P.K. Prakash and Usha Kumari v. State of Kerala and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MRS. JUSTICE SHOBA ANNAMMA EAPEN WEDNESDAY, THE 8[TH] DAY OF JUNE 2022 / 18TH JYAISHTA, 1944** ## **WP(C) NO. 11011 OF 2019** ## **PETITIONERS:** - 1 P.K.PRAKASH AGED 58 YEARS S/O.KARUNAKARAN, PULIMOOTTIL HOUSE, NO.36/566, PANAMPILLY NAGAR, KADAVANTHARA, ERNAKULAM-682 020. - 2 SMT.USHAKUMARI, AGED 53 YEARS PULIMOOTTIL HOUSE, NO.36/566, PANAMPILLY NAGAR, KADAVANTHARA, ERNAKULAM-682 020. BY ADV V.RAMKUMAR NAMBIAR ## **RESPONDENTS:** - 1 STATE OF KERALA REPRESENTED BY SECRETARY, REVENUE DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695 023. - 2 THE TAHASILDAR, KANAYANNUR TALUK, ERNAKULAM-682 011. - 3 THE SECRETARY, TRIPUNITHURA MUNICIPALITY, ERNAKULAM-682 301. - *ADDL.R4 THE TAHSILDAR (L.R.), KANAYANNUR TALUK, ERNAKULAM BY ADV SRI.C.V.MANUVILSAN *Addl.R4 is suo motu impleaded as per order dated 8.6.2022 in W.P(C) NO.11011/2019. ## **OTHER PRESENT:** SMT.PRINCY XAVIER -G.P THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 08.06.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C)No.11011 of 2019 :-2-: **==> picture [352 x 12] intentionally omitted <==** This writ petition is filed challenging Ext.P3 order dated 15.2.2019 passed by the second respondent directing the petitioners to submit application before the Revenue Divisional Officer under Section 27A of the Kerala Conservation of Paddy Land and Wetland Act, 2008 (hereinafter referred to as 'the Act'), which is an erroneous direction. ## 2. The case set up in the writ petition is as follows:- The writ petitioners are co-owners in possession of 1 acre 49 cents made up of 9.32 Ares in old Sy.Nos.265 and 49/2, 9.31 Ares in R.S.No.49/3, 9.71 Ares in R.S.No.49/4, 9.31 Ares in R.S.No.49/5, 9.33 Ares in R.S.No.49/6, 9.32 Ares in R.S.No.49/7, 2.38 Ares in R.S.No.49/9 and 2.04 Ares in R.S.No.49/9 of Thekkumbhagam Village, Kanayannur Taluk, Ernakulam District, obtained as per Sale Deed Nos.2010/11, 2011/11, 2012/11, 2118/11, 2119/11, 2120/11, 2353/11 and 2354/11 of S.R.O.,Thripunithura. The said properties are lying as one plot as reclaimed land with trees, which are more than 40 years old and is a dry land with direct road access with a building therein even before the promulgation of the Act. Therefore, by virtue of the enabling provisions contained under Clause 6(2) of the Kerala Land Utilisation WP(C)No.11011 of 2019 :-3-: Order, 1967 (hereinafter referred to as 'the KLU Order'), the writ petitioners sought permission for conversion of the land for other purposes. As per Ext.P1 order dated 21.07.2015, the District Collector has permitted to utilise the property under the KLU Order. Thereafter, in the revenue records, the class of the land was shown as “converted dry land more than 10 years back”. The petitioners submitted an application dated 27.12.2018 before the second respondent for changing the class of land in the revenue records to 'purayidam'. Since the application filed by the petitioners was not considered, they approached this Court by filing W.P(C) No.312/2019 and this Court disposed of the writ petition directing the second respondent to finalise the application filed by the petitioners in accordance with the stipulations contained under Section 27C of the Act as amended by Act 2018 within a period of one month from the date of receipt of a copy of the judgment and it was further directed that if any application for building permit was submitted by the petitioners, the same shall be considered in accordance with law by the Secretary, Thripunithura Municipality taking into account Ext.P1 order of the District Collector and also any order passed by the second respondent. The petitioners submit WP(C)No.11011 of 2019 :-4-: that the second respondent, instead of complying with the judgment of this Court, passed Ext P3 order with a finding that Section 27A of the Act is applicable and directed the petitioners to approach the Revenue Divisional Officer. The petitioners submit that Section 27C of the Act clearly stipulates the procedure by which the changes in the revenue records are to be made. It is the further case of the petitioners that the second respondent-Tahsildar was duty bound to reassess the land tax under Section 6A of the Kerala Land Tax Act, 1961 and make necessary entries in the revenue records relating to such land and also to effect changes in the revenue records. Thus, aggrieved by Ext.P3 order passed by the second respondent, this writ petition is filed praying for a direction to quash Ext.P3 order passed by the second respondent and also for a direction to reconsider the application submitted by the petitioners. 3. Heard the learned counsel for the petitioners Sri.V.Ramkumar Nambiar, the learned Senior Government Pleader Smt.Princy Xavier and Sri.Manuvilsan, the Standing Counsel for the third respondent-Thripunithura Municipality. 4. It is the admitted case that the writ petitioners had submitted an application before the Revenue Divisional Officer under WP(C)No.11011 of 2019 :-5-: Clause 6(2) of the KLU Order, before the appointed day of introduction of S.27A of the Act on and with effect from 30.12.2017. It was thus the Revenue Divisional Officer passed Ext.P1 order dated 21.07.2015 permitting the writ petitioners to utilise the property for other purposes. At the time of said application, Section 27A of the Act was never introduced and was not in force. Hence as per the available option, the petitioners submitted an application under clause 6(2) of the KLU Order, before the Revenue Divisional Officer, who was the competent authority to take a decision in the said application. Thus, the Revenue Divisional Officer has passed Ext.P1 order permitting the petitioners to utilise the property under the KLU Order. There is no dispute that Ext.P1 order was prior to the introduction of S.27A to the Act. 5. A reading of sub-section 13 of section 27A is clear in the context, which reads thus: _“_ _**27A. Change of nature of unnotified land** .-(1) …...................... …............._ _xxx xxx xxx xxx xxx_ _(13)Any application received for the change of nature of unnotified land from the date of commencement of the Kerala Conservation of Paddy Land and Wet Land (Amendment) Act, 2018 shall be considered and disposed of only in accordance with the provisions of the Act. “_ WP(C)No.11011 of 2019 :-6-: There is no doubt to the fact that any application received for the change of nature of unnotified land from the date of commencement of the Amendment Act, 2018 shall be considered and disposed of only in accordance with the provisions of the Act. Since Ext.P1 order was secured by the petitioners well before the cut off date, 30.12.2017, amended provisions of the Act cannot apply. The second respondent as per Ext.P3 order has insisted upon the petitioners to file application under Section 27A of the Act, which is legally unsustainable. Further, S.27C reads as follows: - “ _**27C. Change in records** :-(1) Notwithstanding anything contained in any other law for the time being in force or in any judgment, decree or order of any Court, Tribunal or any other Authority, wherever a part of a survey number or subdivision is permitted to be converted under Sections 8,9,10 or 27A of this Act, a new subdivision shall be created for the extent for which such orders for conversion are issued._ - _(2)Where the paddy land or unnotified land is duly converted as per the provisions of this Act, the Tahsildar shall reassess the land tax under Section 6A of the Kerala Land Tax Act,1961 (13 of 1961) and make necessary entries in revenue records relating to such lands._ - _(3)Where such changes are recorded in revenue records, the number and date of the order and the authority granting sanction, the survey number of the lands for which sanction has been accorded, extent of the land in each survey number for which sanction has been accorded and the revised land tax shall be clearly recorded ensuring that the old entries are legible._ - _(4)Tahsildar shall conduct periodical inspection to ensure that charges in revenue records are in accordance with sub-section(3)._ - _(5)No attempt shall be made to alter or change or modify the revenue records relating to the paddy land or wetland or unnotified land otherwise than in accordance with sub-section(3).”_ WP(C)No.11011 of 2019 :-7-: Section 27C also does not contemplate the permission granted under the KLU Order. Therefore, it is clear that the second respondent is not entitled to insist upon or to direct the petitioners to secure an order under S.27A of the Act to change the revenue records in accordance with the provisions of the Act, since the petitioners have already secured Ext.P1 order under clause 6(2) of the KLU Order. 6. A Division Bench of this Court, in the decisions reported in **Tahsildar, Thodupuzha Taluk and another** v. **Renjith George** [2020 (1) KHC 865 (DB)] and **District Collector, Ernakulam and others** v. **Fr.Jose Uppani and Others** [2020(4) KHC 394(DB)], held that if orders are secured under KLU Order prior to cut off date, 30.12.2017, amended provisions of Act will not apply and additional entries regarding the change of description of land and assessment of tax has to be made in the Basic Tax Register under S.6A of the Kerala Land Tax Act, 1961. The position in that regard is squarely applicable in this case as well. Ext. P1 order was secured by the petitioners on 21.07.2015. Hence the amended provisions of the Act cannot apply. The respondents are not entitled to insist to secure an order under WP(C)No.11011 of 2019 :-8-: Section 27A to make changes in the revenue records. The additional entries regarding the change of description of land and further assessment of tax has to be made in the Basic Tax Register under Section 6A of the Kerala Land Tax Act, 1961. 7. Having considered the contentions advanced and after considering the decision of this Court, I am of the opinion that the challenge raised by the petitioners as against Ext.P3 order passed by the second respondent is sustainable and liable to be allowed. Hence, Ext.P3 order passed by the Tahsildar (LR) is hereby set aside. Since the Tahsildar (LR), Kanayannur Taluk, Ernakulam is not a party to this proceedings, the above Officer is suo motu impleaded as additional fourth respondent. The additional fourth respondent is directed to reconsider the application filed by the petitioners afresh strictly in terms of the dictum laid down by the Division Bench of this Court in **Renjith George** (supra) and **Fr.Jose Uppani** (supra) and pass orders within a period of three months from the date of receipt of a copy of this judgment, after affording an opportunity of hearing to the petitioners. The Registry is directed to forward a copy of this judgment to the Tahsildar (LR) for information and compliance. WP(C)No.11011 of 2019 :-9-: The writ petition is disposed of as above. Sd/SHOBA ANNAMMA EAPEN, JUDGE MBS/ WP(C)No.11011 of 2019 :-10-: ## **APPENDIX OF WP(C) 11011/2019** PETITIONER'S EXHIBITS: EXHIBIT P1 TRUE COPY OF THE ORDER OF THE DISTRICT COLLECTOR, ERNAKULAM DATED 21/7/2015. EXHIBIT P2 TRUE COPY OF THE JUDGMENT OF THIS HON'BLE COURT IN W.P.(C)NO.312/2019 DATED 7/1/2019. EXHIBIT P3 TRUE COPY OF THE ORDER OF THE SECOND RESPONDENT DATED 15/2/2019.