Prince Varkey v. State of Kerala

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN TUESDAY, THE 26[TH] DAY OF JULY 2022 / 4TH SRAVANA, 1944 ``` ## **`WP(C) NO. 16843 OF 2022`** ## **`PETITIONER/S:`** ``` PRINCE VARKEY, AGED 48 YEARS SON OF VARKEY, KARAKOMBIL HOUSE, KARINGAZHA, CHELAD, KOTHAMANGALAM, ERNAKULAM DISTRICT, PIN - 686681 BY ADV PEEYUS A.KOTTAM ``` ## **`RESPONDENT/S:`** ``` 1STATE OF KERALA REPRESENTED BY SECRETARY, REVENUE DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM, PIN - 695001 2REVENUE DIVISIONAL OFFICER 2H28+CQP, GROUND FLOOR, PATTIMATTOM - MUVATTUPUZHA RD, MUVATTUPUZHA, KERALA, PIN - 686673 3TAHSILDAR TALUK OFFICE, KOTHAMANGALAM, FOURTH FLOOR, REVENUE TOWER, SH 16, KOTHAMANGALAM, PIN - 686666 4VILLAGE OFFICER KOTHAMANGALAM VILLAGE OFFICE KOTHAMANGALAM, ERNAKULAM DISTRICT, PIN - 686666 BY ADV GOVERNMENT PLEADER ``` ## **`OTHER PRESENT:`** ``` SMT.VIDYA KURIAKOSE, GP ``` ``` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 26.07.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` -2- W.P.(C). No. 16843 of 2022 ## **P.V.KUNHIKRISHNAN, J.** ====================================================== W.P.(C) No. 16843 of 2022 ============================================================= Dated this the 26[th ] day of July, 2022 ## **JUDGMENT** The above writ petition is filed with following prayers: _“ i)Call for entire records reading to Ext-P8 order and quash the same by issuing a writ of certiorari or any other appropriate writ order or direction._ _ii) Issue a writ of mandamus or any other appropriate Writ order or direction and thereby command the 3[rd] and 4[th] respondents to complete the proceedings to refix the property tax of the petitioner's property in compliance with directions in Ext-P6 order within a time limit as fixed by this Honorable Court._ _iii) Declare that second respondent has legal right to recall or review his own Ext-P6 order except for non compliance of conditions imposed as stipulated in Rule 27A(11) of Kerala conservation of paddy land wet land Rules 2008._ _iv) To grant such other relief's as this Honourable Court may deem fit in the circumstances of this case.” (sic)_ -3- W.P.(C). No. 16843 of 2022 2. The Petitioner is the owner in possession of 48.95 ares of property of Kothamangalam Village. According to the petitioner, though this property is converted years back that too, much before in implementation of Kerala Conservation of Paddy Land and Wet Land Act, 2008 but still this property is described as Nilam in the basic tax register. The petitioner's property is abutting to the main road (MalayinkeezhuNaadukaani road) and all the surrounding property are well developed, is the submission. Since the petitioner’s property is unnotified land, the petitioner submitted Ext-P1 application before the Revenue Divisional Officer under section 27A of the Act. As per Ext-P2 report, the Tahasildar, Kothamangalam submitted that application can be allowed. As per Ext-P3 project report the Agricultural officer suggested how the 10% of petitioner's property can be utilized for preserving Thanneerthadam. As per Ext-P4 proceedings of the Revenue -4- W.P.(C). No. 16843 of 2022 Divisional Officer directed the petitioner to pay an amount of Rs.16,31,700/- as the fees for allowing petitioner’s Form VII Application. As per Ext-P5 petitioner remitted Rs.16,31,700/-. Thereafter, as per Ext-P6 proceedings, Revenue Divisional Officer permitted to change the nature of petitioner's property. In pursuant to Ext P6, the proceedings are in progress for reassessing the property tax and to change the description of the petitioner’s property as converted land instead of Nilam. At this stage, the 2[nd] respondent passed Ext.P8 order recalling Ext-P6 order based on a report of the Village Officer. Aggrieved by the same, this writ petition is filed. 3. Heard the learned counsel for the petitioner and the Government Pleader. 4. Once an order under Section 27A of the Act, 2008 is passed, the Revenue Divisional Officer has jurisdiction to -5- W.P.(C). No. 16843 of 2022 cancel only in certain circumstances, which is mentioned in Section 27A (11) of the Act. This Court considered this point in **Sakeer Hussain and Others v. State of Kerala and Others [2020 KHC 647]** . The relevant paragraph in the above decision is extracted here: _“A reading of sub-sections (1), (2) and (4) of Section 27A would make it clear that it is a bounden statutory duty of the 2[nd] respondent-RDO to consider and be satisfied that there would be no disruption to the free flow of water to the neighbouring lands, if any, through such water conservancy measures as is deemed necessary, while considering the issue of passing orders on the plea for conversion orders. Sub-section(4) Section 27A would also mandate that the RDO has to ensure that the application under Section 27A alone is allowed, then the reclamation of the unnotified land/subject property shall not adversely affect the cultivation of paddy or any other crops in the adjoining lands etc. Therefore, it is only after being satisfied about these crucial aspects and parameters that the 2[nd] respondent could have passed the order as per, Ext. P2. A reading of Ext. P2 would make it clear that the officer has followed the statutory procedure and also obtained a report from the Village Officer concerned as is the consistent procedural norms, who has made site_ -6- W.P.(C). No. 16843 of 2022 _inspection and clearly reported that there are no adjoining paddy lands in the locality and that the subject properties have been converted prior to the 2008 Act and that the subject properties have not been included in the Land Data bank, and further that if the conversion is permitted, it will not in any manner affect the free flow of water to the neighbouring paddy lands etc. It is based on these conclusive fact findings in the said inspection that the 2[nd] respondent-RDO has exercised statutory discretion and passed orders granting permission to each of these petitioners as per Ext. P2. Consequently, the petitioners have paid the requisite high amounts as demanded as per amended Rules of the 2008 Act. Sub-section (11) of Section 27A would empower the RDO to either suo motu or on an application of any aggrieved party, cancel the order of permission granted under sub-section (2) if the conditions specified in the said order issued therein are not complied with by the applicant concerned, either fully or partially. The said power under Section 27A(11) is extremely limited in nature and the same can be exercised either suo motu or on an application of any aggrieved party by the RDO, only if the officer is satisfied that the conditions in the order passed under Section 27A(2) have not been complied with by the party concerned either fully or partially. The power under Section 27A(11) cannot be invoked on the ground that the discretion under that conversion order as per Section 27A(2) was previously issued by exercising the discretion wrongly and that the subject property should_ -7- W.P.(C). No. 16843 of 2022 _have been included in the Land Data Bank as paddy land and that the conversion order would lead to impeding the free flow of water into the neighbouring paddy lands etc. Those are all matters on the merits of the matter and those matters cannot be relevant or germane while exercising the limited power under Section 27A(11), after order has been passed under Section 27A(2) by exercising discretion thereof. Therefore, the main ground in Ext. P7 that the subject property should not have been excluded from the land data bank and that it should have been actually included in the land data bank and that the conversion order if given, would lead to impeding the free flow of water etc, are not relevant or germane at the stage of Section 27A(11). Once an order under Section 27A(2) is passed, then any aggrieved person can file a statutory appeal to challenge such an order of conversion before the District Collector concerned in terms of Section 27B of the Act and that too, within a period of thirty days, etc. The appellate jurisdiction that is available under Section 27B to the District Collector concerned cannot be invoked by the 2[nd] respodnent-Revenue Divisional Officer, after having passed an order in the nature of Ext. P2 by purportedly taking resort to Section 27A(11). Such an exercise of power under Section 27A(11) is totally impermissible and is without jurisdiction and the legal position in that regard is accordingly ordered and declared. The only ground on the basis of which an order in the nature of Section 27A(11) can be passed so as to cancel the conversion_ -8- W.P.(C). No. 16843 of 2022 _order granted under Section 27A(2) is that the applicant concerned has not complied with the conditions attached to conversion order as per Section 27A(2) either fully or partially. From a reading of Section 27A, it can be seen that the conditions in relation to water conservancy measures etc., as conceived in Section 27A (2) and its proviso could be pressed into service only if the total extent of the subject property, for which conversion order, is sought, is more than 20.2 Ares, in which case ten percent of such land shall be set apart for water conservancy measures. Therefore, the issues of water conservancy, as conceived in Section 27A may not be germane in this case, for the simple reason that, what is involved is 3 separate properties of three separate petitioners and each of the said properties covered by Ext. P2 order is much less than the threshold limit of 20.2 Ares. Then what remains is as to whether the petitioners have violated the conditions of Ext. P2 order, passed under Section 27A(2). The said conditions are given in page No. 2 of Ext. P2. At the outset it has to be noted that the allegation is that 3[rd] petitioner has unloaded some ordinary earth/soil in his property and therefore, it would impede the free flow of water and therefore, all the three petitioners have violated the conditions of Ext. P2 etc., cannot be pressed into service as against the first and second petitioners. This is for the simple reason that the allegation is mainly directed as against the 3[rd] petitioner. That apart, the main ground for justifying such an allegation is that the said act of the_ -9- W.P.(C). No. 16843 of 2022 _3[rd] petitioner in having unloaded ordinary earth/soil in his property after the issuance of Ext. P2 has been done before getting the Basic Tax Register corrected and altered as envisaged under Section 27C of 2008 Act r/w Section 6A of the Kerala Land Tax Act, 1961. At the outset it has been held that immediately after the party concerned gets statutory order of permission under Section 27A(2), then he is lawfully permitted to deal with the property for effecting the conversion. The mere act of unloading ordinary earth/soil in the property of the 3[rd] petitioner cannot be an unlawful act, merely because he has done it after Ext. P2 order but before getting BTR corrected. The action in getting the BTR corrected is only a clerical formality. Immediately after securing the statutory order of permission in terms of Section 27A(2), the party is lawfully permitted to effectuate the conversion, provided that the conditions in the Act and the conditions in the grant are not otherwise violated. In a case where the subject property is exceeding 20.2 Ares and there are directions for water conservancy measures by setting apart of ten percent of the said property and if the act of filling up of the remaining property would lead to impeding the free flow of water to the ten percent of the property which is set apart for land conservancy measures etc., as per Section 27A(2) proviso etc., then those aspects could possibly be relevant grounds for consideration for action under Section 27A(11). Such a scenario does not come into play in this case for the simple reason that the extent of each of the three separate properties_ -10- W.P.(C). No. 16843 of 2022 _is below the threshold limit of 20.2 Ares, as envisaged in proviso to Section 27A(2). Therefore, the abovesaid allegation against the 3rd petitioner in having allegedly unloaded ordinary earth/soil in his property after the issuance of Ext. P2 order and before getting the BTR altered/corrected etc., by itself cannot be a relevant ground for action under Section 27A(11). That apart, the reading of sub-section(2) of Section 27C would indicate that where the paddy land or unnotified land is duly converted as per the provisions of the abovesaid Act, then it is the bounden duty of the Tahsildar to asses the land tax under Section 6A of the Kerala Land Tax Act, 1961 and make necessary entries in the revenue records relating to such lands. Therefore, sub-section (2) would mandate that after due conversion of the property as per the provisions of the 2008 Act, it is the bounden duty of the Tahsildar to reassess the land tax under Section 6A of the Kerala Land Tax Act, 1961. Therefore, the mere omission of the petitioners in not having filed formal application before the Tahsildar for getting the BTR entries altered, cannot be used as against them. Once the substantive permission is obtained in terms of Section 27A(2) for conversion of the property, then the incidental procedure of effectuating such conversion are also part and parcel of such rights and incidents flowing out from such conversion order in the nature of Ext. P2 passed under Section 27A(2).”_ -11- W.P.(C). No. 16843 of 2022 In the light of the above dictum laid down by this Court, Ext.P8 order will not stand. Therefore, this writ petition is allowed. 1. Ext.P8 order is set aside. 2. The 3[rd] respondent will do the needful based on Ext.P6, as expeditiously as possible. sd/- **P.V.KUNHIKRISHNAN JUDGE** das -12- W.P.(C). No. 16843 of 2022 ## **`APPENDIX OF WP(C) 16843/2022`** ``` PETITIONER EXHIBITS ``` - `Exhibit P1 KOTHAMANGALAM VILLAGE OFFICE KOTHAMANGALAM, ERNAKULAM DISTRICT` - `Exhibit P2 THE TRUE COPY OF THE REPORT SUBMITTED BY THE TAHSILDAR OBTAINED THROUGH VILLAGE OFFICER BEFORE THE REVENUE DIVISIONAL OFFICER` - `Exhibit P3 THE TRUE COPY OF THE REPORT SUBMITTED BY THE AGRICULTURAL OFFICER DATED 03.02.2022 ALONG WITH SKETCH AND PROJECT REPORT I` - `Exhibit P4 THE TRUE COPY OF THE ORDER OF REVENUE DIVISIONAL OFFICER DATED 18.02.2022 BEARING NO. A11- I/272/21` - `Exhibit P5 THE TRUE COPY OF THE CHALLAN SHOWING THE PAYMENT OF RS.16,31,700/- PAID BY THE PETITIONER DATED 28.02.2022 TO DISTRICT TREASURY` - `Exhibit P6 THE TRUE COPY OF THE PROCEEDINGS OF REVENUE DIVISIONAL OFFICER, MUVATTUPUZHA DATED 04.03.2022` - `Exhibit P7 TRUE COPY OF THE SKETCH PREPARED BY THE VILLAGE OFFICER SHOWING THE PROPERTY INCLUDING THE AREA HAVING 5.44 ARES SET APART FOR THE THANNERTHADAM` - `Exhibit P8 THE TRUE COPY OF THE ORDER SERVED ON THE PETITIONER DATED 07.05.2022` - `Exhibit P9 THE TRUE COPY OF THE JUDGMENT OF THIS HONORABLE COURT REPORTED IN 2020(2) KHC 94 (MATHER NAGAR RESIDENCE ASSOCIATION VS. DISTRICT COLLECTOR, ERNAKULAM AND OTHERS)` ``` RESPONDENT ANNEXURES Annexure R2(a)A copy of the photographs of property. Annexure R2(b)A copy of the photographs of property. ``` -13- W.P.(C). No. 16843 of 2022 ``` Annexure R2(c)A true copy of the notice no.A11- 5355/2022 dated 23-04-2022. Annexure R2(d)A true copy of the sent to the land revenue commissioner no. A11- 5355/22(1) dated 07-05-2022. ```