Padmakumar v. State of Kerala and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **THURSDAY, THE 20TH DAY OF AUGUST 2020 / 29TH SRAVANA, 1942** ## **WP(C).No.15982 OF 2020(W)** ## **PETITIONER:** **PADMAKUMAR, AGED 64 YEARS, S/O. SUKUMARAN NAIR, SINDOORAM, (CHOORAKKATT KIZHAKKETHIL), VALIYAKUZHAI MURI, CHEPPADU VILLAGE, ALAPPUZHA DISTRICT.** **BY ADV. SRI.N.L.BITTO** ## **RESPONDENTS:** - **1 STATE OF KERALA REPRESENTED BY SECRETARY TO THE REVENUE DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM PIN 691 001** - **2 THE DISTRICT COLLECTOR, ALAPPUZHA , ALAPPUZHA P.O, PIN 688 001** - **3 REVENUE DIVISIONAL OFFICER, CHENGANNUR P.O, CHENGANNUR PIN 689 121** - **4 LOCAL LEVEL MONITORING COMMITTEE REPRESENTED BY CONVENER, CHEPPADU VILLAGE OFFICE OF THE AGRICULTURAL OFFICER, CHEPPADU, PIN 690 507** - **5 TAHASILDAR, KARTHIKAPPALLY TALUK, TALUK OFFICE, KARTHIKAPPALLY ON 690 516** - **6 VILLAGE OFFICER, CHEPPADU VILLAGE, CHEPPADU P.O, ALAPPUZHA DISTRICT PIN 690 507** - **SRI.SAIGI JACOB PALATTY, SR.GOVT.PLEADER** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 20.08.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## ALEXANDER THOMAS, J. --------------------------------------- ## W.P. © No. 15982 of 2020 --------------------------------------Dated this the 20[th] day of August, 2020 ## J U D G M E N T The prayers in this Writ Petition (Civil) are as follows: “ - _i. To call for the records from second respondent pertaining to Exhibit P3 order and quash the same by a writ of certiorari or such other writ or direction as it is arbitrary and against Exhibit P1._ - _ii. To issue a writ of mandamus or any other writ or order or directions, directing the second respondent to reconsider the matter afresh and consider the Application under Section 6(2) of KLU as directed in exhibit P1 judgment within a time limit._ - _iii. To issue a writ of mandamus or any other writ or order or directions, directing the fourth respondent to expedite Corrections and entries in BTR in respect of property in resurvey no.161/8, Block No.13 of Cheppadu Village in BTR and records and to reassess the land tax, within a time limit that may fix by this Hon'ble Court on the basis of order of the District Collector._ - _iv. To mould and Issue such other orders and directions as this Hon'ble Court may deem fit in the circumstances.”_ 2. Heard Sri.N.L.Bitto, learned counsel appearing for the petitioner and Sri.Saigi Jacob Palatty, learned Senior Government Pleader appearing for the respondents. 3. The case of the petitioner is that, he had filed an application dated 26.5.2018 (referred to as Ext.P-11 in Ext.P-1 WP(C).No.1850/2017) before the 2[nd] respondent District Collector seeking the benefit of change of user of land in accordance with Rule 6(2) of the Kerala Land Utilization Order, 1967, (KLU Order) and he had also filed requisite application before the 4[th] respondent LLMC for exclusion of subject property from the Land W.P. © No. 15982/2020 ..3.. Data Bank, and the property was wrongly included in Land Data Bank though it was converted as garden land/purayidam prior to the coming into force of the State Act 28 of 2008. Thereafter the petitioner approached this Court by filing WP(C).No.1850/2017, which this Court had disposed of as per Ext.P-1 judgment on 8.6.2018 wherein it was held that the action on the part of respondent LLMC in including the subject property in Land Data Bank is not legally correct, and accordingly declared that the subject property is not either paddy land or wet land for the purpose of exclusion from Land Data Bank, and hence the respondent LLMC was directed to exclude the subject property from the Land Data Bank. Further it was also ordered in Ext.P-1 judgment that, the application filed by the petitioner (referred to as Ext.P-11 in Ext.P-1) seeking for permission for change of user of land in accordance with Rule 6(2) of the KLU Order, should be considered by the respondent District Collector and pass orders thereon, and it was further held that if he gets such orders of permission for change of user of land, the petitioner may approach the Tahsildar concerned for fresh assessment of property for alteration in the BTR in accordance with Section 6A of the Kerala Land Tax Act. W.P. © No. 15982/2020 ..4.. 4. Pursuant to the directions in Ext.P-1 judment, the respondent LLMC has passed Ext.P-2 proceedings dated 12.11.2018 ordering deletion of subject property from the land data bank. Further, the respondent District Collector has passed impugned Ext.P-3 order dated 24.12.2018 ordering that, since the abovesaid application dated 26.5.2018 (referred to as Ext.P-11 in Ext.P-1 WP(C).No.1850/2017) for change of user of land in accordance with Rule 6(2) of the KLU Order has been filed after the cut-off date of 30.12.2017, it is for the petitioner to approach the RDO seeking for orders under Section 27A(1) of the amended provisions of the Kerala Conservation of Paddy Land and Wet Land Act, 2008, etc. It is this order at Ext.P-3 dated 24.12.2018 that is under challenge in this WP(C). 5. Section 27A(13) of the Kerala Conservation of Paddy Land and Wet Land Act, 2008, reads as follows: _“Any application received for the change of nature of unnotified land from the date of commencement of the Kerala Conservation of Paddy Land and Wetland (Amendment) Act, 2018 shall be considered and disposed of only in accordance with the provisions of the Act.”_ 6. It is by now well settled by a series of rulings that in a case like this the party concerned has filed the requisite application under Rule 6(2) of the KLU Order before the cut-off date of W.P. © No. 15982/2020 ..5.. 30.12.2017 (date of coming into force of the amended provisions of the 2008 Act which has introduced Section 27A thereof), then even if orders have not been passed by the notified Collector on such application before 30.12.2017, still the said application so filed before the cut-off date has to be necessarily considered by the notified Collector, RDO etc strictly in terms of Rule 6(2) of the KLU Order, and in such a case none of the amended provisions contained in the 2008 Act which has introduced Section 27A thereof and the amended rules framed there under, can be pressed into service and the party need not pay any amounts as conceived as per the amended rules of the Act including Section 27A thereof, and the amended provisions thereof including Rule 12(9) or Rule 12(17) etc. ( _See_ _**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)]** etc.)_ 7. This aspect of the matter has also been dealt with by this Court in _**Fr.Jose Upani v. District Collector [2020 (3) KLT 492]**_ that recently it has come to the notice of this Court in various W.P. © No. 15982/2020 ..6.. cases that revenue officials are consistently acting in derogation of the well settled legal principles laid down by this Court in the matter of exercise of discretion where applications under Rule 6(2) of the KLU Order has been filed before the cut-off date of 30.12.2017, and that in spite of the well settled legal position the competent officials are demanding that even in cases where the party has filed the requisite Rule 6(2) application before the cut-off date of 30.12.2017, that they will have to pay the amounts as conceived as per the provisions of the 2008 Act including Section 27A thereof, and the amended rules framed there under, and the said impugned action of the revenue officials have been held by this Court as highly illegal and ultra vires, and it would also lead to defiance of the rule of law and constitutionalism, if not checked properly. 8. In the instant case, it is admitted by none other than the petitioner that the said application has been filed by him only on 26.5.2018, which is after the vital cut off date of 30.12.2017. Hence, the stand taken by the 2[nd] respondent District Collector in Ext.P-3 order cannot be faulted in any manner, and the same will not require any interference at the hands of this Court. 9. Sri.Saigi Jacob Palatty, learned Senior Government W.P. © No. 15982/2020 ..7.. Pleader would submit that he has been instructed to submit by the respondent RDO that after the issuance of Ext.P-3 order dated 24.12.2018, the petitioner has infact filed the requisite application in form No.7 seeking the benefit of orders under Section 27A(1) of the amended provisions of the 2008 Act and the rules framed there under, and after consideration the 3[rd] respondent has also passed a proceedings and has directed the petitioner to pay the requisite fee in terms of Section 27A(3) read with Rule 12(9) of the Rules, and that the petitioner has not so far remitted the said fee. 10. This Court need not examine those issues as the subject matter of this writ petition is only regarding the legality and correctness of impugned Ext.P-3 order. The prayer sought for by the petitioner cannot be granted. However, liberty is accorded to the petitioner to work out his remedies in the manner known to law. With these observations and directions, the above Writ Petition (Civil) will stand dismissed. Sd/- ALEXANDER THOMAS, JUDGE MMG W.P. © No. 15982/2020 ..8.. ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **EXHIBIT P1 THE COPY OF JUDGMENT DATED 8.6.2018 IN WP(C) 1850/2017 EXHIBIT P2 THE COPY OF ORDER OF THE AGRICULTURAL OFFICER, CHEPPADU DATED 12-11-2018** **EXHIBIT P3** **THE COPY OF ORDER OF THE SECOND RESPONDENT DATED 24-12-2018**