K.A. Sebastian, K.C. Raju and Dr. Jain Sebastian v. District Collector, Ernakulam and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** ## **MONDAY, THE 25TH DAY OF MAY 2020 / 4TH JYAISHTA, 1942** ## **WP(C).No.10202 OF 2020(A)** ## **PETITIONERS:** - **1 K.A.SEBASTIAN, AGED 56 YEARS, S/O.ESTHAPPANOSE, KALLUNGAL, CHERUMATTAPUZHAKKARAYIL, VAZHAKKALA VILLAGE, KANAYANNUR TALUK, THRIKKAKARA.P.O., COCHIN-12.** - **2 K.C.RAJU, AGED 56 YEARS, S/O.CYRIL, KALIYATHU VEETTIL, NJALAKAM KARAYIL, THRIKKAKARA NORTH VILLAGE, KANAYANNUR TALUK, CHANGAMPUZHA NAGAR.P.O., ERNAKULAM DISTRICT.** - **3 DR.JAIN SEBASTIAN, AGED 59 YEARS, S/O.DEVASSY, PAYIKKAT, PANJATHAM ROAD, NJALAKAM KARAYIL, THRIKKAKARA NORTH VILLAGE, KANAYANNUR TALUK, CHANGAMPUZHA NAGAR.P.O., ERNAKULAM DISTRICT.** - **BY ADVS.SRI.R.T.PRADEEP, SRI.K.C.HARISH** ## **RESPONDENTS:** - **1 THE DISTRICT COLLECTOR, ERNAKULAM, COLLECTORATE, KAKKANAD.P.O., ERNAKULAM-682030.** - **2 LOCAL LEVEL MONITORING COMMITTEE, KAKKANAD, REPRESENTED BY ITS CONVENER, KAKKANAD.P.O., ERNAKULAM-682030.** - **3 CONVENER/PRINCIPAL AGRICULTURAL OFFICER, LOCAL LEVEL MONITORING COMMITTEE, KAKKANAD, KAKKANAD.P.O., ERNAKULAM-682030.** - **4 VILLAGE OFFICER,VILLAGE OFFICE, KAKKANAD, KAKKANAD.P.O., ERNAKULAM-682030.** - ***ADDL. 5 REVENUE DIVISIONAL OFFICER/SUB COLLECTOR, FORT KOCHI, ERNAKULAM.** - **ADDL.R5 IS SUO MOTU IMPLEADED AS PER ORDER DATED 25.05.2020 IN WP(C)** **SRI.SAIGI JACOB PALATTY, SR.GOVT.PLEADER** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 25.05.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## ALEXANDER THOMAS, J. --------------------------------------- W.P. © No. 10202 of 2020 --------------------------------------Dated this the 25[th] day of May, 2020 ## J U D G M E N T The prayers in the above Writ Petition (Civil) are as follows: “ - _i. To issue a writ of mandamus or any other appropriate writ, order or direction to 1[st] respondent to take a decision on ExhibitP4 and its reminder Exhibit-P10 seeking permission for user of property of petitioners for non-agricultural purpose under clause 6(2) of Kerala Land Utilization Order by placing reliance on Exhibit-P11 Judgment within such time fixed by this Hon'ble Court not later than one month;_ - _ii. Such other reliefs which this Hon'ble Court may deem fit and proper in the interest of justice.”_ 2. Heard Sri.R.T.Pradeep, learned counsel appearing for the petitioners and Sri.Saigi Jacob Palatty, learned Senior Government Pleader appearing for the respondents. 3. The case set up by the respondents is to the effect that, the subject properties involved in this case have been converted as garden land/purayidam much prior to 12.8.2008 ( date of coming into force of the Kerala Conservation of Paddy Land and Wet Land Act, 2008). Further that, the petitioners have filed the requisite application under Rule 6(2) under the Kerala Land Utilisation (KLU) Order, 1967, as per Ext.P-4 dated 19.1.2017 before the 1[st] respondent District Collector seeking for orders under that provision for change W.P. © No. 10202/2020 ..3.. of user of land. Since that application was no considered, this Court as per Ext.P-5 judgment dated 6.11.2017 in WP(C).No.4446/2017 had directed the 1[st] respondent to pass orders on the said application in terms of the abovesaid statutory provision. 4. Further the petitioner's case is that, the expert agency (KSREC) which is competent to take satellite pictures has taken recourse to those aspects, and has reported before the Local Level Monitoring Committee (LLMC) that the subject properties have been reclaimed much prior to the coming into force of the Act 28 of 2008, and it is reported that major part of the properties involved have been converted, and further that some of the properties have not be so reclaimed as on the date of coming into force of the Act. Pursuant thereto, the 2[nd] respondent LLMC has passed Ext.P-6 certificate stating that, though some of the properties have been reclaimed prior to the cut-off date, the other properties mentioned therein were not so reclaimed, etc. Hence, the inclusion of property in the Land Data Bank was challenged by the petitioners by filing a writ petition before this Court which has culminated in Ext.P-7 W.P. © No. 10202/2020 ..4.. judgment dated 24.10.2019 in WP(C).No.8441/2019, whereby this Court has directed the LLMC to exclude the entire properties of the petitioners from the Land Data Bank. In compliance with Ext.P-7 judgment, the 2[nd] respondent LLMC has passed Ext.P-8 proceedings dated 31.1.2020 excluding the subject properties of the petitioners from the Land Data Bank. 5. The present complaint of the petitioners is that, though the petitioners' Ext.P-4 application dated 19.1.2017 has not been considered by the 1[st] respondent under Rule 6(2) of the KLU Order so far, inspite of a concluded judgment as per Ext.P-5. The complaint of the petitioners is that, now they could reliably learn from the officials concerned in the office of the 1[st] respondent District Collector that, the petitioners' Ext.P-4 application could be now considered not under Rule 6(2) of the KLU Order, but only under the provisions contained in the amended provisions of the 2008 Act, especially Section 27A thereof, and the amended rules framed thereunder, and thereby the petitioners will have to pay higher amounts conceived as per the said amended provisions. The petitioners would strongly urge W.P. © No. 10202/2020 ..5.. that they are legally entitled to have Ext.P-4 application considered strictly in terms of Rule 6(2) of the KLU Order, and not in terms of the subsequently amended provisions of the Act, including Section 27A thereof and the amended rules framed thereunder. 6. Per contra, Sri.Saigi Jacob Palatty, learned Senior Government Pleader appearing for the respondents would point out that, in this case it is indisputable that though even if the petitioners has filed Ext.P-4 application as per Rule 6(2) of the KLU Order before the cut-off date of 30.12.2017, at that time he has not secured favourable orders from the LLMC excluding the properties from the Land Data Bank, and that for considering the application under Rule 6(2) of the KLU Order, one of the primary requisite condition is that the land should have been excluded from the Land Data Bank, as the petitioners have obtained some of the properties excluded from the Land Data Bank by the LLMC as per Ext.P-8 on 31.1.2020, his Ext.P-4 application could be considered only on the basis of law as it stood as on 31.1.2020, etc. 7. This contention of the learned Government Pleader is seriously opposed by the learned counsel for the petitioners. W.P. © No. 10202/2020 ..6.. 8. After hearing both sides it is to be noted that it is well settled by a series of rulings of this Court as in _**Geo Peter v. Revenue Divisional Officer [2019 (3) KLT 838], Renji K.Paul v. Revenue Divisional Officer [2019 (2) KLT 262], Salim v State of Kerala [2019 (3) KLT 604 (DB)], LLMC, Kizhakkambalam Grama Panchayat v. Mariumma [2015 (2) KLT 516 (DB)]**_ that in a case where the subject property has been converted as ‘garden land’ or ‘purayidam’ prior to 12.8.2008 (date of coming into force of the 2008 Act) and where the party concerned has filed the requisite application under Rule 6(2) of the Kerala Land Utilization Order, 1967, for conversion of the property and for its use for any non-agricultural purposes before 30.12.2017 (which is the date of coming into force of the amended provisions of the 2008 Act, which has introduced Sec. 27A thereof), then the statutory revenue authorities are obliged the duty to treat such a case strictly within the purview of Rule 6(2) of the KLU Order, 1967, and in such a case, the party cannot be mulcted to pay the higher amounts conceived as per the amended provisions of the Act including Sec. 27A thereof, which W.P. © No. 10202/2020 ..7.. has come into force on 30.12.2017 and the amended Rules framed thereunder. Further, it has also been categorically held by the judgments of the Division Bench of this Court as in _**Mariumma’s case supra [2015 (2) KLT 516 (DB)] and Renjith's case supra [2020 (1) KHC 865 (DB)]**_ that in such a case where the property holder has filed application under Rule 6(2) of the KLU order before 30.12.2017, then the party is also equally entitled to maintain an application under Sec.6A of the Kerala Land Tax Act, 1961, for securing additional entries in the BTR to show the property as ‘garden land’ or ‘purayidam’ instead of the earlier BTR entries as ‘nilam’ or ‘paddy land’, and without having to pay the higher amounts conceived as per the amended provisions of the 2008 Act including Sec. 27A thereof and the amended Rules framed thereunder. 9. In the instant case, the specific case of the petitioners that they have in fact filed Ext.P-4 application under Rule 6(2) of the KLU Order before the 1[st] respondent on 19.1.2017, and the fact that they have filed such application as per Ext.P-4 dated 19.1.2017 is also referred to in Ext.P-5 judgment of this Court dated 6.11.2017 W.P. © No. 10202/2020 ..8.. in WP(C).No.4446/2017, and this Court has directed in Ext.P-5 that the 1[st] respondent should consider and take decision on that application. Assuming that, at that time the petitioners had not obtained orders from the LLMC for excluding the entire properties from the Land Data Bank, then the 1[st] respondent was duty bound to immediately direct the petitioners to get such orders from the LLMC, and then should have kept Ext.P-4 application pending. At any rate, there is already a concluded judgment and thereafter, as and when the party secures favourable orders from the LLMC, the 1[st] respondent District Collector or any other competent authority like the RDO should have considered Ext.P-4 application on merits. Therefore, merely because the petitioners had not obtained orders from the LLMC for excluding the entire properties from the Land Data Bank at the time of submission of Ext.P-4 application dated 19.1.2017, it cannot be said that the petitioners right to get Ext.P-4 application considered in terms of the law as it stood as on 19.1.2017 is diluted in any manner. 10. Accordingly it is ordered that, so long as the party has filed the requisite application under Rule 6(2) of the KLU Order W.P. © No. 10202/2020 ..9.. before the cut-off date of 30.12.2017, the applicants are entitled to get their case considered strictly in terms of the provisions contained in Rule 6(2) of the KLU Order, and not under the subsequently amended provisions of law. In such a case he cannot be mulcted to pay the higher amounts conceived as per the provisions of Section 27A and the amended provisions of the rules. The position in that regard has also been declared by this Court in the judgment dated 19.3.2020 in WP(C).No.8645/2020. 11. It appears that, both the 1[st] respondent District Collector and the 5[th] respondent RDO have concurrent powers under the provisions of the KLU Order to pass orders under Rule 6(2). Since the 1[st] respondent District Collector is the head of the revenue administration of the district and since he is having heavy duties and responsibilities, more so particularly in view of the lock down on account of the pandemic, it is ordered that Ext.P4 application has to be considered by the 5[th] respondent RDO. Accordingly the following directions and orders are passed: i. The 1[st] respondent District Collector will immediately take steps to ensure that Ext.P-4 application dated 19.1.2017 is duly forwarded to the 5[th] respondent RDO W.P. © No. 10202/2020 ..10.. for necessary action. In that regard it is open to the 1[st] respondent to ascertain as to whether the petitioners have filed Ext.P-4 application before the abovesaid cutoff date of 30.12.2017, and if that be so the said application will have to be forwarded to the 5[th] respondent RDO as aforesaid. ii. On receipt of such application, the 5[th] respondent RDO will conduct necessary inspection with due prior notice to the petitioners and copy of the inspection report should also be given to the petitioners in advance, and after following the requisite procedure and after affording reasonable opportunity of being heard to the petitioners, should pass orders on Ext.P-4 application strictly in accordance with the provisions contained in Rule 6(2) of the KLU Order, and taking note of Exts.P6 & P-8 proceedings of the Local Level Monitoring Committee excluding the properties from the Land Data Bank. Orders in this regard under Rule 6(2) of the KLU Order should be duly passed by the 5[th] respondent RDO without much delay, preferably within a period of 2 months from the date of production of a certified copy of this judgment. iii.It is made clear that so long as the petitioners have filed the Rule 6(2) application before the cut-off date of W.P. © No. 10202/2020 ..11.. 30.12.2017, they are entitled to get their case considered strictly in terms of the provisions contained in Rule 6(2) of the KLU Order, and in such a case they cannot be mulcted to pay higher amounts conceived as per the provisions contained in Section 27A of the Act and the amended provisions of the rules framed thereunder including Rule 12(17) thereof. The petitioners will produce certified copies of this judgment along with copies of memorandum of this WP(C) with all exhibits before the 1[st] respondent District Collector and the 5[th] respondent RDO 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 MMG W.P. © No. 10202/2020 ..12.. ## **APPENDIX** ## **PETITIONERS' EXHIBITS:** **EXHIBIT P1 TRUE COPY OF THE CERTIFICATE DATED 12.5.2011 ISSUED BY 4TH RESPONDENT.** **EXHIBIT P2 TRUE COPY OF THE JUDGMENT DATED 7.1.2016 IN WPC.NO.595/2016.** **EXHIBIT P3 TRUE COPY OF THE COMMUNICATION DATED 202.10.2016 FROM THE LOCAL LEVEL MONITORING COMMITTEE AS REGARD THE INCLUSION OF THE PROPERTY AS RECLAIMED GARDEN LAND IN THE DATA BANK.** - **EXHIBIT P4 TRUE COPY OF THE APPLICATION DATED 19.1.2017 BEFORE THE 1ST RESPONDENT FOR USAGE OF PROPERTY FOR NON-AGRICULTURE PURPOSE UNDER CLAUSE 6(2) OF KERALA LAND UTILIZATION ORDER 1967.** **EXHIBIT P5 TRUE COPY OF THE JUDGMENT DATED 6.11.2017 IN WPC.NO.4446/2017.** - **EXHIBIT P6 TRUE COPY OF THE CERTIFICATE DATED 19.11.2018 BY 2ND RESPONDENT.** - **EXHIBIT P7 TRUE COPY OF THE JUDGMENT DATED 19.11.2018 BY 2ND RESPONDENT.** - **EXHIBIT P8 TRUE COPY OF THE CERTIFICATE DATED 31.1.2020 EXCLUDING THE PROPERTY COMPRISED IN RE-SURVEY NO.699/6 FROM DATA BANK.** **EXHIBIT P9 TRUE COPY OF THE JUDGMENT DATED 2.11.2018 IN W.A.NO.2147/2018.** - **EXHIBIT P10 TRUE COPY OF THE REPRESENTATION DATED 12.2.2020 BEFORE THE 1ST RESPONDENT.** - **EXHIBIT P11 TRUE COPY OF THE RECEIPT DATED 2.3.2020 REGARDING THE ACCEPTANCE OF EXHIBIT P10 BY THE 1ST RESPONDENT.**