M.C. Mohammed Haji v. Revenue Divisional Officer, Shanti Nagar, Perinthalmanna, Malappuram District

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN** **MONDAY, THE 3[RD] DAY OF JULY 2023 / 12TH ASHADHA, 1945** ## **WP(C) NO. 17542 OF 2020** ## **PETITIONER:** M.C.MOHAMMED HAJI AGED 68 YEARS S/O.KUNHIPOCKER, MANNARCHOLA HOUSE, CHEEKODE P.O., MALAPPURAM DISTRICT. BY ADV U.K.DEVIDAS ## **RESPONDENT:** THE REVENUE DIVISIONAL OFFICER SHANTI NAGAR, PERINTHALMANNA, MALAPPURAM DISTRICT-679 322. SMT.DEEPA NARAYANAN-SR.GP THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 03.07.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C) No.17542 OF 2020 2 # **ANU SIVARAMAN, J.** ========================= **W.P.(C) No.17542 of 2020** ========================= Dated this the 3[rd] day of July, 2023 ## **JUDGMENT** ## This writ petition is filed seeking the following reliefs: _“i) a writ of certiorari or any other appropriate writ order or direction to the respondent to call for the records leading to Ext.P14 order and quash the same._ _ii) a writ of mandamus or any other appropriate writ order or direction to the respondent to consider Ext.P13 & P15 and pass appropriate orders in terms of the Ext.P12 judgment within a reasonable time after affording an opportunity of hearing.”_ 2. Heard the learned counsel for the petitioner and the learned Government Pleader. 3. It is submitted by the learned counsel for the petitioner that the petitioner owns an extent of 83.80 cents of land, out of which 57.8 cents of land is comprised in Re-survey No.153/1 & 2 and 26 cents of land is comprised in Re-survey No.156/7 of Vazhakkad Village, Eranadu Taluk, Malappuram WP(C) No.17542 OF 2020 3 District. It is submitted that in respect of 26 cents of land in Re-survey No.156/7, the predecessor in interest of the petitioner had obtained Exhibit P4 under Clause 6(2) of the Kerala Land Utilization Order, 1967 as early as on 16.12.1996. It is submitted that the remaining extent of property, belonging to the petitioner, comprised in Re-survey No.153/1,2 and 3 also was converted long prior to the coming into force of the Kerala Conservation of Paddy Land and Wetland Act, 2008 and that there was an existing building in the property. It is submitted that the property is included as 'converted land' in the data bank. Exhibit P11 order had been passed by the Government by which the request made by the petitioner for permission to use the property for other purposes was refused to be considered on the ground that it is only after the data bank is prepared and notified that the issue can be considered. 4. The petitioner had challenged the said order before this Court filing W.P.(C) No.25625 of 2011. The writ petition was disposed of, directing the petitioner to approach the RDO with an application for permission under Clause 6(2) of the Kerala Land Utilization Order. The said judgment was dated WP(C) No.17542 OF 2020 4 08.06.2017. However, the petitioner did not submit the application immediately. Thereafter, Exhibit P13 application was submitted on 09.02.2018. By the time, the Kerala Conservation of Paddy Land and Wetland Act and Rules had undergone amendments and the application was proceeded to be considered as one filed under Section 27A of the Kerala Conservation of Paddy Land and Wetland Act, 2008. 5. Exhibit P14 notice was issued to the petitioner requiring him to pay an amount of Rs.4,36,907/- as fee for the conversion with regard to the land and a further amount of Rs.15,93,362/- for the buildings in the property. Learned counsel for the petitioner submits that the buildings in the property were constructed pursuant to Exhibit P7 building permit and had been issued with occupancy certificates long prior to the amendment of Section 27 in the Kerala Conservation of Paddy Land and Wetland Act in December 2017 and therefore, no fee is chargeable in respect of existing buildings. It is submitted that even with regard to the fee charged in respect of the land, there are apparent errors including the fact that fee has been charged in respect of the WP(C) No.17542 OF 2020 5 property covered by Exhibit P4 KLU Order as well. It is, therefore, contended by the learned counsel for the petitioner that the charging of the fee as per Exhibt P14 is completely erroneous. This aspect has been brought to the notice of the RDO by Exhibit P15 representation. However, no steps have been taken thereon. 6. A counter affidavit has been placed on record by the respondent stating that the petitioner had not filed the application under Clause 6(2) before 30.12.2017 ie. the date of coming into force of the Kerala Conservation of Paddy Land and Wetland Amendment Act, 2008 and that therefore, the application could be considered only as an application under Section 27A of the Amended Act. It is contended that the fee is chargeable in respect of buildings proposed to be constructed in the property and that nothing was brought to the notice of the respondent to show that the building had actually been constructed before 30.12.2017. 7. Learned counsel for the petitioner has placed reliance on decisions of this Court in **Abad Builders Private Limited** **v. State of Kerala** [2022 (5) KHC 522] and in **Shiji Joshy v.** WP(C) No.17542 OF 2020 6 ## **State of Kerala** [2022 (7) KHC 502]. 8. The learned Government Pleader would contend that the judgment of the learned Single Judge in **Abad Builders** (Supra) is pending in appeal before a Division Bench this Court. 9. Having considered the contentions advanced, I notice that it is not in dispute that even the property covered by Exhibit P4 written permission under the Kerala Land Utilization Order has been included for the purpose of calculation of fee for permission for conversion under Section 27A of the Kerala Conservation of Paddy Land and Wetland Act, 2008. It is apparently a mistake, since the land covered by an earlier order under the Kerala Land Utilization Order cannot be taken into account for the purpose of calculation of fee. With regard to the building also, the petitioner has a specific contention that the building had been constructed pursuant to building permits granted in 2010, which were valid only till 2013 and that occupancy certificates had been issued by the Panchayat in respect of the building in question, much prior to the coming into force of the Amendment Act on 30.12.2017. 10. In the above view of the matter, I am of the opinion WP(C) No.17542 OF 2020 7 that the calculation of the fee requires a re-consideration at the hands of the respondent. It is made clear that the computation of the fee can only be in respect of the property of the petitioner in Re-survey No.153/1, 2 & 3 and cannot be in respect of the property covered by Exhibit P6 permission under the Kerala Land Utilization Order which is granted as early as on 16.12.1996. Further, the contention of the petitioner that the entire building was already in existence as on 30.12.2017, also requires to be considered. In case the petitioner produces materials before the respondent to show that the building had already been constructed before 30.12.2017, no fee can be charged with respect of such extent of the building which is already in existence. In the above view of the matter, Exhibit P14 is set aside. There will be a direction to the respondent to consider Exhibit P15 objection preferred by the petitioner and any further representation that he may desire to make, which shall be filed within a period of two weeks from the date of receipt of a copy of this judgment and to consider and pass orders on the same, strictly in accordance with the Kerala Conservation of WP(C) No.17542 OF 2020 8 Paddy Land and Wetland Act, 2008, the Rules as well as the fee schedule amended thereto. The land covered by Exhibit P4 shall be excluded for the purpose of computation of the fee and the contention of the petitioner with regard to the existence of the building before 30.12.2017 shall be specifically taken note of. The proceedings, as directed above, shall be completed within a period of three months from the date of receipt of a copy of this judgment. **Sd/ANU SIVARAMAN JUDGE** SSK/03/07 WP(C) No.17542 OF 2020 9 ## **APPENDIX** ||**APPENDIX**| |---|---| |PETITIONER EXHIBITS|| |EXHIBIT P1|TRUE COPY OF THE CERTIFICATE DATED 6/4/2005.| |EXHIBIT P2|TRUE COPY OF THE COMMUNICATION OF THE| ||VILLAGE OFFICER, VAZHAKKAD DATED 13/2/2012.| |EXHIBIT P3|TRUE COPY OF THE RELEVANT PAGE OF THE DATA| ||BANK.| |EXHIBIT P4|TRUE COPY OF THE ORDER DATED 16/12/1996| ||PASSED BY THE RESPONDENT.| |EXHIBIT P5|TRUE COPY OF THE BUILDING PERMIT DATED| ||24/09/2011 ISSUED BY THE VAZHAKKAD GRAMA| ||PANCHAYATH| |EXHIBIT P6|TRUE COPY OF THE BUILDING PERMIT DATED| ||30/08/2003 ISSUED BY THE VAZHAKKAD GRAMA| ||PANCHAYATH| |EXHIBIT P7|TRUE COPY OF THE BUILDING PERMIT DATED| ||23/02/2011 ISSUED BY THE VAZHAKKAD GRAMA| ||PANCHAYATH| |EXHIBIT P8|TRUE COPY OF THE NOTICE DATED 17/10/2008| ||ISSUED BY THE RESPONDENT.| |EXHIBIT P9|TRUE COPY OF THE JUDGMENT DATED 21/10/2009| ||IN WP(C) NO.2178/2009 BY THE HON'BLE COURT.| |EXHIBIT P10|TRUE COPY OF THE JUDGMENT DATED 8/4/2011 IN| ||WP(C) NO.11565/2011.| |EXHIBIT P11|TRUE COPY OF THE ORDER DATED 28/6/2011| ||ISSUED BY ADDL.CHIEF SECRETARY.| |EXHIBIT P12|TRUE COPY OF THE JUDGMENT DATED 8/6/2017 IN| ||WP(C) NO.25625/2011.| |EXHIBIT P13|TRUE COPY OF THE APPLICATION UNDER CLAUSE 6| ||OF THE KERALA LAND UTILISATION ORDER DATED| ||NIL.| |EXHIBIT P14|TRUE COPY OF THE ORDER DATED 25/6/2019| ||PASSED BY THE RESPONDENT.| |EXHIBIT P15|TRUE COPY OF THE LETTER DATED 16/8/2019 TO| ||THE RESPONDENT.|