Molly Antony and Anandu Rajeev v. The Commissioner of Land Revenue and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **FRIDAY, THE 12TH DAY OF JUNE 2020 / 22ND JYAISHTA, 1942** ## **WP(C).No.11516 OF 2020(L)** ## **PETITIONERS:** |**1**|**MOLLY ANTONY,**| |---|---| ||**AGED 61 YEARS,**| ||**PUTHUPARAMBIL KIZHAKKEKARAYIL HOUSE,**| ||**MALLASSERY P.O., PATHANAMTHITTA DISTRICT,**| ||**PIN-689 646.**| |**2**|**ANANDU RAJEEV,**| ||**PUTHUPARAMBIL KIZHAKKEKARAYIL HOUSE,**| ||**MALLASSERY P.O., PATHANAMTHITTA DISTRICT,**| ||**PIN-689 646.**| - **BY ADV. SRI.SERGI JOSEPH THOMAS** ## **RESPONDENTS:** |**1**|**THE COMMISSIONER OF LAND REVENUE**| |---|---| ||**OFFICE OF THE COMMISSIONER OF LAND REVENUE,**| ||**PUBLIC OFFICE BUILDING, MUSEUM ROAD,**| ||**OPPOSITE ZOO, VIKAS BHAVAN P.O., THIRUVANANTHAPURAM,**| ||**KERALA-695 033.**| |**2**|**THE DISTRICT COLLECTOR,**| ||**PATHANAMTHITTA-689 645.**| |**3**|**THE REVENUE DIVISIONAL OFFICER,**| ||**ADOOR-691 523.**| |**4**|**THE LOCAL LEVEL MONITORING COMMITTEE**| ||**FOR PRAMADOM PANCHAYAT (CONSTITUTED UNDER THE KERALA**| ||**CONSERVATION OF PADDY LAND AND**| ||**WETLAND ACT, 2008)**| ||**REPRESENTED BY ITS CHAIRMAN/CHAIRPERSON,**| ||**MALLASSERY P.O.,**| ||**PATHANAMTHITTA DISTRICT-689 646.**| |**5**|**THE AGRICULTURAL OFFICER,**| ||**CONVENER, LOCAL LEVEL MONITORING**| ||**COMMITTEE FOR PRAMADOM PANCHAYAT,**| ||**MALLASSERY P.O., PATHANAMTHITTA DISTRICT,**| ||**PIN-689 646.**| **WP(C).No.11516 OF 2020** **2** **6 THE TAHSILDAR, KONNI TALUK, PATHANAMTHITTA, PATHANAMTHITTA DISTRICT, PIN-689 691.** - **7 THE VILLAGE OFFICER, PRAMADOM VILLAGE, PATHANAMTHITTA DISTRICT PIN-689 646.** **BY ADV** **SRI.SAIGI JACOB PALATTY, SR.GOVT.PLEADER** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 12.06.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C).No.11516 OF 2020** **3** ## **ALEXANDER THOMAS, J. ======================= W.P.(C) No. 11516 of 2020 ======================= Dated this the 12[th] day of June, 2020** ## **JUDGMENT** The case set up in this Writ Petition (Civil) is as follows: _The properties of the petitioners were originally paddy land. Exhibit P2 Report of the Agriculture Officer cum Convener, LLMC, the 5[th] respondent herein and Exhibit P3 Report of KSRSEC found the properties reclaimed before the enactment of Act 28 of 2008. The reports along with Exhibit P11 judgment, in which State is a party, in a civil suit for fixation of boundary between the properties of the petitioners show the properties lying as a single unit and there is no mention of any water channel inside the properties. Exhibit P5 is the gazette notification removing the property from the data bank. Exhibit P4 application was filed by the petitioners under clause 6(2) of the KLU Order to use the property for purposes other than agriculture purposes. Thereafter as per Exhibit P7 order, the 3[rd] respondent rejected Exhibit P4, the stating that the petitioners had to file an application under Section 27(A) of Act 28 of 2008, which is set aside by Exhibit P8 judgment. Now Exhibit P9 order is passed by the 3[rd] respondent_ **WP(C).No.11516 OF 2020** **4** _virtually prohibiting the petitioners from using the properties for any purposes other than agricultural purposes and directing the 7[th] respondent Village Officer to inform the 6[th] respondent Tahsildar to take necessary action in the event of any infraction of the order, by the petitioners._ It is in the light of the above averments and contentions, that the petitioners have filed the instant Writ Petition (Civil) with the following prayers : _i). To call for the records leading to passing of Exhibit P9 order and quash the same by the issuance of a writ of certiorari or any other writ, order or direction;_ _ii) To declare that the 3[rd] respondent need not consider the directions in Exhibit P10 notification while considering an application under Clause 6 of the KLU Order;_ _iii) To declare that the petitioners are at liberty to engage in any activities in their properties having extent of 46.20 and 33.00 Ares in Re-Survey Nos.14/7 and 14/8 of Pramadom Village respectively in the light of the judgment in_ _**Arachana Varghese Vs. District Collector, Pathanamthitta as reported in 2015(1) KLT 937** ;_ _iv) To direct the respondent by a writ of mandamus to consider Exhibit P4 application filed under Clause 6 of the KLU Order afresh;_ _v) To issue a writ of mandamus directing the respondents 6 and 7 not to take any action pursuant to Exhibit P9 order of the 3[rd] respondent;_ **WP(C).No.11516 OF 2020** **5** _iv) Such other reliefs as this Hon'ble Court deems fit and proper in the facts and circumstances of the case._ 2. Heard Sri. K.Shaj, learned counsel appearing for the petitioners and Sri. Saigi Jacob Palatty, learned Senior Government Pleader appearing for the respondents. 3. It is indisputable fact that the subject property though classified as nilam/paddy land in Basic Tax Register has been converted as garden/ purayidam much prior to 12.08.2008 (date of coming into force of the Kerala Conservation of Paddy Land and Wetland Act, 2008). Further, the subject property has also been duly excluded from the land data bank, as per Ext.P5-Gazette Notification dated 07.06.2018 issued on behalf of the statutory Local Level Monitoring Committee of the Panchayath concerned. 4. The petitioners have duly filed Ext.P4 application dated 27.03.2017 under Rule 6(2) of the Kerala Land Utilization Order, 1967, before the 3[rd] respondent RDO, seeking for orders under that Rule for permission for change of user of land. It is now well settled by a series of rulings that since the property has been converted as “garden land/purayidam” before 12.08.2008, and as Rule 6(2) application under KLU order has been filed before the **WP(C).No.11516 OF 2020** **6** cut-off date on 30.12.2017 (date of coming into force of the amended provisions of the 2008 Act, (Act 29 of 2018) which has introduced Section 27A thereof), the said application of the petitioners are to be considered only on the basis of Rule 6(2) of the KLU order and the petitioners cannot be mulcted to pay any higher amounts conceived as per the amended provisions of the 2008 Act and the Rules framed thereunder. 5. After hearing both sides, it is to be noted that it is 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)]** etc.,_ 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 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. **WP(C).No.11516 OF 2020** **7** 27A thereof), then the statutory revenue authorities are obliged and duty bond 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. 6. 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)]** etc._ that property holder after he securing necessary permission under Rule 6(2) of the KLU order from the RDO is legally entitled to maintain an application before the Tahsildar seeking for fresh assessment/re-assessment of subject property in terms of Section 6A of the Kerala Land Tax Act for securing additional entries in the BTR to show the changed nature of the land as “garden land/purayidam” instead of the earlier BTR entries as “paddy land/nilam”. This Court as per Ext.P6 judgment dated 09.10.2018 in W.P.(C).No.37104/2017 filed by the petitioners, had directed the 3[rd] respondent RDO to pass orders on Ext.P4 application dated 27.03.2017, in accordance with the Rule 6(2) of the KLU order. Thereafter, 3[rd] respondent RDO **WP(C).No.11516 OF 2020** **8** passed Ext.P7 order dated 05.11.2019 holding that Ext.P4 application under Rule 6(2) is not legally maintainable, and that petitioners will have to file separate application under Section 27A(1) of the amended provisions of the 2008 Act. This Court as per Ext.P8 judgment dated 17.12.2019 in W.P.(C).No.33327/2019, has quashed Ext.P7 order, and held that the said stand of the 3[rd] respondent RDO is highly illegal and ultra vires, and ordered that Ext.P4 application herein should be considered strictly in terms of the provisions contained in Rule 6(2) of the KLU order, and that in that process, the petitioners cannot be made to pay any amounts as conceived as per the amended provisions of the 2008 Act including Section 27A thereof and the Rules framed thereunder. This was so ordered by this Court as per Ext.P8, as Ext.P4 application had been filed on 27.03.2017, which is before the cut-off date of 30.12.2017. Thereafter, the 3[rd] respondent RDO has passed the impugned Ext.P9 order dated 06.05.2020, granting order under Rule 6(2) of the KLU order, but with the restriction that the subject property can be used by the petitioners only for agricultural purposes and not for any other purposes etc. It is this order at Ext.P9 which is under challenge in this W.P.(C). 7. After hearing both sides, this Court is of the considered **WP(C).No.11516 OF 2020** **9** view that the above said restrictions imposed by the 3[rd] respondent RDO in Ext.P9 is illegal and ultra vires. The first ground of rejection in impugned Ext.P9 is that the land conversion was made unauthorisedly inasmuch as it was done without prior written permission of the notified Collector as mandated under Rule 6(2) of the KLU Order, 1967. Now, it has to be borne in mind that it has been held by this Court that, merely because permission was not obtained from the notified Collector for conversion prior to the coming into force of Act 28 of 2008, will not legally disentitle the party concerned from seeking subsequent permission from the notified Collector/RDO under Rule 6(2) of the KLU order. In the case in **Dileep Kumar v. State of Kerala [2014(4) KLT 200]** , this Court has held that there is no violation of any provision merely because the person has reclaimed the land unless it is found, that this was done in violation of the provision of Act 28 of 2008. In the case in **Aishabeevi v. Superintendent of Police in[ 2014 (3) KLT 1078]** , the Division Bench of this Court has held that there are no provisions either in KLU order or in the parent Act prescribing legal presumption that paddy land converted after the commencement of the KLU Order 1967, without specific written order regarding conversion shall be **WP(C).No.11516 OF 2020** **10** presumed to be illegally converted land. In the case in **Archana Varghese v. District Collector [2015(1) KLT 937]** , this Court has held that where the notified Collector as per the KLU Order has failed to take action under Rule 7 of the KLU Order at the relevant appropriate time, it is not open for them to do so now etc. In the light of these aspects it is only to be held that the first ground of rejection cited in Ext.P9 is untenable and will stand overruled. 8. The second ground of rejection is that, on inspection by the 3[rd] respondent on 05.05.2020, it was found that there was water channel running through the middle of the property and as such the land has not been fully converted. In this regard it is to be borne in mind that Exts.P2 and P3 and Ext.P11 judgment would clearly show that the property is remained as a single compact unit and there is not even a single mention therein about any water channel. Even the revenue records and Ext.P11 judgment would conclusively show that a 'Thodu' existed on the south of the properties of the petitioners. Hence the petitioners would contend that the above said objection is untenable. In view of the abovesaid aspects, this Court is prepared to countenance the said submission of the petitioners, and it is consequently ordered that the second ground of rejection is also to be repelled and it is ordered so. **WP(C).No.11516 OF 2020** **11** 9. The third ground is that, the petitioners have not specified the purposes for utilization of land other than agricultural purposes in their application and that as there is a water channel allegedly running through the property, if any permission, for using it for purposes other than for agricultural, will be misused by the petitioners. In this regard, it has to be borne in mind that an applicant under Rule 6(2) of the KLU Order need not specify for what purpose they need to utilize the land other than for agricultural purposes for securing orders under Rule 6(2) of the KLU Order. In the case in **Archana Varghese v. District Collector [2015(1) KLT 937]** this Court has held that the holder of land is free to use the land in accordance with law. In the case in **Sunil v. Killimangalam-Panjal 5[th] ward Nellulpadaka Samooham, [2012 (4) KLT 511],** it has been held by Division Bench of this Court that conversion and utilization could even be for industrial purposes. This aspect of the matter has also been reiterated by this Court in the judgment in the case in **Puthan Purakkal Joseph Vs. Sub Collector [2015 (3) KLT 182],** as well as in **Sivadasan V. Revenue Divisional Officer in [2017 (3) KLT 822]** . Therefore, it is now well settled that once it is decided by the statutory officer under Rule 6(2) to grant such **WP(C).No.11516 OF 2020** **12** permission, then the use of the land cannot be restricted. In that view of the matter it is ordered, that the third ground of rejection will also stand repelled and overruled. 10. Yet another ground mentioned in the impugned Ext.P9 order is by placing reliance on Ext.P10 notification of the Government. This Court in the judgment in **Puthan Purakkal Joseph Vs. Sub Collector [ 2015(3) KLT 182]** has held that the terms of the notification as per Ext.P10 herein could not control the statutory provisions of the KLU Order [see Para 16 of **2015 (3) KLT 182** ]. A reading of the said judgment in **Puthan Purakkal Joseph's case supra** would make it clear that this Court has more or less diluted the efficacy of notification as per Ext.P10 herein in matters concerning consideration and disposal of statutory applications like Ext.P4 under Rule 6(2) of KLU Order. Hence it is only to be ordered that, reliance on the said aspect is only for raising a technical argument and this Court is not impressed by the said objection and the same cannot be countenanced in the facts and circumstances of the case, and it is accordingly ordered. 11. The last ground of rejection in the impugned Ext.P9 order is that, as per Ext.P10 notification, the notified Collectors **WP(C).No.11516 OF 2020** **13** will have to ensure the drainage for the neighbouring or nearby plots are not blocked or rendered impossible, etc. As regards this subject it has to be borne in mind that, the factual materials that Exts. P2 and P3 reports are materials of unimpeachable and sterling quality, and the factual aspects borne out from Exts. P2 and P3 reports as well as that from Ext.P11 judgment would show that the subject property is a single compact unit and therefore, the said objection has been raised merely out of hyper technicality and therefore, Ext.P10 notification could not have been relied on in the facts of this case. _Prima facie_ this Court is of the view that, there is force in the submissions of the petitioners that the said objections have been raised only for the sake of technical objection. Exts.P2, P3 reports and P11 judgment would show that no mention has been made about the existence of any alleged water channel. Hence, _prima facie_ this Court would hold that there is force in the above said contentions of the petitioners, that these factual objections are now raised only as certain technical objections. However, this Court would not conclude that factual issue of the matter, which will have to be factually re-determined by objective and truthful evaluation based on proper inspection. In the light of these aspects, this Court is of the considered view that the impugned Ext.P9 **WP(C).No.11516 OF 2020** **14** proceedings would require serious reconsideration at the hands of the 3[rd] respondent RDO. Accordingly, the following directions and orders are passed : The impugned Ext.P9 order will stand set aside and quashed. The matter will stand remitted to the 3[rd] respondent RDO, only to factually determine the limited aspects regarding the alleged water channel and whether in the facts of this case, the petitioners will have to take steps to ensure that drainage for neighbouring or nearby plots is not blocked or entered impossible etc. 12. In that regard Sri.K.Shaj, learned counsel for the petitioners would submit that, earlier there was ‘thodu’ in existence on the southern side of the subject property and the said ‘thodu’ was filled up by the people of the locality, which was never objected to by the Panchayath in whom it is statutorily vested, and therefore, the ground reality is such that, the ‘thodu’ is no longer in existence, and therefore there is no factual scenario of the petitioners having to ensure drainage of neighbouring or nearby plots etc. Those all are factual aspects which are to be determined after proper enquiry and inspection. Accordingly, it is made clear that, the remit is made only for the limited purposes of **WP(C).No.11516 OF 2020** **15** consideration of the said issue regarding as to whether granting permission under Rule 6(2) of the KLU Order to the petitioners would in any manner lead to the blockage of the drainage for the neigbouring or nearby plots, and as to whether petitioners therefore, have to ensure sufficient drainage facility etc. This is only for the purpose to ensuring that while granting permission under Rule 6(2) of the KLU Order, whether any such condition to avoid the alleged blockage of drainage is necessary. 13. In that regard it is ordered that the 5[th] respondent Agricultural Officer, and the Assistant Engineer of the Local Self Government Department of the area concerned will immediately conduct the site inspection, with due prior notice to the petitioners as well as to the 3[rd] respondent RDO, 6[th] respondent Tahsildar, 7[th] respondent Village Officer and Secretary of the Local Grama Panchayath concerned (viz LLMC Pramadom Panchayath). The 5[th] respondent will make an impartial and objective evaluation of the existing ground realities, and may ascertain as to whether there is any contingency of alleged blockage of drainage to the neighbouring and nearby plots, if Rule 6(2) permission is granted to the petitioners, and whether petitioners will have to ensure sufficient drainage facilities and needs of such facilities if any **WP(C).No.11516 OF 2020** **16** required etc. In the abovesaid joint inspection process, it shall be ensured by the 5[th] respondent and the Assistant Engineer of the Local Self Government Department that the subject property is duly identified with the assistance of the 7[th] respondent Village Officer. In that regard the above said contention of the petitioners that ‘thodu’ which was said to be in existence on the southern side of the subject property has been filled up and is no longer in existence etc, should also be duly considered and assessed by the said joint inspection officials. In the said inspection process the joint inspection officials will also take note of the due submissions of the petitioners. Thereafter, the joint inspection officials should submit a comprehensive report of the matter to the 3[rd] respondent RDO, dealing with the abovesaid factual aspects and also his factual findings thereon on the abovesaid aspects. The report shall be duly submitted by the 5[th] respondent to the 3[rd] respondent within one month from the date of production of a certified copy of this judgment. Copy of the report should also be furnished by the 5[th] respondent to the petitioners in advance. 14. Thereafter, the 3[rd] respondent RDO will afford reasonable opportunity of being heard the petitioners through authroised representative/counsel if any, and then should take a **WP(C).No.11516 OF 2020** **17** considered decision on the above said limited issue as to whether there is any factual contingency of the blockage of the drainage to the nearby or neighbouring plots, and if so, whether any drainage facility is be provided by the petitioners etc., and duly taking note of the factual aspects and findings in the above said joint inspection report, so that such conditions may be imposed, if really necessary while granting permission under Rule 6(2). Orders in that regard under Rule 6(2) of the KLU Order 1967, should be duly passed by the 3[rd] respondent RDO, without much delay within a period of one month after receipt of the above said report of the 5[th] respondent. 15. It is ordered and declared that, the 3[rd] respondent RDO cannot deny permission under Rule 6(2) of the KLU Order to the petitioners by citing any of the ground in Ext.P-9, which has been held to be untenable and overruled by this Court, hereinabove. The only issue to be determined by R-3(RDO) is as to whether the abovesaid condition regarding the drainage facility, etc., is warranted and justified in the facts and circumstances of the case. 16. At the risk of reiteration, it is made clear that in the above said process the 3[rd] respondent RDO cannot make the petitioners to pay any amounts in terms of the amended provisions **WP(C).No.11516 OF 2020** **18** of the 2008 Act and the amended provisions of the Rules including Rule 12(17) thereof, while passing orders under Rule 6(2) of the KLU Order, for the simple reason that the petitioners have filed Ext.P4 application much before the vital cut off date of 30.12.2017. 17. This, the Court is constrained to say as it has come to the notice of this Court in numerous occasions that, despite the above said clear legal position, revenue officers like the RDOs and Collectors are repeatedly passing orders making the parties demanding that the parties should pay the abovesaid higher amounts inspite of the admitted factual position that they would have submitted Rule 6(2) application before the cut off date of 30.12.2017. The above said legal position well settled by this Court in the afore said judgments should also be carefully and fully borne in mind by the 3[rd] respondent RDO, while he passing orders as above. Needless to say that after the petitioners seek formal orders of permission under Rule 6(2) of the KLU Order, thereafter they will be entitled to maintain application under Section 6 A of the Kerala Land Tax Act, before R6-Tahasildar, who will then have to pass orders of re-assessment for BTR alteration of the property, without insisting for any payment. 18. The petitioners will produce certified copies of this **WP(C).No.11516 OF 2020** **19** judgment as well as the copies of memorandum of this W.P.(C) along with all the exhibits before the 3[rd] respondent RDO, 5[th] respondent Agricultural Officer, the 7[th] respondent Village Officer and the Assistant Engineer of the Local Self Government Department of the area concerned for necessary information further action. The office of the Advocate-General will also forward copies of this judgment to those officials, including the Assistant Engineer of the Local Self Government Department of the area in relation to the Pramadom Panchayath, Pathanamthitta District. With these observations and directions, the above writ petition (civil) will stand finally disposed of. Sd/- **ALEXANDER THOMAS,** **JUDGE** VPK **WP(C).No.11516 OF 2020** **20** ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 THE TRUE COPY OF JUDGMENT DATED 28.07.2016 IN WPC NO.25181/2016 OF THIS HON'BLE COURT.** - **EXHIBIT P2 THE TRUE COPY OF REPORT NO.PDM.34/15 DATED 22.10.2016 OF THE 5TH RESPONDENT SUBMITTED TO THE 2ND RESPONDENT.** - **EXHIBIT P3 THE TRUE COPY OF REPORT AND REMARKS NO.A/172/2015/KSREC DATED 26.09.2017 OF THE KEALA STATE REMOTE SENSING AND ENVIRONMENT CENTRE, THIRUVANANTHAPURAM SUBMITTED TO THE 5TH RESPONDENT.** **EXHIBIT P4 THE TRUE COPY OF APPLICATION DATED 27.03.2017 SUBMITTED BY THE PETITIONERS UNDER CLAUSE 6(2) OF THE KERALA LAND UTILISATION ORDER, 1967 SUBMITTED BY THE PETITIONERS BEFORE THE RESPONDENT. EXHIBIT P5 THE TRUE COPY OF GAZETTE NOTIFICATION NO.1541 DATED 07.06.2018 ISSUED BY PRAMADOM GRAMA PANCHAYAT. EXHIBIT P6 THE TRUE COPY OF JUDGMENT DATED 09.10.2018 IN WPC NO.37104/2017 OF THIS HON'BLE COURT. EXHIBIT P7 THE TRUE COPY OF ORDER NO.B4-2109/2017 DATED 05.11.2019 PASSED BY THE 3RD RESPONDENT.** **EXHIBIT P8 THE TRUE COPY OF JUDGMENT DATED 17.12.2019 IN WPC NO.33327/2019 OF THIS HON'BLE COURT. EXHIBIT P9 THE TRUE COPY OF ORDER NO.B4-2109/2017 DATED 06.05.2020 OF THE 3RD RESPONDENT. EXHIBIT P10 THE TRUE COPY OF GO(RT)157/2002/AD OF 05.02.2002 OF THE KERALA GOVERNMENT. EXHIBIT P11 THE TRUE COPY OF JUDGMENT DATED 29.11.2008 IN OS NO.554/2006 IN THE MUNSIFF'S COURT, PATHANAMTHITTA.**