Luckman S/O Mithian Naina v. District Collector, Civil Station, Kakkanad, Ernakulam; The Revenue Divisional Officer, Fort Kochi; Local Level Monitoring Committee (Constituted under the Kerala Conservation of Paddy Land and Wetland Act, 2008); Village Officer, Alangad Village Office, Alangad, Ernakulam District

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **THURSDAY, THE 12TH DAY OF MARCH 2020 / 22ND PHALGUNA, 1941** ## **WP(C).No.7675 OF 2020(H)** ## **PETITIONER:** **LUCKMAN S/O. MITHIAN NAINA, KANIYAMPARAMBIL, KADUNGALLOOR P.O., ERNAKULAM DISTRICT.** **BY ADV.SRI.BINU PAUL** ## **RESPONDENTS:** - **1 DISTRICT COLLECTOR CIVIL STATION, KAKKANAD, ERNAKULAM- 682 030.** - **2 THE REVENUE DIVISIONAL OFFICER, FORT KOCHI, ERNAKULAM DISTRICT- 682 001.** - **3 LOCAL LEVEL MONITORING COMMITTEE, (CONSTITUTED UNDER THE KERALA CONSERVATION OF PADDY LAND AND WET LAND ACT, 2008), REPRESENTED BY ITS CONVENER, AGRICULTURAL OFFICER, KRISHIBHAVAN, ALANGAD, ERNAKULAM DISTRICT 683 511.** - **4 VILLAGE OFFICER, ALANGAD VILLAGE OFFICE, ALANGAD, ERNAKULAM DISTRICT 683 511.** ## **SRI.SAIGI JACOB PALATTY, SR.GOVT.PLEADER** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 12.03.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** W.P(C) No.7675 of 2020 2 ## **ALEXANDER THOMAS, J.** ## **=========================== W.P(C) No.7675 of 2020** **===========================** Dated this the 12[th] day of March, 2020 ## **JUDGMENT** The prayers in the above Writ Petition (Civil) are as follows: - “ _(i) issue a Writ of Mandamus, or any other writ, order or direction commanding the 2[nd] respondent to consider and pass orders on Ext.P2 application after verifying the ground realities and physical nature of the property mentioned in Exhibit P-1 and pass orders within such time as may be fixed by this Hon'ble Court;_ _and_ - _(ii) issue such other writ, order or direction that this Hon'ble Court may deem fit and proper in the facts and circumstances of the case and to allow this Writ Petition, in the interest of justice.”_ 2. Heard Sri.Binu Paul, learned counsel appearing for the petitioner and Sri.Saigi Jacob Palatty, learned Senior Government Pleader appearing for the respondents. 3. According to the petitioner, the subject property has been converted as garden land or purayidam, much prior to 12.08.2008 (date of coming into force of the Kerala Conservation of the Paddy Land and Wetland Act, 2008). Further that, the petitioner has submitted Ext.P-2 application dated 27.06.2013 before the 2[nd] respondent-Revenue Divisional Officer, Fort Kochi, Ernakulam seeking for permission to construct a residential building in the said property. The fact that Ext.P-2 application W.P(C) No.7675 of 2020 3 dated 27.06.2013 has thus been duly filed by the petitioner before the 2[nd] respondent is also evident from Ext.P-3 endorsement dated 01.07.2013 made by the officials concerned. Further that, Ext.P-2 application was forwarded by the 2[nd] respondent to the 4[th] respondent-Village Officer for enquiry and report, in which the 4[th] respondent-Village Officer has submitted Ext.P-4 report dated 25.07.2013, wherein it has been found that the subject property has not been included in the land data bank prepared as per the 2008 Act, though the property has been shown as Nilam/paddy land as per the entries in the Basic Tax Register, etc. Thereafter, the 2[nd] respondent RDO/Sub-Collector has given Ext.P-5 report dated 16.12.2013 before the 1[st] respondent-District Collector, Ernakulam in pursuance of Ext.P-4 report dated 25.07.2013 submitted by the 4[th] respondent-Village Officer, wherein the 2[nd] respondent-RDO has stated regarding the facts reported by the 4[th] respondent-Village Officer in Ext.P-4 report and that though the subject property has been shown as Nilam in the BTR, the said property has not been included in the data bank and that the petitioner seeks permission to construct a residential building in the said property, which has been denied by the Panchayath authorities, presumably on account of lack of permission by the revenue authorities, etc. Further it is seen that the 2[nd] respondent-RDO has forwarded Ext.P-2 application dated 27.06.2013 to the 1[st] respondent-District Collector, etc. W.P(C) No.7675 of 2020 4 By Ext.P-6 letter dated 07.03.2019, the Agricultural Officer concerned, who is the Convener of the 3[rd] respondent-Local Level Monitoring Committee has also certified that the subject property is not included in the land data bank. 4. Thus it is seen that the petitioner has submitted Ext.P-2 request for permission to construct the residential building on 27.06.2013, which was then submitted before the 2[nd] respondent-RDO. Since the petitioner has raised a specific request in Ext.P-2 application dated 27.06.2013 that permission should be granted to construct the residential building in the said property and that the said property is not included in the land data bank, etc., the said request in Ext.P-2 should be treated as a formal application filed by the petitioner under Rule 6(2) of the Kerala Land Utilization Order, 1967 and the said application has thus been filed by the petitioner under Rule 6(2) much before 30.12.2017, which is the date of coming into force of the amended provisions of the 2008 Act, which has been introduced in Sec.27A thereof. 5. It is only to be held that the matter in issue is fully covered in favour of the petitioner and against the respondents as per the dictum laid down by this Court, more particularly, by the Division Bench of this Court in cases as in _**Local Level Monitoring Committee, Kizhakkambalam Grama Panchayath v. Mariumma and**_ W.P(C) No.7675 of 2020 5 _**another**_ [2015 (2) KLT 516 (DB)] as well as _**Tahsildar, Thodupuzha Taluk and another v. Renjth George**_ [2020 (1) KHC 865 (DB)] that in a case where favourable orders are obtained by the property holder in terms of the 6(2) of the Kerala Land Utilisation Order, 1967, for converting the said land as garden land or purayidam, etc., then the property holder is legally entitled to maintain an application under Sec.6A of the Kerala Land Tax Act, 1961 before the competent revenue officials like the Tahsildar, seeking for re-assessment of the subject property in terms of the said provision, so as to make additional entries in the BTR to rightly and properly show the land as garden land or purayidam instead of the previous BTR entries as Nilam or paddy land, etc. In that regard, the Division Bench of this Court in **Mariumma’s case** (supra) [2015 (2) KLT 516 (DB)] has held that once enabling order is passed under Rule 6(2) of the Kerala Land Utilisation Order, 1967 permitting conversion of the land, then the earlier entries in the BTR showing the land as Nilam or paddy land, etc., will become superfluous and redundant and the competent revenue officials concerned like the Tahsildar concerned is obliged in law to make a fresh assessment of the subject property under Sec.6A of the Kerala Land Tax Act, as aforestated. 6. Since it is evidently clear from Ext.P-4 report dated 25.07.2013 (issued by the 4[th] respondent-Village Officer) as well as Ext.P-5 issued by W.P(C) No.7675 of 2020 6 the 2[nd] respondent-RDO and Ext.P-6 certificate issued on behalf of the 3[rd] respondent-Local Level Monitoring Committee, it is evidently clear that the subject property has not been included in the land data bank and that therefore there is no necessity for the petitioner to seek any formal orders from the Local Level Monitoring committee for getting the subject property deleted from the land data bank. Hence, the 2[nd] respondent is under the statutory obligation to consider the request of the petitioner made in Ext.P-2 application, as a request under Rule 6(2) of the Kerala Land Utilization Order, 1967 as the one filed by him before 30.12.2017. Therefore, under the adverse conditions flowing out from the amended provisions of the 2008 Act, including Sec.27A thereof can be pressed into service against the petitioner, in the light of the abovesaid well settled legal position referred hereinabove. Matters of this nature are to be considered on merits by the 2[nd] respondent-RDO, who is also notified to exercise all the powers of the Collector, in terms of the Kerala Land Utilization Order. Since the 1[st] respondent is the head of the revenue administration in the District, due to lack of sufficient time for him to deal with Ext.P-2 application, the matter should not have been forwarded by the 2[nd] respondent-RDO to the 1[st] respondent-District Collector, as per Ext.P-5. Hence, in the interest of justice, it is ordered that the matter in Ext.P-2 application will stand remitted to the 2[nd] respondent-RDO for W.P(C) No.7675 of 2020 7 consideration and decision. 7. To obviate any further delay in the matter, it is ordered that the learned Government Pleader will ensure that a copy of this Writ Petition (Civil) contained in Ext.P-2 application shall be forwarded to the 2[nd] respondent-RDO, along with the certified copy of this judgment. The petitioner may also produce a copy of this Writ Petition, with all the Exhibits, including Ext.P-2 application, along with the certified copy of this judgment. Thereafter, the 2[nd] respondent-RDO will consider the request made by the petitioner in Ext.P-2 application as the one filed under Rule 6(2) of the Kerala Land Utilisation Order, 1967. The 2[nd] respondent may follow the requisite procedure and after affording reasonable opportunity of being heard to the petitioner, shall render a considered decision thereon under Rule 6(2) of the Kerala Land Utilisation Order, without much delay, preferably within a period of two months from the date of production of a certified copy of this judgment and taking note of the aspects borne out from Exts.P-4 report, P-6 certificate, etc. 8. Necessary orders may be passed by the 2[nd] respondent-RDO on the request of the petitioner for use and conversion of the subject property as garden land or purayidam and for its use for any non-agricultural purposes, including for construction of the residential building, etc. in accordance with Rule 6(2) of the Kerala Land Utilisation Order, within the W.P(C) No.7675 of 2020 8 abovesaid time limit, without insisting for payment of amounts by the petitioner as per the amended 2008 Act and the amended Rules framed thereunder. After the petitioner secures such order under Rule 6(2) of the Kerala Land Utilisation Order from the 2[nd] respondent, the petitioner will thereafter will be at liberty to file requisite application before the competent revenue official concerned like the Tahsildar under Sec.6A of the Kerala Land Tax Act seeking for fresh assessment of the subject property and for making additional entries in the BTR in respect of the subject property as purayidam or garden land, instead of the earlier entry as Nilam or paddy land, as the case may be, in which case, the said revenue official shall consider the said request in the light of the dictum laid down by this Court in decisions as in _**LLMC, Kizhakkambalam Grama Panchayath and others v. Mariumma and another**_ [2015 (2) KLT 516 (DB)], _**Thasildar, Thodupuzha Taluk and another v. Renjith George**_ [2020 (1) KHC 865 (DB)], etc. and without compelling the petitioner to pay as per the amended 2008 Act and the amended Rules thereunder. With these observations and directions, the above Writ Petition (Civil) stands finally disposed of. **ALEXANDER THOMAS JUDGE** vgd W.P(C) No.7675 of 2020 9 ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 A TRUE PHOTOCOPY OF THE TAX RECEIPT NO. KL07/030112408/2019 ISSUED FROM THE VILLAGE OFFICER, ALANGAD TO THE PETITIONER DATED 12.07.2019.** **EXHIBIT P2 A TRUE COPY OF THE APPLICATION DATED 27.06.2013 SUBMITTED BY THE PETITIONER BEFORE THE 2ND RESPONDENT.** **EXHIBIT P3 THE TRUE COPY OF THE RECEIPT CUM FORWARDING LETTER ISSUED FROM THE OFFICE OF THE 2ND RESPONDENT DATED 01.07.2013.** **EXHIBIT P4 TRUE COPY OF THE REPORT OF THE VILLAGE OFFICER, ALANGAD VILLAGE OFFICE DATED 25.07.2013.** **EXHIBIT P5 THE TRUE COPY OF THE LETTER DATED 16.12.2013 ISSUED BY THE 2ND RESPONDENT TO THE 1ST RESPONDENT. EXHIBIT P6 TRUE COPY OF THE LETTER ISSUED BY THE AGRICULTURAL OFFICER, KRISHY BHAVAN, KADUNGALLOOR TO THE PETITIONER DATED 07.03.2019 WITH THE COPY OF THE RELEVANT PAGES OF DATA BANK.**