Nassar Moopan v. Revenue Divisional Officer, Fort Kochi & Local Level Monitoring Committee

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **THURSDAY, THE 11TH DAY OF JUNE 2020 / 21ST JYAISHTA, 1942** ## **WP(C).No.11370 OF 2020(U)** ## **PETITIONER/S:** **NASSAR MOOPAN, AGED 60 YEARS, S/O.KUNJUMUHAMMED MOOPPAN, MANDYAPURATH HOUSE, PANAYIKULAM P.O., ERNAKULAM DISTRICT.** **BY ADV.SMT.C.K.SHERIN** ## **RESPONDENT/S:** **1 THE REVENUE DIVISIONAL OFFICER, REVENUE DIVISIONAL OFFICE, FORT KOCHI, ERNAKULAM DISTRICT, PIN-682 001. 2 LOCAL LEVEL MONITORING COMMITTEE, REPRESENTED BY ITS CONVENOR, AGRICULTURAL OFFICER, THIRUVANKUAM, ERNAKULAM DISTRICT, PIN-682 305.** ## **OTHER PRESENT:** **SRI.SAIGI JACOB PALATTY, SR.GOVT.PLEADER** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 11.06.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** W.P.C.11370/2020 2 ## **ALEXANDER THOMAS, J.** ------------------------------------------------------------------ W.P.(C) No.11370 of 2020 ------------------------------------------------------------------ **Dated this the 11[th ] day of June, 2020** ## **JUDGMENT** The case set up in this writ petition is as follows: The petitioner, his wife and their children are the joint owners and in absolute ownership, possession and enjoyment of 15.13 ares (37.385 cents) of land in Re-sy.No.154/4 in Block No.10 of Thiruvankulam village, Kanayannur Taluk. Ext.P2 extract of data bank shows that the property is classified as 'converted land'. Petitioner submitted Ext.P3 application as early as on 01.02.2017 under Kerala Land Utilisation Order for utilisation of the land for other purpose before the 1[st] respondent. This Court as per Ext.P4 judgment directed the 1[st] respondent to consider the KLU application after getting report from the LLMC. Petitioner seeks for direction to the 1[st] respondent to grant permission under KLU Order. This Court in Geo Peter v. District Collector, Renji K.Paul v. RDO reported in [2019(2)KHC 241], Line Properties v. State of Kerala has held that applications submitted prior to the amendment (30.12.2017) should be considered under the KLU Order and no fee can be levied for conversation. 2. In the light of these averments and contentions, the petitioner has filed the instant writ petition with following prayers: W.P.C.11370/2020 3 “(i) issue a writ in the nature of mandamus or any other appropriate order or direction commanding the respondents to grant permission under Clause 6 of the Kerala Land Utilisation order for use of the petitioner's property for other purpose as requested in Ext.P3 application. (ii) declare that the provisions of the amended Act 28 of 2008 is inapplicable to the properties in question.” 3. Heard Smt.C.K.Sherin, learned counsel appearing for the petitioner and Sri.Saigi Jacob Palatty, learned Government Pleader appearing for the respondents. 4. According to the petitioner, though the subject property described as 'nilam' in the Basic Tax Register, the said property has been converted into garden land and 'purayidom', long prior to 12.08.2008 (date of introduction of the Kerala Conservation of Paddy Land and Wetland Act, 2008). Petitioner has also filed the requisite application under Clause 6(2) of the Kerala Land Utilization Order, 1967, as per Ext.P3 application dated 01.02.2017 before the Revenue Divisional Officer, Fort Kochi. Since, the said application was not been considered, the petitioner approached this Court, which resulted in Ext.P4 judgement dated 17.10.2017 in W.P.(C).No.7188 of 2017. This Court in the said judgment held that the petitioner shall obtain certificates from the conveners of Local Level Monitoring Committee concerned under the Act to the effect that the properties are converted prior to the coming into force of the Act in terms of Land Data Bank prepared under the Act and on production of the same W.P.C.11370/2020 4 certificate by the petitioner, the 1[st] respondent RDO will consider the request of the petitioner as per Ext.P3 herein (Ext.P3 therein) submitted on 01.02.2017 as per Clause 6(2) of the KLU Order and pass orders therein within one month. According to the petitioner, he had immediately approached the 2[nd] respondent, LLMC and had also obtained Ext.P5 report on land view, wherein it is clearly certified that the subject property has been converted much prior to the coming into force of the Kerala Conservation of Paddy Land and Wetland Act, 2008 and that the property is also having building constructed thereon. 5. In spite of submission of Ext.P5 certificate from the 2[nd] respondent LLMC, the 1[st] respondent RDO has not cared to pass orders on Ext.P3 application till date. The petitioner also pointed out that the 1[st] respondent RDO has already passed orders in respect of similarly placed adjacent properties lying in the very same survey number as can be seen from Exts.P6 and P7, granting permission for change of use of land under Clause 6(2) of the KLU Order, also without charging any higher amount as per the amended provisions of the 2008 Act, as those applicants have also submitted the applications under Clause 6(2) of the KLU Order before the cut off date of 30.12.2017. 6. After having heard both the sides, this Court is not in a position to appreciate the stand of the 1[st] respondent, in not having W.P.C.11370/2020 5 passed orders on Ext.P3 application dated 01.02.2017 in spite of specific direction issued by this Court as per judgment dated 17.10.2017, between the very same parties and on the very same issues. This is all the more serious as the 1[st] respondent has chosen to pass orders in favour of similarly situated adjacent property owners as per Exts.P6 and P7. 7. 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 12-08-2008 (the date of coming into force of the 2008 Act) and where the property holder has filed requisite application under Rule 6(2) of the Kerala Land Utilisation Order, 1967, before 30-12-2017 (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 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 W.P.C.11370/2020 6 thereunder. 8. 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] 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 fresh assessment of the property by the Thahsildar for getting 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. 9. In the instant case also, it is clear like day light that the petitioner has submitted Ext.P3 application under Clause 6(2) of the KLU Order on 01.02.2017. It is all the more manifest and evident from Ext.P4 judgment of this Court dated 17.10.2017. Therefore, the 1[st] respondent has to consider the request of the petitioner, produced as Ext.P3, strictly in terms of the provisions contained in Clause 6(2) of the KLU Order and in the light of Exts.P6 and P7 orders and without making the petitioner pay any amounts as conceived as per the amended provisions of the 2008 Act including Rule 12(17) thereon. 10. It has been held by this Court as in the judgment dated 19.03.2020 in W.P.(C).No.8645 of 2020 (reported in **[2020(3)KLT** W.P.C.11370/2020 7 **492]** that in such cases the property holder has filed requisite KLU application before the cut off dated of 30.12.2017, the Revenue authorities cannot insist that it should pay the amounts as per the amended provisions of the Rules, including Rule 12(17) thereof. The position in that regard is ordered and clarified in this case as well. Accordingly, it is ordered that the 1[st] respondent RDO will take up and consider Ext.P3 application without any further delay and after affording reasonable opportunity of being heard to the petitioner through his authorised representative or counsel, if any, should pass orders thereon, strictly in terms of Rule 6(2)of the KLU Order and in the light of Ext.P5 report of KSREC as well as Exts.P6 and P7 orders passed in respect of adjacent property holders and without making the petitioner pay any amounts as to the amended provisions of 2008 Act and the amended Rules as stated hereinabove. Orders in this regard should be duly passed by the 1[st] respondent RDO on Ext.P3 application under Rule 6(2) of the KLU application without much delay, preferably within an outer limit of two months from the date of receipt of a copy of this judgment Writ petition disposed of. Sd/- ## **ALEXANDER THOMAS** DG ## **JUDGE** W.P.C.11370/2020 8 ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF LAND TAX RECEIPT DATED 28.11.2018 ISSUED BY VILLAGE OFFICE, THIRUVANKULAM.** **EXHIBIT P2 TRUE COPY OF THE RELEVANT EXTRACT OF THE DRAFT DATA BANK. EXHIBIT P3 TRUE COPY OF APPLICATION DATED 01.02.2017 UNDER CLAUSE 6 OF THE KLU ORDER SUBMITTED BY THE PETITIONER BEFORE THE 1ST RESPONDENT.** **EXHIBIT P4 TRUE COPY OF JUDGMENT DATED 17.10.2017 IN WPC NO.7188 OF 2017 PASSED BY THIS HON'BLE COURT. EXHIBIT P5 TRUE COPY OF THE SATELLITE IMAGE AND REPORT OF THE KSREC. EXHIBIT P6 TRUE COPY OF ORDER NO.K2-8326/16/K.DIS DATED 05.08.2019 ISSUED BY RDO (SUB COLLECTOR), FORT KOCHI. EXHIBIT P7 TRUE COPY OF ORDER NO.K2-8327/16/K.DIS DATED 05.08.2019 ISSUED BY RDO (SUB COLLECTOR), FORT KOCHI.**