MUMTHAS @ MAMTHAS W/O JAVEED v STATE OF KERALA REPRESENTED BY ITS SECRETARY, DEPARTMENT OF REVENUE, THIRUVANANTHAPURAM; COMMISSIONER OF LAND REVENUE, THIRUVANANTHAPURAM; REVENUE DIVISIONAL OFFICER, FORT KOCHI

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **FRIDAY, THE 19TH DAY OF JUNE 2020 / 29TH JYAISHTA, 1942** ## **WP(C).No.12095 OF 2020(J)** ## **PETITIONER:** **MUMTHAS @ MAMTHAS W/O.JAVEED, AGED 62 YEARS ARACKAL HOUSE, PAZHANGANAD KARA, KIZHAKKAMBALAM VILLAGE, KUNNATHUNAD TALUK.** **BY ADV. SMT.C.K.SHERIN** ## **RESPONDENTS:** **1. STATE OF KERALA REPRESENTED BY ITS SECRETARY DEPARTMENT OF REVENUE, SECRETARIAT, THIRUVANANTHAPURAM - 695001.** **2. COMMISSIONER OF LAND REVENUE, THIRUVANANTHAPURAM - 695 001.** **3. REVENUE DIVISIONAL OFFICER, REVENUE DIVISIONAL OFFICE, FORT KOCHI - 682301, ERNAKULAM DISTRICT.** ## **SRI.K.J.MANU RAJ, GOVT.PLEADER** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 19.06.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** W.P(C) No.12095 of 2020 2 ## **ALEXANDER THOMAS, J.** ## **===========================** ## **W.P(C) No.12095 of 2020** **===========================** Dated this the 19[th] day of June, 2020 ## **JUDGMENT** The prayers in this Writ Petition (Civil) are as follows : 1. “call for the records leading to Exhibits P3 and P5 and quash Exhibits P3 and P5 by the issue of a writ of certiorari or other appropriate writ, order or direction; 2. issue a writ of mandamus or other appropriate writ, order or direction directing the 3rd respondent to grant permission to the petitioner to utilise the property without insisting the payment of fee since the application is filed on 1.12.2016 which is evident from Ext. P3 reference No. 1; 3. issue a writ of mandamus or other appropriate writ, order or direction directing the 3rd respondent to grant permission to the petitioner to utilise the property in view of the permission granted to the adjacent property owners as per Exhibits P6 and P7 which lie as a single plot in same survey No. 154/4; 4. issue such other writ, order or direction as this Hon’ble Court may deem fit and proper in the facts and circumstances of the case.” 2. Heard Smt.C.K.Sherin, learned counsel appearing for the petitioner and Sri.K.J.Manu Raj, learned Government Pleader appearing for the respondents. 3. The petitioner would assert that the subject property though continues to be classified as ‘Nilam/Paddy Land’ as per the Basic Tax Register has been converted as ‘Garden land or Purayidom’ much prior to 12.08.2008 (much prior to the date of coming into force of the Kerala W.P(C) No.12095 of 2020 3 Conservation of Paddy Land or Wetland Act, 2008). The petitioner has filed application dated 01.12.2016 (referred to as item No.1 in Ext.P-3) before the 3[rd] respondent-Revenue Divisional Officer seeking for permission for change of user of the land as per Rule 6(2) of the Kerala Land Utilization Order, 1967. This Court as per Ext.P-2 judgment rendered on 17.12.2016 has directed the 3[rd] respondent herein to consider the said application in terms of the provisions contained in Rule 6(2) of the KLU Order and then pass orders thereon within the timelimit mentioned therein. The fact that the petitioner has filed the requisite application under Rule 6(2) KLU Order on 01.12.2016 is clearly evident from reference No.1 of Ext.P-3 as well as Ext.P-3 application produced in Ext.P-2 judgment. As directed by this Court in Ext.P-2 judgment, the petitioner has paid requisite fee and has also obtained satellite picture of the subject property as well as Ext.P-4 report of the Kerala State Remote Sensing and Environment Centre about their analysis on the satellite picture. The petitioner would point out that the boundaries on three sides of the subject property are purayidom or converted land and one side is a public road and a fallow paddy land is only lying across the said road. That the quarters of the Central Industrial Security Force is also in the immediate vicinity of the subject property. That the conversion of the property, will not in any manner detrimentally affect any paddy cultivation as no paddy cultivation W.P(C) No.12095 of 2020 4 is going on in the immediate vicinity of the subject property, etc. That the 3[rd] respondent has passed the impugned Ext.P-3 order dated 01.12.2018 rejecting the plea of the petitioner under Rule 6(2) of the KLU Order, mainly on the ground that the Agricultural Officer has given report dated 19.03.2018 (referred to as item No.3 in Ext.P-3) that there are problems of water logging, which may detrimentally affect the adjoining properties, etc. The petitioner would submit that the copy of the abovesaid report dated 19.03.2018 of the Agricultural Officer referred to as item No.3 in Ext.P-3 has not been given to the petitioner before the impugned decision rendered as per Ext.P-3 dated 01.12.2018. That the petitioner could obtain a copy of the said report of the Agricultural Officer only through RTI proceedings. Further that, the abovesaid opinion of the Agricultural Officer regarding water logging, etc. is contradicted by his own report referred to on the top of page No.2 of Ext.P-3 that temporary sheds are already constructed in the subject property and that the property is bounded on three sides by dry land, etc. Further that, the adjoining property on the four side of the subject property is the public road is not mentioned in the said report. Hence, it is contended that the property is bounded on all sides not by any paddy land which are either used as paddy cultivation or which are suitable for paddy cultivation. Further that the crucial aspects borne out from Ext.P-4 report of the Satellite Remote Sensing and Environment Centre has W.P(C) No.12095 of 2020 5 not been taken into consideration. That being aggrieved by Ext.P-3 petition, had preferred statutory appeal before the 2[nd] respondentCommissioner of Land Revenue, which has also been rejected as per Ext.P-5 dated 05.12.2019 issued by the 2[nd] respondent. The petitioner would point out that Ext.P-5 is only a mere reiteration of the findings in Ext.P-3. 4. The petitioner would point out that both the 2[nd] & 3[rd] respondents had not passed orders on the application as well as the appeal within the timelimit stipulated by this Court in the judgments in W.P(C)s filed by the petitioner and on both the occasions, the petitioner was compelled to initiate contempt of court proceedings and that it is only on account of the fact that the petitioner has initiated contempt proceedings that adverse decision as per Exts.P-3 & P-5 has been taken hastily without taking into consideration crucial and relevant aspects, to evade the contempt proceedings. Further it is pointed out that some of the adjoining properties or properties in the immediate vicinity of the subject property has been granted permission by the 3[rd] respondent under Rule 6(2) of the KLU Order as can be seen from Ext.P-6 order dated 05.08.2019 and Ext.P7 order dated 05.08.2019. 5. The learned Government Pleader has made submissions in support of the impugned Exts.P-3 & P-5 orders. W.P(C) No.12095 of 2020 6 6. After hearing both sides, this Court is of the considered view that crucial and relevant aspects borne out from the satellite pictures as well as from Ext.P-4 report of the expert agency has not been properly considered by the respondent authorities concerned. A reading of the impugned orders would make it clear that on the one hand, the petitioner is blamed for having converted the property and then constructed temporary sheds. On the other hand, the petitioner is blamed for not properly using to the said converted land, inasmuch as he has not planted any trees. There is no dispute that the property has been converted and it is for that purpose that the petitioner has approached the authorities for orders and regularization, so as to secure formal permission under Rule 6(2) of the KLU Order. Therefore, it appears that the abovesaid grounds of rejection stated in Exts.P-3 & P-5 are not really relevant or germane and has been raised only for the sake of technical objections. The petitioner would assert that the subject property is bounded on all sides by purayidam/converted land and a public road and the factum of the existing public road, is not even mentioned in the impugned orders. Further that, most of the properties in the neighbourhood has been converted and are not suitable for paddy land and that there is even the residential quarters of the CISF in the immediate vicinity, etc. are not even properly considered and assessed. The approach of the 3[rd] respondent in not having made available copy of W.P(C) No.12095 of 2020 7 the report of the Agricultural Officer referred to in Ext.P-3 before the impugned decision was taken as per Ext.P-3, is only to be held that illegal and improper. In matters like this, it is the duty of the decision making process to ensure that such adverse materials, if any is given to the affected party and it is not the obligation of the party to get copies of such adverse materials by resort to RTI proceedings. The crucial fact that some of the properties in the immediate vicinity of the subject property has also been given permission under Rule 6(2) of the KLU Order as per Exts.P-6 & P-7, has not been considered in Ext.P-5 appellate order dated 05.12.2019. For all these reasons, this Court is of the considered view that the matter would require serious re-consideration at the hands of the 3[rd] respondent. There is no dispute in this case that the petitioner has submitted the requisite Rule 6(2) of the Kerala Land Utilization Order on 01.12.2016, as can be seen from reference No.1 of Ext.P-3 and Ext.P-2 judgment. Therefore, there is no question of the petitioner having to pay the amounts as conceived as per the amended provisions of the 2008 Act, including Sec.27A thereof and the amended Rules framed thereunder, including Rule 12 (17) thereof, inasmuch as the petitioner has filed application under the Kerala Land Utilization Order before the cut-off date of 30.12.2017 (date of coming into force of the Kerala Conservation of Paddy Land and Wetland Act, 2008). W.P(C) No.12095 of 2020 8 7. Taking note of the abovesaid aspects, it is ordered that the impugned Exts.P-3 & P-5 orders will stand set aside. The application submitted by the petitioner on 01.12.2016 referred to as item No.1 in Ext.P-3, for permission under Rule 6(2) of the Kerala Land Utilization Order will stand remitted to the 3[rd] respondent-Revenue Divisional Officer, for consideration and decision afresh. In that regard, it is ordered that the 3[rd] respondent-RDO will ensure that a fresh inspection is conducted by the Village Officer concerned immediately with due prior notice to the petitioner and the Village Officer will ascertain, as to whether the subject property is bounded on three sides by purayidom or converted land and that a public road is in existence on the fourth side, etc. Among the other things, the Village Officer should also ascertain, as to whether the properties covered by Exts.P-6 & P-7 orders are also in the vicinity or in the locality of the subject property. The report shall be furnished by the Village Officer to the 3[rd] respondent within three weeks from the date of receipt of a certified copy of this judgment and copy of the said report should be given to the petitioner in advance. 8. Thereafter, the 3[rd] respondent will afford a reasonable opportunity of being heard to the petitioner and then should take a considered decision on the application of petitioner submitted under Rule 6(2) of the Kerala Land Utilization Order, after considering the various W.P(C) No.12095 of 2020 9 contentions of the petitioner and also the aspects based on Exts.P-6 & P-7 orders. If the properties covered by Exts.P-6 & P-7 orders are broadly similar to the one covered by the subject property, then due consideration of that crucial and relevant fact should also be given due weightage by the 3[rd] respondent on that aspect. The findings in Ext.P-4 report of the expert agency should also be duly considered while taking the decision. Orders in this regard under Rule 6(2) of the Kerala Land Utilization Order should be passed by the 3[rd] respondent-RDO within six weeks from the date of receipt of a copy of the report of the Village Officer as aforedirected. In this regard, it is made clear that there is no question of the respondents compelling the petitioner to pay any amounts as conceived as per the amended provisions of the 2008 Act, including Sec.27A thereof and the amended Rules including Rule 12(17) thereof, inasmuch as indisputably the petitioner has filed the requisite application much before the cut-off date of 30.12.2017. 9. After the petitioner secures necessary permission under Rule 6(2) of the KLU Order, it will be open to the petitioner to file the requisite application under Sec.6A of the Kerala Land Tax Act before the Tahsildar concerned seeking for re-assessment of the subject property, so as to secure additional entries in the Basic Tax Register to show the changed nature of the land as garden land or purayidom instead of the earlier BTR entries as ‘Nilam/Paddy Land’ and on filing of such application, along with a copy of W.P(C) No.12095 of 2020 10 the order so passed by the 3[rd] respondent, it shall be ensured that the Tahsildar should pass orders thereon, after affording reasonable opportunity of being heard to the petitioner, within one month from the receipt of such application and in strict adherence to the dictum laid down by the Division Bench of this Court in cases as in _**LLMC, Kizhakkambalam Grama Panchayath and others v. Mariumma and another**_ [2015 (2) KLT 516 (DB) and _**Thodupuzha Taluk and another v. Renjth George**_ [2020 m (1) KHC 865 (DB). It is made clear that even at that stage, there is no question of the petitioner having to pay any amounts as per the amended provisions of the 2008 Act and the amended provisions of the Rules, inasmuch as the petitioner has filed the requisite application under Rule 6(2) of the Kerala Land Utilization Order before the cut-off date of 30.12.2017. With these observations and directions, the above Writ Petition (Civil) will stand finally disposed of. Sd/- **ALEXANDER THOMAS JUDGE** vgd W.P(C) No.12095 of 2020 11 ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF RELEVANT PAGE OF DATA BANK. EXHIBIT P2 TRUE COPY OF JUDGMENT DATED 17.12.2016 IN WP(C)NO.40222/20165 PASSED BY THIS HON'BLE COURT. EXHIBIT P3 TRUE COPY OF ORDER NO.K2-8325/16 DATED 1.12.2018 ISSUED BY THE 3RD RESPONDENT EXHIBIT P4 TRUE COPY OF REPORT OF THE KERALA STATE REMOTE SENSING AND ENVIRONMENT CENTRE EXHIBIT P5 TRUE COPY OF ORDER NO.L.A.(A)1-27946/2019 DATED 05.12.2019 ISSUED BY THE 2ND RESPONDENT EXHIBIT P6 TRUE COPY OF ORDER DATED 05.08.2019 ISSUED BY THE 3RD RESPONDENT EXHIBIT P7 TRUE COPY OF ORDER DATED 05.08.2019 ISSUED BY THE 3RD RESPONDENT.**