Preman @ Kelukutty v. Land Revenue Commissioner, Revenue Divisional Officer, and Kerala State Remote Sensing and Environment Centre (Addl R3)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **FRIDAY, THE 03RD DAY OF JULY 2020 / 12TH ASHADHA, 1942** ## **WP(C).No.10571 OF 2020(V)** ## **PETITIONER:** **==> picture [98 x 159] intentionally omitted <==** **PREMAN @ KELUKUTTY, AGED 70 YEARS S/O. KORUTHARA KOCHUKUTTAN, ALAPAD P.O., ALAPAD DESOM, ALAPAD VILLAGE, THRISSUR TALUK, THRISSUR DISTRICT-680641.** **BY ADVS. SRI.P.VISWANATHAN (SR.) SRI.SHIBU JOSEPH** ## **RESPONDENTS:** |**1**|**THE LAND REVENUE COMMISSIONER,**| |---|---| ||**PUBLIC OFFICE COMPOUND, MUSEUM JUNCTION,**| ||**THIRUVANANTHAPURAM-695033.**| |**2**|**THE REVENUE DIVIVISIONAL OFFICER,**| ||**REVENUE DIVISIONAL OFFICE, COLLECTORATE,**| ||**AYYANTHOLE, THRISSUR-680003.**| |**Addl R3**|**KERALA STATE REMOTE SENSING AND ENVIRONMENT CENTRE,**| ||**REPRESENTED BY ITS DIRECTOR**| ||**VIKAS BHAVAN P.O.**| ||**THIRUVANANTHAPURAM- 695033**| ||**IS SUO MOTU IMPLEADED AS ADDITIONAL R3 AS PER ORDER**| ||**DATED 3RD DAY OF JULY, 2020**| ||**SRI.K.J.MANU RAJ, GOVT.PLEADER**| **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 03.07.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 2 ## **WP(C).No.10571 OF 2020(V)** ## **ALEXANDER THOMAS, J. ******************************************************* W.P.(C) No.10571 of 2020** *********************************************************** Dated this the 3[rd] day of July, 2020 ## **JUDGMENT** The case set up in this writ petition (c) is as follows: _The petitioner is the owner in possession of properties covered under Exhibit P1 sale deed. Though he was made to believe by the vendors of Exhibit P1 that the properties were classified as “paramba', subsequent to the execution of Exhibit P1, it was under stood that the properties were classified as “nanja'. But the property is lying as a pucca garden land, with more than 150 coconut trees having over 30 years of age and surrounded by residential buildings, as well. The said property, except a portion having an extent of 6.48 Ares comprised in survey No.351/6 of has not been included in the Exhibit P4 Data Bank. Petitioner submitted Exhibit P5 application before the 2[nd] respondent to permit him to utilize the said land for any other purpose other than cultivation of paddy and other crops, except the portion having an extent of 6.48 Ares comprised in survey No.351/6. Exhibit P5 application was kept pending and subsequently_ 3 ## **WP(C).No.10571 OF 2020(V)** _the same was considered as per the direction s of this Hon'ble court as per Exhibit P6 judgment. Thereafter, the 2[nd] respondent without properly appreciating the facts and circumstances involved, rejected Exhibit P5 application as per Exhibit P9 order. Aggrieved by the Exhibit P9 order, the petitioner filed Exhibit P10 appeal before the 1[st] respondent. The 1[st] respondent also, without properly appreciating the issues involved in the appeal dismissed Exhibit P10 appeal as per Exhibit P11 order”._ 2. It is in the light of these averments and contentions, the petitioner filed the instant writ petition with the following prayers. - “1. Issue a writ of certiorari or any other appropriate writ, order or direction quashing Exhibits P9 and P12 orders passed by the respondents, 2. issue a writ of mandamus or any other appropriate writ, order or direction directing the 2[nd] respondent to allow Exhibit P5 application, 3. issue such other reliefs as are necessary in the nature of the case and in the ends of justice”. 2. Heard Sri.P.Viswanathan, learned senior counsel appearing for the petitioner and Sri.K.J.Manu Raj, learned Government Pleader appearing for respondents. 3. According to the petitioner, he is having absolute title, ownership and possession in respect of a total extent of 85.24 ares and 4 ## **WP(C).No.10571 OF 2020(V)** out of the said total extent, 78.76 ares of property, has been converted as garden land or purayidom long prior to 12.08.2008 (date of coming into force of the Kerala Conservation of Paddy Land and Wetland Act 2008). That both the said 78.76 ares as well as the balance 6.48 ares of properties had been shown as “nanja”, which is a catergory of paddy land, as per the basic tax register even now. But that the said 78.76 ares of property has not been included in the Land Data Bank prepared as per the rules 2008 Act and only the balance extent of 6.48 ares of property has been included in the Land Data Bank as Paddy land. It can be seen from the details in the Land Data Bank produced as per Ext.P4. That the petitioner had submitted Ext.P5 application dated 05.12.2016 under rule 6(2) of the Kerala Land Utilisation Order, 1967 before the 2[nd] respondent-RDO, for formal permission for change of use of the land to enable the petitioner to use the said property for any non agricultural purposes including construction of buildings and the said request as per Ext.P5 only is in respect of the said extent of 78.76 ares of property, which has not been included in the Land Data Bank. Since no action has been taken on Ext.P5 application, petitioner was constraint to approach this Court by filing W.P.(C).No. 7724 of 2017 in which, this court has disposed of 5 ## **WP(C).No.10571 OF 2020(V)** Ext.P6 judgment dated 23.03.2017 by ordering that the said application should be considered and disposed of by the respondent RDO strictly in terms of the provisions contained in rule 6(2) of the Kerala Land Utilisation Order, 1967 within six weeks from the date of receipt of a copy of the judgment. A reading of Ext.P6 judgment would shows that the above said application dated 05.12.2016 as per Ext.P5 herein, has been produced as Ext.P1 therein and Ext.P2 therein is the acknowledgment receipt would show that the said application has been received on 13.12.2016 before the Office of the respondent-RDO. 4. Now, the said request of the petitioner as per Ext.P5 has been rejected by the 2[nd] respondent RDO. As per the impugned Ext.P9 order dated 19.05.2018, which has also been confirmed as per Ext.P12 appellate order dated 18.12.2019 issued by the 1[st] respondent, Commissioner of Land Revenue. It is these orders as per Exts.P9 and P12 that are under challenge in this W.P.(C). 5. It is pointed out by the petitioner that an inspection said to have been carried out by the Tahsildar is referred to as item No.3 of Ext.P9 and the said inspection has been carried out by the Tahsildar behind the back of the petitioner without any prior notice to the petitioner and not even copy of the said inspection report dated 6 ## **WP(C).No.10571 OF 2020(V)** 18.05.2018 referred to in Ext.P9 has been given to the petitioner before the impugned decision has been taken as per Ext.P9. Further that on a reading of Ext.P11 would show that yet another report of the Village Officer concerned, wherein it has been clearly stated that the subject property covered by the application contains atleast 150 coconut trees having age of more than 30 years and that the entire property is seen as converted land etc., but that copy of the said inspection report of the Village Officer has not been given to the petitioner and even the contents of the report of the Village Officer, which is in favour of the petitioner, has not been considered or noted in Ext.P9 order eventhough mention is made about that in Ext.P12 Appellate order. Further it is pointed out that there are no proper reasons in Ext. P9 as well as in Ext.P12 and that reading of Ext.P9 would show that certain references made out channel and water logging etc. and this would only be in respect of the other property of the petitioner having an extent of 6.48 ares, which has not been included in the present application. Further that, if the respondents had permitted the petitioner to take satellite pictures and expert opinion of the Kerala State Remote Sensing and Environment Centre, Thiruvananthapuram, then a clear cut picture regarding ground 7 ## **WP(C).No.10571 OF 2020(V)** realities would have been available, so that proper and transparent decision could have been taken. 6. After hearing both sides this Court is of the considered view that the impugned orders are liable to be interdicted mainly on the ground of blatant violation of principles of natural justice. One of the main grounds on which the 2[nd] respondent RDO has rejected the plea of the petitioner as per Ext.P9 by placing reliance on an inspection report dated 18.05.2018 (referred to as item No.3 of Ext.P9). The said inspection has been conducted behind the back of the petitioner and further not even a copy of the said inspection report has been given to the petitioner before the issuance of Ext.P9 order. As a matter of fact petitioner could obtained subsequently on the basis of RTI request, it can be seen from Ext.P10. Further reading of Ext.P12 order would make it clear that the inspection was also conducted by the Village Officer, in which it is clearly stated that the subject property is having atleast 138 coconut trees having aged more than 30 years and that the entire property has been converted as converted land. This crucial report which is in favour of the petitioner has not even been considered or noted in Ext.P9 order. Further, if at all the 2[nd] respondent wanted to assess the scenario properly in view of two 8 ## **WP(C).No.10571 OF 2020(V)** different inspection reports, then the same can be easily resolved by directing the petitioner to pay the requisite fee for taking satellite pictures and the expert opinion of the 3[rd] respondent KSREC. 7. In the light of these aspects, this Court is constrained to take the view that the impugned orders are liable to interdiction as the same has been rendered in violation of natural justice and fairness and also that all relevant aspects has not been duly taken into consideration. Further the fact that the petitioner has filed Ext.P5 application dated 05.12.2016 is beyond any dispute inasmuch as the same is evident and clear from Ext.P6 judgment dated 23.03.2017 in W.P.(C) No.7724/2017, wherein the very same application as per Ext.P5 herein has been produced as Ext.P1 therein and Ext.P2 therein is the acknowledgement receipt would show that the said application was received on 13.12.2016 at the office of the 2[nd] respondent RDO. Moreover Ext.P6 judgment has been rendered on 23.03.2017, which is before the cut off date of 13.12.2017 (date of coming into force of the amended provisions of the 2008 Act which has introduced Section 27A thereof). Hence it is crystal clear that petitioner has filed Ext.P5 application before the 2[nd] respondent RDO before the cut off date of 30.12.2017. 9 ## **WP(C).No.10571 OF 2020(V)** 8. It is now well settled by a series of rulings of this Court as in _**Geo Peter v. Revenue Divisional Officer**_ [2019 (3) KLT 838], _**Renjith.K.Paul v.Revenue Divisional Officer**_ [2019 (2) KLT 262), _**LLMC, Kizhakkambalam Grama Panchayath v. Mariumma**_ [2015 (2) KLT 516 (DB)], _**Tahsildar, Thodupuzha Taluk and another v. Renjith George**_ [2020 (1) KHC 865 (DB)] that where the subject property has been converted as garden land or purayidam much prior to 12-08-2008 ( the date of coming into force of the 2008 Act) and where the property holder has filed requisite application under Rule 6(2) of the Kerala Land Utilisation Order, 1967, before 30-12-2017 (which is the date of coming into force of the amended provisions of 2008 Act, which was introduced Sec.27 A thereof), then the property holder is entitled to get his request for conversion of the property strictly in terms of Rule 6(2) of the KLU order, 1967 and such a case the property holder cannot be mulcted to face the adverse and rigorous conditions prescribed as per the amended provisions of 2008 Act, including Sec.27A thereof as well as the rules framed thereunder. 9. Further it has been also held that in those decisions more particularly in the aforestated Division Bench decisions in 10 ## **WP(C).No.10571 OF 2020(V)** _**Mariumma’s case**_ (supra) [2015 (2)KLT 516] and _**Renjith's case**_ (supra) [2020 (1) KHC 865 (DB)], etc., that where the property holder thus secures orders under Rule 6(2) of the KLU order, 1967 from the RDO, then the property holder is equally entitled to maintain an application under Sec.6A of the Kerala Land Tax Act, 1961 for fresh assessment of the property by the Thahsildar for getting additional entries in the BTR to show the subject property as garden land or purayidam, instead of the earlier BTR entries as nilam or paddy land. 10. In the light of these aspects, it is ordered that the (1) impugned orders of Exts. P9 and P12 will stand set aside and quashed. Ext.P5 application filed under Rule 6 of the KLU Order will stand remitted by the 2[nd] respondent RDO for consideration and decision afresh. (2) The 2[nd] respondent RDO will immediately permit the petitioner to pay the prescribed fee so as to take satellite pictures of expert opinion from the 3[rd] respondent KSREC. 11. This process of payment of fee shall be duly completed, within ten days from the date of receipt of a copy of this judgment. Thereafter, the 2[nd] respondent should immediately sent the formal requisition to the 3[rd] respondent seeking for satellite pictures and 11 ## **WP(C).No.10571 OF 2020(V)** expert opinion of the 3[rd] respondent KSREC in respect of the subject properties covered by Ext.P5 application. 12. On getting the requisition, 3[rd] respondent KSREC will ensure that satellite pictures and the expert opinion is duly furnished in respect of the subject property covered by Ext.P5 to the 2[nd] respondent RDO within two months from the date of receipt of the requisition in that regard. In the said expert report the 3[rd] respondent KSREC will also deal with the factual aspects as well as the conclusions and opinion regarding the ground realities of the subject property so as to show whether the subject property was converted prior to 12.08.2008. 13. To obviate any further delay, the 2[nd] respondent need not await till the receipt of the satellite pictures of the expert opinion of the 3[rd] respondent and the 2[nd] respondent should ensure that inspection of the subject property covered by Ext.P5 application is rendered with due prior notice to the petitioner and copy of the said inspection report should be given to the petitioner in advance. After receipt of the satellite pictures and the expert opinion of the 3[rd] respondent, the 2[nd] respondent will afford reasonable opportunity of being heard to the petitioner and after affording reasonable 12 ## **WP(C).No.10571 OF 2020(V)** opportunity of being heard to the petitioner, shall take a considered decision on the plea made in Ext.P5 application for permission for change of use of the land for any non agricultural purposes strictly in terms of the provisions contained under Rule 6 of the Kerala Land Utilisation Order, 1967, without much delay, preferably within a period of six weeks from the date of receipt of the copies of the satellite pictures and expert opinion from the 3[rd] respondent. 14. While doing so, 2[nd] respondent shall not, in any manner, compel the petitioner to pay any amounts as conceived as per the amended provisions of the Act and Rules framed thereunder including Rule 12 (17) thereof, since the petitioner has filed Ext.P5 application under Rule 6 of the KLU Order much before the cut off date of 30.12.2017. 15. In case petitioner secures orders of permission under Rule 6(2) of the KLU Order on Ext.P5 application from the 2[nd] respondent, then he will be entitled to file requisite application before the Tahsildar concerned seeking for re-assessment of subject property in terms of Section 6(A) of the Kerala Land Tax Act, so as to secure additional entries in the BTR to correctly show the nature of land as Garden Land or Purayidom in respect of the earlier BTR entries as 13 ## **WP(C).No.10571 OF 2020(V)** Nilam/Paddy land. Petitioner would file such application along with the orders of permission granted by the 2[nd] respondent RDO on Ext.P5 application as well as the copy of the judgment. Upon the receipt of such application, it is found by the respondent Tahsildar concerned that the subject property covered by such orders of permission granted by the 2[nd] respondent RDO on Ext.P5 application is the same as the one covered by such application filed under Section 6(A) of the Kerala Land Tax Act, then, the officer after affording reasonable opportunity of being heard to the petitioner should pass orders of re-assessment of the subject property in terms of the said provision to secure additional entries in the BTR correctly show the nature of the land as Garden land/Purayidom in respect of the earlier BTR entries Nilam/Paddy land, without any further delay, at any rate, within one from the date of submission of the above said application and strictly in the light of the dictum laid down by the Division Bench of this Court in judgments as in _**Mariumma’s case**_ (supra) and _**Renjith's case**_ (supra) and without compelling the petitioner to pay any amounts as conceived as per the amended provisions of the 2008 Act and the amended Rules framed thereunder including Rule 12(17) thereof. 16. The petitioner will produce certified copy of this judgment 14 ## **WP(C).No.10571 OF 2020(V)** along with the copy of the memorandum of this W.P. (C) with all the Exhibits before the 2[nd] respondent RDO for necessary information and further action. With these observations and directions the above Writ Petition (Civil) will stand disposed of. Sd/- ## **ALEXANDER THOMAS** **JUDGE** hmh 15 ## **WP(C).No.10571 OF 2020(V)** ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** |**EXHIBIT P1**|**THE TRUE PHOTOSTAT COPY OF SALE DEED**| |---|---| ||**NO.2936/2015 OF MATHILAKAM SUB REGISTRY.**| |**EXHIBIT P2**|**THE TRUE PHOTOSTAT COPY OF THE BASIC TAX**| ||**PAID RECEIPT DATED 30/02/2016.**| |**EXHIBIT P2(A)**|**THE TRUE PHOTOSTAT COPY OF THE BASIC TAX**| ||**PAID RECEIPT DATED 09/05/2019.**| |**EXHIBIT P3**|**THE TRUE PHOTOSTAT COPY OF THE RELEVANT**| ||**PAGES OF THE BASIC TAX REGISTER ISSUED**| ||**BY THE PERINJANAM VILLAGE OFFICE DATED**| ||**04/03/2020.**| |**EXHIBIT P4**|**THE TRUE PHOTOSTAT COPY OF THE RELEVANT**| ||**PAGES OF THE DATA BANK ISSUED BY THE**| ||**AGRICULTURAL OFFICER, KRISHI BHAVAN,**| ||**PERINJANAM DATED NIL.**| |**EXHIBIT P5**|**THE TRUE PHOTOSTAT COPY OF THE**| ||**APPLICATION DATED 05/12/2016, UNDER**| ||**CLAUSE 6 OF THE KLU, 1967 SUBMITTED**| ||**BEFORE THE 2ND RESPONDENT.**| |**EXHIBIT P6**|**THE TRUE PHOTOSTAT COPY OF THE JUDGMENT**| ||**DATED 23/03/2017 PASSED IN WPC**| ||**NO.7724/2017.**| |**EXHIBIT P7**|**THE TRUE PHOTOSTAT COPY OF THE NOTICE**| ||**NO.C2-18322/16 ISSUED BY THE 2ND**| ||**RESPONDENT DATED 21/06/2017.**| 16 ## **WP(C).No.10571 OF 2020(V)** |**EXHIBIT P8**|**THE TRUE PHOTOSTAT COPY OF THE PROJECT**| |---|---| ||**REPORT DATED 18/07/2017 SUBMITTED BEFORE**| ||**2ND RESPONDENT.**| |**EXHIBIT P8(A)**|**THE TRUE PHOTOSTAT COPY OF THE PLAN**| ||**DATED 18/07/2017 SUBMITTED BEFORE 2ND**| ||**RESPONDENT.**| |**EXHIBIT P8 (B)**|**THE TRUE PHOTOSTAT COPY OF THE STATEMENT**| ||**DATED 18/07/2017 SUBMITTED BEFORE 2ND**| ||**RESPONDENT.**| |**EXHIBIT P9**|**THE TRUE PHOTOSTAT COPY OF THE ORDER**| ||**NO.B6-18322/2018/K.DIS DATED 19/05/2018.**| |**EXHIBIT P10**|**THE TRUE PHOTOSTAT COPY OF THE REPORT OF**| ||**THE TAHSILDAR (LAND RECORDS),**| ||**KODUNGALLOOR BEARING NO.C4-4385/2017**| ||**DATED 18/05/2018.**| |**EXHIBIT P11**|**THE TRUE PHOTOSTAT COPY OF THE APPEAL**| ||**FILED BEFORE THE 1ST RESPONDENT DATED**| ||**08/02/2019**| |**EXHIBIT P12**|**THE TRUE PHOTOSTAT COPY OF ORDER NO.**| ||**LR(A4) 6099/2019 DATED 18/12/2019 PASSED**| ||**BY THE 1ST RESPONDENT.**|