Manimallika A.K. 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.10155 OF 2020(T)** ## **PETITIONER:** **MANIMALLIKA A.K., AGED 70 YEARS W/O.V.V.MOHANAN (LATE), VARAPARAMBIL, AMRITA SARGAM, DESOM P.O., KUNNUMPURAM, ALUVA-683102. BY ADV. SRI.K.P.SUDHEER** ## **RESPONDENTS:** |**1**|**DISTRICT COLLECTOR,**| |---|---| ||**ERNAKULAM, KOCHI-682030.**| |**2**|**THE REVENUE DIVISIONAL OFFICER,**| ||**OFFICE OF THE REVENUE DIVISIONAL OFFICER,**| ||**FORT KOCHI-682001.**| |**3**|**THE AGRICULTURAL OFFICER,**| ||**KRISHI BHAVAN, PUTHENVELIKKARA, ERNAKULAM-683594.**| |**4**|**THE VILLAGE OFFICER,**| ||**PUTHENVELIKKARA, ERNAKULAM DISTRICT, PIN-683594.**| ||**SRI.K.J.MANU RAJ, 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. 10155 of 2020 --------------------------------------Dated this the 25[th] day of May, 2020 ## J U D G M E N T The case set up in this Writ Petition (Civil) is as follows: By virtue of Exhibit P2 sale deed, the petitioner's husband acquired a parcel of land having an extent of 12.14 ares of land in Sy. No.371/4 of Puthenvelikkara village of Paravur taluk in Ernakulam district. Ext.P11 certificate of death would show that the petitioner's husband expired on 29.03.2019. Prior to his death, he executed Ext.P1 registered will in favour of the petitioner and thus the petitioner is present owner and in possession of the property in question. Ext.P4 would show that the property in question was classified as converted land in the draft data bank prepared under Act 28 of 2008. Since the property in question was classified as wetland in the revenue records, the petitioner's husband submitted Ext.P5 application on 04.07.2015 under clause 6(2) of the Kerala Land Utilisation Order, 1967. Since orders were not passed, he approached this Court and by Ext.P6 judgment dated 17.09.2015, this Court directed the first respondent to consider and pass orders on Ext.P5 application. In spite of the W.P. © No. 10155/2020 ..3.. directions issued by this Court, no orders were passed by the first respondent. So the petitioner's husband moved Con.Case (C) No.1630/2016 and by Ext.P7 judgment dated 04.04.2017, this Court directed the 2[nd] respondent to grant permission within a period of 4 weeks from the date of receipt of the copy of judgment. Ext.P8 communication dated 25.07.2017 issued by the first respondent to the 2[nd] respondent would show that, Ext.P7 judgment was forwarded to the 2[nd] respondent. The 2[nd] respondent by Ext.P9 communication requested the Village Officer (4[th] respondent) to submit a detailed report in this matter. Ext.P10 is the report submitted by the Agricultural Officer (3[rd] respondent). In spite of the specific directions issued by this Court in Ext.P7 judgment, the 2[nd] respondent directed the petitioner's husband to submit application in terms of Section 27A of Act 28 of 2008. In spite of the fact that the property was classified as converted land, the petitioner's husband was directed to submit an application in Form No.5 as well as in Form No.6. Ext.P12 is the order passed by the 2[nd] respondent, excluding the property from the draft data bank. Thereafter the 2[nd] respondent has now issued Ext.P13 order directing the petitioner to remit a sum of Rs.4,56,019/- towards W.P. © No. 10155/2020 ..4.. conversion of the land. The action of the 2[nd] respondent is willful, contumacious and against the dictum laid down by this Court in the decisions reported in 2019(2)KLT 262, 2019(3) KLT 838, 2019(3) KLT 420 and 2020(1) KHC 865. It is in the light of the above facts and circumstances, that the petitioner has filed the instant Writ Petition (Civil) with the following prayers: “ _(a) call for the records leading to Ext.P13 order and quash Ext.P13 by issuing a writ of certiorari or any other appropriate writ order or direction._ _(b) issue a writ of mandamus or other appropriate writ, order or direction directing the 2[nd] respondent to grant permission as requested in Ext.P5 application forthwith without insisting for the payment directed to be made in Ext.P13 order. ”_ 2. Heard Sri.K.P.Sudheer, learned counsel appearing for the petitioner and Sri.K.J.Manuraj, learned Government Pleader appearing for the respondents. 3. In this case there is no dispute that the subject property has 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). So also, it is common ground that Ext.P-5 is the requisite application already filed by the petitioner before the 1[st] respondent/2[nd] respondent under W.P. © No. 10155/2020 ..5.. Rule 6(2) of the Kerala Land Utilization (KLU) Order, 1967, seeking change of user of land, and the said Ext.P-5 application has been filed on 4.7.2015, which is much prior to 30.12.2017 (date of coming into force of the amended provisions of the 2008 Act, which has introduced Section 27A thereof). So also, it is common ground that the petitioner has already secured two judgments as per Exts.P-6 judgment dated 17.9.2015 in WP(C).No.25483/2015 as well as Ext.P-7 judgment dated 4.4.2017 in Contempt of Court (Civil) No.1630/2016 (arising out of Ext.P-6 WP(C).No.25483/2015) whereby, this Court has already ordered and declared that the petitioner's Ext.P-5 application should be considered under Rule 6(2) of the KLU Order, and further it is also directed in Ext.P-7 judgment that necessary permission should be accorded to the petitioner by the 2[nd] respondent RDO in terms of Rule 6(2). The person who has originally prosecuted the matter before the respondent authorities was the husband of the petitioner, who was the owner of the property, and the petitioner's husband has died on 29.3.2019 as evident from Ext.P-11 Death Certificate, and now the petitioner is the sole owner of the property. During the lifetime of the petitioner's husband, he could W.P. © No. 10155/2020 ..6.. not secure favourable orders under Rule 6(2) of the KLU Order, despite Exts.P-6 & P-7 judgments. Now, the petitioner who is a widow is again made to face an order in the nature of Ext.P-13 dated 8.2.2020 issued by the 2[nd] respondent RDO, ordering that the petitioner should necessarily pay higher amounts in terms of the provisions contained in Rule 12(17) of the amended rules framed under the provisions act which has introduced Section 27A thereof. By Ext.P-12 proceedings dated 11.6.2019, the Local Level Monitoring Committee has already passed orders in favour of the petitioner to exclude the subject property from the Land Data Bank. It is this proceeding at Ext.P-13 that is under challenge in this writ proceedings. 4. It is by now 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 W.P. © No. 10155/2020 ..7.. 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 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 W.P. © No. 10155/2020 ..8.. 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. 5. So also it has been held by this Court in decisions as in the judgment dated 19.3.2020 in WP(C).No.8645/2020 that in such a case where the subject property has already been converted to 12.8.2008, and the requisite application under Rule 6(2) of the KLU Order has been filed prior to the cut-off date of 30.12.2017, then the party concerned is entitled to get his case considered strictly in terms of the pre-existing provisions contained in Rule 6(2) of the KLU Order, and in such a case the petitioner cannot be mulcted with the heavy amounts payable under the amended provisions of the Act including Rule 12(17) of the Act. 6. The position in that regard is ordered and declared in this case as well. Since, the impugned Ext.P-13 order dated 8.2.2020 has been passed by the 2[nd] respondent RDO in flagrant violation of the abovesaid well settled legal principles of this Court. Accordingly it is ordered that, Ext.P-13 order to the extent it directs the petitioner to pay higher amounts as per the amended rules will W.P. © No. 10155/2020 ..9.. stand set aside and quashed. Ext.P-5 application dated 4.7.2015 filed by the petitioner under Rule 6(2) of the KLU Order, 1967, will stand remitted to the 2[nd] respondent RDO for consideration and decision afresh. 7. The 2[nd] respondent RDO will afford reasonable opportunity of being heard to the petitioner through authorised representative/counsel if any, and then should pass orders granting permission under Rule 6(2) as already ordered in Exts.P-6 & P-7 judgments, more particularly Ext.P-7. It has to be borne in mind by the 2[nd] respondent RDO that, the petitioner's husband has been made to run from pillar to post during his life time, and despite Ext.P-6 judgment, the same has not been complied, which later led to the institution of Ext.P-7 Contempt proceedings, and despite a specific judgment rendered by this Court as per Ext.P-7 in the Contempt Case, again the case has not been finalized in terms of Rule 6(2) of the KLU Order, and the 2[nd] respondent has gone tangentially on irrelevant aspects which has led to the issuance of Ext.P-13 order which has already been quashed. 8. Taking note of the fact that the petitioner is a widow it W.P. © No. 10155/2020 ..10.. is hoped and expected that, the 2[nd] respondent RDO would rise up to the occasion and would ensure that orders are passed without any further delay, at any rate within one month from the date of production of a certified copy of this judgment, more so particularly in the light of Ext.P-7 judgment rendered by this Court in the Contempt proceedings. 9. In view of the abovesaid aspects it is also ordered and declared that, after the petitioner secures favourable orders under Rule 6(2) of the KLU Order, 1967, from the 2[nd] respondent, she will be further entitled to file and maintain an application under Section 6A of the Kerala Land Tax Act, 1961, before the Tahsildar concerned seeking for re-assessment/fresh assessment of the subject property under that provision, so as to secure additional BTR entries to show the change of description of land as garden land/purayidam, instead of the earlier BTR entries as paddy land /nilam. Upon receipt of such application, the Tahsildar is bound to consider the said request in terms of the dictum already laid down by the Division Bench of this Court as in _**LLMC Kizhakkambalam Grama Panchayat v. Mariumma [2015 (2) KLT 516]**_ , _**Tahsildar, Thodupuzha Taluk v. Rajit [2020**_ W.P. © No. 10155/2020 ..11.. _**(1) KHC 865 DB],**_ etc without much delay preferably within a period of 3 weeks from the date of filing of such application along with a copy of the order passed by the 2[nd] respondent RDO under Rule 6(2) of the KLU Order as aforestated, and without making the petitioner pay any amounts conceived as per the amended provisions of the 2008 Act including Section 27A thereof and the amended provisions of the rules framed thereunder. 10. The petitioner will produce a certified copy of this judgment before the Tahsildar concerned at the appropriate stage for necessary compliance. With these observations and directions, the above Writ Petition (Civil) will stand finally disposed of. Sd/- ALEXANDER THOMAS, JUDGE MMG W.P. © No. 10155/2020 ..12.. ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF WILL DATED 19.11.2018 REGISTERED AS DOC. NO.176/2018 OF PARAVUR SRO EXECUTED BY PETITIONER'S HUSBAND IN FAVOUR OF THE PETITIONER.** - **EXHIBIT P2 TRUE COPY OF SALE DEED DATED 05.8.1975 REGISTERED AS DOC. NO.2702/1975 OF PARAVUR SRO IN FAVOUR OF PETITIONER'S HUSBAND V.V.MOHANAN.** - **EXHIBIT P3 TRUE COPY OF POSSESSION CERTIFICATE DATED 6.11.2019 ISSUED BY THE VILLAGE OFFICER, PUTHENVELIKKARA.** - **EXHIBIT P4 TRUE COPY OF RELEVANT PAGE OF THE ENTRIES IN THE DRAFT DATA BANK.** - **EXHIBIT P5 TRUE COPY OF APPLICATION DATED 4.7.2015 SUBMITTED BY THE PETITIONER BEFORE THE 1ST RESPONDENT UNDER CLAUSE 6(2) OF THE KERALA LAND UTILISATION ORDER, 1967.** - **EXHIBIT P6 TRUE COPY OF JUDGMENT DATED 17.09.2015 IN WRIT PETITION (CIVIL) NO.25483/2015 PASSED BY THIS HON'BLE COURT.** - **EXHIBIT P7 TRUE COPY OF JUDGMENT DATED 04.04.2017 IN CONTEMPT CASE (CIVIL) NO.1630/2016 IN WRIT PETITION (CIVIL)NO.25483/2015 PASSED BY THIS HON'BLE COURT.** - **EXHIBIT P8 TRUE COPY OF COMMUNICATION DATED 25.7.2017 FROM THE 1ST RESPONDENT TO THE 2ND RESPONDENT.** **EXHIBIT P9 TRUE COPY OF COMMUNICATION DATED 30.11.2017 FROM THE 2ND RESPONDENT TO THE 4TH RESPONDENT.** W.P. © No. 10155/2020 ..13.. **EXHIBIT P10 TRUE COPY OF REPORT SUBMITTED BY THE 3RD RESPONDENT BEFORE THE 2ND RESPONDENT. EXHIBIT P11 TRUE COPY OF DEATH CERTIFICATE OF THE PETITIONER'S HUSBAND. EXHIBIT P12 TRUE COPY OF ORDER DATED 11.6.2019 ISSUED BY THE 2ND RESPONDENT. EXHIBIT P13 TRUE COPY OF ORDER DATED 8.2.2020 ISSUED BY THE 2ND RESPONDENT.**