K.A. Muhammed Sherif v. State of Kerala and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN** **MONDAY, THE 14[TH] DAY OF FEBRUARY 2022 / 25TH MAGHA, 1943 WP(C) NO.24697 OF 2021** ## **- PETITIONER :** K.A.MUHAMMED SHERIF, AGED 54 YEARS S/O.ABDUL AZEEZ, KAROTHUKUDY HOUSE, ALLAPRA P.O, PERUMBAVOOR, ERNAKULAM DISTRICT, PIN – 683 556. BY ADV K.C.VINCENT ## **- RESPONDENTS :** 1 STATE OF KERALA REPRESENTED BY SECRETARY, DEPARTMENT OF REVENUE, SECRETARIAT, THIRUVANANTHAPURAM, PIN – 695 001. 2 THE REVENUE DIVISIONAL OFFICER, MINI CIVIL STATION, MOOVATTUPUZHA, ERNAKULAM, PIN – 686 669. 3 THE TAHSILDAR, KUNNATHUNADU TALUK, PERUMBAVOOR, ERNAKULAM DISTRICT, PIN – 683 542. (CORRECTED) ADDRESS OF R3 CORRECTED AS :- TAHSILDAR (LAND RECORDS), KUNNTHUNAD TALUK, ERNAKULAM DISTRICT-683 542. (ADDRESS OF R3 CORRECTED AS PER ORDER DATED 3-122021 IN IA NO. 1/2021). 4 THE VILLAGE OFFICER, VILLAGE OFFICE, PERUMBAVOOR, ERNAKULAM DISTRICT, PIN – 683 542. BY SMT.PRINCY XAVIER, SR.GP THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 14.02.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C) NO.24697 OF 2021 -: 2 :- ## **JUDGMENT** ## **Dated this the 14th day of February, 2022** This writ petition is filed seeking the following reliefs :- - “(a) Issue a writ of certiorari or any other appropriate writ, direction or order calling for the records leading to Exhibit P4 and to quash the same to the extent of directing the petitioner to set apart 4.55 Ares of land for water conservation purposes. - (b) Issue a writ of mandamus or any other appropriate writ, direction or order directing the 3[rd] respondent to consider Exhibit P5 and to direct the 4[th] respondent to effect appropriate entries in the revenue records showing the category of subject lands as dry land/purayidom.” 2. Heard the learned counsel for the petitioner and the learned Government Pleader. 3. It is submitted by the learned counsel for the petitioner that the petitioner is the owner in possession of 45.52 Ares of land which is covered by Ext.P4 Kerala Land Utilisation Order (for short, 'the KLU Order'). The petitioner raises a challenge to the condition incorporated in Ext.P4 to the effect that 4.55 Ares out of the property is liable to be set apart for water conservancy measures. The learned counsel for the petitioner submits that the application submitted by the petitioner was one submitted before the incorporation of WP(C) NO.24697 OF 2021 -: 3 :- Sections 27A, B and C by amendment in the 2008 Act and was one filed under Clause 6(2) of the KLU Order. It is submitted that the date of the application was 2.9.2017 and that it was on the said application that Ext.P4 order was passed. 4. Relying on a judgment of this Court in **Geo Peter** v. **Revenue Divisional Officer, Muvattupuzha and another** [2019 (3) KLT 838] as also a Division Bench of this Court in **District Collector, Ernakulam and others** v. **Fr.Jose Uppani and others** [2020 (4) KLT 612], the learned counsel for the petitioner submits that the condition provided in Section 27A of the 2008 Act would not have been incorporated in an order issued under Clause 6(2) of the KLU Order. It is further submitted that the petitioner had been made to submit an undertaking that he would set apart 10% of the property for water conservancy measures and that he had been forced to submit such undertaking due to his difficult financial situation and the urgent need for getting an order under the KLU Order. It is further submitted that the issue stands covered by decisions of this Court and therefore, the condition provided is unsustainable. WP(C) NO.24697 OF 2021 -: 4 :- 5. A statement has been placed on record by the 2[nd] respondent, wherein it is stated that this Court had directed the consideration of the petitioner's application under Clause 6(2) of the KLU Order, 1967. It is stated that when the application was under process, the petitioner had filed Contempt of Court Case before this Court and by order dated 25.5.2018, this Court had directed the consideration of the application within a month. It is submitted that the petitioner was informed that the application could be allowed on condition that 50% of the fair value of the applied land should be permitted for the conversion of unnotified land and if the total extent of the land exceeds 20.23 Ares, 10% of the total area should be set apart for water conservation. It is submitted that on being informed of the above conditions, the petitioner had appeared before the Revenue Divisional Officer on 14.6.2018 and had given a written affidavit agreeing to do the conditions. It is, therefore, contended that the petitioner cannot challenge the said conditions after having submitted an affidavit which is produced as Annexure R2(a). 6. I have considered the contentions advanced. This Court has specifically considered the question as to the WP(C) NO.24697 OF 2021 -: 5 :- consideration of applications submitted for putting paddy land to other use before the amendments were effected in the 2008 Act with effect from 30.12.2017. This Court in **Geo Peter** v. **Revenue Divisional Officer, Muvattupuzha and another** had considered the question of imposition of conditions with regard to application submitted under the KLU Order before 30.12.2017 and held that in case of applications submitted by owners of property shown as paddy land in the Basic Tax Register before 30.12.2017, the applications have to be considered in accordance with the provisions of Clause 6(2) of the KLU Order. Where such applications have to be directed to be considered, it was held that the authorities could not impose conditions which are provided under Section 27A of the 2008 Act which has been incorporated only with effect from 30.12.2017. The imposition of such conditions was, therefore, found to be bad in law. 7. A Division Bench of this Court in **District Collector, Ernakulam and others** v. **Fr.Jose Uppani and others** also considered the question of consideration of applications submitted before 30.12.2017 under the provisions of the KLU Order. It was held that such applications have to WP(C) NO.24697 OF 2021 -: 6 :- be considered strictly in accordance with the KLU Order and not under the amended provisions of the 2008 Act. The mere fact that the petitioner had submitted an undertaking that he would comply with the conditions, by itself, cannot clothe the 2[nd] respondent with the power to insist that fees which are not liable to be paid in terms of Clause 6(2) of the KLU Order shall be levied for the conversion or that 10% of the property is to be set apart for water conservancy. Such conditions were brought into effect and formed part of the statute only with effect from 30.12.2017 and there were no corresponding provisions in the KLU Order. 8. Since the petitioner's application was one submitted under the KLU Order in September, 2017 and since it was the said application which was being considered by the RDO, the RDO could not have imposed the conditions as provided in Section 27A. The condition No.2 provided in Ext.P4 therefore does not have any legal backing. The said condition is set aside. The 3[rd] respondent shall take up Ext.P5 application submitted by the petitioner under Section 6A of the Kerala Land Tax Act, 1961 and consider and pass orders on the same, WP(C) NO.24697 OF 2021 -: 7 :- taking note of the judgment of this Court in **District Collector, Ernakulam and others** v. **Fr.Jose Uppani and others,** within a period of two months from the date of receipt of a copy of this judgment. This writ petition is ordered accordingly. **Sd/ANU SIVARAMAN JUDGE** Jvt/19.2.2022 WP(C) NO.24697 OF 2021 -: 8 :- ## **APPENDIX OF WP(C) 24697/2021** PETITIONER EXHIBITS Exhibit P1 TRUE COPIES OF THE TAX RECEIPT DATED 03.07.2021. Exhibit P2 A TRUE COPY OF THE JUDGMENT IN WP(C) NO. 40008 OF 2016 DATED 24.07.2017. Exhibit P3 A TRUE COPY OF THE CERTIFICATE DATED 31.08.2017 ISSUED BY THE AGRICULTURAL FILED OFFICER. Exhibit P4 A TRUE COPY OF THE PROCEEDINGS OF THE REVENUE DIVISIONAL OFFICER DATED 14.06.2018. Exhibit P5 A TRUE COPY OF THE APPLICATION IN FORM A ALONG WITH RECEIPT DATED 20.10.2021. RESPONDENTS' EXHIBITS :- ANNEXURE R2(a) : TRUE COPY OF THE AFFIDAVIT SUBMITTED BY THE PETITIONER.