Dr. Mohammed Ashraf v. State of Kerala and Others

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT** **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **TUESDAY, THE 25TH DAY OF FEBRUARY 2020 / 6TH PHALGUNA, 1941** ## **WP(C).No.5446 OF 2020(E)** ## **PETITIONER:** **DR. MOHAMMED ASHRAF AGED 58 YEARS S/O. BHAVAKUTTY ABDUL KAREEM, RESIDING AT HIBBA, CHANDAPPURA, KODUNGALLUR-680 664, THRISSUR DISTRICT.** **BY ADVS. SRI.PEEYUS A.KOTTAM SHRI.JOMON J. MALIEKAL** ## **RESPONDENTS:** **1 STATE OF KERALA REPRESENTED BY ITS SECRETARY, DEPARTMENT OF REVENUE, GOVERNMENT SECRETARIAT ANNEX, TRIVANDRUM-695 001.** - **2 THE DISTRICT COLLECTOR CIVIL STATION, KAKKANADU, COCHIN-682 030.** - **3 THE REVENUE DIVISIONAL OFFICER FORT KOCHI, ERNAKULAM DISTRICT, PIN-682 001.** - **4 THE TAHSILDAR KANAYANNUR TALUK OFFICE, ERNAKULAM, PIN-682 312.** ## **OTHER PRESENT:** **SRI.SAIGI JACOB PALATTY, SR.GOVT.PLEADER** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 25.02.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** W.P.(C)No.5446/2020 2 ## **ALEXANDER THOMAS, J.** ------------------------------------------- ## W.P.(C)No.5446 of 2020 ---------------------------------------------Dated this the 25[th] day of February, 2020 ## **JUDGMENT** The case projected in this Writ Petition (Civil) is as follows:- “ _Petitioner is the owner in possession of 98.64 ares of property in Resurvey Block No.13, Re-Sy,238/2 of Maradu Village.Petitioner submitted Ext.P1 application under the Kerala Land Utilisation Order, 1967 for permitting him to use this property for other purpose other than for cultivation. As per Ext.P6 judgment, this Court directed to consider petitioner's application under the Kerala Land Utilisation Order within one month from the date of judgment. So far the authority concerned has not passed any order. Surprisingly, as per Ext.P7 notice petitioner was asked to deposit an amount of Rs.1,29,41,896/- for permitting the petitioner to use his property for other purposes. Thereafter, issued Ext.P8 notice and thereby demanded the petitioner to pay an amount of Rs.2,36,83,792/- instead of Rs.1,29,41,896/- demanded in Ext.P7. The petitioner's application under Clause 6 of Kerala Land Utilisation Order, 1967 are filed before 31.12.2017 and hence the demand to remit the amount as per Section 27A of Kerala Conservation of Paddy Land and Wet Land Act, 2018 is illegal and unsustainable in law._ 2. It is in the light of these factual averments and contentions, the W.P.(C)No.5446/2020 3 ## petitioner has filed the instant Writ Petition (Civil) with the following prayers:- _i) Call for the entire records leading to Ext.P8 and quash the condition therein to deposit an amount of Rs.2,36,83,792/- i.e. the 40% of the fair value of the petitioner's property having an extent of 98.64 ares in Resurvey No.238/2 of Maradu Village as a condition precedent for giving permission for using his property for other purposes other than for cultivation by issuing a writ of certiorari or any other appropriate writ order or direction;_ _ii) Declare that Exts.P1 and P5 application should be considered as per the provisions of KLU Order, 1967 and in compliance with the directions in Ext.P6 judgment and not under the Kerala Conservation of Paddy Land & Wet Land Act (Amended), 2018, since these applications are filed much before 30.12.2017._ _iii) Issue a writ of mandamus and other appropriate writ, order or direction and thereby command the 4[th] respondent to effect consequential correction in the basic tax register based on Ext.P8 without referring to the provisions of Kerala Conservation of Paddy Land & Wet Land Act, 2018._ 3. Heard Sri. Peeyus A. Kottam, learned counsel appearing for the petitioner and Sri. Saigi Jacob Palatty, learned Senior Government Pleader appearing for the respondents. 4. It is beyond any factual dispute that the subject property of the petitioner has been converted as garden land/purayidom long prior to coming into force of the Kerala Conservation of Paddy Land and Wet Land Act, 2008. So also, the petitioner has submitted Ext.P5 application under Rule 6(2) of the Kerala Land Utilisation Order, 1967 for permission for conversion of the land, as early as on 17.8.2017, which is much before 30.12.2017, which is prior to the date of coming into force of the 2018 amendments to the 2008 Act, which has incorporated the amended provisions as per Section 27A thereof, pursuant to W.P.(C)No.5446/2020 4 which the Rules have also been amended. The fact that Ext.P5 application under Rule 6(2) of the Kerala Land Utilisation Order has been filed on 17.8.2017, is also cleared from the reading of Ext.P6 judgment dated 234.10.2017 rendered by this Court in W.P.(C)No.32723/2017 filed by the petitioner and wherein it is clear that Ext.P5 herein has been produced as Ext.P3 therein, which is the application dated 17.8.2017 filed by the petitioner before the 2[nd] respondent District Collector under Rule 6(2) of the Kerala Land Utilisation Order, 1967. This Court, as per Ext.P6 judgment, has directed the 2[nd] respondent District Collector to consider and pass orders on Ext.P5 application under Rule 6(2) of the Kerala Land Utilisation Order,1967 within the time limit stipulated therein. Now the petitioner has been served with the impugned Ext.P7 notice dated 6.2.2020 issued by the 3[rd] respondent RDO as modified by Ext.P8 notice dated 19.2.2020, pursuant to which the petitioner has been called upon to remit an amount of Rs.2,36,83,792/- being the fare value of the subject property as a condition precedent for entertaining the request for conversion of the land under Rule 6(2) of the Kerala Land Utilisation Order. 5. It has been now established by a series of rulings of this Court as in _**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., that in a case where the subject property has been converted as garden land/purayidom prior to coming into force of the 2008 Act and where Rule 6(2) application under the Kerala Land W.P.(C)No.5446/2020 5 Utilisation Order, 1967 has been submitted prior to 30.12.2017 (prior to coming into force of 2018 amendments to the 2008 Act), then the case of the applicant therein/property holder is to be considered strictly as per the provisions contained in Rule 6(2) of the Kerala Land Utilisation Order, 1967 and in which case none of the adverse or detrimental conditions flowing out from the amended provisions of the 2008 Act or the amended provisions of the Rules framed thereunder can be invoked or pressed into service as against the property holder. This Court in the aforecited decision in _**Renji K. Paul's case (supra)**_ dealt with the case of similar nature wherein the demand made by the respondent RDO that the applicant therein should necessarily pay the requisite percentage of the fare value of the subject property as a condition precedent for conversion under Rule 6(2) of the KLU order is illegal and ultra vires and it is ordered that the said amended provisions cannot be pressed into service as against such an applicant and the matter was directed to be considered without payment of any such amount. It has also been held in the aforecited recent judgment of the Division Bench of this Court in _**Renjith's case (supra)**_ that in such a case where the subject property has been converted prior to coming into force of the 2008 Act and the application under Rule 6(2) of the KLU Order has been preferred before 30.12.2017, then after getting such orders under Rule 6(2) for permission for conversion of the land as a purayidom/ garden land, the applicant will also be entitled to maintain a request under Section 6A of the Kerala Land Tax before the Tahsildar concerned in order to ensure that additional entries are made in the Basic Tax Register (BTR) for showing the W.P.(C)No.5446/2020 6 nature of the land as purayidom/garden land instead of the previous entry as Nilam/Paddy land, going by the dictum laid down by the dictum laid down by the Division Bench of this Court in the case in _**LLMC, Kizhakkambalam Grama Panchayath and others**_ v. _**Mariumma and another**_ [2015(2) KLT 516 (DB)]. In that view of the matter, it is only to be held that the impugned conditions imposed in the impugned Ext.P7 notice as modified by the impugned Ext.P8 notice calling upon the petitioner to remit the amount mentioned therein, which is claimed under Rule 27A of the amended provisions of the Rules and Act thereunder is illegal, ultra vires and unenforceable for the above said reasons. In that view of the matter, it is ordered that Ext.P7 notice as modified by Ext.P8 notice will stand quashed. The matter will stand remitted to the 3[rd] respondent Revenue Divisional Officer for consideration and decision on Ext.P5 application and the 3[rd] respondent, after affording reasonable opportunity of being heard to the petitioner, will pass orders thereon, in the light of the aforesaid legal principles laid down in the aforecited judgments as mentioned hereinabove. At the risk of the petitioner, it is reiterated that the 3[rd] respondent RDO shall not in any manner invoke or press into service any of the detrimental/adverse conditions emanated from the amended provisions of the 2018 Act or the amended provisions of the 2018 Rules in the matter of payment of any amount as a condition precedent for permission for conversion of the land in terms of Rule 6(2) of the KLU Order, 1967, as the application has been filed before the cut off date of 30.12.2017. As admittedly, the application as per Ext.P5 in that regard has been filed before the cut off date of 30.12.2017 etc. After the orders are W.P.(C)No.5446/2020 7 passed by the 3[rd] respondent RDO on Ext.P5 application under Rule 6(2) of the KLU Order, 1967 as aforestated, it is for the petitioner to make his request under Section 6A of the Kerala Land Tax Act before the Tahsildar concerned for the re-assessment of the land and change of classification of land in the Basic Tax Register (BTR) as per the dictum laid down by the Division Bench of this Court in _**Mariumma's case (supra).**_ With these observations and directions, the above Writ Petition (Civil) will stand disposed of. **sd/ALEXANDER THOMAS, JUDGE.** acd W.P.(C)No.5446/2020 8 ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 THE TRUE COPY OF THE REPRESENTATION SUBMITTED BY THE PETITIONER DATED 24.1.2015 BEFORE THE DISTRICT COLLECTOR, ERNAKULAM SEEKING PERMISSION TO USE THIS PROPERTY OF OTHER PURPOSE.** **EXHIBIT P2 TRUE COPY OF THE RECEIPT ISSUED FROM THE OFFICE OF THE 2ND RESPONDENT DATED 24.1.2015.** **EXHIBIT P3 TRUE COPY OF THE REPORT SUBMITTED BY THE AGRICULTURAL OFFICER DATED 11.2.2015.** - **EXHIBIT P4 TRUE COPY OF THE REPORT SUBMITTED BY THE ADDITIONAL TAHSILDAR TO THE DISTRICT COLLECTOR DATED 13.3.2015.** **EXHIBIT P5 THE TRUE COPY OF THE APPLICATION SUBMITTED BY THE PETITIONER BEFORE THE DISTRICT COLLECTOR DATED 17.8.2017.** **EXHIBIT P6 TRUE COPY OF THE JUDGMENT IN WPC NO.32723/2017 DATED 23.10.2017. EXHIBIT P7 THE TRUE COPY OF THE NOTICE ISSUED BY THE REVENUE DIVISIONAL OFFICER, FORT KOCHI DATED 6.2.2020. EXHIBIT P8 THE TRUE COPY OF THE NOTICE DATED 19.2.2020 ISSUED FROM THE OFFICE OF THE REVENUE DIVIIONAL OFFICER, FORT KOCHI 2020.**