നവിലശംതരമരായ ഭൂമവി ഉപദയരാഗവിക്കുനതവിനന് അനുമതവി ലഭേവിചവിട്ടുള്ളതവിനന് മതവിയരായ ദരഖകള്‍ ഹരാജരരാക്കുന പകശം സസഭേരാവ വനതവിയരാനശം വരുത്തുനതവിനന് നഷഡഡ്യൂളവില്‍ പരരാമര്‍ശവിചവിരവിക്കുന ഫണ്ണീസവിനന 25% മരാതശം ഒടുക്കു വരുതവിയരാല്‍ മതവിനയനന് നവിഷ്കര്‍ഷവിചവിട്ടുണന്. അദപകക പരരാമര്‍ശശം (2) പ്രകരാരമുള്ള ഉതരവന് തണ്ണീയതവികളവിലരാനണനന് പരരാമര്‍ശശം (2) ഉതരവവില്‍ ദരഖനപടുതവിയവിട്ടുണന്.ലഭേവിക്കുനതവിനുദവണവി അദപക സമര്‍പവിചവിട്ടുള്ളതന് 26.04.2017, 21.12.2017 എനണ്ണീ _”_ Therefore, there is no dispute whatsoever, that the petitioner has in fact filed the requisite Rule 6(2) application under the KLU Order before the cut of date of 30.12.2017 (dated of coming into force of the amended provisions of the above said act which has introduced Section 27A thereof). Therefore, this Court has conclusively and categorically held in Ext.P7 judgment that though the 2[nd] respondent-RDO has by Ext.P6 order allowed the main request of the petitioner for permission for change of use of the land, but has issued restrictive condition therein that **WP(C).No.13077 OF 2020** **6** the petitioner should pay the amounts in terms of the amended provisions of the above said Act and the Rules framed thereunder and that such restrictive condition therein is illegal and _ultra vires_ . That aspect of the matter is well settled by a series of rulings of this Court 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)], LLMC, Kizhakkambalam Grama Panchayat v. Mariumma [2015 (2) KLT 516 (DB)] and Fr. Jose Uppani v. District Collector [2020(3) KLT 492] etc.**_ that in a case where the subject property has been converted as ‘garden land’ or ‘purayidam’ prior to 12.8.2008 (date of coming into force of the 2008 Act) and where the party concerned has filed the requisite application under Rule 6(2) of the Kerala Land Utilization Order, 1967, for conversion of the property and for its use for any non-agricultural purposes 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 the statutory revenue authorities are obliged the duty to treat such a case strictly within the purview of Rule 6(2) of the KLU Order, 1967, and in such a case, the party cannot **WP(C).No.13077 OF 2020** **7** be mulcted to pay the higher amounts conceived as per the amended provisions of the Act including Sec. 27A thereof, which has come into force on 30.12.2017 and the amended Rules framed thereunder, including Rule 12(17) thereof. 4. It is in the light of these aspects that, this Court has already rendered a considered judgment as per Ext.P7 that the said restrictive condition in Ext.P7 is illegal and _ultra vires_ and thereafter, the 4[th] respondent-Tahasildar was directed to immediately pass orders for re-assessment of the subject property covered by Ext.P6 in terms of Section 6A of the Kerala Land Tax Act, so as to secure additional entires in the BTR to correctly show the change nature of land as garden land/purayidam instead of the earlier BTR entires as paddy land/nilam. Moreover, this Court further specifically ordered in Ext.P7 order that while doing so, the 4[th] respondent-Tahsildar shall not place any reliance on the amended provisions of the above said Act, as per Section 27A or 27C of the said Act, and that, the 3[rd] respondent shall not insist for any payment from the petitioner for such re-assessment of the subject property, as the petitioner has filed the requisite Rule 6(2) application under the KLU Order before the cut off date of 31.12.2017. It is specifically **WP(C).No.13077 OF 2020** **8** mandated in Sub Section (13) of Section 27A that, only applications received for change of nature of land of unnotified land from the date of commencement of the amended provisions of the above said Act, viz, 30.12.2017 that has to be considered and disposed of in accordance with those amended provisions. However, every strangely the 4[th] respondent has now passed the impugned Ext.P8 order whereby he would insist that the petitioner should necessarily pay the higher amounts as conceived as per Rule 12(17) of the Rules framed under Section 27A of the Act. The above said order of the 4[th] respondent is nothing but highly contumacious stand of that officer, which is in defiance with the authority of this Court as well as in total disobedience of the norms of rule of law. This Court has held already unambiguously in Ext.P7 judgment in the light of settled rulings of this Court that, the said request of the petitioner for reassessment in terms of Section 6A of the Kerala Land Tax Act has to be made without placing any reliance on Section 27A or 27C of the amended provisions of the above said Act. Therefore, it clears means only that those provisions shall not be taken for consideration, but also even rules framed under those provisions cannot be taken into account. It is certainly a reasonable Revenue **WP(C).No.13077 OF 2020** **9** Officer like the 4[th] respondent-Tahasildar knows that Rule 12(17) is one which is framed under in terms of Section 27A of the amended provisions of the above said Act. Therefore, it is highly illegal and improper on the part of the 4[th] respondent to pass order in the nature of Ext.P8 which is in derogation of the well settled legal position rendered by this Court in a series of cases, and would also amount to an act on the part of the 4[th] respondent to have sat appeal over Ext.P7 judgment of this Court and then rewrite it in the manner he thinks fit. Surely the 4[th] respondent would be knowing that we are governed by the system of rule of law and constitutionalisam, and that doctrine of separation of powers is a inalienable component of rule of law and constitutionalisam. So long as the doctrine of separation of powers is there. The present action of the 4[th] respondent in passing an order in nature of Ext.P8, would amount to an act of sitting in appeal over Ext.P7 judgment and to rewrite those conclusions and directions, which is nothing but violation of the sacred doctrine of separation of powers. The attitude of the 4[th] respondent in so doing would amount to his having an illusion that he has the said power to sit in judgment over Ext.P7 judgment and to rewrite the directions contained in the said **WP(C).No.13077 OF 2020** **10** judgment. Very many cases are coming to this Court whereby Revenue Officials like District Collectors, Revenue Divisional Officers, Tahsildars etc., are frequently violating the well settled legal position laid down by this Court in afore stated judgments and compelling parties to pay amounts as conceived as per the amended provisions of the above said Act and the amended Rules framed thereunder including Rule 12(17) thereof, even though the party would have filed the requisite application under Rule 6(2) of the KLU Order before the cut off date of 30.12.2017. These aspect of the matters has been dealt with in detailed by this Court in the judgment in the case in **Fr. Jose Uppani v. District Collector [2020(3) KLT 492]** . Accordingly, this Court is of the _prima facie_ view that, this is a fit case where action ought to be taken against the 4[th] respondent for his contumacious act, as such an act is not becoming of a responsible civil servant who has adherence to rule of law. 5. However, Sri. Saigi Jacob Palatty, the learned Senior Government Pleader appearing for the respondents would submit that, necessary instructions will be immediately given to the 4[th] respondent to reconsider the matter and pass fresh orders strictly in terms of Ext.P7 judgment and in the light of dictum laid by the **WP(C).No.13077 OF 2020** **11** Division Bench of this Court in cases as in **Mariumma's case** (supra) and **Jose case** (supra), and without making the petitioner pay any amounts as per the amended provisions of the above said Act and the amended Rules framed thereunder including Rule 12(17) thereof. More particularly in the light of Ext.P7 judgment, where it has been clearly directed that, action has to be taken by the said officer without placing any reliance on the provisions of Section 27A or 27C of the Act, which would also be inclusive of even the rules framed thereunder those Rules, including Rule 12(17) thereof. It has to be noted that Ext.P7 judgment has become final and conclusive, and has not been altered or varied in the manner known to law. When Ext.P7 judgment has become final and conclusive, it is not open to the 4[th] respondent to taken the impugned stand in Ext.P8. However, taking into account fair stand taken by the learned Senior Government Pleader, this Court now desisting to proceed with further action against the 4[th] respondent-Tahsildar. One last opportunity is given to the 4[th] respondent-Tahsildar to purge himself of these contumacious misdemeanours and to pass orders strictly in compliance with Ext.P7 judgment without any further delay. 6. Accordingly it is ordered, that the impugned Ext.P8 **WP(C).No.13077 OF 2020** **12** order will set aside and quashed, and the matter will stand remitted to the 4[th] respondent-Tahsildar for consideration and decision afresh. The 4[th] respondent-Tahsildar will afford reasonable opportunity of being to the petitioner and then immediately take steps for re-assessment of the subject property covered by Ext.P7 judgment in accordance with Section 6A of the Kerala Land Tax Act, for securing additional entires in the BTR to show the changed nature of the land as garden land/purayidam, instead of the earlier BTR entires as paddy land/nilam within three weeks from the date of production of certified copy of this judgment, and strictly in terms of the dictum laid down by the Division Bench of this Court in judgments as in _**Mariumma’s case supra [2015 (2) KLT 516 (DB)] and Renjith's case supra [2020 (1) KHC 865 (DB)]**_ and without in any manner making the petitioner to pay any amounts as conceived as per the amended provisions of the above said Act, which has introduced Section 27A thereof, and the amended Rules framed thereunder including Rule 12(17) thereof. Thereafter the 4[th] respondent shall immediately personally file an affidavit before this Court stating about the compliance of the above said directions within the said time limit failing which this Court will be constrained to initiate **WP(C).No.13077 OF 2020** **13** appropriate action against the 4[th] respondent for patent violation of directions of this Court in Ext.P7 judgment, and for having defied the authority of this Constitutional Court and for having thrown to the winds the elementary principles of rule of law. 7. The petitioner will produce the certified copy of this judgment along with the copy of memorandum of this writ petition (civil) with all the Exhibits before the 4[th] respondentTahsildar, for necessary information and further action. The learned Senior Government Pleader, will ensure that the certified copy of this judgment is forwarded to the 1[st] respondent-Principal Secretary to Government of Kerala, Revenue Department for necessary information. The learned Senior Government Pleader will also ensure that a copy of judgment of this Court in **Fr. Jose Uppani v. District Collector [2020(3) KLT 492]** is also forwarded to the 1[st] respondent-Principal Secretary to Government in the Revenue Department, while forwarding the certified copy of this judgment. 8. Before parting with this case, this Court would also observe that not only revenue officials like the District Collectors, Revenue Divisional Officers, Tahsildars etc. have been **WP(C).No.13077 OF 2020** **14** consistently violating the dictum laid down by this Court in the afore stated judgment in the matter of exercise of power of discretion while dealing with applications filed under Rule 6(2) of the KLU Order before the cut off dated of 30.12.2017, but it has also been observed that even in cases where the superior officers like the District Collector/RDO has ordered and granted the benefit of permission under Rule 6(2) of the KLU Order without insisting for any amounts, the Tahsildar concerned in such cases have dared to again insist for payment of such amounts. This is on the specious ground that the orders passed by the superior officer like the District Collector etc., happens to be after above said cut off date of 30.12.2017, even though the application under Rule 6(2) of the KLU Order has been filed before the said cut off date. It has to be borne in mind that, we are governed by legal system which is regulated by rule of law, and not by rule of men. If the Competent Government Officers do not adhere to the dictum laid down by this Court in such well settled aspects, then the inevitable consequence is that, seeing this trend the subordinate officers might start defying their superior officers and this would lead to breaking of the chain of command and hierarchy which is essential for the minimal efficacious **WP(C).No.13077 OF 2020** **15** functioning of bureaucracy in matters of administration and governances. Therefore, it is high time, that the higher authorities should examine these matters, so that there is strict adherence to rule of law and constitutionalisam as otherwise, the trend which may start with defiance of the directions of judgments would lead to even, the subordinate officers later exhibiting disobedience to their superiors. Therefore, it is hoped and expected that, this trend of maladministrative behaviour is immediately rectified and remedied. The issue is not one relating to the prestige of this Court, but it is essentially concerning the very existence and continuance of a system of governance based on rule of law. With these observations and directions, the above Writ Petition (Civil) will stand finally disposed of. Sd/- **ALEXANDER THOMAS,** **JUDGE** VPK **WP(C).No.13077 OF 2020** **16** ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1** **A TRUE COPY OF THE REPORT OF THE 5TH RESPONDENT DATED 15.04.2017.** **EXHIBIT P2 A TRUE COPY OF THE REPORT OF THE AGRICULTURAL OFFICER,PIRAVOM DATED 25.04.2017. EXHIBIT P3 A TRUE COPY OF THE LETTER NO.A6-3572/17 DATED 09.05.2017 ISSUED BY THE SECRETARY, PIRAVOM MUNICIPALITY.** **EXHIBIT P4 A TRUE COPY OF THE APPLICATION DATED 21.12.2017 SUBMITTED BY THE PETITIONER BEFORE THE 2ND RESPONDENT.** **EXHIBIT P5 A TRUE COPY OF THE JUDGMENT DATED 12.06.2018 IN W.P(C)NO.11954/2018** **EXHIBIT P6 A TRUE COPY OF THE ORDER NO.A33357/18/K.DIS.DATED 15.09.2018 PASSED BY THE 2ND RESPONDENT.** **EXHIBIT P7 A TRUE COPY OF THE JUDGMENT DATED 27.06.2019 IN W.P(C)NO.7162/2019. EXHIBIT P8 A TRUE COPY OF THE ORDER DATED 27.12.2019 PASSED BY THE 4TH RESPONDENT.**