Paul Thomas v. State of Kerala (WP(C).No.9018 of 2020)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **FRIDAY, THE 20TH DAY OF MARCH 2020 / 30TH PHALGUNA, 1941** ## **WP(C).No.9018 OF 2020** ## **PETITIONER:** ## **PAUL THOMAS** **AGED 35, S/O. N. P. THOMAS, NADACKAL HOUSE, KOTTAMURI, PADINJATTUMBHAGOM, ATHIRAMPUZHA, KOTTAYAM, REP. BY POWER OF ATTORNEY HOLDER N. P. THOMAS, AGED 62, S/O. N. T. PAUL, NADACKAL HOUSE, KOTTAMURI, PADINJATTUMBHAGOM, ATHIRAMPUZHA P.O., KOTTAYAM DISTRICT, MOB. 9847054600** **BY ADVS.** **SRI.V.RAJENDRAN (PERUMBAVOOR) SRI.GEORGE VARGHESE KIZHAKKAMBALAM SRI.N.RAJESH SHRI.GOPAKUMAR P.** ## **RESPONDENTS:** - **1 STATE OF KERALA REPRESENTED BY SECRETARY TO GOVERNMENT, REVENUE DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM - 695 001.** - **2 LAND REVENUE COMMISSIONER THIRUVANANTHAPURAM, PUBLIC OFFICE, MUSEUM P. O., THIRUVANANTHAPURAM - 695 033.** - **3 REVENUE DIVISIONAL OFFICER KOTTAYAM, CIVIL STATION, UNION CLUB ROAD, KOTTAYAM - 686 001.** - **4 VILLAGE OFFICER THIRUVARPU VILLAGE, THIRUVARP, KOTTAYAM - 686 001.** - **5 AGRICULTURAL OFFICER CONVENOR LOCAL LEVEL MONITORING COMMITTEE, THIRUVARPU, KOTTAYAM - 686 001.** **BY ADV. SRI.K.J.MOHAMMED ANZAR, SPL.GP(REVENUE)** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 20.03.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** WP(C).No.9018 OF 2020 2 ## **ALEXANDER THOMAS, J.** ------------------------------------------W.P.(C)No.9018 of 2020 ---------------------------------------------Dated this the 20[th] day of March, 2020 ## **JUDGMENT** The case set up in this Writ Petition (Civil) is as follows:Petitioner herein filed Exhibit P8 petition before the 3rd respondent under Clause 6(2) of KLU Order for permission to use Exhibit P2 properties for other purposes. The properties are converted before more than 60 years and there are good old trees and other improvements in the property. It is not fit for paddy cultivation and could not be used for cultivation. The properties lying abutting to the properties are also corrected properties. However, ignoring the teal state of affairs and nature of the property, the 3rd respondent rejected the application of the petitioner vide Exhibit P9 order. The petitioner filed an appeal before the 2[nd] respondent from Exhibit P9 order. But 2nd respondent ignoring the settled legal positions declined to interfere with the order and dismissal the appeal vide Exhibit P12 order. The petitioner being aggrieved by Exhibit P9 andP12 orders is filing the writ petition under Article 226 of the WP(C).No.9018 OF 2020 3 Constitution of India seeking to quash the orders and issuing appropriate directions to the 3 rd respondent to re consider and pass fresh orders taking into consideration of the directions of the Hon'ble Court in similarly situated cases. 2. It is in the light of the above factual averments and contentions that the petitioner has filed instant Writ Petition (Civil) with the following prayers:- _i) To call for the records leading to Exhibit P12 order of 2[nd] respondent and quash the order by issuing a writ of certiorari._ _ii) To call for the records leading to Exhibit P9 of 3[rd] respondent and quash the order by issuing a writ of certiorari._ _iii) To issue a writ of mandamus or any other appropriate writ, order or direction, directing the 3[rd] respondent to re-consider Exhibit P8 petition of the petitioner filed under clause 6(2) of the KLU Order and allow the same taking into consideration of Exhibit P4 and P5 reports and by permitting the petitioner to use his property (Exhibit P2) property for any purpose other than paddy cultivation._ _iv) To grant such other reliefs as are prayed for in the circumstances of the case.”_ 3. Heard Sri.V. Rajendran, learned counsel appearing for the petitioner and Sri. K.J. Mohammed Anzar, learned Special Government Pleader (Revenue) for the respondents. 4. In the instant case, according to the petitioner, the subject property has been converted as garden land/purayidom about more than 60 years ago and the subject property has also been deleted from the land data Bank prepared as per the WP(C).No.9018 OF 2020 4 provisions of the Kerala Conservation of Paddy Land and Wetland Act, 2008, by the proceedings of the statutory Local Level Monitoring Committee. Further, that the petitioner had submitted Exhibit-P8 application under Rule 6(2) of the Kerala Land Utilisation Order, before the 3[rd] respondent-Revenue Divisional Officer, on 31.10.2013 seeking order/permission to convert the subject property into garden land/purayidom and for purposes other than paddy cultivation as conceived in statutory provisions. The 3[rd] respondent-Revenue Divisional Officer has rejected the said request in Exhibit-P8 application dated 31.10.2013 as per the impugned Exhibit-P9 order dated 16.9.2014, which according to the petitioner, is based on untenable and unsustainable grounds and without taking into account the crucial and relevant aspects in the matter, etc. Further the said impugned Exhibit-P9 order has been confirmed by the impugned Exhibit-P12 Appellate Order passed by the 2[nd] respondentCommissioner for Land Revenue, which according to the petitioner is also be issued by taking into account the untenable grounds, etc. 5. After hearing both sides, it appears that the crucial and relevant aspects have not been taken into consideration in its WP(C).No.9018 OF 2020 5 correct perspective both by the 3[rd] respondent-Revenue Divisional Officer as well as by the 2[nd] respondent-Commissioner for Land Revenue, while rendering the impugned decisions as per ExhibitP9 as well as Exhibit-P12 appellate order. (a) A reading of Exhibit-P4 and P5 would indicate that it is found therein that the land is not fit or suitable for cultivation of paddy. Exhibit-P4 report of the Environmental Officer would clearly show that the subject property was converted as garden land/purayidom at least by 1970 or so. Exhibit-P5 report of the Village Officer would further show that the subject property has been converted as garden land/purayidom more than 60 years ago and that there are trees which are aged more than 50 years in the said property. (b) Exhibit-P7 fair value notification would show that the subject property is a residential plot with National Highway and State Public Works Department road access, etc. But none of this crucial aspects has not been duly taken into consideration both by the 3[rd] respondent-Revenue Divisional Officer as well as by 2[nd] respondent-Land Revenue Commissioner (Appellate Authority) while rendering the impugned Exhibit-P9 decision. Further which made to approach them to the 3[rd] respondent -Revenue WP(C).No.9018 OF 2020 6 Divisional Officer is that all what is conferred on the authority as per Rule 6(2) of the Kerala Land Utilisation Order is only a discretionary power and that even if all the conditions are attracted, it does not necessarily mean that the statutory authority should necessarily exercise discretion in favour of the party, etc. 6. In this regard, the learned counsel appearing for petitioner would submit that such an approach is an anathema to our rule of law based system inasmuch as those aspects could only be those of the bygone feudal era and is not relevant or apposite at a time when we are governed by a constitutional based rule of law mechanism. There is force in the above submission of the counsel for the petitioner. 7. One of the main grounds relied on against the petitioner in the impugned Exhibit-P12 Appellate Order is by placing reliance on a circular said to have been issued by the State government in the year 2002. It is beyond any dispute that the validity and correctness of the said circular has already been duly considered by this Court and set aside and rescinded in the decision in _**Puthenpurackal Joseph v. Sub Collector**_ [2015(3) KLT 182] which has also been relied on by this Court in a series of subsequent decisions as in _**Shivadasan M.K. &**_ WP(C).No.9018 OF 2020 7 _**Others Vs. Revenue Divisional Officer & Others**_ [2017(4) KHC 191]. Further it is also well settled by rulings of this Court as in **Shivadasan's** case (supra) that the statutory Authorities like Revenue Divisional Officer and Sub Collector cannot restrict as to what use should be given to the land after such orders are passed under Rule 6(2) and that the property holder as well as the extent of the property and further that once orders are required under Rule 6(2), the property holder has to decide as to for what purpose he will have to use the land, subject, of course, to the limitations of other ordinary laws. But that none of the provisions of Rule 6(2) Kerala Land Utilisation Order would empower the statutory Officer like the Revenue Divisional Officer and the District Collector to stipulate that he would give permission under Rule 6(2) only if the property holder for any specific purpose designated by that officer. 8. After hearing both sides, this Court is of the considered view that the matter requires legal interdiction by way of judicial review at the hands of this Court. Ordinarily, this Court would have seriously thought that of exercising the prerogative powers of issuing a writ of mandamus. 9. However, Sri.K.J. Mohammed Ansar, learned Special WP(C).No.9018 OF 2020 8 Government Pleader (Revenue) would point out that in case this Court intends to interfere in the matter, then the matter may only be remitted to the statutory officer like the 3[rd] respondent and that necessary instructions will be given to the statutory officer concerned, to ensure that orders are passed strictly in accordance with law and in the light of the judicial dicta well settled by this Court, etc. 10. Accordingly, this Court is of the view that the matter could be remitted to the 3[rd] respondent Revenue Divisional Officer for consideration of the matter. In that view of the matter impugned Exhibits-P9 and P12 orders will stand set aside and consequently the applications which are submitted by the petitioner as per Exhibit-P8 under Rule 6(2) of the Kerala Land Utilisation Order will stand remitted to the 3[rd] respondent Revenue Divisional Officer for consideration of the matter afresh. 11. In this regard, this Court is constrained to observe that very many cases have come to the knowledge of this Court wherein the statutory officer would insist that if Rule 6(2) orders are to be issued by him after 30.12.2017 (the date of coming into force of the amended provisions of 2008 Act), then the party concerned shall pay the higher amounts prescribed as per the amended provisions of 2008 Act. By now, it is well settled by WP(C).No.9018 OF 2020 9 series of decisions by this Court that where the subject property has been converted prior to 12.08.2008 (the date of coming into force of 2008 Act) and where the party concerned has filed the requisite application under Rule 6(2) of the Kerala Land Utilisation Order before 30.12.2017 (the date of coming into force of the amended provisions of 2008 Act), then the party concerned is legally entitled to get his request considered strictly in terms of the provisions contained in Rule 6(2) of the Kerala Land Utilisation Order. In such a case the statutory officer cannot compel the party to pay any amount conceded as per the amended provisions of the 2008 Act including Section 27A thereof and rules prescribed thereunder. 12. It is by now well settled by a series of ruling 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)] that in a case where the subject property has been converted prior to coming into force of the 2008 Act and where the requisite application under Rule 6(2) of the Kerala Land Utilization Order, 1967 has been submitted by the party concerned before 30.12.2017 (date of coming into force of the WP(C).No.9018 OF 2020 10 amended provisions of the 2008 Act) introducing Sec.27A thereof, etc., then none of the detrimental and adverse conditions flowing out from the said amended provisions can be pressed into service as against the party concerned and the third respondentRDO is statutorily obliged to consider the said plea for conversion on the basis of the provisions contained in Rule 6(2) of the Kerala Land Utilization Order, 1967. This aspect of the matter has also been reiterated by a recent judgment of the Division Bench of this Court in _**Thasildar, Thodupuzha Taluk and another v. Renjith George**_ [2020 (1) KHC 865 (DB)] that in a case where the subject property has been converted prior to the coming into force of the 2008 Act and where Rule 6(2) application under the Kerala Land Utilization Order, 1967 has been submitted before 30.12.2017, then the said plea of the party has to be considered in terms of the provisions contained in Rule 6(2) of the Kerala Land Utilization Order and that none of the adverse provisions contained in the amended provisions of the 2008 Act can be pressed into service as against such a party. Moreover, the Division Bench has also reiterated in **Renjith’s case** (supra) [2020 (1) KHC 865 (DB)] that in respect of such a property, the party is also legally entitled to maintain an application Sec.6A of WP(C).No.9018 OF 2020 11 the Kerala Land Tax Act for re-assessment of the subject property, so as to make additional entries in the Basic Tax Register to show the classification of the land as purayidam or garden land, instead of the earlier BTR entries as paddy land or Nilam, as the case may be, in view of the earlier dictum laid down by another Division Bench of this Court in _**LLMC, Kizhakkambalam Grama Panchayath and others v. Mariumma and another**_ [2015 (2) KLT 516 (DB)]. 13. Still further, a Division Bench of this Court has also held in the afore cited decisions as in **Mariumma's case** (supra) **Renjit's case** (supra) that in such a case where the party secures orders under Rule 6(2) of the Kerala Land Utilisation Order thereafter he is equally entitled to maintain the consequential application under Section 6 A of the Kerala Land Tax Act for fresh assessment/re-assessment of the subject property and for getting additional entries in the BTR to correctly show the description of the property as garden land/purayidom which, in the BTR entries, shown as 'Nilam' or paddy land. In such a case, where the party has filed the requisite application under Rule 6(2) of the Kerala Land Utilisation Order before 30.12.2017, then the party cannot be compelled by the revenue officers to pay the amounts upto the WP(C).No.9018 OF 2020 12 amended provisions of 2008 and the and the Rules thereunder for getting such orders under Section 6 A of the Kerala Land Tax Act. 14. Accordingly it is ordered that the 3[rd] respondentRevenue Divisional Officer will immediately take up the matter for consideration the matter raised in Exhibibt-P8 application under Rule 6(2) of the Kerala Land Utilisation Order dated 31.10.2013 and after affording a reasonable opportunity of being heard to the petitioner and after due regard to the aforesaid reports of the various officers already submitted in the matter, more particularly that of respondents 4 and 5 and after affording a reasonable opportunity of being heard to the petitioner through the authorized representative or counsel, if any, should pass an order on the request of the petitioner for such conversion as conceded under Rule 6(2) of the Kerala Land Utilisation Order, without much delay, preferably within a period of two months from the date of production of a certified copy of this judgment. 15. It is hoped and expected that the 3[rd] respondentRevenue Divisional Officer will exercise the discretion in a fair, just and pragmatic manner and also taking into account the ground realities regarding the subject property as mentioned in the various reports given above. Further it is also ordered that the WP(C).No.9018 OF 2020 13 3[rd] respondent has no jurisdiction to compel the petitioner to pay any amounts as per the amended provisions 0f 2008 Act and Rules framed thereunder, as he had submitted Exhibit-P8 application under Rule 6(2) of the Kerala Land Utilisation Order on 31.10.2013, much before the cut off date of 30.12.2017. 16. After securing orders under Rule 6(2) of the Kerala Land Utilisation Order, the petitioner is well entitled, petitioner may then file appropriate application before the Tahsildar concerned under Section 6 A of the Kerala Land Tax Act, seeking fresh assessment/re-assessment of the subject property for securing additional entries in the BTR and to correctly show the nature of the property as garden land/purayidom instead of the earlier entries in the BTR as 'Nilam' or 'paddy land', which, then shall be considered by the said Revenue Officer strictly in the light of the dictum laid down by the Division Bench of this Court as in **Mariumma's** case (supra) and **Renjith's** case (supra) and affording a reasonable opportunity of hearing to the petitioner, within a period of one month from the date of submission of the said application along with a copy of the proceedings under Rule 6 (2) of the Kerala Land Utilisation Order, as above stated. Needless to say, at the risk of the reiteration, it is again ordered WP(C).No.9018 OF 2020 14 that even in such a scenario the Tahsildar cannot compel the petitioner to pay any amounts as per the amended provisions of the 2008 Act and Rules framed thereunder in view of the afore stated reasons. With these observations and directions, the above Writ Petition (Civil) will stand finally disposed of. ## **Sd/-** **ALEXANDER THOMAS, JUDGE** Skk//24032020 WP(C).No.9018 OF 2020 15 ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF REGISTERED POWER OF ATTORNEY EXECUTED BY THE PETITIONER ON 25.02.2012, AS 57/IV/12 OF KOTTAYAM SRO.** **EXHIBIT P2 TRUE COPY OF SALE DEED NO.130 DATED 13.1.06 OF KOTTAYAM SRO. EXHIBIT P3 TRUE COPY OF RELEVANT PAGE OF THE DRAFT DATA BANK PREPARED BY LOCAL LEVEL MONITORING COMMITTEE, THIRUVARP EXHIBIT P4 TRUE COPY OF REPORT OF THE 5TH RESPONDENT DATED 19.12.12.** **EXHIBIT P5 TRUE COPY OF REPORT OF THE 4TH RESPONDENT DATED 18.12.12 BEARING NO.245/12.** - **EXHIBIT P6 3 PHOTOGRAPHS SHOWING THE NATURE OF THE PROPERTY OF THE PETITIONER.** - **EXHIBIT P7 TRUE COPY OF RELEVANT PAGES OF FAIR VALUE REGISTER SHOWING THE FAIR VALUE OF THE PROPERTY OF THE PETITIONER.** - **EXHIBIT P8 TRUE COPY OF PETITION FILED BY THE PETITIONER BEFORE THE 3RD RESPONDENT UNDER CLAUSE 6(2) OF THE KLU ORDER DATED 31.10.13.** - **EXHIBIT P9 TRUE COPY OF ORDER NO.B6442/13 DATED 16.9.14 PASSED BY THE 3RD RESPONDENT.** - **EXHIBIT P10 TRUE COPY OF APPEAL FILED BY THE PETITIONER BEFORE THE 2ND RESPONDENT ON 4.7.18.** - **EXHIBIT P11 TRUE COPY OF JUDGMENT OF THIS HON'BLE COURT IN W.P.(C) 32860/14 DATED 15.10.18.** - **EXHIBIT P12 TRUE COPY OF ORDER OF 2ND RESPONDENT BEARING NO. LRA(4) 34974/18 DATED 31.12.19.** WP(C).No.9018 OF 2020 16 **EXHIBIT P13 TRUE COPY OF ORDER OF 3RD RESPONDENT BEARING NO. B.6443/13 DATED 5.1.15.** ## **RESPONDENTS' EXHIBITS: NIL**