Line Properties Private Limited v State of Kerala and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE A.K.JAYASANKARAN NAMBIAR** **TUESDAY, THE 02ND DAY OF JULY 2019 / 11TH ASHADHA, 1941** ## **WP(C).No.7383 of 2019** ## **PETITIONER/S:** **LINE PROPERTIES PRIVATE LIMITED REPRESENTED BY ITS AUTHORISED REPRESENTATIVE SADIK KASIM, ROOM NO.5, BUILDING NO.34/1000, NATIONAL HIGHWAY 47, EDAPPALLY.P.O., KOCHI-682024.** **BY ADVS. SRI.P.K.SURESH KUMAR (SR.) SMT.RAMEENA.P.K. SMT.T.M.NEZLA SRI.T.U.ZIYAD** ## **RESPONDENT/S:** **1 THE STATE OF KERALA, REPRESENTED BY ITS SECRETARY, DEPARTMENT OF REVENUE, SECRETARIAT, THIRUVANANTHAPURAM-695001.** **2 THE DISTRICT COLLECTOR, ERNAKULAM, KOCHI-682030. 3 THE REVENUE DIVISIONAL OFFICER, FORT KOCHI-682001, ERNAKULAM DISTRICT.** **BY GOVERNMENT PLEADER SRI.C.P.PRADEEP ADDL.A.G.SRI.RENJITH THAMPAN** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 02.07.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** WP(C).No.7383 of 2019 2 ## **JUDGMENT** The petitioner is a private limited company stated to be in ownership of 37.32 Ares of land in Sy.No.24/1A-4 and 24/1A-3 of Edappally North Village of Kanayannur Taluk in Ernakulam District. The land belonging to the petitioner was included in the Draft Land Data Bank prepared for the region wherein the land was described as 'converted land'. The description of the land in the Basic Tax Register was also shown as 'nilam'. When the petitioner submitted an application (Ext.P2) under Clause 6(2) of the Kerala Land Utilisation Order (for short, 'KLU Order') before the District Collector, the same was not considered by the District Collector, presumably because the petitioner had not obtained any order directing removal of his land from the Land Data Bank. This led the petitioner to approach this Court through W.P.(C)No.37329/2017, which was disposed by a common judgment dated 21.11.2017, directing the District Collector to consider and pass orders on Ext.P2 application on merits, and a further direction to the Local Level Monitoring Committee (for short, 'the LLMC') to examine whether the property in question was paddy land or wet land liable for inclusion in the Data Bank, and thereafter to forward the report to the District Collector for passing consequential orders. 2. It would appear that, pursuant to the direction in Ext.P3 judgment, the LLMC, by Ext.P4 proceedings, found that the land belonging to the petitioner, and which was included in the Land Data Bank, was not in WP(C).No.7383 of 2019 3 the nature of a paddy land or wet land liable for inclusion in the Data Bank. The LLMC therefore recommended for an exclusion of the land from the Land Data Bank through a report forwarded to the District Collector. Thereupon, the District Collector, by Ext.P5 proceedings, in purported exercise of power under Clause 6(2) of the KLU Order, granted permission to the petitioner for conversion of the land as 'nikathu purayidam'. In Ext.P5 proceedings, however, the District Collector went on to stipulate that the petitioner had to comply with the amended provisions, in particular Section 27-A, of the Kerala Conservation of Paddy Land and Wet Land Act, 2008 (for short, 'the 2008 Act') for the purposes of carrying out the consequential corrections in the Basic Tax Register. In the Writ Petition, the petitioner impugns Ext.P5 order of the District Collector, to the extent it contains a stipulation as regards compliance with the procedure contemplated under Section 27-A of the 2008 Act, mainly on the contention that the said stipulation could not have been insisted upon when the application submitted by the petitioner, under Clause 6(2) of the KLU Order, was as early as on 22.09.2017 and a consideration thereon had to be in accordance with the law as it stood prior to the amendments to the 2008 Act with effect from 30.12.2017. 3. A counter affidavit has been filed on behalf of the 2[nd] respondent and an argument note has also been submitted by the learned Government Pleader at the time of hearing. The stand taken by the respondents is WP(C).No.7383 of 2019 4 essentially that, since the land belonging to the petitioner was included in the Land Data Bank, albeit erroneously, the land had to be seen as paddy land on account of the deeming provision contained in the 2008 Act. It is pointed out that, by virtue of Section 5 of the said Act, the inclusion of any land, even erroneously, in the Land Data Bank creates a rebuttable presumption that the land is either a paddy land or wet land, and unless the land was excluded from the Data Bank, the owner could not approach the authorities under the KLU Order for appropriate orders of conversion of the land for other permissible uses. It is contended that, inasmuch as the right of the petitioner to have the land removed from the Data Bank arose only pursuant to Ext.P4 proceedings of the LLMC on 11.05.2018, notwithstanding that the petitioner had preferred an application under Clause 6(2) of the KLU Order as early as on 22.09.2017, an effective consideration of the same by the District Collector could have been only after 11.05.2018, the date of Ext.P4 proceedings of the LLMC. When so viewed, the consideration had to be in accordance with the amended provisions of the 2008 Act that came into force in the meanwhile. In support of the said submissions, the learned Government Pleader would rely on the decision of the Supreme Court in **Revenue Divisional Officer, Fort Kochi & Others v. Jalaja Dileep & Others [2015(2)KHC 109]** as also the judgments of this Court in **Thomasly v. Irinjalakuda Municipality and Others [2017(1)KHC 450]** and **Kunhimoideenkutty v. Marakkara Grama Panchayath [2018(3) KLT 1033]** . WP(C).No.7383 of 2019 5 4. I have heard learned Senior Counsel Sri.P.K.Suresh Kumar assisted by Sri.T.U.Ziyad on behalf of the petitioner, Sri.C.P.Pradeep, learned Government Pleader and Sri.Renjith Thampan, learned Additional Advocate General. 5. On a consideration of the facts and circumstances and the submissions made across the Bar, I find that it is not in dispute that in the Draft Data bank, that was originally prepared for the region, the land belonging to the petitioner, although included in the said Data Bank, was clearly shown as land converted prior to 2008 and, therefore, land not answering to the description of paddy land or wet land for the purposes of the 2008 Act. No doubt, by virtue of the provisions of Section 5 of the 2008 Act, as clarified by the judgment of this Court in **Salim C.K. & Another v. State of Kerala & Others [2017(1)KHC 394]** , a rebuttable presumption would have arisen, as regards the nature of the land; whether paddy land or wet land, if the land in question was included in the finalised Land Data Bank prepared for the region. In the instant case, however, while it is not in dispute that the Data Bank itself was in the draft stage and not finalised in accordance with the provisions of the Act, even in the Draft version, the description of the land was shown as “converted land prior to 2008”. It is this factual position as regards the nature of the land, that was subsequently confirmed through the proceedings of the LLMC dated WP(C).No.7383 of 2019 6 11.05.2018, when the LLMC found that the land in question was, in fact, not paddy land or wet land for the purpose of inclusion in the Land Data Bank. 6. 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 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 therein. 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 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 27A3(13) that suggest that it is only such applications 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. In the result, I am of the view that this Writ Petition, in its limited challenge to Ext.P5 order of the District Collector, must succeed. I, therefore, quash Ext.P5 order to the extent it directs the petitioner to WP(C).No.7383 of 2019 7 submit an application under Section 27-A of the Kerala Conservation of Paddy Land and Wet Land Act and to remit the fee thereunder for the purposes of obtaining the corrections in the Basic Tax Register consequent to the declaration of the nature of the land in Ext.P5 order. The revenue authorities shall effect the consequential corrections in the Basic Tax Register on the basis of Ext.P5 order, as modified by the directions in this judgment. ## **Sd/-** ## **A.K.JAYASANKARAN NAMBIAR** **JUDGE** sd WP(C).No.7383 of 2019 8 ## **APPENDIX** **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF THE RELEVANT EXTRACT OF THE DATA BANK OF EDAPALLY NORTH VILLAGE.** **EXHIBIT P2 TRUE COPY OF THE APPLICATION DATED 22.9.2017 SUBMITTED BEFORE DISTRICT COLLECTOR.** **EXHIBIT P3 TRUE COPY OF THE JUDGMENT DATED 21.11.2017 IN WPC.NO.37329/2017 OF THIS HON'BLE COURT. EXHIBIT P4 TRUE OF THE REPORT DATED 11.5.2018 OF THE AGRICULTURAL OFFICER, VYTTILA.** **EXHIBIT P5 TRUE OF THE ORDER DATED 13.12.2018 PASSED BY THE DISTRICT COLLECTOR, ERNAKULAM.** **EXHIBIT P6 TRUE OF THE JUDGMENT DATED IN WA.2147/18 THE DIVISION BENCH DATED 20.11.18 PASSED BY THE HIGH COURT OF KERALA.** **EXHIBIT P7 TRUE OF THE REPRESENTATION DATED 23.11.2018 SUBMITTED TO DISTRICT COLLECTOR, ERNAKULAM.** sd