George E Vettoor & Kunjamma Babu v. State of Kerala & Revenue Divisional Officer, Kollam? (note: petitioner names indicate Ettumanoor, Kottayam district)

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **WEDNESDAY, THE 19TH DAY OF AUGUST 2020 / 28TH SRAVANA, 1942** ## **W.P.(C)No.39606 OF 2018(A)** ## **PETITIONERS:** **1 GEORGE E VETTOOR, AGED 60, S/O.EAPEN, VETTOOR HOUSE, ETTUMANOOR, KOTTAYAM DISTRICT, REPRESENTED BY HIS BROTHER AND POWER OF ATTORNEY HOLDER BABU.E.VETTOOR, AGED 64, S/O.EAPEN, VETTOOR HOUSE, ETTUMANOOR - 686 631, KOTTAYAM DISTRICT. 2 KUNJAMMA BABU, AGED 62, W/O.BABU E VETTOOR, VETTOOR HOUSE, ETTUMANOOR - 686 631, KOTTAYAM DISTRICT. BY ADVS. SRI.V.RAJENDRAN (PERUMBAVOOR) SRI.GEORGE VARGHESE KIZHAKKAMBALAM SRI.N.RAJESH SRI.M.G.SREEKUMAR** ## **RESPONDENTS:** **1 STATE OF KERALA, REPRESENTED BY PRINCIPAL SECRETARY, REVENUE DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM - 695 001. 2 REVENUE DIVISIONAL OFFICER, REVENUE TOWER, KOTTAYAM - 686001.** ## **R1-R2 BY GOVERNMENT PLEADER** ## **OTHER PRESENT:** ## **GP - SRI. JESTIN MATHEW** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 19.08.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** W.P.(C)No.39606 of 2018(A) 2 ## **JUDGMENT** The petitioners, who own 32.12 Ares of property in Block No.29, Re.Sy.No.175/1 of Ettumanoor Village, have filed this writ petition under Article 226 of the Constitution of India, seeking a writ of mandamus commanding the 2[nd] respondent Revenue Divisional Officer to delete the condition in Ext.P3 order dated 29.01.2018 that the said order will be subject to the provisions of the Kerala Conservation of Paddy Land and Wetland (Amendment) Ordinance, 2017, i.e., Ordinance No.41 of 2017, which came into force on 30.12.2017. 2. On 19.12.2018, when this writ petition came up for admission, this Court admitted the matter on file and the learned Government Pleader took notice for the respondents. 3. A counter affidavit has been filed by the 2[nd] respondent opposing the reliefs sought for in this writ petition. In paragraph 8 of the counter affidavit, it is contended that, though the application made by the petitioners under Clause 6 of the Kerala Land Utilisation Order, 1967 is one filed on 05.12.2017, i.e., prior to the commencement of the Kerala Conservation of Paddy Land and Wetland (Amendment) Ordinance, 2017, i.e., Ordinance No.41 of 2017 followed by the Kerala Conservation of Paddy Land and W.P.(C)No.39606 of 2018(A) 3 Wetland (Amendment) Act, 2018, i.e., Act 29 of 2018, which came into force on 30.12.2017, the petitioners have to comply with the statutory requirements under sub-section (3) of 27A of the said Act and as such, there is absolutely no illegality or irregularity in the condition imposed in Ext.P3 order. 4. Heard the learned counsel for the petitioners and also the learned Government Pleader appearing for the respondents. 5. Pursuant to the order of this Court dated 27.07.2020, the Registry has listed this writ petition along with the Judge's Papers in W.P.(C)No.3357 of 2017. As could be seen from the Judge's Papers in W.P.(C)No.3357 of 2017, the application made by the petitioners under Clause 6 of the Kerala Land Utilisation Order [Ext.P10 in W.P.(C)No.3357 of 2017] seeking an order to convert 32.12 Ares of property in Block No.29, Re.Sy.No.175/1 of Ettumanoor Village is one dated 19.09.2015. On that application, the 2[nd] respondent District Collector passed an order dated 24.01.2017 [Ext.P13 in W.P.(C)No.3357 of 2017], which was under challenge in that writ petition. By Ext.P2 judgment dated 10.11.2017, this Court allowed that writ petition by setting aside that order dated 24.01.2017 and paragraph 6 of that judgment reads thus: W.P.(C)No.39606 of 2018(A) 4 “6. In the above circumstances, Ext.P13 order is set aside. The writ petition is disposed of directing the 2[nd] respondent to pass orders on the application preferred by the petitioner for permission to use the property for other purposes, in the light of the decision of this Court in **Puthan Purakkal Joseph v.** **Sub Collector [2015 (3) KLT 182]** within one month from the date of receipt of a copy of this judgment. Since the restrictions imposed by the Government in terms of Circular No.46848/P1/2016 dated 22.12.2016 for exercise of power under Clause 6 of the Land Utilization Order have been interfered with by this Court in **Shivadasan v. Revenue Divisional Officer [2017 (3) KLT 822]** , the direction aforesaid shall be complied with, untrammelled by the directions in the Circular referred to above. The petitioner shall produce a copy of this judgment, the copy of the report of the LLMC along with an application under Clause 6(2) of the Kerala Land Utilization Order before the 2[nd] respondent for compliance. Needless to say, if the request of the petitioner under Clause 6(2) of the Kerala Land Utilization Order is granted, the petitioner will be entitled to move the authorities under the Kerala Land Tax Act for fresh assessment of the land as garden land and the authorities shall consider such request in the light of the decision of this Court in **Kizhakkambalam Grama Panchayat v. Mariumma [2015 (2) KLT 516]** .” 6. After Ext.P2 judgment, the application dated 19.09.2015 made by the petitioners under Clause 6 of the Kerala Land Utilisation Order was transmitted to the 2[nd] respondent Revenue W.P.(C)No.39606 of 2018(A) 5 Divisional Officer, by the District Collector, Kottayam, which was received in the office of the 2[nd] respondent on 15.12.2017, as stated in paragraph 8 of the counter affidavit filed by that respondent. 7. In **District Collector and another v. Fr. Jose Uppani and others [2020 (4) KHC 394]** the Division Bench of this Court reiterated that applications filed under the Kerala Land Utilisation Order, 1967, prior to the cut off date of 30.12.2017, i.e., prior to the date on which Section 27A of the Kerala Conservation of Paddy Land and Wetland Act was brought into force, has to be considered by the statutory authority in accordance with the procedure and terms and conditions contained under the Kerala Land Utilisation Order. The Division Bench held that Section 27C applies wherever a part of survey number of subdivision is permitted to be converted under Sections 8, 9, 10 or 27A of Act 2008, and in which case, a new subdivision shall be created for the extent for which such orders for conversion are issued. Therefore, Section 27C deals with a situation where an order is passed to convert the land as per the provisions of Act 2008. The rest of the provisions thereunder are consequential to sub-section (1) of Section 27C and therefore, only under the circumstances prescribed under sub-section (1) of W.P.(C)No.39606 of 2018(A) 6 Section 27C, that procedure can be followed by the Tahsildar. A Division Bench of this Court in **LLMC, Kizhakkambalam Grama Panchayat v. Mariyumma [2015 (3) KHC 19]** held that, without defacing the entry contained in the Basic Tax Register, necessary additional entries can be made on the basis of the orders passed by the statutory authority under the Kerala Land Utilisation Order, 1967. Therefore, the Tahsildar should have considered the application submitted by the writ petitioners in terms of the proposition of law laid down by the Division Bench in **Mariyumma** and not on the basis of the amended provisions of Section 27C, which has come into force only with effect from 30.12.2017. Paragraphs 5 to 7 of the said judgment read thus: “5. As we have pointed out earlier, Section 27A was brought into force on and with effect from 30.12.2017, to deal with change of nature of unnotified land, thus requiring any owner of an unnotified land desiring to utilise any paddy land for residential or commercial purpose or for other purpose, to apply to the Revenue Divisional officer for permission in such manner as may be prescribed. True a procedure is prescribed there under in the matter of consideration of such an application. Admittedly, the applications were filed by the writ petitioners under the Kerala Land Utilization Order, 1967, prior to the aforesaid cut off date. Therefore, the applications so submitted had to be considered by the statutory authority W.P.(C)No.39606 of 2018(A) 7 in accordance with the procedure, and terms and conditions contained under the Kerala Land Utilisation Order, 1967. It is also an admitted fact that the orders were passed by the statutory authority taking into account the provisions of the Kerala Land Utilization Order, 1967. Therefore in our view, none of the provisions contained under Section 27A of Act 2008, which has come into force only with effect from 30.12.2017, has any manner of binding force so far as the facts and circumstances of the appeals are concerned. It is also an admitted fact that the orders passed by the authority under the Kerala Land Utilization Order have become final and conclusive. Now the sole question is whether Section 27C of Act 2008 can be construed as an independent provision detached from Section 27A of Act 2008. In order to understand the purport of Section 27C, it is extracted as under: "27C. Change in records. **-** (1) Notwithstanding anything contained in any other law for the time being in force or in any judgment, decree or order of any Court, Tribunal or any other Authority, wherever a part of a survey number or subdivision is permitted to be converted under Section 8, 9, 10 or 27A of this Act, a new subdivision shall be created for the extent for which such orders for conversion are issued. (2) Where the paddy land or unnotified land is duly converted as per the provisions of this Act, the Tahsildar shall reassess the land tax under Section 6A of the Kerala Land Tax Act, 1961 (13 of 1961) and make necessary entries in revenue W.P.(C)No.39606 of 2018(A) 8 records relating to such lands. (3) Where such changes are recorded in revenue records, the number and date of the order and the authority granting sanction, the survey number of the lands for which sanction has been accorded, extent of the land in each survey number for which sanction has been accorded and the revised land tax shall be clearly recorded ensuring that the old entries are legible. (4) Tahsildar shall conduct periodical inspection to ensure that changes in revenue records are in accordance with sub-section (3). (5) No attempt shall be made to alter or change or modify the revenue records relating to the paddy land or wetland or unnotified land otherwise than in accordance with sub-section (3)." 6. On a reading of the said provision it is clear that, Section 27C applies, wherever a part of survey number of subdivision is permitted to be converted under Sections 8, 9, 10 or 27A of Act 2008, and in which case, a new subdivision shall be created for the extent for which such orders for conversion are issued. Therefore it is clear that, Section 27C deals with a situation where an order is passed to convert the land as per the provisions of the Kerala Conservation of Paddy Land and Wetland Act, 2008. The rest of the provisions there under are consequential to Section 27C(1) and therefore only under the circumstances prescribed under Section 27C(1), the procedure can be followed by the Tahsildar. 7. However, it is an admitted fact that the application was ## W.P.(C)No.39606 of 2018(A) 9 submitted by the writ petitioners on the basis of the orders secured by them under the provisions of the Kerala Land Utilization Order, 1967. Therefore, the provisions of Section 27C have no application. The issue with respect to the alteration of the entries in the Basic Tax Register was considered by the Apex Court in **Revenue Divisional Officer, Fort Kochi v. Jalaja Dileep [2014 (1) KHC 96]** and held that the entries contained in the Basic Tax Register cannot be changed. However, the Division Bench of this Court in **LLMC, Kizhakkambalam Grama Panchayat v. Mariyumma [2015 (3) KHC 19]** has held that, without defacing the entry contained in the Basic Tax Register, necessary additional entries can be made on the basis of the orders passed by the statutory authority under the Kerala Land Utilization Order, 1967. It was accordingly that the applications were submitted by the writ petitioners before the Tahsildar. Therefore, the Tahsildar should have considered the applications submitted by the writ petitioners in terms of the proposition of law laid down by the Division Bench in **Mariyumma (supra)** and not on the basis of the amended provisions of Section 27C, which has come into force only with effect from 30.12.2017. It was exactly on the basis of the judgment of **Mariyumma (supra)** , learned Single Judge has held that, the order passed by the Tahsildar directing the writ petitioners to pay the amounts at the rate of 25% of the converted land, after securing orders from the Revenue Divisional Officer cannot be legally sustained. In fact, the issue in question was considered by this Court in **Tahsildar v. Renjith George [2020 (1) KHC 865]** and held that, when the provisions of the statute are clear and ## W.P.(C)No.39606 of 2018(A) 10 unambiguous, there is no power vested with the statutory authority to expand the scope of the provisions of law by issuing directions against the mandate of law. The proposition of law laid down by this Court in the judgment in **Renjit George (Supra)** squarely applies to the facts and circumstances of the appeals on hand also. Taking into account the law, facts and circumstances, we are of the considered opinion that the appellants have not made out any case for interference with the judgment of the learned Single Judge.” 8. In view of the law laid down in **Fr. Jose Uppani and others [2020 (4) KHC 394]** the application filed by the petitioners under the Kerala Land Utilisation Order, 1967, prior to the cut off date of 30.12.2017, i.e., prior to the date on which Section 27A of the Kerala Conservation of Paddy Land and Wetland Act was brought into force, has to be considered by the statutory authority in accordance with the procedure and terms and conditions contained under the Kerala Land Utilisation Order. Therefore, the condition in Ext.P3 order dated 29.01.2018 that the said order will be subject to the provisions of the Kerala Conservation of Paddy Land and Wetland (Amendment) Ordinance, 2017, i.e., Ordinance No.41 of 2017, which came into force on 30.12.2017, cannot be sustained in law. W.P.(C)No.39606 of 2018(A) 11 In the result, this writ petition is disposed of by setting aside the condition in Ext.P3 order dated 29.01.2018 that the said order will be subject to the provisions of the Kerala Conservation of Paddy Land and Wetland (Amendment) Ordinance, 2017, i.e., Ordinance No.41 of 2017, which came into force on 30.12.2017. No order as to costs. Sd/- **ANIL K. NARENDRAN JUDGE** MIN W.P.(C)No.39606 of 2018(A) 12 ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF NOTARISED POWER OF ATTORNEY EXECUTED BY THE 1ST PETITIONER IN FAVOUR OF HIS BROTHER BABU E VETTOOR ON 03/09/2014.** **EXHIBIT P2 TRUE COPY OF JUDGMENT IN W.P.(C) 3357/2017 OF THIS HON'BLE COURT DATED 10/11/2017.** **EXHIBIT P3 TRUE COPY OF ORDER NO.B-364/15 DATED 29/01/2018 OF 2ND RESPONDENT PASSED UNDER THE KLU ORDER.** **EXHIBIT P4 TRUE COPY OF PETITION FILED BY THE PETITIONERS BEFORE THE DISTRICT COLLECTOR KOTTAYAM ON 04.09.2014 EXHIBIT P5 TRUE COPY OF JUDGMENT OF THIS HON'BLE COURT IN W.P.(C) NO. 30568/2014 DATED 27.03.2015** **EXHIBIT P6 TRUE COPY OF PETITION FILED BY THE PETITIONERS BEFORE THE DISTRICT COLLECTOR KOTTAYAM ON 19.09.2015 EXHIBIT P7 TRUE COPY OF PETITION FILED BY THE 1ST PETITIONER BEFORE THE DISTRICT COLLECTOR KOTTAYM ON 18.11.2016** **EXHIBIT P8 TRUE COPY OF LEGAL NOTICE ISSUED BY ADV.RAJENDRAN, COUNSEL FOR THE PETITIONERS TO SMT. C.A. LATHA, DISTRICT COLLECTOR KOTTAYAM ON 20.01.2017** W.P.(C)No.39606 of 2018(A) 13 **EXHIBIT P9 REPLY SENT BY DISTICT COLLECTOR KOTTAYAM TO V.RAJENDRAN COUNSEL FOR THE PETITIONERS ON 24.01.2017 BEARING NO.E9-46915/2015 EXHIBIT P10 TRUE COPY OF LEGAL NOTICE ISSUED BY ADV.RAJENDRAN COUNSEL FOR THE PETITIONERS TO DISTICT COLLECTOR KOTTAYAM ON 15.12.2017 EXHIBIT P11 TRUE COPY POSTAL RECEIPT EVIDENCING DESPATCH OF EXT.P10 TO THE DISTRICT COLLECTOR KOTTAYAM ON 15.12.2017**