P.K. Joseph v. State of Kerala and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **WEDNESDAY, THE 04TH DAY OF MARCH 2020 / 14TH PHALGUNA, 1941** ## **WP(C).No.6579 OF 2020(V)** ## **PETITIONER:** **P.K.JOSEPH,AGED 78 YEARS S/O. KURIAKOSE, PUTHUPARA VEETIL, KIDANGOOR P.O., ERNAKULAM DISTRICT** **BY ADVS. SRI.PRAVEEN K. JOY SRI.E.S.SANEEJ SRI.M.P.UNNIKRISHNAN SMT.M.K.SAMYUKTHA SRI.N.ABHILASH SMT.M.R.ESHRATH BAI SMT.BEENA JOSEPH SMT.SREELEKHA. P SHRI.DEEPU RAJAGOPAL** ## **RESPONDENTS:** **1 STATE OF KERALA, REP BY PRINCIPAL SECRETARY,AGRICULTURAL DEPARTMENT, SECRETARIAT, TRIVANDRUM -695 001** **2 LAND REVENUE COMMISSIONER, TRIVANDRUM-695 033 3 THE DISTRICT COLLECTOR, ALAPPUZHA -688 001 4 REVENUE DIVISIONAL OFFICER, ALAPPUZHA-688 013 5 THE TAHSILDAR, KARTHIKAPALY, ALAPPUZHA DISTRICT-690 516 6 THE VILLAGE OFFICER, KALAVOOR VILLAGE, ALAPPUZHA DISTRICT-688 522** ## **OTHER PRESENT:** **SRI.K.J.MANU RAJ, GOVT.PLEADER** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 04.03.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** W.P.(C)No.6579/2020 2 # **ALEXANDER THOMAS, J.** ------------------------------------------- W.P.(C)No.6579 of 2020 ---------------------------------------------Dated this the 4[th] day of March, 2020 ## **JUDGMENT** The prayers in the above Writ Petition (Civil) are as follows:- _“A. To call for the records leading to issuance of Ext.P9, Ext.P7 orders and to set aside the same, in the interest of justice._ _B. To issue writ, order or direction in the nature of mandamus directing the 1[st] respondent to take up the matter as per Ext.P10 and to conclude the proceedings and thereby declare that property in Sy. No.240/1, 240/4-2, 240/6, 240/5-8, 240/4, 240/1, 240/7-2 and 240/9 in Block No.1 of Kalavorr Village, as 'land could be utilized for other purpose' with building, within a time limit, in tune with dictum in 2019(4) KHC 400 and to stay the further proceeding under Ext.P7 and Ext.P9 orders, in the interest of justice.”_ 2. The case of the petitioner is that the subject property has been converted as garden land or purayidom long prior to coming into force of the Kerala Conservation of the Paddy Land and Wet Land Act, 2008. Further that in Ext.P1 judgment dated 18.9.2015, this Court had directed that it is for the petitioner to file appropriate application under Rule 6(2) of the KLU Order, 1967 for formal orders in the matter of conversion of the subject property as purayidom or garden land to enable its use for any non agricultural purposes and the petitioner was given liberty to file such application immediately. That thereupon the petitioner has filed Ext.P5 application before the 3[rd] respondent District W.P.(C)No.6579/2020 3 Collector. The 3[rd] respondent District Collector had called for a report from the 4[th] respondent RDO, who has submitted Ext.P6 report dated 18.1.2016 stating that subject property has been converted much prior to coming into force of 2008 Act and that a commercial structure has been raised therein and the subject property is thus being used for commercial purpose and therefore, the discretionary powers under Rule 6(2) of the KLU Order need not be invoked in favour of the petitioner herein. Thereafter, the 3[rd] respondent District Collector has passed the impugned Ext.P7 order dated 5.2.2015 and that a commercial structure has been raised in the subject property and the subject property has been used as godown for the commercial purpose of the sale of granite and that the building is having Panchayath number etc. and further that the plea of the petitioner as per Ext.P5 application under Rule 6(2) of the KLU Order could be granted. The 3[rd] respondent District Collector has passed the impugned Ext.P7 order dated 5.2.2015 rejecting the plea of the petitioner as per Ext.P5 on the ground that it is not right and proper to give permission under Rule 6(2) for use of the subject property for commercial purpose. Thereupon the petitioner has filed Ext.P8 appeal before the 2[nd] respondent Commissioner for Land Revenue which has been rejected as per Ext.P9 order. Against Ext.P9 order, the petitioner has preferred Ext.P10 revision petition before the 1[st] respondent State Government. It has been now established by a series of rulings of this W.P.(C)No.6579/2020 4 Court as in _**Renji K. Paul and another**_ v. _**Revenue Divisional Officer**_ [2019 (2) KLT 262], _**Geo Peter**_ v. _**Revenue Divisional Officer**_ [2019 (3) KLT 262], _**Salim**_ v. _**State of Kerala**_ [2019 (3) Klt 604 (DB)], _**Tahsildar, Thodupuzha Taluk and another**_ v. _**Renjith George**_ [2020 (1) KHC 865]etc., that in a case where the subject property has been converted as garden land/purayidom prior to coming into force of the 2008 Act and where Rule 6(2) application under the Kerala Land Utilisation Order, 1967 has been submitted prior to 30.12.2017 (prior to coming into force of 2018 amendments to the 2008 Act), then the case of the applicant therein/property holder is to be considered strictly as per the provisions contained in Rule 6(2) of the Kerala Land Utilisation Order, 1967 and in which case none of the adverse or detrimental conditions flowing out from the amended provisions of the 2008 Act or the amended provisions of the Rules framed thereunder can be invoked or pressed into service as against the property holder. 3. It is beyond any factual controversy, the petitioner has filed Ext.P5 application immediately after Ext.P1 judgment dated 18.9.2015. Ext.P5 application has been recommended by the 4[th] respondent as can be seen from Ext.P6 report dated 18.1.2016. The 3[rd] respondent District Collector has rejected Ext.P5 petition as per Ext.P7 order solely on the ground that such permission under Rule 6(2) of the KLU Order cannot be granted for use of the subject property for W.P.(C)No.6579/2020 5 commercial purpose. In this regard, it is relevant to note that the date of Ext.P7 proceedings is shown as 5.2.2015, it could only be a mistake as even Ext.P6 report is seen filed on 18.1.2016 and so it appears that the correct date of Ext.P7 may be 5.2.2016. It is by now well settled by a series of rulings of this Court as in _**Sivadasan**_ v. _**Revenue Divisional Officer**_ [2017 (3) KLT 822] and _**Shahul Hameed**_ v. _**Principal Secretary, Local Self Government**_ [2018 (1) KLT 1008 (DB)] that the plea for permission under Rule 6(2) of the KLU Order cannot be rejected on the ground that the property is intended to be used for commercial purpose and that permission could be granted for use of the subject property for any non-agricultural purposes. Therefore, the impugned rejection as per Ext.P7 order is vitiated by illegality and unreasonableness and it is only be rescinded. Accordingly, Ext.P7 order will stand set aside. Ordinarily an application filed under Rule 6(2) of the KLU Order is to be considered at the first instance by the 4[th] respondent RDO who has also notified to exercise all the original powers of the Collector. In view of the setting aside of the impugned Ext.P7 order, it is ordered that the impugned Ext.P9 order will also stand set aside. In the nature of the orders proposed to be passed in this case, it is ordered that further consideration of Ext.P10 revision petition is unnecessary. It is by now well settled where the application under Rule 6(2)of the KLU Order,1967 has been filed by the property owner before 30.12.2017 (date of coming W.P.(C)No.6579/2020 6 into force of the amended provisions of the 2008 Act), then the said application is to be considered strictly in terms of Rule 6(2) of the KLU Order and in such a case the rigorous provisions contained in the amended provisions of the Act introducing Section 27A thereof, then the said application is to be considered strictly in terms of the provisions of Rule 6(2)of the KLU Order and in such a case the rigorous provisions contained in the amended provisions of the 2008 Act introducing Section 27A thereof, cannot be pressed into service against the property owner concerned. In this case, it is beyond any dispute that Ext.P7 application has been filed much prior to 30.12.2017 as even the impugned Ext.P7 rejection order was passed on 5.2.2016. Hence, it is ordered in the interest of justice that Ext.P5 application will stand remitted to the 4[th] respondent Revenue Divisional Officer for consideration and decision afresh. Since Ext.P5 earlier filed before the 3[rd] respondent District Collector to avoid any further delay, it is ordered that copy of Ext.P5 application as produced in the W.P.(C) shall be treated by the 4[th] respondent Revenue Divisional Officer as the application filed under Rule 6(2) before him. The learned Government Pleader will ensure that an attested copy of Ext.P5 application as produced in this Writ Petition along with certified copy of this judgment shall be forwarded to the 4[th] respondent Revenue Divisional Officer and thereupon the 4[th] respondent Revenue Divisional Officer will treat the said material as Ext.P5 W.P.(C)No.6579/2020 7 application filed under Rule 6(2) of the KLU Order, 1967. The 4[th] respondent will then take up the matter in Ext.P5 for consideration and after following requisite procedure and after affording reasonable opportunity of being heard to the petitioner , will render a considered decision on the plea made in Ext.P5 for conversion of the subject property as garden land or purayidom and for its use for any non-agricultural purposes, without much delay, preferably within a period of two months from the date of production of a certified copy of this judgment. 4. It is made clear that the plea in Ext.P5 application cannot be rejected on the ground that the subject property has been used for any commercial purposes. After the petitioner obtains favorable orders on Ext.P5 under Rule 6(2) of the KLU Order, the petitioner will be further at liberty to file appropriate application under Rule 6A of the Kerala Land Tax Act, 1961 before the 5[th] respondent Tahsildar seeking fresh assessment of the subject property for making additional entries in the BTR to show the said property as garden land or purayidom instead of the earlier BTR entries as Nilam or land. This the petitioner may do within two weeks after obtaining orders from the 4[th] respondent on Ext.P5, under Rule 6(2) of the KLU Order. In that contingency, the 5[th] respondent Tahsildar will consider the said plea and after affording reasonable opportunity of being heard to the petitioner, should render a considered decision thereof. It has also been held in the aforecited recent W.P.(C)No.6579/2020 8 judgment of the Division Bench of this Court in _**Renjith's case (supra)**_ that in such a case where the subject property has been converted prior to coming into force of the 2008 Act and the application under Rule 6(2) of the KLU Order has been preferred before 30.12.2017, then after getting such orders under Rule 6(2) for permission for conversion of the land as a purayidom/ garden land, the applicant will also be entitled to maintain a request under Section 6A of the Kerala Land Tax before the Tahsildar concerned in order to ensure that additional entries are made in the Basic Tax Register (BTR) for showing the nature of the land as purayidom/garden land instead of the previous entry as Nilam/Paddy land, going by the dictum laid down by the dictum laid down by the Division Bench of this Court in the case in _**LLMC, Kizhakkambalam Grama Panchayath and others**_ v. _**Mariumma and another**_ [2015(2) KLT 516 (DB)]. In other words, the petitioner cannot be compelled by the respondents to pay the amounts as per the provisions of Sec.27A and the amended rules framed under the amended 2008 Act. With these observations and directions, the above Writ Petition (Civil) will stand finally disposed of. Sd/- ## **ALEXANDER THOMAS, JUDGE.** acd W.P.(C)No.6579/2020 9 ## **APPENDIX** **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 THE TRUE COPY OF THE JUDGMENT IN WPC 28417/2015 DATED 18.09.2015** **EXHIBIT P2 THE TRUE PHOTOCOPY OF THE BUILDING TAX RECEIPT NO. B 4434917 DATED 01.04.2015 FOR BUILDING WITH NO IV/499 OF MARARIKULAM SOUTH PANCHAYAT** - **EXHIBIT P3 THE TRUE PHOTOCOPY OF THE BUILDING TAX RECEIPT NO,B44434918 DATED 01.04.2015 FOR BUILDING WITH NO. IV/500 OF MARARIKULAM SOUTH PANCHAYATH** **EXHIBIT P4 THE TRUE PHOTOCOPY OF THE BUILDING TAX RECEIPT NO.B4434920 DATED 01.04.2015 FOR BUILDING WITH NO.IV/500A OF MARARIKULAM SOUTH PANCHAYATH** **EXHIBIT P5 THE TRUE COPY OF THE APPLICATION BEFORE THE 3RD RESPONDENT EXHIBIT P6 THE TRUE PHOTOCOPY OF THE REPORT OF SUB COLLECTOR, ALAPPUZHA DATED 18.1.2016 EXHIBIT P7 THE TRUE PHOTOCOPY OF THE ORDER DATED 05.02.2015 OF THE 3RD RESPONDENT EXHIBIT P8 THE TRUE COPY OF THE APPEAL MEMORANDUM EXHIBIT P9 THE TRUE COPY OF THE ORDER DATED 07.12.2018 OF THE 2ND RESPONDENT EXHIBIT P10 THE TRUE COPY OF THE REVISION UNDER SECTION 14 BEFORE THE 1ST RESPONDENT EXHIBIT P11 THE TRUE COPY OF THE REMINDER LETTER DATED 26.02.2020**