Dr. Mohammed Ashraf v. State of Kerala, District Collector, Revenue Divisional Officer, Fort Kochi, and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** ## **WEDNESDAY, THE 27TH DAY OF MAY 2020 / 6TH JYAISHTA, 1942** ## **WP(C).No.10382 OF 2020(W)** ## **PETITIONER:** **DR. MOHAMMED ASHRAF, AGED 58 YEARS, S/O. BHAVAKUTTY ABDUL KAREEM, RESIDING AT 'HIBBA', CHANDAPPURA, KODUNGLALUR - 680 664, THRISSUR DISTRICT.** **BY ADV. SRI. PEEYUS A. KOTTAM** ## **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 - 682 001.** **SRI. SAIGI JACOB PALATTY, SR. GP.** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 27.05.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C).No.10382 OF 2020** **2** ## **ALEXANDER THOMAS, J.** ------------------------------------------W.P.(C)No.10382 of 2020 ---------------------------------------------Dated this the 27[th ] day of May, 2020 ## **JUDGMENT** The case set up in this Writ Petition (Civil) is as follows: Petitioner is the owner in possession of 98.64 ares of property in Re-Sy.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-P4 judgment dated 23.10.2017, this Court directed to consider petitioner's application under the Kerala Land Utilisation Order within one month from the date of judgment. Surprisingly, as per Ext-P5 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-P6 notice and thereby demanded the petitioner to pay an amount of Rs.2,36,83,792/- **WP(C).No.10382 OF 2020** **3** instead of Rs.1,29,41,896/- demanded in Ext-P5. Challenging the demand in Ext-P5 and P6 petitioner filed W.P.(C) 5446/2020 before this Court and as Ext-P7 judgment this Court set aside the demand in Exts-P5 and P6 notices and directed to consider petitioner's application under Clause 6 (2) of Kerala Land Utilisation Order, 1967 since petitioner's applications are pending consideration from 2015 onwards that is much before 31.12.2017. In pursuant to Ext-P7 judgment when the petitioner appeared before the 3rd respondent for hearing on 19.05.2020, it is informed that the 2[nd] respondent has passed Ext-P8 order just before filing the writ petition. Immediately petitioner submitted application under Right to Information Act to get the copy of the order allegedly passed by the 2[nd] respondent. The copy obtained by the petitioner under Right to Information Act from 2[nd] respondent on 21.05.2020 is produced in the writ petition as ExtP8. The petitioner was never served Ext-P8 order allegedly passed by the 2[nd] respondent other than Ext-P8 obtained under Right to Information Act. In Ext-P8 the 2[nd] respondent has duly admitted that the petitioner's property having 98.64 ares in **WP(C).No.10382 OF 2020** **4** which he sought permission under Clause 6 is lying as converted land and the same is converted much before 2008 and there was no cultivation in this property for last more than 25 years and this property is not suitable for cultivation. The 2[nd] respondent rejected the petitioner's application under Clause 6 by saying that out of 1.3974 hecters of property in Sy.No. 382/2 of Maradu Village, 43 ares of property is lying as marshy land and hence the permission cannot be granted for the petitioner's property having 98.64 ares lying as converted land. The said reasoning is unsustainable in law and against the spirit of Kerala Conservation of Paddy Land and Wet Land Act, 2008. The reason for rejecting the Ext-P8 order is illegal and the same is passed showing a prior date just to get over Ext-P7 judgment passed by this Court and the reasoning stated in his Ext- P8 order passed by the 2[nd] respondent is per se illegal and unsustainable in law. It is in the light of the above factual averments and contentions that the petitioner has filed instant Writ Petition (Civil) with the following prayers:- _“i) Call for the entire records leading to Ext- P8 and quash the same by issuing a writ of certiorari_ **WP(C).No.10382 OF 2020** **5** _or any other appropriate writ, order or direction;_ _ii) Issue a writ of mandamus and other appropriate writ, order or direction and thereby command the 3[rd] respondent to pass orders on Ext-P1 and P3 application in compliance with ExtP7 judgment._ _iii) Grant such other reliefs, which are just and necessary in the interest of justice and deem fit, just and proper.”_ 2. Heard Sri. Peeyus A. Kottam, learned Counsel appearing for the petitioner and Sri. Saigi Jacob Palatty learned Senior Government Pleader appearing for the respondents. 3. The factual issues in this case have already been dealt with by this Court and a judgment in this matter has already been rendered by this Court as per Ext.P7 dated 25.02.2020 in WP(C) No. 5446 of 2020. This Court has conclusively held that as the subject property of the petitioner which has been classified as paddy land/nilam in BTR records, had been converted as garden land or purayidom much prior to coming into force of the Kerala Conservation of Paddy Land and Wetland Act , 2008 and that he has filed the requisite application under Rule 6(2) of the Kerala Land Utilisation Order, 1967 for formal orders for change of use **WP(C).No.10382 OF 2020** **6** of the land much prior to the cut off date of 30.12.2017 [date of coming into force of the amended provisions of the abovestated Act which has introduced Sec.27(A)]. As a matter of fact, Ext.P2 is the application filed by the petitioner under Rule 6(2) of KLU order as early as 24.01.2015. Since no action was taken thereon petitioner has again filed yet another application as per Ext.P3 on 17.08.2017. This Court as per Ext.P4 judgment rendered as early as on 23.10.2017 had directed the statutory authority concerned to consider the said application in terms of the provisions contained in the Kerala Land Utilisation order, 1967. Thereafter 3[rd] respondent RDO has issued Ext.P5 directing the petitioner to pay the amounts mentioned therein as the fee payable as per Section 27A(1) of the amended provisions of the abovestated Act. rd Later Ext.P6 order has also been passed by the 3 respondent RDO on 19.02.2020 stating that the amount of fee mentioned in Ext.P5 is of the lower side and that a higher amount mentioned therein should be paid. This Court as per Ext.P7 judgment rendered on 25.02.2020 has quashed the impugned Exts.P5 and P6 orders to the limited extent it has directed the petitioner is **WP(C).No.10382 OF 2020** **7** liable to pay the higher amounts in terms of the provisions contained in Section 27A of the Act as well as the amended provisions of the Rules framed thereunder. This was so ordered by this Court as it is now well settled by a series of rulings of this Court that where the subject property has been converted prior to 12.08.2008 and there the requisite Rule 6(2) of the application under the KLU order has been filed before the cut off date of 30.12.2017, then the application of such a party has to be considered strictly in terms of the provisions contained in Rule 6(2) of the KLU order and in such a case he cannot be mulcted to pay the higher amounts conceived as per the amended provisions of the Act which has introduced Section 27(A) as well as the amended Rules framed thereunder. **[Refer** _**Renji K. Paul and another v. Revenue Divisional Officer [2019 (2) KLT 262], Geo Peter v. Revenue Divisional Officer [2019 (3) KLT 838], LLMC, Kizhakkambalam Grama Panchayat others v. Mariumma and another [2015 (2) KLT 516 (DB)] and Tahsildar, Thodupuzha Taluk and another v. Renjith George [2020 (1) KHC 865] etc.**_ In this Court **WP(C).No.10382 OF 2020** **8** has also held therein that after obtaining necessary orders under Rule 6(2) of the KLU order, the party is also entitled to maintain the application under Section 6A of the Kerala Land Tax Act before the Tahsildar concerned for fresh reassessment of the subject property for securing additional entries in the BTR to show the change of nature of the land as garden land or purayidom instead of the earlier BTR entries as paddy land or nilam. [Refer to _**Renji K. Paul's case (supra) and Mariumma's C**_ **ase (** _**supra)].**_ 4. It is in the light of these legal principles well settled by this Court in a catena of decisions that this Court has rendered Ext.P7 judgment on 25.02.2020 on disposing of WP(C) No.5446 of 2020 filed by the petitioner under the very same issues by directing that the application of the petitioner under Rule 6(2) of the KLU order will have to be considered strictly in terms of the provisions contained in that Rule and without insisting for any amounts payable in terms of the amended provisions of the Act and the amended provisions of the Rules as aforestated. It would be profitable to refer to the findings and directions made by this **WP(C).No.10382 OF 2020** **9** ## Court in Paragraph 5 of Ext.P7 judgment which reads as follows:- “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 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 2o08 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 2o08 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 **WP(C).No.10382 OF 2020** **10** permission for conversion of the land as 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 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 passed by the **WP(C).No.10382 OF 2020** **11** 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)**_ .” 5. Petitioner would submit that after obtaining certified copy of Ext.P7 judgment dated 25.02.2020 he had intimated the same to the 3[rd] respondent RDO for further action in the matter and he was invited for a personal hearing on 19.05.2020 and at that time he was intimated that the 2[nd] respondent District Collector has already passed an order as per Ext.P8 dated 14.02.2020 rejecting the plea of the petitioner under Rule 6(2) on the ground that though major part of the subject properties are classified as nilam/paddy land, a part of the said properties are classified as wet land etc. The factum of issuance of Ext.P8 order dated 14.02.2020 was never appraised to the petitioner at any point of time prior to 19.04.2020 and it was only after making requisite application under the Right to Information Act proceedings 30.12.2017 that he could secure a copy of Ext.P8. **WP(C).No.10382 OF 2020** **12** 6. Learned Counsel for the petitioner would point out that the request made by the petitioner under Rule 6(2) of the KLU order is only for change of user of the land which are shown as paddy land/nilam in the BTR records and which have been converted as garden land or purayidom prior to 12.08.2008. That the petitioner has not made any claim for change of user in respect of any property which has been classified as wet land in the BTR records. It is pointed out that the said aspect is unnecessarily being raised in Ext.P8 to create confusion. 7. There is yet another aspect in this matter. The 3[rd] respondent RDO had earlier issued Exts.P5 and Ext.P6 proceedings. By Ext.P5 proceedings dated 06.02.2020 and Ext.P6 proceedings dated 19.02.2020 the petitioner has been direct to pay the higher amounts as per the amended provisions of the 2008 Act. Therefore Exts.P5 and P6 would clearly show that the 3[rd] respondent who is also the Statutory Officer, has taken the decision to allow the request of the petitioner in terms of Rule 6(2) and all what he insisted is that he should pay the fee prescribed in terms of the amended provisions of the Act and **WP(C).No.10382 OF 2020** **13** Rules. Exts.P4 and P5 have been quashed to the extent the higher amount have been demanded. When the matter was under the consideration of the 3[rd] respondent RDO as per Exts.P5 and P6, it is not known as to how the 2[nd] respondent has passed an order as per Ext.P8. It is true that both the 2[nd] and 3[rd] respondents are equally competent as per the Rules to consider and pass orders on the request under Rule 6(2) of the KLU order. When the matter was in the seisin of the 3[rd] respondent RDO as can be seen from Exts.P5 and P6, it is not known as to why an order in the nature of Ext.P8 has been passed as per Ext.P8 on 14.02.2020. It is pointed out by the petitioner's counsel that the hearing was earlier offered by the 2[nd] respondent sometime in the year 2018 and thereafter the petitioner was never notified about any proceedings. It is thereafter Exts.P5 and P6 has been issued by the 3[rd] respondent RDO upon which the petitioner had approached this Court which culminated in Ext.P7 judgment . 8. Sri. Peeyus A. Kottam, the learned Counsel appearing for the petitioner would submit that this Court may place on record the submission of the petitioner that he seeks for **WP(C).No.10382 OF 2020** **14** necessary permission under Rule 6 (2) of the KLU order only in respect of the lands which have been classified as paddy land/nilam in the BTR/Revenue Records and which have been converted as garden land or purayidom prior to 12.08.2008. In this regard learned Senior Government Pleader, would point out that the provisions contained in Rule 6(2) of the KLU order can be invoked in the matter of permission for change of use of the land only in respect of lands which are classified as paddy land in the BTR and which have been later converted as garden land or purayidom prior to 12.08.2008 and not in respect of lands which are classified as “wet land” etc. This Court need not enter into any of those aspects, as the 3[rd] respondent RDO is bound to comply with the directions in Ext.P7 judgment dated 25.02.2020 in WP(C) No.5446 of 2020. 9. The respondents have not challenged Ext.P7 judgment in the manner known to law and so it has become final and conclusive. Therefore the 3[rd] respondent is bound to comply with the directions issued by this Court in Ext.P7. Petitioner has sought for change of user only in respect of the lands which have **WP(C).No.10382 OF 2020** **15** been classified as paddy land in the BTR and which have been converted prior to 12.08.2008. Therefore the grounds of rejection stated in Ext.P8 are not sustainable in law and the impugned proceedings under Ext.P8 will stand quashed. The matter will stand remitted to the 3[rd] respondent RDO for further action and it is ordered that the 3[rd] respondent shall comply with the directions in Ext.P7 judgment in letter and spirit. Since Ext.P7 judgment has already been rendered by this Court, the directions in Ext.P7 judgment should be complied by the 3[rd] respondent RDO within two months from the date of production of a certified copy of the judgment. The consequential directions in Ext.P7 judgment will thereafter have to be complied with by the Tahsildar concerned in the matter of fresh assessment from reassessment of the subject property in terms of Section 6A of Kerala Land Tax Act, 1961 and in the light of the judgments of this Court mentioned therein. It is hoped and expected that the 3[rd] respondent would rise upto the occasion and would pass orders and would take a decision strictly in terms of the directions in Ext.P7 judgment and without raising unnecessary **WP(C).No.10382 OF 2020** **16** technicalities, so that litigations of this nature could be avoided. With these observations and directions, the Writ Petition (Civil) will stand finally disposed of. ## **Sd/-** **ALEXANDER THOMAS JUDGE** SPR **WP(C).No.10382 OF 2020** **17** ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 THE TRUE COPY OF THE REPRESENTATION SUBMITTED BY THE PETITIONER DATED 24.01.2015 BEFORE THE DISTRICT COLLECTOR, ERNAKULAM, SEEKING PERMISSION TO USE THIS PROPERTY FOR OTHER PURPOSE. EXHIBIT P2 TRUE COPY OF THE RECEIPT ISSUED FROM THE OFFICE OF THE 2ND RESPONDENT DATED 24.01.2015.** **EXHIBIT P3 THE TRUE COPY OF THE APPLICATION SUBMITTED BY THE PETITIONER BEFORE THE DISTRICT COLLECTOR DATED 17.08.2017. EXHIBIT P4 THE TRUE COPY OF THE JUDGMENT IN W.P(C)NO.32723/2017 DATED 23.10.2017. EXHIBIT P5 THE TRUE COPY OF THE NOTICE ISSUED BY THE REVENUE DIVISIONAL OFFICER, FORT KOCHI DATED 06.02.2020. EXHIBIT P6 THE TRUE COPY OF THE NOTICE DATED 19.02.2020 ISSUED FROM THE OFFICE OF THE REVENUE DIVISIONAL OFFICER, FORT KOCHI 2020. EXHIBIT P7 TRUE COPY OF THE JUDGMENT IN WP(C) 5446/2020 DATED 25.02.2020. EXHIBIT P8 THE TRUE COPY OF THE ORDER PASSED BY THE 2ND RESPONDENT DATED 14.02.2020 SERVED ON THE PETITIONER UNDER RIGHT TO INFORMATION ACT ON 21.05.2020. EXHIBIT P9 THE TRUE COPY OF THE SKETCH SHOWING THE CONVERTED LAND AND WET LAND IN RE-SY. NO.238/2 OF MARADU VILLAGE.** ## **RESPONDENT'S/S EXHIBITS: NIL.**