Fayaz Ahmed Bazaz v. District Collector, Ernakulam and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **MONDAY, THE 13TH DAY OF JULY 2020 / 22ND ASHADHA, 1942** ## **WP(C).No.12639 OF 2020(D)** ## **PETITIONER:** **FAYAZ AHMED BAZAZ AGED 58 YEARS** **S/O.LATE G.M.BAZAZ, RESIDING AT L-122, 10TH CROSS, 9TH “A” MAIN, LIC COLONY, NEW THIPPASANDARA P.O., PIN-560075, JEEVAN BHEEMA NAGAR, BANGALORE, KARNATAKA, NOW RESIDING AT SURYA DIARY FARM, MARAKAD, ASHTAMICHIRA, THRISSUR-680731.** ## **BY ADV. SRI.SHERRY J. THOMAS** ## **RESPONDENTS:** - **1 THE DISTRICT COLLECTOR ERNAKULAM, COLLECTORATE, KAKKANAD-682030.** - **2 THE RDO/SUB COLLECTOR, 1ST FLOOR, KB JACOB ROAD, FORT KOCHI, KOCHI, KERALA -682001.** - **3 THE THASILDAR, KANAYANNUR, PARK AVENUE, NEAR SUBHASH PARK, MARINE DRIVE, KOCHI, KERALA-682011.** - **4 THE VILLAGE OFFICER, KAKKANAD, ERNAKULAM, KERALA STATE-682030.** - **5 THE AGRICULTURAL OFFICER, KRISHIBHAVAN, KAKKANAD-682030.** - **6 THE LOCAL LEVEL MONITORING COMMITTEE, THRIKAKKARA, REPRESENTED BY AGRICULTURAL OFFICER, KRISHIBHAVAN, KAKKANAD-682030.** - **7 THRIKAKKARA MUNICIPALITY, REPRESENTED BY ITS SECRETARY, -682021.** - **R7 BY SRI.S.JAMAL, SC, THRIKKAKARA MUNICIPALITY** **SRI.K.J.MANU RAJ, GOVT.PLEADER** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 13.07.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** W.P(C) No.12639 of 2020 2 # **ALEXANDER THOMAS, J.** ## **===========================** # **W.P(C) No.12639 of 2020** **===========================** Dated this the 13[th] day of July, 2020 ## **JUDGMENT** The prayers in this Writ Petition (Civil) are as follows: - _“i) Call for the entire records pertaining to Exhibit P2 and P3 applications submitted by the Petitioner._ - _ii) Issue a writ of mandamus, any other writ, to direct the Respondents 5 and 6 to Consider Ext P2 and remove the property comprised in Re Sy No.555/13 from the Data Bank AND direct the Respondents 1 to 4 to Consider Ext P3 and make corrections in the BTR regarding the entries in Re Sy No.555/13 in Kakkanad Village._ - _iii) Issue a writ of mandamus, any other writ, to the Respondents 1 to 3 to accept the Ext P4 and complete the proceedings in connection with the Applications submitted by Petitioner as per the Ext P1 Judgment._ - _iv) Such other relief's that this Honourable Court may deem fit and proper to grant, in the interest of justice._ - _v) Provide cost of the proceedings.”_ 2. Heard Sri.Sherry J.Thomas, learned counsel appearing for the petitioner and Sri.K.J.Manu Raj, learned Government Pleader appearing for the respondents. 3. The case of the petitioner is that the subject property though continues to be described as ‘Nilam/Paddy Land’ in the Basic Tax Register (BTR) has been converted as ‘Garden Land or Purayidom’, much prior to 12.08.2008 (date of coming into force of the Kerala Conservation of Paddy W.P(C) No.12639 of 2020 3 Land and Wetland Act, 2008). Further that, the subject property was fully covered by Survey No.555/8 and prior to the purchase of the property, the abovesaid part of the property which was later purchased happened to be included in a new sub division in the survey process and it was given the number Survey No.555/13, 11 & 19. Later during the preparation of the draft data bank, the property of the predecessor which was included in Survey No.555/8 was shown as the converted land prior to 2008, whereas mistake occurred in the preparation of the draft data bank and part of the property purchased by the petitioner which was shown as the one falling within the Survey No.555/13 was shown as a ‘Paddy Land/Nilam’ wrongly. That the petitioner had earlier filed application dated 29.09.2016 (referred to as Ext.P-8 in Ext.P-1 W.P(C) No.34834/2016) before the respondentDistrict Collector seeking for permission under Rule 6(2) of the Kerala Land Utilization Order for change of user of the land covered by the sale deed concerned. That since no effective action was forthcoming thereon, the petitioner was constrained to approach this Court by filing Writ Petition (Civil) as the abovesaid W.P(C) No.34834/2016, which this Court had disposed of as per Ext.P-1 judgment dated 07.07.2017. This Court in Ext.P-1 judgment ordered that the petitioner should initially approach the respondent-Local Level Monitoring Committee (LLMC), who should make an inspection. This Court earlier passed interim order in Ext.P-1 W.P(C) W.P(C) No.12639 of 2020 4 directing the respondent-LLMC to make a physical inspection and file report on satellite pictures obtained from the Kerala State Remote Sensing and Environment Centre (KSREC), etc. The said report as well as the satellite pictures were produced before this Court and it was noted that the inspection discloses that the property lies as a converted land and that there is a building found on the northern side, a vacant plot on the eastern side and Chithrapuzha Thodu on the southern side and a property with a building lies on the western boundary. This Court has also noted that the property in Survey No.555/8 has been noted in the draft data bank as converted land in the year 2004. This Court also referred to the report of the satellite picture regarding the land use stage. Paragraph Nos.2 & 3 of Ext.P-1 judgment reads as follows : “2. This Court directed the LLMC to make a physical inspection and file a report with satellite pictures and report obtained from the Kerala State Remote Sensing & Environment Centre (KSREC); which are produced before this Court along with a memo dated 27.02.2017. On an inspection it is found that the property lies as a converted land. There is a building found on the northern side, a vacant plot on the eastern side, Chithrapuzha thodu on the southern side and on the west a property with a building. In the data bank though the property is described as paddy land, it is also recorded that the land in Survey no.555/8 is filled in 2004. However, the land lying in 555/13 still continues as paddy land. 3. The Report on Land Use Change shows that in December 2006 shows the natural land cover being converted from wetland vegetation to fallow land. The plot is kept fallow for a long period and the image of 2016 shows a construction on the north east side of the plot. The conclusion of the KSREC also is that the conversion of the land is on the north east side of the Plot. The report finds that the conversion of the land from wet land vegetation is seen from December 2006, prior to the implementation of Conservation of Paddy Land and W.P(C) No.12639 of 2020 5 Wet Land Act, 2008.” 4. Thereupon, this Court has directed that the petitioner may file an application before the LLMC as per the amended norms and seek for formal exclusion of the subject property from the land data bank and then the petitioner may move the District Collector for change of user of the land under Rule 6(2) of the Kerala Land Utilization Order. Both the said applications were directed to be considered by the respondent-LLMC and the respondent-District Collector concerned. Thereafter, the petitioner has filed Ext.P-3 application dated 27.07.2017 which has been acknowledged in Ext.P-3 (a) receipt before the 6[th] respondent-LLMC under the convenorship of the 5[th] respondent-Agricultural Officer, for exclusion of the subject property from the land data bank. The 4[th] respondent-Village Officer has also filed Ext.P-4 report before the 6[th] respondent-LLMC stating that mistake has occurred during the preparation of the land data bank, whereby the subject property in Survey No.555/8 was thus wrongly included in the draft data bank. The complaint of the petitioner is that 6[th] respondent-LLMC has not taken any decision so far on Ext.P-3 application dated 27.07.2017 and consequently no consideration has also been made on the request of the petitioner for change of user of the land under Rule 6(2) of the KLU Order by the 1[st] respondent-District Collector. W.P(C) No.12639 of 2020 6 5. It appears from Ext.P-1 judgment that the petitioner has earlier filed Ext.P-8 application dated 29.09.2016 before the 2[nd] respondentRevenue Divisional Officer (RDO) seeking for permission for change of user of the land under Rule 6(2) of the KLU Order. After the rendering of Ext.P-1 judgment, the petitioner has also filed Ext.P-2 petition dated 27.07.2017 addressed to the 1[st] respondent-District Collector pointing out that earlier the petitioner had filed the application dated 29.09.2016 referred to as Ext.P-8 in Ext.P-1 and that in view of the directions in Ext.P-1 judgment is the request under Rule 6(2) of the KLU Order should be considered and that the request in Ext.P-2 dated 27.07.2017 may be once again treated as the said request filed under Rule 6(2) of the KLU Order. According to the petitioner, Ext.P-2 application has been acknowledged in Ext.P-2(a) receipt dated 10.08.2017. 6. It is by now well settled by a series of rulings that of this Court that where the subject property has been converted as Garden Land or Purayidam prior to 12.08.2008 (date of coming into force of the Kerala Conservation of Paddy Land and Wetland Act, 2008) and where the property holder has filed the requisite application under Rule 6(2) of the Kerala Land Utilization Order for change of user of the land, before 30.12.2017 (date of coming into force of the amended provisions of the 2008 Act, which has introduced Sec.27A thereof, then in such a case, the W.P(C) No.12639 of 2020 7 property holder is entitled to get his request is considered in terms of Rule 6(2) of the KLU Order and in such a case none of the adverse provisions contained in the amended provisions of the 2008 Act, including Sec.27A thereof and the amended Rule framed thereunder cannot be enforced as against such a property holder. In other words, the application under Rule 6(2) of the KLU Order has to be considered strictly in terms of that provision and without insisting for the amounts conceived as per the amended provisions of the 2008 Act including Sec.27A thereof and the amended provisions of the Rules (refer _**Geo Peter v. Revenue Divisional Officer**_ [2019 (3) KLT 838], _**Renjith K.Paul v. Revenue Divisional Officer**_ [2019 (2) KLT 262], _**Tahsildar, Thodupuzha Taluk and another v. Renjth George**_ [2020 (1) KHC 865 (DB)] _**LLMC, Kizhakkambalam Grama Panchayath and others v. Mariumma and another**_ [2015 (2) KLT 516 (DB), etc.]. 7. Ext.P-1 judgment has become final and conclusive therefore, the respondents are bound to comply with the directions therein. The facts in this case disclose a very sorry and sad state of affairs that even now the 6[th] respondent has not complied with the directions issued by this Court in Ext.P-1 judgment with the result that even the request made by the petitioner under Rule 6(2) of the KLU Order is also not considered so far. W.P(C) No.12639 of 2020 8 8. Accordingly, the following directions and orders are passed : - (i) The 6[th] respondent-LLMC will immediately take up the matters raised by the petitioner in Ext.P-3 application dated - 27.07.2017 and should immediately afford reasonable opportunity of being heard to the petitioner and should also consider the aspect borne out from Ext.P-1A (3) report dated 20.02.2017 submitted by the Convenor of the LLMC, Ext.P1A(4) report of the KSREC regarding the satellite pictures and the findings of that expert body as well as Ext.P-4 report dated 04.10.2017 submitted by the 4[th] respondent-Village Officer, that mistakes have occurred in the preparation of the draft data bank, etc. and after affording reasonable opportunity of being heard to the petitioner, should pass orders on the request of the petitioner for exclusion of the property from the land data bank, without any further delay, at any rate, within a period of six weeks from the date of production of a certified copy of this judgment. - (ii)The resolution of the 6[th] respondent-LLMC as well as the formal proceedings thereon should be immediately communicated to both the petitioner as well as the - 2[nd] respondent-Revenue Divisional Officer. Since the W.P(C) No.12639 of 2020 9 1[st] respondent-District Collector could be quite busy with various responsibilities attached to his functions as the head of the revenue district and more particularly, in the light of the added responsibilities due to the Covid-19 pandemic issues, it is ordered that the request of the petitioner contained in Ext.P-2 application dated 27.07.2017 as well as the earlier application filed by the petitioner dated 29.09.2016 (referred to as Ext.P-8 in Ext.P-1 W.P(C)), will have to be considered by the 2[nd] respondent-RDO, who is also concurrently empowered in that regard. Hence, it is ordered that the officials of the 1[st] respondent will immediately forward the case files in that regard to the 2[nd] respondentRDO, within two weeks from the date of receipt of a copy of this judgment. (iii)The petitioner may also ensure that copies of Ext.P-2 dated 27.07.2017 as well as copy of the abovesaid application referred to as Ext.P-8 in Ext.P-1, should also be made available to the 2[nd] respondent-RDO, immediately along with the certified copy of this judgment as well as the copy of the Memorandum of this W.P(C). If there is any delay in receiving the papers from the 1[st] respondent, then the W.P(C) No.12639 of 2020 10 2[nd] respondent-RDO should treat the abovesaid copies of the application so forwarded by the petitioner, as aforedirected, as the applications filed by the petitioner under Rule 6(2) of the KLU Order. (iv) Since the petitioner has already made those request before 30.12.2017, those applications should be treated strictly only in terms of the provisions contained in Rule 6(2) of the KLU Order and the petitioner shall not be compelled to pay any amounts arising out of the amended provisions of the 2008 Act, including Sec.27A thereof and the amended Rules framed thereunder, including Rule 12(17) thereof. After receipt of the orders of the 6[th] respondent-LLMC regarding exclusion of the property from the land data bank, the 2[nd] respondent-RDO will consider the abovesaid request made by the petitioner under Rule 6(2) of the KLU Order and after affording opportunity of being heard to the petitioner and after following the requisite procedure, may pass orders thereon, without much delay, preferably within a period of two months from the date of receipt of a copy of the proceedings of the 6[th] respondent-LLMC as aforedirected. Orders in that regard should be passed by the 2[nd] respondent- W.P(C) No.12639 of 2020 11 RDO, in the light of the abovesaid observations and findings made by this Court hereinabove and also taking note of the directions and orders passed by this Court in Ext.P-1 judgment. (v) In case, the petitioner secures permission under Rule 6(2) of the KLU Order, as aforesaid from the 2[nd] respondent-RDO, then the petitioner will be at liberty to file the consequential application under Sec.6A of the Kerala Land Tax Act before the 3[rd] respondent-Tahsildar seeking for re-assessment of the subject property, so as to secure additional entries in the BTR to correctly show the changed nature of the land as ‘garden land or purayidom’ instead of the earlier BTR entries as ‘paddy land/Nilam’ and orders in that regard should be duly passed by the 3[rd] respondent-Tahsildar, after affording opportunity of being heard to the petitioner and within one month from the date of filing of such application along with a copy of the order passed by the 2[nd] respondent-RDO under Rule 6(2) of the KLU Order and along with a copy of this judgment. While doing so, the 3[rd] respondent shall not compel the petitioner in any manner to pay the amounts as conceived as per the amended provisions of the 2008 Act, W.P(C) No.12639 of 2020 12 including Sec.27A thereof and the amended Rules framed thereunder, including Rule 12(17) thereof and strictly in the light of the dictum laid down by the Division Bench of this Court in decisions as in Mariyumma’s case (supra) and Renjith’s case (supra). 9. The petitioner will produce certified copies of the judgment along with copies of the Memorandum of this W.P(C) before respondent Nos.1, 2 & 6, for necessary information and further action. With these observations and directions, the above Writ Petition (Civil) will stand finally disposed of. **Sd/-** **ALEXANDER THOMAS JUDGE** vgd W.P(C) No.12639 of 2020 13 ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 THE TRUE COPY OF THE JUDGMENT IN W.P.(C) NO.34834/2016 DATED 7.7.2017.** **EXHIBIT P1A THE TRUE COPY OF THE MEMO FILED BY THE STATE (GOVT. PLEADER) ALONG WITH THE REPORT OF AGRICULTURAL OFFICER, DATED 15.2.2017, IN THE ABOVE SAID CASE.** **EXHIBIT P2 THE TRUE COPY OF THE LETTER SUBMITTED BEFORE THE DISTRICT COLLECTOR ALONG WITH THE JUDGMENT.** **EXHIBIT P2(A) THE TRUE COPY OF THE RECEIPT ISSUED FROM THE DISTRICT COLLECTOR (R1) DATED 10.8.2017. EXHIBIT P3 THE TRUE COPY OF THE LETTER DATED 27.7.2017 SUBMITTED BEFORE THE AGRICULTURAL OFFICER, (R5) (KRISHI BHAVAN, KAKKANADU). EXHIBIT P3(A) THE TRUE COPY OF THE RECEIPT ISSUED FROM THE OFFICE OF THE AGRICULTURAL OFFICER DATED 14.11.2017. EXHIBIT P4 TRUE COPY OF THE REPORT 4TH RESPONDENT VILLAGE OFFICER, DATED 4.10.2017.**