Lekha Suresh W/o Suresh v. District Collector, Kottayam and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **MONDAY, THE 01ST DAY OF JUNE 2020 / 11TH JYAISHTA, 1942** ## **WP(C).No.10717 OF 2020(L)** ## **PETITIONER/S:** **LEKHA SURESH W/O. SURESH, SARADA MANDIRAM, PODIYADI P.O. NEDUMPROM VILLAGE, THRIUVALLA TALUK, PATHANAMTHITTA DISTRICT 689 110.** **BY ADV. SRI.T.P.PRADEEP** ## **RESPONDENT/S:** |**1**|**THE DISTRICT COLLECTOR**| |---|---| ||**COLLECTOR, KOTTAYAM 686 632.**| |**2**|**THE REVENUE DIVISIONAL OFFICER,**| ||**REVENUE DIVISIONAL OFFICE, KOTTAYAM 686 632.**| |**3**|**THE ADITIONAL TAHAZILDAR,**| ||**TALUK OFFICE, CHANGANASSERRY 689 001.**| |**4**|**THE VILLAGE OFFICER,**| ||**VILLAGE OFFICE, CHANGANASSERRY 686 546.**| |**5**|**AGRICULTURAL OFFICER,**| ||**KRISHI BHAVAN, VAZHAPPALLY WEST, CHANGANASSERRY 686**| ||**103.**| ## **OTHER PRESENT:** ## **SRI.K.J.MANU RAJ, GOVT.PLEADER** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 01.06.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ::2:: **WP(C).No.10717 OF 2020(L)** ## **ALEXANDER THOMAS, J** . ----------------------------W.P(C).No.10717 Of 2020 --------------------------------Dated this the 1[st] day of June, 2020. ## **J U D G M E N T** The case set up in this Writ Petition (Civil) is as follows: The petitioner is the absolute owner and in possession of 6.46 Ares of land comprised in Survey No.7 of Block No.203 of Changanasserry Village. The petitioner purchased the above property as per Exhibit-P1 sale deed. The above property is not a paddy land or wet land as defined under the Kerala Conservation of Paddy land and Wet Land Act, 2008. It was converted into a dry land more than 25 years back. Coconut trees aged more than 25 years are situated therein. It is lying without any agricultural operation for more than 30 years. The surrounding lands are dry lands with residential buildings. The petitioner's land is not included in the Data Bank prepared by the Local Level Monitoring Committee. Ext.P-2 is the certificate issued by the 5[th] respondent. But the above property is shown as “ _Nilam_ ” in the revenue records. The previous owner of the land, petitioner's mother has submitted Exhibit P-3 application before the 1[st] respondent to change the ::3:: **WP(C).No.10717 OF 2020(L)** classification of petitioner's land as “Purayidam” on 15.05.2013. The 1[st] respondent has sought reports from respondents 3 and 4 on Exhibit P-3 application. The 4[th] respondent submitted Exhibit P4 Mahazar after conducting inspection. In Exhibit P-4, it is noted that the above property is not included in the data bank and three coconut trees aged 25 years, two acasia trees, aged 30 years and three badam trees are situated in the property. Exhibit P-3 application was submitted by the previous owner, mother of the petitioner, for changing the classification of the land as “ _Purayidam_ ” and Exhibit-P3 has to be considered by the 1[st] respondent under clause 6(2) of the Kerala Land Utilization Order and was pending at the time of the transfer of property and no decision is taken on the application so far. As per Sec.8 of the Transfer of Property Act, a transfer of property passes forthwith to the transferee all the interest which the transferor is then capable of passing in the property and in the legal incidents thereof. Therefore the right to prosecute Exhibit-P3 application also got transferred to the petitioners by virtue of Exhibit P-1 sale deed. This Court in _Renji K. Paul v. Revenue Divisional Officer_ [2019 (2) KLT 262] held that the applications submitted prior to 30.12.2017, the appointed date from only the amended provisions of Act 2008 ::4:: ## **WP(C).No.10717 OF 2020(L)** came into force, has to be considered under the provisions of Kerala Land Utilisation Order, 1967. Therefore Exhibit P3 application submitted prior to 30.12.2017 has to be considered by the 1[st] respondent in terms of the provisions of the Kerala Land Utilization Order. It is in the light of these aspects, that the petitioner has filed the instant Writ Petition seeking the following reliefs: - _“(i) issue a writ of mandamus or any other appropriate writ, order or direction, commanding the 1[st] respondent to grant permission to the petitioner to utilize her property extending 6.46 Ares of land comprised in Survey No.7 of Block No.203 of Changanasserry Village for construction of a commercial building;_ - _(ii) issue any other appropriate writ, order or direction, commanding the respondents to effect necessary changes in the revenue records pertaining to petitioner's property covered by Exhibit P-1, considering the present nature and utilization of the property in accordance with the authority conferred under the Kerala Land Utilization Order, 1967;_ - _(iii) issue any other appropriate writ, order or direction, declaring that petitioners are entitled to prosecute Exhibit P3 in terms of the interest passed to her on the property consequent to Exhibit P1 transfer;_ - _(iv) issue any other appropriate writ, order or direction, directing the 1[st] respondent to consider and take decision on Exthibit P3 under Clause 6(2) of the Kerala Land Utilization Order, in the light of the dictum in Renji K.Paul v. Revenue Divisional Officer [2019 (2) KLT 262]; and_ - _(v) issue such other reliefs, which this Hon'ble Court deems fit and proper to grant considering the facts and circumstances of the case.”_ 2. Heard Sri.T.P.Pradeep, learned counsel for the petitioner and Sri.K.J.Manuraj, learned Government Pleader appearing for the respondents. 3. It is the case of the petitioner that the subject property has been converted as garden land/purayidam much prior to 12.8.2008 (the date of coming into force of the 2008 Act) and the ::5:: **WP(C).No.10717 OF 2020(L)** petitioner has submitted Ext.P3 application under Rule 6(2) of the Kerala Land Utilisation Order, 1967, on 15.5.2013 before the 1[st] respondent-District Collector seeking for permission for change of use of land. Thereafter, the 4[th] respondent-Village Officer was directed to inspect and give report in the matter and pursuant thereto the 4[th] respondent-Village Officer submitted mahazar dated 13.6.2013 on Ext.P-3 application stating that the land is not included in the land data bank prepared as per 2008 Act and that coconut trees having age more than 25 years and acasia trees age 30 years are seen standing in the property, etc. Ext.P-2 is the certificate dated 6.6.2013 issued by the 5[th] respondent-Agricultural Officer, who is the convenor of the Local Level Monitoring Committee wherein it is certified that the subject property has not been included the land data bank prepared as per the 2008 Act. 4. It is by now well settled by a series of rulings of this Court that where the subject property has been converted as Garden Land or Purayidam prior to 12.08.2008 (date of coming into force of the Kerala Conservation of Paddy Land and Wetland Act, 2008) and where the property holder has filed the requisite application under Rule 6(2) of the Kerala Land Utilization Order for change of user of the land, before 30.12.2017 (date of coming ::6:: **WP(C).No.10717 OF 2020(L)** into force of the amended provisions of the 2008 Act, which has introduced Sec.27A thereof, then in such a case, the property holder is entitled to get his request is considered in terms of Rule 6(2) of the KLU Order and in such a case none of the adverse provisions contained in the amended provisions of the 2008 Act, including Sec.27A thereof and the amended Rule framed thereunder cannot be enforced as against such a property holder. In other words, the application under Rule 6(2) of the KLU Order has to be considered strictly in terms of that provision and without insisting for the amounts conceived as per the amended provisions of the 2008 Act including Sec.27A thereof and the amended provisions of the Rules (refer _**Geo Peter v. Revenue Divisional Officer**_ [2019 (3) KLT 838], _**Renjith K.Paul v. Revenue Divisional Officer**_ [2019 (2) KLT 262], _**Tahsildar, Thodupuzha Taluk and another v. Renjth George**_ [2020 (1) KHC 865 (DB)] _**LLMC, Kizhakkambalam Grama Panchayath and others v. Mariumma and another**_ [2015 (2) KLT 516 (DB), etc.]. 5. Further, in the aforesaid judgments of the Division Bench of this Court in _**Mariyumma’s**_ case (supra) and _**Renjth George's**_ case (supra), it has also been held that in such a case where the property holder has filed the application under Rule 6(2) ::7:: ## **WP(C).No.10717 OF 2020(L)** before 30.12.2017 and after securing such orders under Rule 6(2), the party concerned is also entitled to get the subject property assessed/re-assessed under Sec.6A of the Kerala Land Tax Act, so as to secure additional entries in the BTR to show the change of nature of the land as garden land or purayidam instead of the earlier BTR entries as paddy land or Nilam. 6. Ext.P-3 application dated 15.5.2013 was submitted by the petitioner's mother, who was the then owner of the subject property. Later the petitioner's mother had duly transferred the property to the petitioner on the basis of a registered sale deed. Therefore, going by the mandatory provisions contained in Sec.8 of the Transfer of Property Act, the transfer of the property passes forthwith to the transferee and that all rights and interests which the transferee is then capable of passing in the property and the legal incidents thereof. Therefore suffice to say, if the petitioner has secured the property on the basis of the sale deed executed by his mother (previous owner) then the petitioner will have the right under Sec.8 of the Transfer of Property Act to prosecute the matters in relation to Ext.P-3 application. 7. Ext.P-4 mahazar has been prepared as early as on 13.6.2013 on the matters in Ext.P-3 application dated 15.5.2013. ::8:: **WP(C).No.10717 OF 2020(L)** Ext.P-4 mahazar dated 13.6.2013 would clearly show that the petitioner has indeed filed the requisite application under Rule 6(2) of the Kerala Land Utilization Order much before 12.8.2008 (the date of coming into force of the 2008 Act introduced as per Sec.27A thereof). Therefore, the said application of the petitioner for change of use of land has to be considered only in terms of the provisions contained in Rule 6(2) of the Kerala Land Utilization Order and none of the adverse or detrimental provisions engrafted in the amended provisions in the 2008 Act including Sec.27A thereof and the amended provisions of the Rules can be pressed into service. In other words, such a party who has filed application under Rule 6(2) of the Kerala Land Utilisation Order before the cut off date of 30.12.2017, he/she cannot be mulcted so as to pay higher amounts as conceived as per Sec.27A as per the amended provisions under 2008 Act and the Rules thereunder. This Court has held in the judgment dated 19.3.2020 in W.P. (C).No.8645/2020 that in such case, where the party has filed requisite application under Rule 6(2) of the Kerala Land Utilisation Order he/she cannot be made to pay even the amounts including those prescribed under Rule 12(17) of the amended Rules under the amended provisions of the Act. It is seen that Ext.P-3 ::9:: ## **WP(C).No.10717 OF 2020(L)** application dated 15.5.2013 has been filed before the 1[st] respondent-District Collector. Since the 1[st] respondent District Collector being the head of the District Administration is engaged in heavy responsibilities especially in connection with the management of Covid-19 epidemic and issues relating to lock down, etc., this Court is of the view that the matter could be directed to be decided by the 2[nd] respondent-RDO, who is also equally empowered under Rule 6(2) of the KLU Order. Accordingly, the following orders and directions are issued: - _(1) The Office of the 1[st] respondent-District Collector will immediately forward Ext.P-3 application dated 15.5.2013 as well as Ext.P-4 mahazar dated 13.6.2013 to the 2[nd] respondent-RDO, Kottayam, for necessary information and further action. This shall be duly done within 2 weeks from the date of production of a certified copy of this judgment._ - _(2) The petitioner will also produce certified copies of this judgment as well as copies of the memorandum of Writ Petition along with all exhibits before respondents 1 & 2 and in that regard, the petitioner should also ensure that copies of Exts.P-3 & P-4 attested by his Advocate is also furnished to the 2[nd] respondent-RDO. In case the 2[nd] respondent-RDO does not get the papers in relation to Exts.P-3 & P-4 from the 1[st] respondent-District Collector within the abovesaid time limit of 2 weeks,_ ::10:: **WP(C).No.10717 OF 2020(L)** _then the 2[nd] respondent should treat that Ext.P-3 is the application so submitted by the petitioner and Ext.P-4 is the mahazar dated 13.6.2013 from the 4[th] respondent-Village Officer. Thereafter, the 2[nd] respondent will take up the matters raised in Exts.P-3 & P-4 and after conducting inspection with due prior notice to the petitioner, a copy of the inspection report should be given to the petitioner and after affording a reasonable opportunity of being heard to the petitioner either in person or through authorised representative/counsel, if any, on the plea of the petitioner for grant of permission for change of use of the land as conceived under Rule 6(2) without much delay, preferably within a period of 3 months from the date of production of a certified copy of this judgment, without the petitioner having to pay higher amounts prescribed as per the provisions of the amended provisions of 2008 Act and the amended provisions of the Rules as aforesaid._ Withe these observations and directions, the above Writ Petition (Civil) will stand finally disposed of. **Sd/ALEXANDER THOMAS, Judge.** bkn/- ::11:: **WP(C).No.10717 OF 2020(L)** ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF SALE DEED NO. 1851/2013 OF CHANGANASSERRY SUB REGISTRY.** **EXHIBIT P2 TRUE COPY OF THE CERTIFICATE DATED 06.06.2013 ISSUED BY THE 5TH RESPONDENT.** **EXHIBIT P3 TRUE COPY OF THE APPLICATION SUBMITTED BY PETITIONERS MOTHER BEFORE THE 1ST RESPONDENT DATED 15.05.2013. EXHIBIT P4 TRUE COPY OF THE MAHAZAR DATED 13.06.2013 SUBMITTED BY THE 4TH RESPONDENT.**