M.P. Jackson and others v. State of Kerala represented by the Secretary to Government, Revenue Department, Government Secretariat and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **FRIDAY, THE 26TH DAY OF JUNE 2020 / 5TH ASHADHA, 1942** ## **WP(C).No.12261 OF 2020(G)** ## **PETITIONER/S:** - **1 M.P.JACKSON, AGED 67 YEARS, SON OF PAUL, MAMPILLY HOUSE, MANAVALASSERI VILLAGE, MUKUNDAPURAM TALUK, THRISSUR DISTRICT.** - **2 M.P.TOMY, AGED 64 YEARS, SON OF PAUL, MAMPILLY HOUSE, MANAVALASSERI VILLAGE, MUKUNDAPURAM TALUK, THRISSUR DISTRICT.** - **3 M.P.GIGI, AGED 60 YEARS, SON OF PAUL, MAMPILLY HOUSE, MANAVALASSERI VILLAGE, MUKUNDAPURAM TALUK, THRISSUR DISTRICT.** - **4 M.P.BRITE, AGED 59 YEARS, SON OF PAUL, MAMPILLY HOUSE, MANAVALASSERI VILLAGE, MUKUNDAPURAM TALUK, THRISSUR DISTRICT.** - **5 USHA M.P., AGED 65 YEARS DAUGHTER OF PAUL, MAMPILLY HOUSE, MANAVALASSERI VILLAGE, MUKUNDAPURAM TALUK, THRISSUR DISTRICT.** ## **BY ADV. SRI.M.GOPIKRISHNAN NAMBIAR** ## **RESPONDENT/S:** - **1 STATE OF KERALA REPRESENTED BY THE SECRETARY TO GOVERNMENT, R EVENUE DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695001.** - **2 REVENUE DIVISIONAL OFFICER, CIVIL STATION ANNEX, CHEMMANDA ROAD, IRINJALAKUDA-680125, KERALA.** - **3 AGRICULTURAL OFFICER, KRISHI BHAVAN, IRINJALAKUDA-680121, KERALA.** ::2:: **WP(C).No.12261 OF 2020(G)** - **4 COMMISSIONER FOR LAND REVENUE PUBLIC OFFICE BUILDING, MUSEUM ROAD, OPPOSITE ZOO, VIKHAS BHAVAN P.O., THIRUVANANTHAPURAM-695033, KERALA.** - **5 SHRI JOSEPH MARTIN, ALLENGANDAN HOUSE, IRINJALAKUDA-680121, KERALA.** - **6 SHRI SANTOSH BOBAN, VALLOOR HOUSE, MANAVALASSERY, IRINJALAKUDA-680121, KERALA.** - *7 THE TAHSILDAR, MUKUNDAPURAM TALUK, MUKUNDAPURAM, THRISSUR DISTRICT. *R7 will stand suo motu impleaded as per order dtd. 22.6.2020 in W.P.(C).NO.12261/2020. **R5 BY ADV. SRI.N.M.MADHU** ## **OTHER PRESENT:** ## **SRI.N.M.MADHU,, SRI.K.J.MANU RAJ, GOVT.PLEADER** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 26.06.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ::3:: **WP(C).No.12261 OF 2020(G)** ## **ALEXANDER THOMAS, J** . ----------------------------W.P(C).No.12261 Of 2020 --------------------------------Dated this the 26[th] day of June, 2020. ## **J U D G M E NT** The case set up in this Writ petition (C) is as follows: _The present writ petition has been filed assailing Exhibit P18 order dated 10.03.2020 issued by the 4[th] Respondent Land Revenue Commissioner and Exhibit P11 order no. B2-6675/2017 dated 27.02.2019 issued by the 2[nd] Respondent RDO to the extent that it directs the petitioners to comply with the provisions of Section 27A of the Kerala Conservation of Paddy Land and Wetland Act 2008. It is submitted that the petitioners together are the absolute owners in possession of an extent of 2.05 hectares of land comprised in Sy. No. 350/1, 350/2, 351/P, 352/1, 352/2, 352/3, 352/5 and 347/1 of Irinjalakuda Village. There are many yielding trees in the plot and the said land is a pucca residential plot. There is a building standing on the said land. The land has been shown as being reclaimed prior to 1980 in Exhibit P1 data bank and vide Exhibit P1(a) steps are being taken to exclude from the data bank. However, in the basic tax register the said land has been classified as paddy land, it is urged. In April 2017 the petitioners preferred applications to the concerned RDO seeking permission to utilize the said land for other purposes under Section 6 of the KLU Order (Exhibit P2). This Court vide Exhibit P3 and other judgments directed consideration of the same after_ ::4:: ## **WP(C).No.12261 OF 2020(G)** _considering the reports of the LLMC/ Agricultural Officer, along with the satellite map and report forwarded by the Kerala State Remote Sensing and Environment Centre (KSERC). In consideration of the applications, reports were called from the Tahsildar (LR Mukundapuram) and Agricultural Officer, Irinjalakuda. It is stated that, the Agricultural Officer categorically reported that for the past 35 years no paddy cultivation has been undertaken in the land in question (Exhibit P4 series). The reports submitted by the Tahsildar in respect of all also categorically states that there is no paddy cultivation within 2 km radius of the land (Exhibit P5 series). Despite the categorical findings in the above reports, the sub-collector vide Exhibit P7 order dated 21.12.2017 refused to grant sanction under Clause 6 of the KLU Order on the ground that a convention centre has been building on the land in 2013. This Court by way of Exhibit P8 judgment dated 09.04.2018 quashed the said order and directed the Revenue Divisional Officer, Thrissur to reconsider the issue after providing sufficient opportunities to the parties to the lis and any other interest persons. The applications preferred by the petitioners under Clause 6 of the KLU Order were then reconsidered by the 2[nd] respondent RDO. During the consideration of the applications, Exhibit P9 report was submitted by the Agricultural Officer noting that there were 40 year old coconut, mango and other trees on the property. It was also recorded that the land stood completely converted. The 2[nd] respondent eventually passed Exhibit P11 composite order no.B2-6675/2017 dated 27.02.2019 addressed to all the petitioners. The order took note of the report of the Tahsildar recommending that the petitioners' property can be_ ::5:: ## **WP(C).No.12261 OF 2020(G)** _permitted to be converted and the report of the Agricultural Officer finding that for the past 35 years, the property was not cultivated. From the reference to 'fallow lands' in KSREC data, it was inferred that for the past 35 years the property was left uncultivated. However, the RDO inter alia directed the petitioners to pay the fees stipulated as per the 2018 Amendment to the 2008 Act and comply with the directions therein. The said order was challenged and this Court vide Exhibit P17 judgment directed the 4[th] respondent to consider the Exhibit P16 statutory appeal preferred by the petitioners under Clause 11 of the KLU Order 'specifically adverting to the observations and conclusions of this Court in_ _**Geo Peter** and also in Ext. P13 judgment'. Unfortunately, the 4[th] respondent Land Revenue Commissioner vide its order dated 10.03.2020 (‘_ _**Impugned Order** ’) directed the 2[nd] respondent RDO to reconsider the entire matter afresh instead of simply setting aside the directions to remit the fees as per the 2018 amendment. Having found that Section 27A and the 2018 amendments to the 2008 Act are not applicable to the petitioners, the 4[th] respondent ought to have allowed the petitioners’ applications under Clause 6 of the KLU Order instead of remanding the matter to the 2[nd] respondent for a fresh consideration._ 2. The main contentions urged by the petitioners are as follows. _(1) The 4[th] respondent has completely ignored the fact that the 2[nd] respondent had in fact vide its Exhibit P11 order dated 27.02.2019_ ::6:: ## **WP(C).No.12261 OF 2020(G)** _permitted conversion of user in terms of the KLU Order 1967 subject to meeting the requirements stipulated in Section 27A and the 2018 amendments to the 2008 Act._ _(2) Having found that Section 27A and the 2018 amendments to the 2018 Act are not applicable to the Petitioners, the 4[th] respondent ought to have allowed the petitioners’ applications under Clause 6 of the KLU Order instead of remanding the matter to the 2[nd] respondent for a fresh consideration._ It is in the light of these averments and contentions, that the petitioners have filed this Writ Petition (C) seeking the following prayers: _“(1) Call for the records leading up to the issuance of Exhibit P18 order dated 10.03.2020 issued by the 4[th] Respondent Land Revenue Commissioner and quash the same by the issuance of a writ of certiorari or such other writ, order or direction._ _(2) Call for the records leading up to the issuance of Exhibit P11 order dated 27.02.2019 issued by the 2nd Respondent and quash the same to the extent that it directs the Petitioners to comply with the provisions of Section 27A of the Kerala Conservation of Paddy Land and Wetland Act 2008 as well as the direction to the Municipality to take appropriate action against the Petitioners for carrying out constructions by the issuance of a writ of certiorari or such other writ, order or direction._ _(3) Declare that the Petitioners are entitled to utilize the lands, which are the subject matter of the applications preferred by the Petitioners under Clause 6 of the KLU Order before the 2nd Respondent, for non-agricultural purposes without reference to Section 27A of the of the Kerala Conservation of Paddy Land and Wetland Act 2008._ _(4) Direct the Respondent Nos. 1, 2 and 4 to allow conversion of user to the Petitioners to convert the lands which are the subject matter of the applications preferred by the Petitioners under Clause 6 of the KLU Order by the issuance of a writ of mandamus or such other writ, order or direction, and_ _(5) Grant such other and incidental reliefs as this Hon’ble Court may deem just and necessary in the facts and circumstances of this case.”_ ::7:: **WP(C).No.12261 OF 2020(G)** 2. Heard Sri.E.K.Nandakumar, learned Senior Counsel instructed by Sri.Jayamohan, learned counsel appearing for the petitioners, Sri.K.J.Manu Raj, learned Government Pleader appearing for official respondent Nos.1 to 4 and Sri.N.M.Madhu, learned advocate appearing for contesting respondent No.5. In the nature of the orders proposed to be passed in this writ petition notice to R6 will stand dispensed with. 3. Sri.E.K.Nandakumar, learned Senior Counsel instructed by Sri.Jayamohan, learned counsel appearing for the petitioner has made submissions in tune with the pleadings in this W.P(C). Sri.N.M.Madhu, learned counsel appearing for contesting respondent No.5 has very strongly objected to the grant of the prayers sought for by the petitioner in this W.P(C). Sri.K.J.Manu Raj, learned Government Pleader would submit that though he has no instructions in the matter, a reading of the pleadings and materials on record would show that Ext.P11 order issued by the 2[nd] respondent RDO to the extent it imposes the condition that the petitioner will have to undergo through the process under Sec.27 A(1) of the Kerala Conservation of Paddy Land and Wetland Act, 2008 has already been interfered with by the 4[th] respondent Commissioner for Land Revenue in Ext.P18 appellate order and reading of Ext.P18 would ::8:: ## **WP(C).No.12261 OF 2020(G)** show that all what remains is passing of a consequential order by the 2[nd] respondent RDO so as to ensure that the said restricted conditions on the basis of Sec.27A(1) are deleted from Ext.P11 order. 4. This Court has anxiously considered the various objections and contentions raised very strongly by Sri.N.M.Madhu, learned counsel appearing for R5 and R6. This Court has asked specific query to Sri.N.M.Madhu, learned counsel for R5 as to whether R5 has challenged Ext.P11 order dated 27-02-2019 issued by the 2[nd] respondent RDO to the extent the said authority has taken a substantive decision in favour of the petitioners granting statutory permission for change of use of the land for non-agricultural purposes. To this Sri.N.M.Madhu, learned counsel for R5 would very fairly submit on the basis of instructions from the party that R5 has not initially challenged Ext.P11 order to the extent it involves substantive decision by the 2[nd] respondent in favour of the petitioners in the matter of statutory permission for change of use of the land, but that he has subsequently challenged Ext.P-11 order by filing an appeal under Sec.27B of the Kerala Conservation of Paddy Land and Wet Land Act, 2008, before the District Collector and the appeal is pending. To this, Sri.E.K.Nandakumar, learned Senior Counsel, instructed by Sri.Jayamohan, learned counsel for the petitioner, ::9:: **WP(C).No.12261 OF 2020(G)** would submit that such a plea has never been taken by the petitioner at the stage of consideration of Ext.P-16 appeal which culminated in Ext.P-18 appellate order and that the petitioners have never been served with any notice in the said appeal and the petitioners have every reason to believe that the said submission made at this late juncture is only based on defective appeal they could have filed only to raise same hyper technical objections. From a reading of Ext.P-11 order it can be seen that the stand of contesting respondent No.5 herein has raised 11 contentions/submission before the 2[nd] respondent-RDO which are dealt with in detail in internal pages 4 & 5 of Ext.P-11 and sub para 10 thereof would clearly show that the stand of the 5[th] respondent was to the effect that action in the application filed by the petitioners before the respondent-RDO could be taken only in terms of the provisions contained in the KLU Order. The relevant portion of the said contention in sub para 10 submitted by the 5[th] respondent is recorded in internal page 5 of Ext.P-11 reads as follows: _"_ എനന്നാല്‍ മമേല്‍ വവിഷയതവില്‍ മകേരള ഭഭൂവവിനവിമയന്നാഗ ഉതരവവ _(_ പകേന്നാരമേമള്ള ഉതരവന്നാണവ പരവിഗണവിക്കപപ്പെമടേണ്ടതവ. _"_ Nobody has a dispute including the contesting 5[th] respondent that the petitioners have in fact filed the requisite application under Rule 6(2) of the KLU Order as early as on 7.4.2017, which is clearly ::10:: **WP(C).No.12261 OF 2020(G)** shown as item No.(1) in Ext.P-11 proceedings and Ext.P-2 dated 7.4.2017 is one such application filed by the 1[st] petitioner. Since admittedly, the petitioners have filed requisite application for permission for change of user of land well before the cut off date of 30.12.2017 (date of coming into force of the amended provisions of the 2008 Act which was introduced as per Sec.27A thereof), it is by now well established by a series of decisions of this Court, which will be dealt with hereinafter, that in such a case, request could be considered only in terms of Rule 6(2) of the KLU Order and in such a case Sec.27A of the 2008 Act and the Rules framed thereunder will not have any application. If that be so, prima facie, this Court, is not in a position to understand as to how the 5[th] respondent is said to have filed an appeal dated 10.6.2019 before the District Collector under Sec.27B of the 2008 Act. It appears that in such a case, an aggrieved party should have filed appeal only in terms of Rule 11 of the KLU Order before the 4[th] respondent-Commissioner for Land Revenue. That apart, there is not even a whisper of submissions by the 5[th] respondent or any of the parties at the stage of consideration of Ext.P-16 appeal which culminated in Ext.P-18 appellate order that the 5[th] respondent has in fact filed an appeal ::11:: **WP(C).No.12261 OF 2020(G)** on 10.6.2019 to impugn Ext.P-11 by resorting to the provisions contained in Sec.27B of the 2008 Act. No such submission is even referred to in Ext.P-18 appellate order. If as a matter of fact, a party like the 5[th] respondent had been diligently prosecuting such a remedy, then certainly that aspect of the matter would have been brought to the notice of the 4[th] respondent-Commissioner for Land Revenue, who was dealing with Ext.P-16 appeal and which culminated in Ext.P-18 appellate order. Therefore, the mere pendency of an appeal stated to have been filed by the 5[th] respondent on 10.6.2019 and that too purportedly under Sec.27B of the 2008 Act, need not detain the consideration of this Court any further. 5. Since the 5[th] respondent has very strongly objected to the legality and correctness of Ext.P-11 order passed by the 2[nd] respondent-RDO to the extent it has granted permission for change of user of the land, this Court has also considered those issues. The factual appreciation of the matter is contained more on the top portion of the internal page 6 of Ext.P-11 which contains the appreciation of the factual materials and the conclusions of the 2[nd] respondent, are extracted as follows: ::12:: **WP(C).No.12261 OF 2020(G)** "പരരാമർശശം (12) പ്രകരാരശം ഈ കരാരരരാലയതത്തിൽ നത്തിനശം സ്ഥലപരത്തിശശരാധന നടതത്തിയത്തിട്ടുള്ളതരാകുന.. നത്തികതപപ്പെട്ടതരായ ഭൂമത്തിയത്തിൽ ബത്തിൽഡത്തിശംഗഗ് ഉള്ളതുമരായ ഭൂമത്തിയരാണഗ് അശപകരാസ്ഥലശം.. സമമീപ സ്ഥലപത പനൽക്കൃഷത്തിയത്തിലരാതതുശം സമമീപ കൃഷത്തിയത്തിശലക്കു ജലവത് **ത** ി രാനതത്തിനഗ് തടസശം സൃഷത്തികരാതതരാണഗ് എനശം ശബരാധരപപ്പെട്ടു. വടക്കു ഭരാഗത്തു പുറശമരാക്കു ശതരാടഗ് നത്തില നത്തിർതത്തിയത്തിട്ടുണഗ്.. പ്രതരകതത്തിൽ അശപകരാ പരത്തിഗണനരാർഹമരാപണനഗ് ശബരാധരപപ്പെട്ടു. ശമൽ ഭൂമത്തികൾ ഡരാറരാ ബരാങത്തിൽ നത്തിനശം ഒഴത്തിവരാകപപ്പെട്ടത്തിട്ടുള്ളതരാണഗ് . ബഹുമരാനപപ്പെട്ട ഹഹശകരാടതത്തിയുപട വത്തിധത്തിനരരായശം പരാലത്തിക്കുനതത്തിനഗ് തരാപഴ പറയുന കരാരണങ്ങൾ പരത്തിഗണത്തിചഗ് പക. എൽ. യു. അനുമതത്തി നൽകത്തി നടപടത്തികൾ പൂർതത്തിയരാകരാവുനതരാപണനഗ് ശബരാധരപപ്പെട്ടത്തിട്ടുണഗ്. . 1 ) മുകുന്ദപുരശം തഹസത്തിൽദരാരുപട പരരാമർശശം 3 , 4 റത്തിശപ്പെരാർട്ടുകളത്തിൽ അശപകരാ വസ്തുകൾ പൂർണമരായത്തി നത്തികത്തു പറമരായത്തി കരാണുനപവനശം, സമമീപ പ്രശദശങ്ങളത്തിൽ പനൽകൃഷത്തി ഇലരാതതരാപണനശം അശപകരാ പരത്തിഗണത്തികരാവുനതരാപണനമരാണഗ്. . 2 ) ഇരത്തിങ്ങരാലക്കുട കൃഷത്തി ഓഫമീസറുപട 04 /08 /17 തമീയ്യതത്തിയത്തിപല റത്തിശപ്പെരാർട്ടുപ്രകരാരശം 35 വർഷതത്തിശലപറയരായത്തി അശപകരാ വസ്തുവത്തിൽ പനൽകൃഷത്തി പചെയ്തുവരുനത്തിപലനഗ് പരരാമർശശം ഉള്ളതരാകുന ......” A reading of sub para 4 on internal page 6 of Ext.P-11 would also show that the 2[nd] respondent-RDO has been factually convinced that the subject property has been excluded from the land data bank. The aforementioned aspects would clearly show that the subject property has been converted as garden land/purayidam much prior to coming into force of the 2008 Act and there are even buildings standing in the subject property and paddy cultivation has not been going on in the property for a longer period of time. Series of reports like reports of the Tahsildar, Mukundapuram, Agricultural Officer, Irinjalakuda, etc., would show that the property was completely converted and is now garden land/purayidam and that in the neighbourhood there are no paddy ::13:: **WP(C).No.12261 OF 2020(G)** land and further that therefore the request of the petitioner for change of user of the land could be considered. Para 2 of the operative portion of Ext.P-11 order would also show that the 2[nd] respondent has bestowed his consideration to the crucial facts that expert report of the Kerala State Remote Sensing and Environment Centre, after obtaining satellite pictures, would also show that the property has been converted much prior to the 2008 Act and that the property has not been included even in the land data bank. In the light of these conclusions, any reasonable authority standing the shoe of the 2[nd] respondent-RDO could have only arrived at the conclusion that permission is to be granted to the petitioners for change of user of the land. Therefore the said conclusions reached by the 2[nd] respondent-RDO in Ext.P-11 cannot be found fault with at all. The only borne out dispute raised by the petitioner is to the effect that after having reached the said substantive decision in favour of the petitioners that permission could be granted for change of user of land, the 2[nd] respondent erroneously proceeded on a tangent by holding that the petitioner should be made to face the rigour of Sec.27A of the amended provisions of the 2008 Act and that they should also pay the higher ::14:: **WP(C).No.12261 OF 2020(G)** amounts as conceived as per the amended provisions contained in Sec.27A and the amended Rules framed thereunder. The said stand of the 2[nd] respondent in Ext.P-11 to the extent it is detrimental to the petitioners were challenged by the petitioner in Ext.P-16 appeal which culminated in Ext.P-18 appellate order by the 4[th] respondent-Commissioner for land Revenue. A mere reading of Ext.P-18 appellate order would show that the 4[th] respondent-Commissioner for Land Revenue has found that the said impugned restrictive conditions imposed by the 2[nd] respondent in Ext.P-11 to the extent that the petitioners would face the rigour of the new amended provisions of the 2008 Act and the Rules framed thereunder included Sec.27A thereof is highly illegal and wrong in view of the settled rulings made by this Court in the judgements referred to therein. 6. After hearing both sides it is seen that it is admitted in Ext.P11 order dated 27-02-2019 issued by the 2[nd] respondent RDO that the petitioners have in fact submitted the requisite application under Rule 6 (2) of the Kerala Land Utilisation (KLU) Order, 1967 on 07-04-2017 for change of use of the subject properties for nonagricultural purposes. This aspect of the matter is crystal clear ::15:: **WP(C).No.12261 OF 2020(G)** from a mere reading of item No.1 of Ext.P11. The said application under Rule 6(2) of the KLU Order submitted on 07-04-2017 has been substantively allowed by the 2[nd] respondent in favour of the petitioners as per Ext.P11. However apart from the said substantive decision the 2[nd] respondent has thereafter proceeded to hold Ext.P11 that the petitioners will also have to pay the requisite amounts as conceived as per the amended provisions of the 2008 Act including Sec.27A thereof. To the limited extent that Ext.P11 has incorporated in the said condition regarding the applicability of Sec.27A(1) of the 2008 Act, the petitioner has preferred Ext.P16 statutory appeal dated 03-04-2019 filed under Rule 11 of the KLU Order, 1967 before the 4[th] respondent Commissioner for Land Revenue. Now the 4[th] respondent Commissioner of Land Revenue has passed Ext.P18 appellate order dated 10-03-2020, whereby it has been unequivocally held that since the petitioners have admittedly filed the requisite application under Rule 6(2) of the KLU Order on 07-04-2017, which is before the cut off date of 3012-2017 (date of coming into force of the amended provisions of the 2008 Act, which was introduced Sec.27A thereof), there is no question of applying the rigour of the conditions flowing out from ::16:: **WP(C).No.12261 OF 2020(G)** Sec.27A(1) of the amended provisions of the Act. On this crucial aspect, the appellate authority has passed Ext.P18 order whereby the matter has been remitted to the 2[nd] respondent RDO to pass revised orders in respect of the matters already dealt with Ext.P11 order. 7. It appears that though Ext.P18 appeal has been passed as early as on 10-03-2020, the 2[nd] respondent RDO has not cared to pass formal orders in the matter in Ext.P11. Even though the appellate authority, who has passed Ext.P18 is the Commissioner for Land Revenue, who is the head of the department and superior to the 2[nd] respondent RDO, it is not known as to why the 2[nd] respondent has not chosen to do so, so as to obey and comply with the directions of the appellate authority in Ext.P18. However, after hearing both sides this Court is of the considered view that since the main aspect of the Ext.P11 order is the substantive decision in favour of the petitioner granting permission for change of use of the land, there was no necessity for the appellate authority to further remit the matter. On the other hand, the 4[th] respondentCommissioner for Land Revenue, who is the appellate authority should have only held that not only the said condition imposed in ::17:: **WP(C).No.12261 OF 2020(G)** Ext.P11 regarding the applicability of Sec.27A (1) of the 2008 Act is legally wrong and ulta vires but should also hav3e set aside Ext.P11 to that limited extent it incorporated those illegal restriction instead of remitting the matter. 8. Since Sri.N.M.Madhu, learned counsel appearing for R5 has strongly objected to the grant of prayers in the W.P(C), this Court has also considered the legality and correctness of the view taken by the 4[th] respondent appellate authority in Ext.P18 appellate order in order to give a complete quietus to the entire controversy, which has been pending for quite a long time. 9. It is now well settled by a series of rulings of this Court as in _**Geo Peter v. Revenue Divisional Officer**_ [2019 (3) KLT 838], _**Renjith.K.Paul v.Revenue Divisional Officer**_ [2019 (2) KLT 262), _**LLMC, Kizhakkambalam Grama Panchayath v. Mariumma**_ [2015 (2) KLT 516 (DB)], _**Tahsildar, Thodupuzha Taluk and another v. Renjith George**_ [2020 (1) KHC 865 (DB)] that where the subject property has been converted as garden land or purayidam much prior to 1208-2008 ( the date of coming into force of the 2008 Act) and where the property holder has filed requisite application under ::18:: **WP(C).No.12261 OF 2020(G)** Rule 6(2) of the Kerala Land Utilisation Order, 1967, before 30-122017 (which is the date of coming into force of the amended provisions of 2008 Act, which was introduced Sec.27 A thereof), then the property holder is entitled to get his request for conversion of the property strictly in terms of Rule 6(2) of the KLU order, 1967 and in such a case the property holder cannot be mulcted to face the adverse and rigorous conditions prescribed as per the amended provisions of 2008 Act, including Sec.27A thereof as well as the rules framed thereunder. 10. Further it has been also held that in those decisions more particularly in the aforestated Division Bench decisions in _**Mariumma’s case**_ (supra) [2015 (2)KLT 516 (DB)] and _**Renjith's case**_ (supra) [2020 (1) KHC 865 (DB)], etc., that where the property holder thus secures orders under Rule 6(2) of the KLU order, 1967 from the RDO, then the property holder is equally entitled to maintain an application under Sec.6A of the Kerala Land Tax Act, 1961 for re-assessment of the property by the Thahsildar for securing additional entries in the BTR to show the subject property as garden land or purayidam, instead of the earlier BTR entries as nilam or paddy land. ::19:: **WP(C).No.12261 OF 2020(G)** 11. In the instant case it is beyond any dispute that the petitioners have in fact filed the requisite application under Rule 6(2) of the KLU Order as early as on 07-04-2017, as can be from reference No.1 of Ext.P11 order. Since the petitioner has admittedly filed the requisite Rule 6(2) application before the cut off date of 30-12-2017, there is no question of the petitioners being compelled to pay the amounts as conceived as per the amended provisions of the 2008 Act, including Sec.27A thereof and the amended provisions of the rules including Rule 12(17) thereof. Hence it is only to be held and declared that the 4[th] respondent Commissioner of Land Revenue is the appellate authority is fully right and proper in taking the considered view in Ext.P18 appellate order that the rigorous conditions in Sec.27A (1) of the 2008 Act cannot be made applicable to the case of the petitioners and therefore the conditions in Ext.P11 order to the extent it orders the applicability of said provision is legally wrong and untenable. However all that this Court would hold that there was no necessity for the 4[th] respondent appellate authority to again remit the matter to the 2[nd] respondent RDO and instead of merely holding that the impugned conditions regarding the applicability of Sec.27A(1) is ::20:: ## **WP(C).No.12261 OF 2020(G)** legally wrong and untenable. The 4[th] respondent should have set aside and rescinded those impugned conditions in Ext.P11 which ordered the applicability of Sec.27A(1). Hence the following directions are orders are passed: - _1) It is ordered and declared that Ext.P11 order dated 27-02-2019 issued by the 2[nd] respondent-RDO is to be treated as a substantive decision, whereby statutory permission has been given to the petitioners for change of use of the land in terms of Rule 6(2) of the KLU Order, 1967, for any non-agricultrual purposes._ - _2) It is further ordered and declared that Ext.P18 order passed by the 4[th] respondent Commissioner for Land Revenue in the appellate process is fully right and proper to the extent it was held therein that the impugned conditions imposed by the 2[nd] respondent in Ext.P11 to the extent that petitioners will have to comply with the conditions flowing out from Sec.27A of the 2008 Act and the rules framed thereunder is legally wrong and ultra vires, inasmuch as the petitioners have indisputably filed the requisite Rule 6(2) KLU application well before the cut off date of 30-12-2017._ - _3) However, it is ordered that there was no necessity for the 4[th] respondent appellate authority to have again technically remitted the matter to the 2[nd] respondent to pass fresh orders in the matter of_ ::21:: **WP(C).No.12261 OF 2020(G)** _Ext.P11 and on the other hand the 4[th] respondent should have only passed formal orders so as to set aside the impugned conditions in Ext.P11 to the extent it was directed that the petitioners will have to comply with the conditions in Sec.27A of the 2008 Act and should have ordered that the substantiate decision in Ext.P-11 is one which grants statutory permission under Rule 6(20 of the KLU Order, 1967 for change of user of the land, for any non-agricultural purposes._ 12. Accordingly it is ordered and declared that Ext.P11 order to the limited extent it directs the applicability of the provisions contained in Sec.27A of the 2008 Act will stand set aside and quashed. It is reiterated and made clear that Ext.P11 order is to be treated as a substantive decision in favour of the petitioners for granting statutory permission for change of use of the land under Rule 6(2) of the KLU Order for any non-agricultural purposes. 13. Consequently it is ordered that petitioners may immediately file the requisite consequential applications in respect of the subject properties covered by Exts.P11 and P18, seeking for reassessment of the subject properties under Sec.6A of the Kerala Land Tax Act, so as to secure additional entries in the BTR, so as to show the change in nature of the land as garden land or purayidam ::22:: **WP(C).No.12261 OF 2020(G)** instead of the earlier BTR entries as nilam or paddy land. The petitioners may file separate applications for the various items of properties covered by Exts.P11 and P18, seeking such reassessment under Sec.6 A of the Kerala Land Tax Act before the Tahsildar concerned. On receiving such application the 7[th] respondent Tahsildar will afford reasonable opportunity of being heard to the petitioners through their authorised representative or counsel if any, and should ascertain whether the subject properties covered by such applications filed under Sec.6A of the Kerala Land Tax Act, is the same and one covered by Exts.P11 and P18 orders and if it is found so, should pass orders of reassessment in respect of the such subject properties under Sec.6A of the Kerala Land Tax Act so as to secure additional entries in the respective BTRs to show the change in nature of the lands as garden land or purayidam instead of the earlier BTR entries as nilam or paddy land, without any further delay at any rate within six weeks from the date of production of a certified copy of this judgment and in the light of dictum laid down by the judgments of the Division Bench of this Court in cases as in _**Mariumma’s case**_ (supra) [2015 (2)KLT 516 (DB)] and _**Renjith's case**_ (supra) [2020 (1) KHC 865 (DB)] and without ::23:: **WP(C).No.12261 OF 2020(G)** compelling the petitioners to pay any amounts as conceived as per the amended provisions of the 2008 Act, including Sec.27A thereof and the amended provisions of the rules including Rule 12(17) thereof. While passing orders the 7[th] respondent Tahsildar would strictly adhere to the findings and observations made by this Court hereinabove and shall not be open to the 7[th] respondent Tahsildar to insist that the petitioner should produce revised orders from the 2[nd] respondent RDO in the matters dealt within Ext.P11 etc,. 14. This Court has passed the last direction in order to ensure that the complete quietus given to the controversy as it has been seen in very many cases that even in spite of orders of permission under Rule 6(2) of the KLU Order, etc., the Tahsildars would also take lot of time in passing orders of reassessment under Sec.6A of the Kerala Land Tax Act and even goes to the extent of holding that even in such cases the land holders will have to pay the higher amounts as to the amended provisions of the 2008 Act, in spite of the fact that the application under Rule 6(2) of the KLU Order has indisputably been filed before the cut off date of 30-122017. If such orders are passed it is quite likely that yet another round of litigative proceedings will emanate in this case, which is ::24:: **WP(C).No.12261 OF 2020(G)** not necessary to say the least. As regards some of the observations made by the 2[nd] respondent RDO in Ext.P11 that the Municipality concerned should take action against the petitioners for the alleged unauthorised construction etc., it is to be noted all those matters fall exclusively within the domain of such Local Self Government Bodies in terms of the provisions contained in the Kerala Municipality Act, 1994 and those are not the matters which would fall within the province of the statutory revenue officials like the 2[nd] respondent RDO, at this stage. No other directions and orders are called for. 15. The petitioner will produce certified copy of this judgment along with copies of the memorandum of W.P(C) with all the Exhibits before the 2nd respondent RDO, 4[th] respondent Commissioner for Land Revenue and 7[th] respondent Tahsildar, Mukundapuram Taluk for necessary information. With these observations and directions the above Writ Petition (Civil) will stand finally disposed of. **Sd/ALEXANDER THOMAS, Judge.** bkn/- ::25:: **WP(C).No.12261 OF 2020(G)** ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1** **A TRUE COPY OF THE RELEVANT EXTRACTS OF THE DATA BANK PREPARED UNDER THE 2008 ACT.** **EXHIBIT P1(A)** **TRUE COPY OF THE EXTRACT OF THE REPORT SHOWING THAT SURVEY NUMBERS 347, 350, 351 AND 352 BE EXCLUDED FROM THE DATA BANK CERTIFIED BY THE AGRICULTURAL FILED OFFICER, IRINJALAKUDA.** **EXHIBIT P2** - **TRUE COPY OF THE APPLICATION DATED 07.04.2017 MADE BY THE 1ST PETITIONER TO THE REVENUE DIVISIONAL OFFICER, TRISSUR.** - **EXHIBIT P3 TRUE COPY OF THE JUDGMENT OF THIS HON'BLE COURT DATED 14.06.2017 IN WRIT PETITION(CIVIL)NO.19697 OF 2017.** - **EXHIBIT P4 TRUE COPY OF THE REPORT OF THE AGRICULTURAL OFFICER DATED 04.08.2017 IN RESPECT OF THE 90 CENTS OF PROPERTY OF THE 2ND PETITIONER IN SY.NO.350/1 IN IRINJALAKKUDA VILLAGE.** - **EXHIBIT P4(A) TRUE COPY OF THE REPORT OF THE AGRICULTURAL OFFICER DATED 04.08.2017 IN RESPECT OF THE 63 CENTS OF PROPERTY OF THE 4TH PETITIONER IN SY.NO.350/1 IN IRINJALAKKUDA VILLAGE.** - **EXHIBIT P4(B) TRUE COPY OF THE REPORT OF THE AGRICULTURAL OFFICER DATED 04.08.2017 IN RESPECT OF THE 1 ACRE OF PROPERTY OF THE 3RD PETITIONER IN SY.NO.350/1 IN IRINJALAKKUDA VILLAGE.** - **EXHIBIT P4(C) TRUE COPY OF THE REPORT OF THE AGRICULTURAL OFFICER DATED 04.08.2017 IN RESPECT OF THE 38 CENTS OF PROPERTY OF THE 5TH PETITIONER IN SY.NO.350/1 IN IRINJALAKKUDA VILLAGE.** ::26:: **WP(C).No.12261 OF 2020(G)** ## **EXHIBIT P4(D)** **TRUE COPY OF THE REPORT OF THE AGRICULTURAL OFFICER DATED 04.08.2017 IN RESPECT OF THE PROPERTY OF PETITIONERS IN 1 TO 4 IN SY.NO.350/3 IN IRINJALAKKUDA VILLAGE.** **EXHIBIT P4(E) TRUE COPY OF THE REPORT OF THE AGRICULTURAL OFFICER DATED 04.08.2017 IN RESPECT OF THE 63 CENTS OF PROPERTY OF THE 1ST PETITIONER IN SY.NO.350 IN IRINJALAKKUDA VILLAGE.** **EXHIBIT P4(F) TRUE COPY OF THE REPORT OF THE AGRICULTURAL OFFICER DATED 04.08.2017 IN RESPECT OF THE 31 CENTS OF PROPERTY OF THE 1ST PETITIONER IN SY.NO.352/5 IN IRINJALAKKUDA VILLAGE. EXHIBIT P4(G) TRUE COPY OF THE REPORT OF THE AGRICULTURAL OFFICER DATED 04.08.2017 IN RESPECT OF THE 90 CENTS OF PROPERTY OF THE 1ST PETITIONER IN SY.NO.350/1 IN IRINJALAKKUDA VILLAGE. EXHIBIT P5 TRUE COPY OF THE REPORT OF THE ADDL.TAHSILDAR DATED 29.04.2017 IN FILE NO.B5-5895/17. EXHIBIT P5(A) TRUE COPY OF THE REPORT OF THE ADDL.TAHSILDAR DATED 29.04.2017 IN FILE NO.B5-5896/17. EXHIBIT P5(B) TRUE COPY OF THE REPORT OF THE ADDL.TAHSILDAR DATED 29.04.2017 IN FILE NO.B5-5897/17. EXHIBIT P5(C) TRUE COPY OF THE REPORT OF THE ADDL.TAHSILDAR DATED 29.04.2017 IN FILE NO.B5-5898/17. EXHIBIT P5(D) TRUE COPY OF THE REPORT OF THE ADDL.TAHSILDAR DATED 29.04.2017 IN FILE NO.B5-5899/17.** ::27:: |**WP(C).No.12261 OF 2020(G)**|| |---|---| |**EXHIBIT P5(E)**|**TRUE COPY OF THE REPORT OF THE**| ||**ADDL.TAHSILDAR DATED 29.04.2017 IN**| ||**FILE NO.B5-5900/17.**| |**EXHIBIT P6**|**TRUE COPY OF THE REPORT DATED**| ||**03.11.2017 FILED BY ADDL.TAHSILDAR**| ||**BEFORE THE 2ND RESPONDENT.**| |**EXHIBIT P7**|**TRUE**<br>**COPY**<br>**OF**<br>**THE**<br>**ORDER**| ||**NO.6657/B2/K.DIS**<br>**DATED**<br>**21.12.2017**| ||**ISSUED BY THE SUB-COLLECTOR.**| |**EXHIBIT P8**|**TRUE COPY OF THE JUDGMENT DATED**| ||**09.04.2018**<br>**IN**<br>**WRIT**<br>**PETITION**| ||**(CIVIL)NO.5503 OF 2018.**| |**EXHIBIT P9**|**TRUE COPY OF THE REPORT DATED**| ||**09.10.2018 ISSUED BY THE AGRICULTURAL**| ||**OFFICER.**| |**EXHIBIT P10**|**TRUE COPY OF THE JUDGMENT DATED**| ||**25.10.2018**<br>**IN**<br>**WRIT**<br>**PETITION**| ||**(CIVIL)NO.34357 OF 2018.**| |**EXHIBIT P11**|**TRUE COPY OF THE ORDER DATED**| ||**27.02.2019 ISSUED BY THE 2ND**| ||**RESPONDENT BEARING NO.B2-6657/2017 TO**| ||**THE 1ST PETITIONER.**| |**EXHIBIT P12**|**TRUE COPY OF THE JUDGMENT OF THE**| ||**HON'BLE HIGH COURT DATED 25.09.2017 IN**| ||**WRIT PETITION(CIVIL)NO.7622 OF 2017.**| |**EXHIBIT P13**|**TRUE COPY OF THE JUDGMENT OF THE**| ||**HON'BLE DIVISION BENCH OF THE HIGH**| ||**COURT OF KERALA DATED 18.12.2017 IN**| ||**WRIT APPEAL NO.2326 OF 2017.**| |**EXHIBIT P14**|**TRUE COPY OF THE ORDER OF THE HON'BLE**| ||**SUPREME COURT DATED 27.04.2018 IN SLP**| ||**NO.9753/2018.**| |**EXHIBIT P15**|**TRUE COPY OF THE LETTER DATED**| ||**16.02.2019 ISSUED BY THE CHIEF TOWN**| ||**PLANNER, THIRUVANANTHAPURAM TO THE**| ||**SECRETARY, IRINJALAKUDA MUNICIPALITY.**| ::28:: ## **WP(C).No.12261 OF 2020(G)** **EXHIBIT P15(A) TRUE COPY OF THE LETTER DATED 18.03.2019 BEARING NO.BA/206/09-10 ISSUED BY THE IRINJALAKUDA MUNICIPALITY TO THE MCP CONVENTION CENTRE.** **EXHIBIT P16** **TRUE COPY OF THE APPEAL DATED 03.04.2019 UNDER CLAUSE 11 OF THE KLU ORDER PREFERRED BY THE 1ST PETITIONER AGAINST THE IMPUGNED ORDER DATED 27.02.2019 ISSUED BY THE 2ND RESPONDENT BEARING NO.B2-6657/2017.** **EXHIBIT P17 TRUE COPY OF THE JUDGMENT DATED 21.11.2019 IN WRIT PETITION(CIVIL)NO.30675 OF 2019. EXHIBIT P18 TRUE COPY OF THE ORDER DATED 10.03.2020 BEARING NO.LR(A)414480/2019 ISSUED BY THE 4TH RESPONDENT TO THE PETITIONERS.**