Naseem Abdul Rahman v. District Collector, Thrissur District & Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **TUESDAY, THE 23RD DAY OF JUNE 2020 / 2ND ASHADHA, 1942** ## **WP(C).No.12356 OF 2020(T)** ## **PETITIONER/S:** **NASEEM ABDUL RAHMAN, MANDAYIPURATHU HOUSE, MADAVANA P.O., ERIYAD VILLAGE, KODUNGALLUR TALUK, THRISSUR DISTRICT** **BY ADV. SRI.SHINU J.PILLAI** ## **RESPONDENT/S:** - **1 THE DISTRICT COLLECTOR, THRISSUR DISTRICT, CIVIL STATION, AYYANTHOLE, THRISSUR DISTRICT-680 003** - **2 THE REVENUE DIVISIONAL OFFICER, CIVIL STATION ANNEXE, IRINJALAKUDA, KERALA-680 125** - **3 THE TAHSILDAR, TALUK OFFICE, KODUNGALLUR TALUK, THRISSUR DISTRICT,PIN-682 301** - **4 THE LOCAL LEVEL MONITORING COMMITTEE, REPRESENTED BY ITS CONVENER, AGRICULTURAL OFFICER, KODUNGALLUR KRISHI BHAVAN, KUNNNUPURAM, KODUNGALLUR P.O., THRISSUR DISTRICT-680 664** - **5 VILLAGE OFFICER, PULLOOT VILLAGE OFFICE, PULLOOT P.O., THRISSJUR-680 663** - ***ADDL. THE KERALA STATE REMOTE SENSING & ENVIRONMENT CENTRE R6 (KSREC), VIKAS BHAVAN, THIRUVANANTHAPURAM-695033, REPRESENTED BY ITS DIRECTOR** - ***ADDL. R6 IS IMPLEADED** _**SUO MOTU**_ **AS PER ORDER DATED 23.06.2020** ## **OTHER PRESENT:** ## **SRI.SAIGI JACOB PALATTY, SR.GOVT.PLEADER** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 23.06.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING** W.P. © No. 12356 of 2020 ..2.. ALEXANDER THOMAS, J. --------------------------------------W.P. © No. 12356 of 2020 --------------------------------------Dated this the 23[rd] day of June, 2020 ## J U D G M E N T The case set up in this Writ Petition (Civil) is as follows: The petitioner is the absolute owner in possession of an extent of 80.94 Ares of land in Survey No. 361/2 of Pulloot Village, Kodungallur Taluk, Thrissur District. The said land was lying as 'Purayidam' (Dryland) for more than 40 years and indicated as 'Nilam' (Wetland) in all the village records. This petitioner approached the 1[st] respondent herein for the conversion of the land in records under Kerala Land Utilization Order 1967 and filed an application before the 4[th] respondent under Kerala Conservation of Paddy Land and Wetland Act 2008 for excluding the land from the Data bank. In the said applications this petitioner categorically specified that the land in question is planted with Coconut trees and not ever cultivated with any corps defined under Section 2(b) of the Kerala Land Utilisation Order, 1967. The concerned respondent failed to pass any orders on the said applications and such circumstances the petitioner was constrained to approach this Court vide filing WP W.P. © No. 12356 of 2020 ..3.. (C) No: 4625 of 2018. This Court vide Exhibit P3 judgment disposed of the said Writ Petition directing the respondents to consider and pass orders on the applications submitted by this petitioner within the time line specified therein. However, in total disregard of the orders of this Court's orders, the respondents failed to act upon within the time frame or thereafter. Being aggrieved by the said reprehensible silence of the respondents; the petitioner approached this Court vide filing Contempt of Court cases against 1[st] and 4[th] respondents. Thereafter the 4[th] respondent submitted a report before the 1[st] and 2[nd] respondents excluding the petitioner's land from the Data Bank. However, the 2[nd] respondent in total contradiction to the 4[th] respondent's report rejected petitioner's application vide Ext.P-5 order. It is in the light of the abovesaid averments and contentions that the petitioner has filed the instant Writ Petition (Civil) with the following prayers: “ - _i. Issue a writ of certiorari quashing the Exhibit P5 passed by the 2nd respondent and further direct the 1st and 2nd respondent to reconsider the petitioner's application dated 21.10.2017 under clause 6(2) of the Kerala Land Utilization Order in due consideration of report No: KBK 7/18-19 issued by the 4th respondent within a time frame fixed by this Hon'ble Court._ - _ii. Issue a writ of mandamus directing the 4th respondent to act upon its decision taken vide report No: KBK 7/18-19 and implement the exclusion of petitioner's land from Data Bank._ - _iii. Issue such other appropriate writ, order or direction which this Hon'ble Court deems fit and proper in the interest of justice and_ W.P. © No. 12356 of 2020 ..4.. _circumstances of the case.”_ 2. Heard Sri.Shinu J.Pillai, learned counsel appearing for the petitioner and Sri.Saigi Jacob Palatty, learned Senior Government Pleader appearing for the respondents. 3. According to the petitioner the subject property though continues to be described as nilam/paddy land in the Basic Tax Register (BTR) was converted as garden land/purayidam atleast 45 years ago, and much prior to 12.8.2008 (date of coming into force of the Kerala Conservation of Paddy Land and Wet Land Act, 2008). Further that, the property has been described as converted land about 30 years prior to the coming into force of the 2008 Act as per the entries in the Land Data Bank issued by the 4[th] respondent Local Level Monitoring Committee(LLMC) in terms of the provisions contained in the 2008 Act. 4. The petitioner has filed Ext.P-2 application dated 21.2.2017 before the 4[th] respondent LLMC for formal orders for exclusion of subject property from the Land Data Bank, as the property could have been legally included in the Land Data Bank. Further, the petitioner has also submitted Ext.P-1 application dated 21.2.2017 under Rule 6(2) of the Kerala Land Utilization Order, 1967, (KLU Order) before the 1[st] respondent District Collector for formal W.P. © No. 12356 of 2020 ..5.. permission for change of user of land for any non agricultural purposes. Since no effective action was forthcoming on Exts.P-1 & P- 2 applications, the petitioner was constrained to approach this Court by filing WP(C).No.4625/2018. This Court as per Ext.P-3 judgment rendered on 15.2.2018 has disposed of said WP(C) by directing the 4[th] respondent LLMC to consider and pass orders on Ext.P-2 application dated 21.2.2017 in the matter of exclusion of subject property from the Land Data Bank. Further, this Court has also ordered that, in the event of LLMC passing orders excluding subject property from the Land Data Bank, then thereafter the 1[st] respondent District Collector will consider and pass orders on Ext.P-1 application in terms of the provisions contained in Rule 6(2) of the KLU Order for change of user of land. It appears that, the 4[th] respondent LLMC has passed Ext.P-6 proceedings dated 22.9.2018 wherein it has been conclusively found that the subject property has been converted as garden land/purayidam about 30 years prior to the 2008 Act, and there are more than 350 coconut trees standing in the said property which are atleast more than 30 years old, and it has been decided to exclude the subject property from the Land Data Bank. However, there is reference in Ext.P-6 that there is requirement to obtain satellite W.P. © No. 12356 of 2020 ..6.. pictures from the Kerala State Remote Sensing & Environment Centre (KSREC), Thiruvananthapuram, in the matter. Later, it appears that formal steps to exclude the property from the Land Data Bank has not been taken by the 4[th] respondent LLMC as well as the local body concerned. 5. Now, it appears that the 1[st] respondent District Collector has forwarded Ext.P-1 application to the 2[nd] respondent RDO for action under Rule 6(2) of the KLU Order. The 2[nd] respondent RDO has passed impugned Ext.P-5 order dated 4.4.2019 ordering that in view of the observations of the 4[th] respondent LLMC in Ext.P-6 about the requirement to take satellite pictures, the request of the petitioner for permission under Rule 6(2) of the KLU Order cannot be granted, etc. It is this order at Ext.P-5 that is under challenge in this writ petition. 6. There is no dispute for the respondents that the petitioner has infact submitted Ext.P-1 under Rule 6(2) of the KLU Order before the statutory officer as can be seen from reference No.1 of Ext.P-5 order, as well as a reading of Ext.P-3 produced in Ext.P-3 WP(C).No.4625/2018 filed by the petitioner earlier. Therefore, admittedly the petitioner has filed Rule 6(2) application W.P. © No. 12356 of 2020 ..7.. as per Ext.P-1 much before the cut-off date of 30.12.2017 (date of coming into force of the amended provisions of the 2008 Act, which has introduced Section 27A thereof), and hence Ext.P-1 application has to be considered strictly in terms of Rule 6(2) and without making the petitioner pay the amounts as conceived as per the amended provisions of the 2008 Act, and the rules framed there under. 7. A reading of Ext.P-6 proceedings issued by the 4[th] respondent LLMC would make it clear like the day light that there are conclusive findings therein that the subject property has been converted atleast 30 years prior to the coming into force of the 2008 Act, and that there are existing 350 coconut trees in the said property, which are more than 30 - 35 years old. The 4[th] respondent has taken a conscious decision in Ext.P-6 to exclude the property from the Land Data Bank, merely because it is also incidentally observed in Ext.P-6 by the 4[th] respondent LLMC that there may be requirement to take satellite pictures of the property, is no ground for the 2[nd] respondent to Ext.P-1 application as per Ext.P-5 order. From a reading of Ext.P-5 order it appears that, such a unnecessarily hypotechnical objection appears to have been W.P. © No. 12356 of 2020 ..8.. raised solely for the purpose of rejecting the plea. This could be on account of the fact that since the petitioner has filed Ext.P-2 application before the cut-off date of 30.12.2017, there is no necessity for him to pay the amounts as per the amended provisions of the 2008 Act under Section 27A thereof and the rule framed there under. In the light of the conclusive findings in Ext.P-6 proceedings of the 4[th] respondent LLMC, there is no justification for the 2[nd] respondent RDO to pass an order in the nature of Ext.P-5 summarily rejecting the said request under Rule 6(2) of the KLU Order. The matter requires serious reconsideration at the hands of the 2[nd] respondent RDO, and would warrant a remit. For effectuating such a remit, it is ordered that the impugned Ext.P-5 will stand set aside and quashed. Ext.P-1 application dated 21.2.2017 submitted by the petitioner under Rule 6(2) of the KLU Order will stand remitted to the 2[nd] respondent RDO for consideration and decision afresh. 8. Accordingly it is ordered that the 2[nd] respondent RDO will immediately permit the petitioner to pay the necessary fee for obtaining satellite pictures of the subject property through the 6[th] respondent KSREC without any further delay. On the petitioner W.P. © No. 12356 of 2020 ..9.. paying the prescribed fee, the 2[nd] respondent RDO will ensure that a formal requisition is duly send to the 6[th] respondent KSREC to obtain satellite pictures of the subject property covered by Ext.P-1 application without any further delay. This process shall be duly completed within 10 days from the date of receipt of a certified copy of this judgment. 9. On getting the said requisition the 6[th] respondent will ensue that satellite pictures of the subject property is obtained, and the expert opinion of the 6[th] respondent as well as their conclusions in the matter as to the existing ground realities which was in existence as on 12.8.2008 should be clearly stated in the report, and the satellite pictures and report shall be duly send by the 6[th] respondent to the 2[nd] respondent. This process shall be duly completed within 2 months from the date of receipt of copy of requisition by the 6[th] respondent. 10. In the meanwhile, the 2[nd] respondent shall ensure that an inspection is conducted in respect of subject property with due prior notice to the petitioner, and that process need not await receipt of satellite pictures. Such inspection shall be conducted with due prior notice to the petitioner and the inspection report W.P. © No. 12356 of 2020 ..10.. shall be submitted by the inspection officer to the 2[nd] respondent RDO and copy of said inspection report should also be given to the petitioner in advance. Thereafter, on receipt of satellite pictures, the 2[nd] respondent will take up the matters in Ext.P-1 application and after affording reasonable opportunity of being heard to the petitioner and after taking due note of the inspection report, as well as the report and satellite pictures furnished by the 6[th] respondent, and pass orders on Ext.P-1 application without much delay within 6 weeks from the date of receipt of satellite pictures and report of the 6[th] respondent. 11. It is further ordered that, before passing such orders it shall be ensured that satellite pictures and copy of report of the 6[th] respondent shall be furnished by the 2[nd] respondent to the petitioner in advance, so that his submissions shall be duly considered and taken into account by the 2[nd] respondent. 12. It is made clear that while passing orders under Rule 6(2) of the KLU Order, the 2[nd] respondent cannot compel the petitioner to pay any amounts as conceived under the amended provisions of the 2008 Act,and the amended rules framed there under. W.P. © No. 12356 of 2020 ..11.. 13. It is by now 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 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. 14. The 4[th] respondent LLMC will ensure that steps are taken W.P. © No. 12356 of 2020 ..12.. to actually exclude the subject property from the Land Data Bank, and necessary publication of such exclusion is got done by the local body concerned, and this process shall be duly completed by the 4[th] respondent within 6 weeks from the date of receipt of a certified copy of this judgment. 15. The petitioner will produce certified copies of this judgment along with copies of memorandum of this WP(C) with all exhibits to the 2[nd] respondent RDO, the 4[th] respondent LLMC and the 6[th] respondent KSREC for necessary information and further action. With these observations and directions, the above Writ Petition (Civil) will stand finally disposed of. Sd/- ALEXANDER THOMAS, JUDGE MMG W.P. © No. 12356 of 2020 ..13.. ## **APPENDIX** **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 A TRUE COPY OF THE APPLICATION DATED 21.02.2017** **EXHIBIT P2 A TRUE COPY OF THE APPLICATION UNDER ACT 2008** **EXHIBIT P3 A TRUE COPY OF THE JUDGMENT DATED 15.902.2018 IN WPC NO.4625 OF 2018** **EXHIBIT P4 A TRUE COPY OF THE LETTER DATED 12.06.2018 ISSUED BY THE SUB COLLECTOR** **EXHIBIT P5 A TRUE COPY OF THE ORDER NO.B1 (B6) 3840/18/DDIS ISSUED BY THE 2ND RESPONDENT DATED 04.04.2019** **EXHIBIT P6 THE TRUE COPY OF THE PROCEEDINGS NO.KBK7/18-19 ALONG WITH RELEVANT MINUTES DATED 22.09.2018** **EXHIBIT P7 TRUE PHOTOGRAPH OF THE PROPERTY**