P. H. Babu Ansari v. State of Kerala & Ors.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR** ## **&** **THE HONOURABLE MR. JUSTICE SHAJI P.CHALY** **THURSDAY, THE 07TH DAY OF JANUARY 2021 / 17TH POUSHA, 1942** ## **WA.No.1759 OF 2020** ## **AGAINST THE ORDER/JUDGMENT IN WP(C) 19491/2020(J) OF HIGH COURT OF KERALA** ## **APPELLANT/PETITIONER:** **P.H.BABU ANSARI AGED 57 YEARS S/O. A.M.HAMEED (LATE),PARAYIL HOUSE, ADICHIRAM, THELLAKOM P.O., PEROOR, KOTTAYAM DIST.PIN-686 630** **BY ADVS. SRI.AVANEESH KOYIKKARA SRI.LINDONS C.DAVIS** ## **RESPONDENTS/RESPONDENTS:** - **1 STATE OF KERALA REPRESENTED BY ITS SECRETARY, REVENUE DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM DIST., PIN-695 001** - **2 THE LAND REVENUE COMMISSIONER, COMMISSIONERATE OF LAND REVENUE, PUBLIC OFFICE BUILDING, MUSEUM JN, THIRUVANANTHAPURAM-695 033** - **3 DISTRICT COLLECTOR, 1ST FLOOR, CIVIL STATION, COLLECTORATE POST, KOTTAYAM DIST., PIN-686 002** - **4 REVENUE DIVISIONAL OFFICER, KOTTAYAM, 2ND FLOOR, MINI CIVIL STATION, NEAR JAWAHAR BALA BHAVAN, KOTTAYAM POST, KOTTAYAM DIST., PIN-686 001** **5 TAHSILDAR,KOTTAYAM, KOTTAYAM TALUK OFFICE, 1ST FLOOR , MINI CIVIL STATION, NEAR JAWAHAR BALA BHAVAN, KOTTAYAM POST, KOTTAYAM DIST., PIN-686 001** WA.No.1759 OF 2020 2 **6 VILLAGE OFFICER, MUTTAMBALAM, MUTTAMBALAM VILLAGE OFFICE, COLLECTORATE POST, KOTTAYAM DIST, PIN-686 002** **SRI.TEK CHAND, SENIOR GOVERNMENT PLEADER FOR RESPONDENTS** **THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 07.01.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** WA.No.1759 OF 2020 3 ## **JUDGMENT** ## **SHAJI P.CHALY,J** Writ appeal is directed against the judgement of a learned Single Judge dated 23.11.2020 in W.P.(C) No.19491/2020 by the petitioner in the writ petition. The subject issue relates to an order passed by the Revenue Divisional Officer applying section 27A of the Kerala Conservation of Paddy land and Wetland Act, 2008, hereinafter called, 'Act, 2008', whereas the application was filed by the writ petitioner under clause 6 of the Kerala Land Utilization Order, 1967. The material portion of the judgment of the learned Single Judge reads thus: “ 2. Admittedly, the land is not included in the data bank. Pursuant to the direction of this Court in W.P.(C) No.18764/2017 dated 6.6.2017, the Revenue Divisional Officer considered the matter and passed Ext.P2 order. The said order is dated 26.7.2018. The Revenue Divisional Officer allowed the claim of the petitioner to utilise the land for other purposes. However, invoking Section 27A of the Kerala Conservation of Paddy Land and Wetland Act, 2008 (for short, the Act 28 of 2008), the petitioner was directed to set apart 10% of the land for the purpose of water conservation. This condition is under challenge. WA.No.1759 OF 2020 4 3. As seen from the impugned order, the Revenue Divisional Officer stipulated the condition as above with reference to Section 27A of the Act 28 of 2008 as well as with reference to Clause 6 of the KLU Order. Section 27A was incorporated to statute with effect from 30.12.2017. The petitioner's application under the KLU Order is prior to incorporation of Section 27A. Therefore, Section 27A cannot be made applicable to the land belonging to the petitioner. However, nothing bars the Collector under the KLU Order imposing terms and conditions while granting written permission. Clause 6(2) clearly empowers the Collector to impose the terms while granting permission. However, it is seen that no reason has been assigned by the Collector for stipulating the condition as above. 4. It is appropriate that the 'Collector' revisits the order in regard to the stipulation as above after hearing the petitioner. It is only for a cogent reason and that to protect other land, the Collector can impose such conditions. Therefore, the impugned order to the extent stipulating that 10% of the land shall be earmarked for water conservation is set aside. The Sub collector who passed order as Collector under KLU is directed to reconsider the conditions as above after hearing the petitioner and obtaining a report within a period of three months. The writ petition is disposed of as above. ” 2. On a reading of the judgment of the learned Single Judge it is clear that substantially the relief sought for by the appellant was granted by the WA.No.1759 OF 2020 5 learned Single Judge by setting aside the conditions imposed to set apart 10% of the land for water conservation and further, the Revenue Divisional Officer was directed to re-consider the conditions incorporated in the impugned order. In fact the following were the reliefs sought for by the writ petitioner in the writ petition: i) To issue a Writ of certiorari or any other appropriate writ or order or direction, quashing Exhibit P2 to the extent to which direct the petitioner to comply with the conditions of Section 27A of the Kerala Conservation of Paddy Land and Wet land Act, 2008 incorporated by the Amendment Act, 2018 for changing the description of land in Revenue Records or for getting Building Permit; ii. To issue a Writ of mandamus or any other appropriate writ or order or direction commanding the 5[th] respondent to consider and pass orders on Exhibit P3, the application filed U/s 6A of The Kerala Land Tax Act 1961, by reassessment/ fresh assessment against the classification of Garden land/ Residential Plot, within a time frame without insisting for the compliance of Section 27A of the Kerala Conservation of Paddy Land and Wetland Act, 2008 incorporated by the Amendment Act, 2018, after giving a reasonable opportunity of being heard to the petitioner personally or through authorized representative/ counsel; iii) To issue a Writ of mandamus or any other appropriate writ or order or direction commanding the 6th respondent to effect the order of 5th respondent in the Revenue Records by making the additions in BTR and changing the description of land in Thandapper Account within a time frame; iv. To issue a writ of mandamus or any other appropriate writ, order or direction, commanding the respondents to communicate the order, steps taken to dispose of Ext. P3, and issue copy of the documents leading to the order without any delay; WA.No.1759 OF 2020 6 V. And to pass such other appropriate orders or directions as this Hon'ble Court deems fit and proper in the facts and circumstances of the case. 3. The writ appeal is filed by the writ petitioner basically contending that the 2[nd] and 3[rd] reliefs sought for by the appellant were overlooked by the learned Single Judge and therefore,it will cause serious prejudice to the appellant. 4. We have heard learned counsel for the appellant Sri.Lindons C. Davis and learned Senior Government Pleader Sri.Tek Chand and perused the pleadings and materials on record. 5. It is an admitted fact that the appellant, owner of an extent of 102.76 Ares of land comprised in Block No.18, Re-Sy Nos.86 and 87 of Muttambalam Village in Kottayam District, has submitted an application for utilization of land for other purposes other than paddy cultivation as early as on 30.11.2015. When the application was not disposed of, W.P.(C) No.18764/2017 was filed and a learned Single Judge of this Court as per a judgment dated 6.6.2017 directed the Revenue Divisional Officer, Kottayam to dispose of the said application. It was accordingly that the impugned order dated 26.7.2018 was passed by the Revenue Divisional Officer, however, invoking the powers conferred under section 27A of Act, 2008. It is relevant to note that section 27A was brought into the statute only w.e.f. 30.12.2017 and till such time the utilization of the paddy field WA.No.1759 OF 2020 7 for other purposes was guided by clause 6 of the the Kerala Land Utilization Order, 1967. 6. It is a well settled position in law that, if an application was filed prior to the introduction of section 27A on and w.e.f.30.12.2017, as per the provisions of the Kerala Land Utilization Order, 1967, the application has to be considered under the provisions of the Land Utilization Order. However, quite contrary to the said settled law, the Revenue Divisional Officer has passed Ext.P2 impugned order invoking the powers conferred under section 27A. It was accordingly that the learned Single Judge interfered with the same and issued necessary directions for incorporating appropriate conditions in accordance with the Kerala Land Utilization Order. Therefore, we do not propose to interfere with the said finding rendered by the learned Single Judge since it is absolutely in favour of the appellant. 7. However, as pointed out above, appellant has a case that the 2[nd] and 3[rd] reliefs sought for by the appellant in the writ petition as to reassess the tax under section 6A of the Kerala Land Tax Act, 1961 and to make necessary additions in the Basic Tax Register were overlooked by the learned Single Judge. We find force in the said contention. 8. In that view of the matter, having evaluated the situation, we are of the considered opinion that, since the Revenue Divisional Officer has WA.No.1759 OF 2020 8 permitted utilization of the land for other purposes other than paddy cultivation and agricultural operations, appellant is entitled to get necessary additional entries in the Basic Tax Register in view of the judgment of the Division Bench of this Court in **LLMC Kizhakkambalam v. Mariyumma** [2015(2) KLT 516]. Therefore, on the appellant producing necessary orders from the Revenue Divisional Officer, incorporating necessary conditions as directed by the learned Single Judge, along with an application for making additional entry in the revenue records before the Revenue Authority with respect to the changed tenure of the land, it shall be considered and appropriate entries shall be made in the BTR and all other relevant records within two weeks from the date of production of the order. 9. Needless to say, if and when an application is submitted after utilising the land in accordance with the orders passed by the Revenue Divisional Officer and making necessary additional entries in the Basic Tax Register for assessment of the tax in accordance with the changed tenure, it shall be considered by the Authorities under the Kerala Land Tax Act, 1961 and pass appropriate orders fixing the tax, in accordance with law, within one month from the date of receipt of the application. In view of the above finding the writ appeal is allowed partly and there will be a direction to the respective statutory authorities to comply WA.No.1759 OF 2020 9 with the directions contained above. Sd/- **S.MANIKUMAR** **CHIEF JUSTICE** Sd/- smv **SHAJI P.CHALY JUDGE**