Geetha John v. District Collector Ernakulam & Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS WEDNESDAY, THE 01ST DAY OF JULY 2020 / 10TH ASHADHA, 1942** ## **WP(C).No.12968 OF 2020(U)** **PETITIONER/S: GEETHA JOHN, AGED 55 YEARS, W/O.JOHN THOMAS, HOUSE NO.10/517-B31, NO.1, NOEL PALM DALE, RAJAGIRI, KOCHI-682 039.** **BY ADV. SRI.SAIJO HASSAN** ## **RESPONDENT/S:** **1 THE DISTRICT COLLECTOR ERNAKULAM, CIVIL STATION, KAKKANAD, KOCHI-682 030. 2 THE REVENUE DIVISIONAL OFFICER, FORT KOCHI DIVISION, FORT KOCHI, KOCHI-682 001. 3 THE TAHSILDAR, KANAYANNUR TALUK, KANAYANNUR, ERNAKULAM-682 305. 4 LOCAL LEVEL MONITORING COMMITTEE, THRIKKAKARA MUNICIPALITY, REPRESENTED BY ITS CONVENOR, THE AGRICULTURAL OFFICER, KRISHIBHAVAN, THRIKKAKARA, ERNAKULAM-682 030.** ## **OTHER PRESENT:** ## **SRI.SAIGI JACOB PALATTY, SR.GOVT.PLEADER** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 01.07.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** W.P.(C).No.12968/2020 2 ## **ALEXANDER THOMAS, J.** -----------------------------------------------------------------W.P.(C) No.12968 of 2020 -----------------------------------------------------------------Dated this the 1[st] day of July 2020 ## **JUDGMENT** ## The case set up in this writ petition is as follows: _The subject property is actually residential plot, it is wrongly described as Nilam in data bank as well as in the BTR. In 2013, the erstwhile owner of the property filed application before the 1[st] respondent seeking permission to construct building in subject property. After purchasing the property, the petitioner also submitted Rule 6(2) application on 18.06.2015. When the 1[st] respondent did not take any action on the said application, the petitioner approached this Hon'ble Court through W.P.(C) No.26549 of 2015 where this Hon'ble Court directed the 1[st] respondent to consider the application within 2 months of receipt of the judgment (Exhibit P6)._ _The 1[st] respondent vide Exhibit P8 impugned order dated 14.03.2019 rejected the said application stating the reason that the land is included in data bank as paddy land. Subsequently the petitioner also submitted Exhibit P9 application under Section 5(4)(i) of 2008 Act before 3[rd] respondent RDO which is pending now. This Writ petition is preferred to quash Exhibit P8, to consider Exhibit P9, and to consider Rule 6(2) application dated 18.06.2015 afresh._ ## 2. Main points urged by the petitioner in this writ petition are ## as follows: _a) Exhibit P1 sale deed, P3 fair value register, P4 RTI reply of Thrikkakara Municipality, Exhibit P5 & P7 reports of 3[rd] respondent Tahsildar and report of Village Officer in Exhibit P8 proceedings would show that the property is a residential plot but not a paddy land._ W.P.(C).No.12968/2020 3 _b) The property was converted much before the commencement of the 2008 Act._ _c) Application under Rule 6(2), KLU Order for utilize the property for other than agricultural activities was submitted on 18.06.2015 which is much before the date of coming into force of 2018 amendments to Paddy & Wet Land Act 2008._ ## 3. In the light of all these averments and contentions petitioner has filed the instant writ petition with following prayers: - _i) To call for records leading to Exhibit P8 order issued by the 1[st] respondent and quash the same._ - _ii) Issue a writ of mandamus or any other appropriate writ, direction or order, directing 3[rd] respondent to attain finality on Exhibit P9 application submitted under Section 5(4)(i) of Kerala Conservation of Paddy Land & Wet Land Act 2008 and to issue an order for removing the land comprised in Re.Sy.No.439/2-2 of Vazhakkala Village, Kanayannur Taluk from the data bank within a time frame as fixed by this Hon'ble Court._ - _iii) Issue a writ of mandamus or any other appropriate writ, direction or order, directing 1[st] respondent to reconsider the application dated 18.06.2015 afresh, submitted by the petitioner under Rule 6(2) of Kerala Land Utilisation order 1967 and to issue an order permitting the petitioner to utilize the land comprised in Re.Sy.No.439/2-2 of Vazhakkala Village, Kanayannur Taluk for other than agricultural purpose, within a time frame as fixed by this Hon'ble Court._ - _iv) Issue a writ of mandamus directing the respondent authorities to effect consequential changes in the revenue records either by correction, addition or by endorsing that the land is 'purayidam'._ 4. Heard Sri.V.K.Rafeeq, learned counsel for the petitioner and - Sri.Saigi Jacob Palatty, learned Government Pleader appearing for respondents 1 to 3. W.P.(C).No.12968/2020 4 5. According to the petitioner subject property, though continues to be described as 'nilam'/'paddy land' in the Basic Tax Register (BTR), was converted as garden land much prior to 12.08.2008 (date of coming into force of the Kerala Conservation of Paddy Land and Wetland Act). The said land has been wrongly included in the Land Data Bank as 'nilam'/'paddy land'. Petitioner has submitted an application dated 18.06.2015 (referred to as Ext.P4 in Ext.P6) under Rule 6(2) of the KLU Order before the 1[st] respondent District Collector for permission to change of use of land for any nonagricultural purposes, well before the cut off date of 30.12.2017. The fact that the petitioner has filed such application under Rule 6(2) of the KLU Order before the cut off date of 13.12.2017 (date of coming into force of the amended provisions of the 2008 Act, which has introduced Section 27A thereof) is evident from Ext.P4 marked in Ext.P6 as well as item No.1 of the impugned Ext.P8 order. This Court as per Ext.P6 judgment dated 03.09.2015 in W.P.(C).No.26549 of 2015 filed by the petitioner, had directed the respondent District Collector to consider and pass orders on the said application in terms of Rule 6(2) of KLU Order, within two months. 6. Now the 1st respondent District Collector has rejected the said plea of the petitioner as per Ext.P7 order dated 02.12.2015 on the ground that the said application cannot be granted, as the subject property has been included in the Land Data Bank as 'nilam'/'paddy W.P.(C).No.12968/2020 5 land'. The learned counsel for the petitioner submits that the petitioner has now filed separate application as per Ext.P9 in the prescribed proforma before the 2[nd] respondent RDO, seeking for exclusion of the subject property from the Land Data Bank. 7. It is now well settled by a series of rulings 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), _**LLMC, Kizhakkambalam Grama Panchayath v. Mariumma**_ [2015 (2) KLT 516 (DB)], _**Tahsildar, Thodupuzha Taluk and another v. Renjith George**_ [2020 (1) KHC 865 (DB)] that where the subject property has been converted as garden land or purayidam much prior to 12-08-2008 ( the date of coming into force of the 2008 Act) and where the property holder has filed requisite application under Rule 6(2) of the Kerala Land Utilisation Order, 1967, before 30-12-2017 (which is the date of coming into force of the amended provisions of 2008 Act, which was introduced Sec.27 A thereof), then the property holder is entitled to get his request for conversion of the property strictly in terms of Rule 6(2) of the KLU order, 1967 and such a case the property holder cannot be mulcted to face the adverse and rigorous conditions prescribed as per the amended provisions of 2008 Act, including Sec.27A thereof as well as the rules framed thereunder. 8. Further it has been also held that in those decisions more particularly in the aforestated Division Bench decisions in W.P.(C).No.12968/2020 6 _**Mariumma’s case**_ (supra) [2015 (2)KLT 516] and _**Renjith's case**_ (supra) [2020 (1) KHC 865 (DB)], etc., that where the property holder thus secures orders under Rule 6(2) of the KLU order, 1967 from the RDO, then the property holder is equally entitled to maintain an application under Sec.6A of the Kerala Land Tax Act, 1961 for fresh assessment of the property by the Thahsildar for getting additional entries in the BTR to show the subject property as garden land or purayidam, instead of the earlier BTR entries as 'nilam' or paddy land. 9. Having regard to the facts and circumstances, it is ordered in the interest of justice that the matter in Ext.P8 will require serious reconsideration as the petitioner has now filed Ext.P9 application before the 2[nd] respondent RDO for exclusion of the subject property from the Land Data Bank. Accordingly, it is ordered that the impugned Ext.P8 order dated 14.03.2019 issued by the 1[st] respondent District Collector will stand set aside and quashed and the application filed by the petitioner under Rule 6(2) of the KLU Order, referred to as Item No.1 in Ext.P8 will stand remitted to the 2[nd] respondent RDO for consideration and decision, afresh. In that regard, it is ordered that the 1[st] respondent will ensure that the files and records in relation to the said application filed by the petitioner under Rule 6(2) of the KLU Order on 04.09.2015 referred to as item No.1 in Ext.P8 shall be immediately transferred to the 2[nd] respondent RDO for consideration and decision. W.P.(C).No.12968/2020 7 10. This Court is remitting the matter in relation to the application filed under Rule 6(2) of the KLU Order to the 2[nd] respondent RDO as the said officer is already in the seizin of Ext.P9 application in the matter of exclusion of the subject property from the Land Data Bank. Therefore, it is also in the better interest of both sides that both these applications are considered by the same officer. More over both the 1[st] and 2[nd] respondents are concurrently empowered to exercise the powers under Rule 6(2) of the KLU Order. 11. Further it is ordered that initially the 2[nd] respondent will take up the matters in relation to Ext.P9 application for consideration and may ensure that petitioner is permitted to pay the requisite fee for obtaining satellite pictures and expert opinion from the Kerala State Remote Sensing and Environment Centre (KSREC), Thiruvananthapuram. The 2[nd] respondent will permit the petitioner to remit the prescribed amount in that regard, within ten days from the date of production of a copy of this judgment. Thereupon the 2[nd] respondent will sent the formal requisition to the KSREC, Thiruvananthapuram for obtaining satellite pictures and expert opinion of the subject property regarding the nature of the subject property as on 12.08.2008 (date of coming into force of the 2008 Act) and as to whether the subject property was converted prior to the 2008 Act etc. The KSREC, Thiruvananthapuram may ensure that satellite pictures along with their expert opinion is furnished to the 2[nd] respondent RDO W.P.(C).No.12968/2020 8 within a period of two months from the date of receipt of the request in that regard. Thereupon the 2[nd] respondent will ensure that copies of the expert report with satellite pictures of the subject property as provided by the KSREC is furnished to the petitioner in advance. Thereafter, the 2[nd] respondent will take up the matters raised by the petitioner in Ext.P9. 12. To avoid further delay the 2[nd] respondent need not wait till the actual receipt of the satellite pictures and the expert opinion of the KSREC and may immediately take up for consideration the matters raised in Ext.P9 application and may ensure that inspection is conducted with due prior notice to the petitioner and copy of the inspection report is given to the petitioner in advance. After receipt of the satellite pictures and expert opinion of the KSREC the 2[nd] respondent will afford reasonable opportunity of being heard to the petitioner and may take a decision on the matters raised in Ext.P9 application on the plea of the petitioner for exclusion of the subject property from the Land Data Bank, after taking due note of the said inspection report, the expert opinion and satellite pictures forwarded by the KSREC and also may take into account the aspects born out from Exts.P2, P3 and P4, without much delay, within a period of six weeks from the date of receipt of the satellite pictures and expert opinion from the KSREC. The copy of the proceedings so issued by the 2[nd] respondent on the plea in Ext.P9 shall be duly communicated to the W.P.(C).No.12968/2020 9 petitioner. In case the decision on Ext.P9 is in favour of the petitioner then thereafter the 2[nd] respondent will take up the matters in the above said application dated 04.09.2015 submitted by the petitioner under Rule 6(2) of the KLU Order (referred to in item No.1 in Ext.P8) and after affording reasonable opportunity of being heard to the petitioner, through her authorised representatives or counsel, if any, and should take a considered decision in this matter for permission under Rule 6(2) of the KLU Order, without much delay, preferably within a period of six weeks from the date of issuance of orders on Ext.P9 as afore-directed. While doing so, the 2[nd] respondent will pass orders only in terms of Rule 6(2) of the KLU order as the petitioner has admittedly filed the requisite application in that regard before the cut off date of 30.12.2017 and the petitioner shall not be compelled in any manner to pay the amounts as conceived, as per the amended provisions of the 2008 Act and the amended Rules, including Rule 12(17). In case, after the petitioner secures order of permission under Rule 6(2) of the KLU Order from the 2[nd] respondent, he will thereafter be entitled to file requisite application under Section 6A of the Kerala Land Tax Act before the 3[rd] respondent, seeking for reassessment of the subject property under that provision, so as to secure additional entries in the BTR to show the correct nature of the land described as garden land and purayidom instead of the earlier BTR entries as 'nilam'/'paddy land'. On receipt of such application along with a copy W.P.(C).No.12968/2020 10 of the proceedings of the 2[nd] respondent, granting permission under Rule 6(2) of the KLU Order as well as a copy of the judgment, the 3[rd] respondent Tahsildar will allow the said request for reassessment, so as to secure additional entries in the BTR to show the change in nature of land, provided the subject property covered by such permission granted by the 2[nd] respondent under Rule 6(2) of the KLU Order is the same as the one covered by the application filed before 3[rd] respondent under Section 6A of the Kerala Land Tax Act, without much delay. This shall be done by the 3[rd] respondent, after affording reasonable opportunity of being heard to the petitioner and within one month from date of filing of such application along with requisite documents and strictly in terms of the dictum laid down by a Division Bench of this Court in the cases cited above and without compelling the petitioner to pay any amounts as conceived as per the amended provisions of the 2008 Act and the amended provisions of the Rules, including Rule 2017 thereof. With these observations and directions, this writ petition is disposed of. Sd/- DG **ALEXANDER THOMAS JUDGE** W.P.(C).No.12968/2020 11 ## **APPENDIX** **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF SALE DEED DATED 13.9.2013 REGISTERED IN THRIKKAKARA S.R.O.** - **EXHIBIT P2 TRUE COPY OF TAX RECEIPT DATED 18.6.2020. EXHIBIT P3 TRUE COPY OF RELEVANT PAGE OF FAIR VALUE REGISTER MAINTAINED BY DEPARTMENT OF REGISTRATION KERALA.** - **EXHIBIT P4 TRUE COPY OF RTI REPLY DATED 1.7.2015 GIVEN BY THE THRIKKAKARA MUNICIPALITY ALONG WITH COPY OF RTI APPLICATION.** **EXHIBIT P5 TRUE COPY OF REPORT DATED 3.7.2013 SUBMITTED BY THE 3RD RESPONDENT BEFORE THE 1ST RESPONDENT. EXHIBIT P6 TRUE COPY OF JUDGMENT DATED 3.9.2015 IN W.P.(C) NO.26549 OF 2015 OF THIS HONOURABLE COURT. EXHIBIT P7 TRUE COPY OF REPORT DATED 2.12.2015 SUBMITTED BY THE 3RD RESPONDENT BEFORE THE SUB REGISTRAR THRIKKAKARA. EXHIBIT P8 TRUE COPY OF ORDER DATED 14.3.2019 ISSUED BY THE 1ST RESPONDENT. EXHIBIT P9 TRUE COPY OF APPLICATION DATED 16.6.2020 SUBMITTED BEFORE THE 2ND RESPONDENT UNDER SECTION 5(4)(I) OF KERALA CONSERVATION OF PADDY LAND & WET LAND ACT 2008.**