Leela Kumari v. State of Kerala & Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE V.G.ARUN** **MONDAY, THE 29TH DAY OF JULY 2019 / 7TH SRAVANA, 1941** ## **WP(C).No.20134 of 2018** ## **PETITIONER/S:** **LEELA KUMARI W/O.RADHAKRISHNAN NAIR, PADINJAREPULIKKOOTTIL HOUSE, CHAKKAMPUZHA P.O., KOTTAYAM, PIN-686574.** **BY ADVS. SRI.ROY CHACKO SRI.K.C.VINCENT** ## **RESPONDENT/S:** **1 STATE OF KERALA REPRESENTED BY SECRETARY, DEPARTMENT OF REVENUE, SECRETARIAT, THIRUVANANTHAPURAM-695001.** - **2 THE REVENUE DIVISIONAL OFFICER PALA-686574.** - **3 THE VILLAGE OFFICER VILLAGE OFFICE VELLILAPPILLY RAMAPURAM BAZAR P.O.-686574.** - **4 THE RAMAPURAM GRAMA PANCHAYAT RAMAPURAM BAZAR P.O., KOTTAYAM-686576, REPRESENTED BY ITS SECRETARY.** ## **OTHER PRESENT:** **SR.GP.ADV.B.JAYASURYA** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 29.07.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 2 **WP(C).No.20134 of 2018** ## **JUDGMENT** The petitioner is the owner in possession of an extent of 09.30 Ares of property in re-survey No.222/6 in Block No.24 of Vellilappilly Village in Meenachil Taluk. The status of the land is shown as 'Nilam' in the Basic Tax Register, in spite of the fact that the land is situated in a commercially important location and buildings have been constructed in and around the said land. The land has not been included as paddy or wetland in the data bank. The petitioner, therefore, preferred an application before the Revenue Divisional Officer on 30.11.2017 seeking an order under clause 6 of the Kerala Land Utilisation Order. In view of the delay in considering the application, the petitioner approached this Court and by Ext.P2 judgment dated 02.03.2018 this Court directed the Revenue Divisional Officer to consider and pass orders on the application within a period of six weeks. In the judgment, it is made clear that the petitioner shall, in the event of receipt of the order permitting conversion under the 3 **WP(C).No.20134 of 2018** KLU order, produce the same before the Land Tax Authorities, for causing a fresh assessment and consequential change in classification of the land in the Basic Tax Register. The Revenue Divisional Officer has, thereafter, issued Ext.P3 order permitting utilisation of the petitioner's land in accordance with Clause 6 of KLU order, but subject to the Kerala Paddy Land - Wetland (Amendment) Ordinance, 2017 dated 30.12-2017, which had come into force in the meanwhile. The writ petition has filed aggrieved by the condition imposed in Ext.P3 order and the petitioner prays that his application is liable to be considered, without the conditions. 2. The learned counsel for the petitioner has opposed to Clause 27A(13) of the Kerala Conservation of Paddy Land and Wetland Act, as amended by Act 29 of 2018. Section 27A (13) reads as follow: any application received for the change of nature of un notified land from the date of commencement of the Kerala conservation 4 **WP(C).No.20134 of 2018** of Paddy land and Wetland (Amendment Act, 2018) shall be considered and disposed of only in accordance with the provisions of the act. It is hence submitted that only applications are received after the commencement of the amendment act are to be considered in accordance with the amended provisions. In as much as the petitioner has submitted an application prior to the amendment, the same has to be considered in terms of the Clause 6 of the Kerala Land Utilisation Order, in support of this contention reliance is placed on the decision of this Court in _**Line Properties Private Limited v. State of Kerala (**_ 2019 (3) KLT 420). The judgment in the Line Properties was rendered in almost similar circumstances and Paragraph 6 of the said judgment has been relevance in the context of the arguments advanced on behalf of the petitioner. Paragraph 6 reads as follows. _I am, therefore, of the view that inasmuch as Ext.P4 proceedings of the LLMC only clarifies the factual position as regards the true nature of the land, as on the date of_ 5 **WP(C).No.20134 of 2018** _coming into force of the 2008 Act, the clarification must relate back to the date on which the Draft Data Bank was prepared, by erroneously including the land of the petitioner therin. Viewed thus, it would follow that the direction in Ext.P3 judgment to the District Collector to consider Ext.P2 application submitted by the petitioner under Clause 6(2) of the KLU Order had necessarily to be seen as directing a consideration of the application, based on the law obtaining prior to 31.12.2017, the date on which the amended provisions of the 2008 Act came into force. To interpret the the direction otherwise and consider the application of the petitioner in terms of the amended provisions of the 2008 Act would tantamount to doing violence to the express provisions of Section 27 A(13) that suggest that it is only such application as are preferred after the date of commencement of the Amendment Act that have to be considered and disposed in accordance with the provisions of the 2008 Act._ 3. I am in respectful agreement with the judgment in Line Properties. Section 27 A(13) of Kerala Conservation of Paddy 6 **WP(C).No.20134 of 2018** Land and Wetland Act makes it abondently clear that only applications that are received after the amendment have come in to effect are to be considered in accordance with the amended provisions. The petitioner having submitted his application prior to the amendment, and the property having be converted prior to 2008, the same has to be considered in accordance with the provisions of the Kerala Land Utilisation order. In the result, this writ petition is allowed, the application submitted by the petitioner for utilisation of his land for other purposes shall be considered in accordance with Clause 6 of the Land Utilisation order. The condition imposed in Ext.P6 order and challenged in this writ petition stands annuled. The learned counsel for the petitioner submits that an application in terms of Ext.P2 judgement has already been submitted before the Revenue Authorities. As directed in Ext.P2, in the event of all receipt of order issued by the Revenue Divisional Officer in terms of this judgment, the petitioner shall produce the same 7 **WP(C).No.20134 of 2018** before the Land Tax Authorities for causing fresh assessment and consequential change in classification of the land in the Basic Tax Register and action pursuant to such production shall be taken as expeditiously as possible. **Sd/-** **V.G.ARUN JUDGE** rpk The words 'Ext. P6' mentioned in the second and sixth lines of the last paragraph of the judgment dated 29.07.2019 in W.P(C) 20134/2018 N is corrected as Ext. P3 as per order dated 08.11.2019 in I.A 01/2019 in W.P.(C) 20134/201/8 N. Sd/- JOINT REGISTRAR 8 **WP(C).No.20134 of 2018** ## **APPENDIX** ||**APPENDIX**| |---|---| |**PETITIONER'S/S**|**EXHIBITS:**| |**EXHIBIT P1**|**TRUE COPY OF TAX RECEIPT DT. 18-08-**| ||**2017.**| |**EXHIBIT P2**|**TRUE COPY OF THE JUDGMENT IN**| ||**WP(C)NO.3475 OF 2018 DATED 02-03-2018.**| |**EXHIBIT P3**|**TRUE COPY OF THE PROCEEDINGS OF THE**| ||**2ND RESPONDENT DATED 04-06-2018.**| |**EXHIBIT P4**|**TRUE COPY OF THE CIRCULAR**| ||**NO.994733/R.A.1/2016/LSGD DATED 22-12-**| ||**2016 ISSUED BY THE SECRETARY, LSGD.**|