ELDO.K.THOMAS v. STATE OF KERALA and Others (WP(C).No.5583 of 2020)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **WEDNESDAY, THE 26TH DAY OF FEBRUARY 2020 / 7TH PHALGUNA, 1941** ## **WP(C).No.5583 OF 2020(W)** ## **PETITIONER:** **ELDO.K.THOMAS AGED 65 YEARS S/O.THOMAS, KOUNGUMPILLIL HOUSE, CHELAD P.O., KOTHAMANGALAM.** **BY ADVS. SRI.ALEXANDER JOSEPH SRI.M.V.SABU SMT.TERESA C. JOSEPH SMT.AKHILASREE BHASKARAN** ## **RESPONDENTS:** - **1 STATE OF KERALA REPRESENTED BY SECRETARY TO GOVERNMENT, DEPARTMENT OF REVENUE, STATE SECRETARIAT, TRIVANDRUM-695 001.** - **2 THE DISTRICT COLLECTOR, KAKKANAD, ERNAKULAM-682 030.** - **3 THE REVENUE DIVISIONAL OFFICER, MUVATTUPUZHA-686 661.** - **4 THE VILLAGE OFFICER, PINDIMANA VILLAGE, PINDIMANA P.O., KOTHAMANGALAM-686 692.** - **5 THE LOCAL LEVEL MONITORING COMMITTEE, REPRESENTED BY ITS CONVENOR/THE AGRICULTURE OFFICER, AGRICULTURE OFFICE, PINDIMANA P.O., KOTHAMANGALAM-686 692.** ## **SRI.K.J.MANU RAJ, GOVT.PLEADER** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 26.02.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** W.P(C) No.5583 of 2020 2 ## **ALEXANDER THOMAS, J.** ## **=========================== W.P(C) No.5583 of 2020** **===========================** Dated this the 26[th] day of February, 2020 ## **JUDGMENT** The prayers in this Writ Petition (Civil) are as follows: - “i _) Issue a Writ of Certiorari or other appropriate writ, order or direction, quashing Exhibit P6 to the extent of restraining the petitioner from using the land for non agricultural purpose and as building site._ - _ii) Issue a Writ of Certiorari appropriate writ, order or direction, quashing Exhibit P7._ - _iii) Issue a appropriate Writ order or direction declaring that the Kerala Conservation of Paddy Land and Wet Land (Amendment) Act, 2018 is not applicable for considering and deciding Exhibit P1 application and directing the respondent to reconsider Exhibit P1 in accordance with law._ - _iv) Issue such other appropriate writ, order or direction that this Honourable Court may deem fit and proper in the facts and circumstances of the case.”_ 2. Heard Sri.Alexander Joseph, learned counsel appearing for the petitioner and Sri.K.J.Manu Raj, learned Government Pleader appearing for the respondents. 3. The specific case of the petitioner is that the subject property has been converted as garden land/purayidam, long prior to the coming into force of the Kerala Conservation of Paddy Land and Wet Land Act, W.P(C) No.5583 of 2020 3 2008. In that regard, the petitioner has submitted Ext.P-1 application dated 02.05.2017 under Rule 6 (2) of the Kerala Land Utilization Order, 1967, before the 3[rd] respondent-Revenue Divisional Officer (RDO), Muvattupuzha, requesting for orders for conversion of the land as garden land/purayidam, etc. The petitioner had also submitted application before the Pindimana Grama Panchayath, for regularization of the building constructed by the petitioner in the subject property, as the panchayath authorities was taking the stand that the building number cannot be allotted to the said building, as the subject property is still classified as Nilam, as per the entries in the Basic Tax Register, in respect of the said property. Thereafter, the petitioner has approached this Court by filing W.P(C)No.16752/2017, in which this Court has rendered Ext.P-2 judgment dated 30.05.2017, wherein this Court has passed Ext.P-2 order dated 30.05.2017 in the said W.P(C)No.16752/2017, whereby this Court had directed the Convenor of the Local Level Monitoring Committee to inspect the subject property to the Agricultural Officer concerned and then to file a report regarding the lie and nature of the property, as on the date of coming into force of the Kerala Conservation of Paddy Land and Wet Land Act, 2008, from the Director, Kerala State Remote Sensing and Environment Center W.P(C) No.5583 of 2020 4 (KSREC), Thiruvananthapuram, etc. Pursuant to Ext.P-2 order, the Agricultural Officer, who is the Convenor of the Local Level Monitoring Committee has submitted Ext.P-3 report dated 23.11.2017, wherein it has been mentioned that the subject property has been shown as converted property in the data bank published as per the provisions of the 2008 Act and further that the local inspection has also disclosed that the subject property has been converted prior to the coming into force of the Kerala Conservation of Paddy Land and Wet Land Act, 2008, etc. Thereafter, this Court as per Ext.P-5 judgment dated 24.01.2018 has finally disposed of the abovesaid W.P(C)No.16752/2017, wherein this Court has directed the Pindimana Grama Panchayath, who has been arrayed as respondent No.1 therein to consider the plea of the petitioner for grant of building number to the building constructed in the subject property, taking note of the abovesaid report as per Ext.P-3 herein. Further, this Court had also directed the respondent-RDO to consider the plea of the petitioner in the application filed under Rule 6 (2) of the Kerala Land Utilization Order, 1967 on 02.05.2017 as per Ext.P-1 herein and to take a considered decision thereon. 4. According to the petitioner, in pursuance of Ext.P-5 judgment, the Pindimana Grama Panchayath has granted building W.P(C) No.5583 of 2020 5 number to the building constructed by the petitioner in the subject property. But whereas, the 3[rd] respondent-RDO has passed Ext.P-6 order dated 05.11.2018, wherein it has ordered that the petitioner is permitted to use the said property for cultivation purposes other than for paddy cultivation and that no construction should be affected in the subject property, etc. Aggrieved by Ext.P-6, the petitioner had filed a petition before the 3[rd] respondent-RDO pointing out the illegalities in Ext.P-6 and thereupon, now the 3[rd] respondent-RDO has passed Ext.P-7 order directing that permission could be granted for conversion of the said property as garden land or purayidam, in case, the petitioner pays the amount as required under the provisions of Sec.27A of the amended provisions of the 2008 Act. These orders as per Exts.P-6 & P-7 are under challenge in this writ proceedings. 5. There cannot be any dispute that the subject property has been converted long prior to the coming into force of the Kerala Conservation of Paddy Land and Wet Land Act, 2008. This as per the matter is clear like the day light from a mere reading of Ext.P-3 report submitted by the 5[th] respondent-Local Level Monitoring Committee on the basis of the joint inspection made along with the Village Officer concerned and also on the basis of satellite pictures. Building has been W.P(C) No.5583 of 2020 6 constructed by the petitioner in the subject property and the competent panchayath authorities concerned has also granted building number to the said building constructed by the petitioner thereon. It is by now well settled by a series of ruling of this Court as in _**Geo Peter v. Revenue Divisional Officer**_ [2019 (3) KLT 838], _**Renjith K.Paul v. Revenue Divisional Officer**_ [2019 (2) KLT 262], _**Salim v. State of Kerala**_ [2019 (3) KLT 604 (DB)] that in a case where the subject property has been converted prior to coming into force of the 2008 Act and where the requisite application under Rule 6(2) of the Kerala Land Utilization Order, 1967 has been submitted by the party concerned before 30.12.2017 (date of coming into force of the amended provisions of the 2008 Act) introducing Sec.27A thereof, etc., then none of the detrimental and adverse conditions flowing out from the said amended provisions can be pressed into service as against the party concerned and the respondent-RDO is statutorily obliged to consider the said plea for conversion on the basis of the provisions contained in Rule 6(2) of the Kerala Land Utilization Order, 1967. This aspect of the matter has also been reiterated by a recent judgment of the Division Bench of this Court in _**Thasildar, Thodupuzha Taluk and another v. Renjith George**_ [2020 (1) KHC 865 (DB)] that in a case W.P(C) No.5583 of 2020 7 where the subject property has been converted prior to the coming into force of the 2008 Act and where Rule 6(2) application under the Kerala Land Utilization Order, 1967 has been submitted before 30.12.2017, then the said plea of the party has to be considered in terms of the provisions contained in Rule 6(2) of the Kerala Land Utilization Order and that none of the adverse provisions contained in the amended provisions of the 2008 Act can be pressed into service as against such a party. Moreover, the Division Bench has also reiterated in **Renjith’s case** (supra) [2020 (1) KHC 865 (DB)] that in respect of such a property, the party is also legally entitled to maintain an application Sec.6A of the Kerala Land Tax Act for re-assessment of the subject property, so as to make additional entries in the Basic Tax Register to show the classification of the land as purayidam or garden land, instead of the earlier BTR entries as paddy land or Nilam, as the case may be, in view of the earlier dictum laid down by another Division Bench of this Court in _**LLMC, Kizhakkambalam Grama Panchayath and others v. Mariumma and another**_ [2015 (2) KLT 516 (DB)]. 6. After hearing both sides and after perusal of the pleadings and materials on record, this Court has no hesitation to hold that the impugned order as per Exts.P-6 & P-7 will have no legs to stand in the W.P(C) No.5583 of 2020 8 eye of law. It appears that the 3[rd] respondent-RDO had not complied with the directions issued by this Court in Ext.P-5 judgment rendered on 24.01.2018. Thereupon, the petitioner was constrained to file a Contempt of Court case (Civil) as Con.Case (Civil) No.1410/2018 before this Court and after this Court had considered the said contempt of court case that the respondent-RDO has passed Ext.P-6 order dated 05.11.2018. Pursuant to the directions issued by this Court in Ext.P-5 judgment, the Grama Panchayath has already granted necessary permission to the petitioner granting building number to the building already constructed by the petitioner in the subject property. When that is the admitted position and when this Court had even directed the Grama Panchayath to consider and pass orders on the plea of the petitioner for grant of building permit in the light of the report of the Local Level Monitoring Committee as per Ext.P-3 herein, it passes the understanding of this Court as to why the 3[rd] respondent-RDO has passed an order as per Ext.P-6 stating that the petitioner may undertake any cultivation other than paddy cultivation in the subject property, but at the same time, the petitioner shall not make any construction. It is all the more arbitrary and unreasonable for the simple reason that the building has already been duly constructed W.P(C) No.5583 of 2020 9 by the petitioner in the subject property, long prior to Ext.P-6 and that aspect of the matter has been dealt with by this Court in Ext.P-5 judgment rendered on 24.01.2018 and whereby, the Panchayath concerned was directed to consider the issue of grant of building number to the constructed building, taking note of the abovesaid Ext.P-3 report of the Local Level Monitoring Committee, which has been made on the basis of the joint inspection of the Agricultural Officer as well as the Village Officer concerned, wherein it is has been conclusively found that the subject property has been converted, long prior to the coming into force of the 2008 Act, etc. 7. When the ground reality is that building has already been constructed in the subject property and building number has already been granted by the Panchayath concern on the basis of Ext.P-5 judgment, the condition imposed by the 3[rd] respondent-RDO in Ext.P-6 that the petitioner shall not make any construction in the subject property is arbitrary and unreasonable to say the least. The issue that should have been focused by the 3[rd] respondent-RDO while passing Ext.P-6 order was as to whether the plea of the petitioner for grant of permission for the formal conversion of the land as garden land or purayidam land by virtue of the enabling provisions contained in Rule W.P(C) No.5583 of 2020 10 6(2) of the Kerala Land Utilization Order, 1967 should have been granted or not. It appears that when the petitioner had objected to Ext.P-6 order, the 3[rd] respondent-RDO has passed a revised order as per Ext.P-7 and has held that the petitioner’s request for conversion could be allowed, if he is prepared to pay the huge amounts, in terms of the amended provisions contained in Sec.27A of the Act. The said decision as per Ext.P-7 is plainly and flagrantly in violation of the dictum laid down by this Court in the series of aforecited judgments. For these reasons, Exts.P-6 & P-7 are liable to be interdicted by this Court. Accordingly, Exts.P-6 & P-7 orders will stand set aside and the matter will stand remitted to the 3[rd] respondent-Revenue Divisional Officer, for consideration and decision afresh. Ordinarily this Court would have issued a mandamus at this stage, instead of again remitting the matter to the 3[rd] respondent-RDO, who has passed Exts.P-6 & P-7 orders quite arbitrarily, inspite of the directions issued by this Court in Ext.P-5 judgment and inspite of the series of rulings made by this Court settling the legal position in that regard, as aforestated. However, Sri.K.J.Manu Raj, learned Government Pleader appearing for the official respondents would submit that the matter may be remitted to the 3[rd] respondentRDO and that the said officer would consider the plea of the petitioner W.P(C) No.5583 of 2020 11 and pass necessary orders thereon, in the light of the abovesaid dictum laid down by this Court in the aforecited judgments. 8. Taking note of the abovesaid submission made on behalf of the 3[rd] respondent-RDO, this Court would trust the 3[rd] respondent and hope that the 3[rd] respondent will rise up to the occasion and will not act in an arbitrary manner and would act in a manner, which is behoving his position as a senior revenue officer in the revenue division of the district concerned and who is expected to honour and act in accordance with the legal position settled by this Court in the aforecited judgments. It is hoped and expected that the 3[rd] respondent-RDO will not unnecessarily make the petitioner to litigate before this Court. 9. Accordingly, it is ordered that the 3[rd] respondent will take up the plea made by the petitioner as per Ext.P-1 application dated 02.05.2017 under Rule 6(2) of the Kerala Land Utilization Order and after affording reasonable opportunity of being heard to the petitioner, will pass orders in the matter of grant of formal permission for conversion of the land as purayidam or garden land, as envisaged in Rule 6 (2) of the Kerala Land Utilization Order and in the light of the legal position settled by this Court in the aforecited judgments. Orders in this regard should be passed by the 3[rd] respondent-Revenue W.P(C) No.5583 of 2020 12 Divisional Officer, without much delay, preferably within a period of one month from the date of production of the certified copy of this judgment. After orders are passed by the 3[rd] respondent-RDO, it will be open to the petitioner to make an application under Sec.6A of the Kerala Land Tax Act before the competent revenue official concerned like the Tahsildar, as envisaged by the Division Bench of this Court in **Renjith's case** (supra) [2020 (1) KHC 865 (DB)], **Mariumma's case** (supra) [2015 (2) KLT 516 (DB)], etc., in the matter of rendering of additional entries in the Basic Tax Register to show the re-classification of land in the place of the earlier entries, etc. With these observations and directions, the above Writ Petition (Civil) stands finally disposed of. **Sd/-** **ALEXANDER THOMAS JUDGE** vgd W.P(C) No.5583 of 2020 13 ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF THE APPLICATION DATED 02.05.2017 OF THE PETITIONER TO THE 3RD RESPONDENT.** **EXHIBIT P2 TRUE COPY OF THE INTERIM ORDER DATED 30.05.2017 IN WPC NO.16752/2017 OF THIS HON'BLE COURT.** **EXHIBIT P3 TRUE COPY OF THE REPORT DATED 23.11.2017 OF THE 5TH RESPONDENT SUBMITTED IN WPC NO.16752/2017 BEFORE THIS HON'BLE COURT.** **EXHIBIT P4 TRUE COPY OF THE REPORT DATED 26.03.2018 OF THE 4TH RESPONDENT TO THE 3RD RESPONDENT.** **EXHIBIT P5 TRUE COPY OF THE JUDGMENT DATED 24.01.2018 IN WPC NO.16752/2017 OF THIS HON'BLE HIGH COURT.** **EXHIBIT P6 TRUE COPY OF THE ORDER NO.K DIS1123/18/A11 DATED 05.11.2018 OF THE 3RD RESPONDENT.** **EXHIBIT P7 TRUE COPY OF THE ORDER DATED 23.01.2020 OF THE 3RD RESPONDENT.**