R. Krishnakumar v. State of Kerala and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **MONDAY, THE 13TH DAY OF JULY 2020 / 22ND ASHADHA, 1942** ## **WP(C).No.13606 OF 2020(A)** ## **PETITIONER:** **R.KRISHNAKUMAR AGED 43 YEARS S/O. R.R.KAMMATH, KOOTUMGAL HOUSE, NEAR T.D.TEMPLE, CHERTHALA P.O., ALAPPUZHA, PIN - 688 524. BY ADV. SRI.GOKUL DAS V.V.H.** ## **RESPONDENTS:** - **1 STATE OF KERALA REPRESENTED BY PRINCIPAL SECRETARY, LOCAL SELF GOVERNMENT DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM, PIN - 695 001.** - **2 REVENUE DIVISIONAL OFFICER OFFICE OF THE REVENUE DIVISIONAL OFFICER, ALAPPUZHA, PIN - 688 001.** - **3 VILLAGE OFFICER CHERTHALA NORTH VILLAGE OFFICE, CHERTHALA, ALAPPUZHA, PIN - 688 524.** - **4 CHERTHALA SOUTH GRAMA PANCHAYAT REPRESENTED BY ITS SECRETARY, CHERTHALA SOUTH P. O., CHERTHALA, ALAPPUZHA, PIN - 688 552.** - **5 ADDL.R5. THE TAHSILDAR, CHERTHALA TALUK, CHERTHALA, ALAPPUZHA DISTRICT.** **SRI.SAIGI JACOB PALATTY, SR.GOVT.PLEADER SRI.V.R.RAJESH,SC** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 13.07.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** W.P(C) No.13606 of 2020 2 ## **ALEXANDER THOMAS, J.** # **=========================== W.P(C) No.13606 of 2020** **===========================** Dated this the 13[th] day of July, 2020 ## **JUDGMENT** The prayers in this Writ Petition (Civil) are as follows: _1. “to call for the records leading to Exhibit P10 by issuance of a writ of certiorari or any other appropriate writ, order or direction, and quash the same in so far it grants permission for conversion of 10 cents of land and construction of residential building having plinth area of 120 square metres under Section 27A(6) of the Kerala Conservation of Paddy Land and Wetland Act, 2008, instead of granting conversion of entire extent of 12 cents of land by virtue of Exhibit P1 under Section 27A(1) and (3) of the Act as sought for in Exhibit P9 application._ _2. to issue a writ of mandamus or any other appropriate writ, order or direction directing the 2nd respondent to consider and pass appropriate order on Exhibit P14 representation in terms of Section 27A(7) of Act 28 of 2008 on the basis of the Exhibit P6 to P6(d) reports, within a time frame to be fixed by this Hon’ble Court._ _3. to issue a writ of mandamus or any other appropriate writ, order or direction directing the 4th respondent to regularize the building constructed by the petitioner by virtue of Exhibit P8 building permit and number the same expeditiously within the time frame to be fixed by this Hon’ble Court._ _4. to issue a writ of mandamus or any other appropriate writ, order or direction directing the 3rd respondent to re-assess the tax in respect of 4.86 Ares (equivalent to 12 cents) of property in Survey No. 108/16B of Cherthala North Village on the basis of orders passed by the 2nd respondent on Exhibit P14 representation under Section 27C of Act 28 of 2008 without further delay._ _5. to issue such other appropriate writs, orders or directions as this Hon’ble Court deems fit and proper in the facts and circumstances of the case.”_ W.P(C) No.13606 of 2020 3 2. Heard Sri.V.V.H.Gokuldas, learned counsel appearing for the petitioner, Sri.Saigi Jacob Palatty, learned Senior Government Pleader appearing for respondent Nos.1 to 3 & 5 and Sri.V.R.Rajesh, learned Standing Counsel appearing for the 4[th] respondent (Cherthala South Grama Panchayat). 3. The case of the petitioner is that the subject property though continues to be described as ‘Paddy land/Nilam’ in the Basic Tax Register (BTR) has been converted as ‘Garden land or purayidom’ much prior to 12.08.2008 (date of coming into force of the Kerala Conservation of Paddy Land & Wetland Act, 2008) that the subject property has not been included in the land data bank prepared as per the provisions of the 2008 Act. That the total extent of the land is 4.86 Ares (12 cents), as can be seen from Ext.P-1 land tax receipt. Since the petitioner wanted to effect the construction of a building in the said property, the petitioner has filed Ext.P-5 application dated 15.04.2017 before the 2[nd] respondent-Revenue Divisional Officer under Rule 6(2) of the Kerala Land Utilization Order, 1967 seeking formal orders of permission for change of the user of the land for any non-agricultural purposes. Ext.P-6 is the report dated 23.12.2017 submitted by the 3[rd] respondent-Village Officer, which according to the petitioner is in favour of his case. Further that, Ext.P-6(a) is yet another W.P(C) No.13606 of 2020 4 report given by the Agricultural Officer concerned, who is the ex-officio Convenor of the Local Level Monitoring Committee (LLMC) on 23.12.2017, which also is in favour of the petitioner, it is urged. 4. The abovesaid reports as well as Ext.P-6(b) affidavit of the petitioner would show that the petitioner has no other land to construct building. Thereafter, it appears that the provisions of the Kerala Conservation of Paddy Land & Wetland Act, 2008 were amended with effect from 30.12.2017 introducing Sec.27A thereof. It appears that the 2[nd] respondent has taken the stand that after coming into force of the said amended provisions of the 2008 Act, the petitioner’s application as per Ext.P-5 under Rule 6(2) of the KLU Order though filed before the cut-off date of 30.12.207 may not be legally maintainable and that the petitioner may have to go through the procedure of Sec.27A(1) or that in case, the petitioner limits his claim for conversion only to 4.04 Ares out of the total extent of 4.86 Ares. Then his case could be considered under Sec.27A(6) of the 2008 Act. Sec.27A(6) of the 2008 Act reads as follows: “ _**27A. Change of nature of unnotified land**_ _XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX_ _(6) Notwithstanding anything contained in the Kerala Panchayat Raj Act, 1994 or in the Kerala Municipality Act, 1994, no permission under this section shall be necessary for constructing a residential building having a maximum area of 120 square meters in a_ W.P(C) No.13606 of 2020 5 _maximum extent of 4.04 ares of land or a commercial building having a maximum area of 40 square meters in a maximum extent of 2.02 ares of land:_ _Provided that the construction of a housing complex or complexes or flats or multi-storied residential complexes shall not come within the meaning of residential building specified in this sub-section:_ _Provided further that this exemption shall be granted only once.”_ 5. According to the petitioner the 2[nd] respondent had thereupon instructed the petitioner to file a fresh application limiting his claim under Sec.27A(6). Since the building construction proposed by the petitioner was in excess of 120 square metre as limited in Sec.27A(6). The petitioner in order to formally satisfy the said demand of the 2[nd] respondent-RDO has given Ext.P-9 application dated 08.02.2018, wherein he has made the claim for change of user of the land for the entire extent of 12 cents (4.86 Ares) and not merely 4.04 Ares. Now the 2[nd] respondent-RDO has passed Ext.P-10 proceedings dated 05.03.2018 ordering that the petitioner could be given permission for change of user of the land to an extent of 4.04 Ares in accordance with Sec.27A(6) and subject to the condition that the building to be constructed by the petitioner should not exceed 120 sq.m. as stipulated in Sec.27A(6). The impugned Ext.P-10 proceedings dated 05.03.2018 issued by the 2[nd] respondent-RDO reads as follows : W.P(C) No.13606 of 2020 6 **==> picture [467 x 740] intentionally omitted <==** W.P(C) No.13606 of 2020 **==> picture [467 x 736] intentionally omitted <==** 7 W.P(C) No.13606 of 2020 8 6. Thereafter, the petitioner has secured Ext.P-8 building permit dated 26.05.2018 issued by the 4[th] respondent-Cherthala South Grama Panchayat, wherein the construction permitted is for 153.35 sq.m. for the entire extent of 4.86 Ares covered by Ext.P-1 receipt & Ext.P-5 application. When the petitioner produced Ext.P-10 proceedings before the 4[th] respondent-Secretary of the Grama Panchayath, the said officer has now issued Ext.P-13 dated 04.06.2020 taking the stand that since the permission obtained by the petitioner as per Ext.P-10 is under Sec.27A(6) of the 2008 Act, the construction area could only be upto 120 sq.m. and as the actual construction has exceeded the said limit, he is not in a position to number the building by acting upon Ext.P-10 proceedings dated 05.03.2018. It is in the light of these aspects, the petitioner has filed the instant writ petition with the aforementioned prayers. 7. Prima facie, it appears that the case of the petitioner is that he has in fact filed Ext.P-5 application dated 15.04.2017 under Rule 6(2) of the KLU Order and that thus he has made the said request under Rule 6(2) before the cut-off date of 30.12.2017 appears to be correct. This is all the more evident that Ext.P-6 report dated 23.12.2017 furnished by the 3[rd] respondent-Village Officer, which appears to be in response to Ext.P-5 application. From a reading of Ext.P-6 report dated 23.12.2017 issued by W.P(C) No.13606 of 2020 9 the 3[rd] respondent-Village Officer, it appears that the 2[nd] respondent-RDO had earlier directed the 3[rd] respondent-Village Officer to furnish report as per letter dated 29.07.2017. Further, Ext.P-6(a) dated 23.12.2017 is the report that is seen submitted by the ex-officio Convenor of the statutory Local Level Monitoring Committee. Hence, the abovesaid reports of the Village Officer and the LLMC which are all issued before the cut-off date of 30.12.2017 as well as the letter dated 29.07.2017 issued by the 2[nd] respondent-RDO would all reinforce the case of the petitioner that as a matter of fact, has in fact filed Ext.P-5 application under Rule 6(2) of the KLU Order on 15.04.2017, which is much before the cut-off date of 30.12.2017 (date of coming into force of the amended provisions of the 2008 Act, which has introduced Sec.27A thereof). 8. It is by now well settled by a series of rulings of this Court that where the subject property has been converted as Garden Land or Purayidam prior to 12.08.2008 (date of coming into force of the Kerala Conservation of Paddy Land and Wetland Act, 2008) and where the property holder has filed the requisite application under Rule 6(2) of the Kerala Land Utilization Order for change of user of the land, before 30.12.2017 (date of coming into force of the amended provisions of the 2008 Act, which has introduced Sec.27A thereof, then in such a case, the W.P(C) No.13606 of 2020 10 property holder is entitled to get his request is considered in terms of Rule 6(2) of the KLU Order and in such a case none of the adverse provisions contained in the amended provisions of the 2008 Act, including Sec.27A thereof and the amended Rule framed thereunder cannot be enforced as against such a property holder. In other words, the application under Rule 6(2) of the KLU Order has to be considered strictly in terms of that provision and without insisting for the amounts conceived as per the amended provisions of the 2008 Act including Sec.27A thereof and the amended provisions of the Rules (refer _**Geo Peter v. Revenue Divisional Officer**_ [2019 (3) KLT 838], _**Renjith K.Paul v. Revenue Divisional Officer**_ [2019 (2) KLT 262], _**Tahsildar, Thodupuzha Taluk and another v. Renjth George**_ [2020 (1) KHC 865 (DB)] _**LLMC, Kizhakkambalam Grama Panchayath and others v. Mariumma and another**_ [2015 (2) KLT 516 (DB), etc.]. 9. Further, in the aforesaid judgments of the Division Bench of this Court in **Mariyumma’s case** (supra) and _**Renjth George's case**_ (supra), it has also been held that in such a case where the property holder has filed the application under Rule 6(2) before 30.12.2017 and after securing such orders under Rule 6(2), the party concerned is also entitled to get the subject property assessed/re-assessed under Sec.6A of the Kerala W.P(C) No.13606 of 2020 11 Land Tax Act, so as to secure additional entries in the BTR to show the change nature of the land as garden land or purayidam instead of the earlier BTR entries as paddy land or Nilam. 10. Moreover, it should also be borne in mind that the legislature has specifically mandated as per Sec.27A(13) of the 2008 Act that it is only those applications for change of nature of the unnotified land received on or after 30.12.2017 (date of commencement of the amended provisions of the 2008 Act) that could be considered in accordance with Sec.27A. Moreover, the provisions of the Kerala Land Acquisition Order, more particularly, Rule 6 has not in any manner been amended or repealed. Hence, even going by the legislative mandate under Sec.27A(3), it can be seen that in respect of an application seeking for change of user of the land, which has been filed before 30.12.2017 could be considered in terms of Rule 6(2) of the KLU Order and it is only those applications filed on or after 31.12.2017, that may come within the ambit of Sec.27A in view of the specific mandate made by the legislature as per Sec.27A(13). So in case, the petitioner has in fact filed Ext.P-5 application before the cut-off date, then the action of the 2[nd] respondent-RDO in issuing an order in the nature of Ext.P-10 confining the benefit of permission only to the land having an extent of 4.02 Ares out of the total extent of 4.86 Ares, appears to be wrong W.P(C) No.13606 of 2020 12 and untenable. Moreover, a reading of Sec.27A(6) would make it clear like the day light that for getting the benefit of the said provision, no statutory permission is required from any competent revenue authorities including the 2[nd] respondent-RDO. That apart, the petitioner has reiterated in Ext.P-9 application dated 08.02.2018 that his request is from the entire extent of 12 cents and that it is not confined 12 cents (4.86 Ares). So it is not confined only to 4.04 Ares out of the total extent of 4.86 Ares. 11. After hearing both sides, it appears that the 2[nd] respondent would have passed an order in the nature of Ext.P-10 dated 05.03.2018 on account of improper comprehension of the provisions of the 2008 Act and its applicability _viz-a-viz_ applications filed under Rule 6(2) of the KLU Order before the cut-off date of 30.12.2017. In that view of the matter, it is ordered that the impugned Ext.P-10 order dated 05.03.2018 and the consequential order dated 05.12.2018 issued by the 2[nd] respondent-RDO and the consequential impugned Ext.P-13 order dated 04.06.2020 issued by the Secretary of the 4[th] respondent Grama Panchayat will both stand quashed and set aside. 12. The application filed by the petitioner under Rule 6(2) of the KLU Order will stand remitted to the 2[nd] respondent-RDO, for consideration and decision afresh. In that regard, the 2[nd] respondent-RDO W.P(C) No.13606 of 2020 13 will afford reasonable opportunity of being heard to the petitioner and should ascertain as to whether the petitioner has in fact filed Ext.P-5 application dated 15.04.2017 before the cut-off date of 30.12.2017 and in that regard, the abovesaid aspect borne out from Ext.P-6 report dated 23.12.2017 of the 3[rd] respondent-Village Officer, Ext.P-6(a) report dated 23.12.2017 of the LLMC as well as the letter dated 29.07.2017 of the 2[nd] respondent-RDO referred to in Ext.P-6 should all be borne in mind. If the 2[nd] respondent will afford reasonable opportunity of being heard to the petitioner and if it is found that Ext.P-5 application has been filed before the cut-off date of 30.12.2017, then strictly the said should be considered only in terms of the provisions contained in Rule 6(2) of the KLU Order and the provisions in Sec.27A should not in any manner taken into account and orders should be passed thereon, without much delay, preferably within a period of six weeks from the date of production of a certified copy of this judgment. In that regard, this Court would also observe that _prima facie_ if as a matter of fact, the petitioner has in fact filed Ext.P-5 application under Rule 6(2) of the KLU Order before the cut-off date of 30.12.2017, then since the 2[nd] respondent-RDO has already taken a decision as is reflected in Ext.P-10 that permission could be granted for 4.04 Ares, etc., then permission under Rule 6(2) of the KLU Order for the entire extent of W.P(C) No.13606 of 2020 14 4.86 Ares could also be easily granted by the 2[nd] respondent. That apart, it should also be borne in mind that Sec.27A(7) of the Act would clearly mandate that in case, the applicant who gets the benefit of Sec.27A(6) makes construction subsequently, which is exceeding the limit of 120 Sq.m, then such a party is liable to pay the entire prescribed fee in terms of Se.27A(3) for change of user of the land. In the instant case, since the petitioner’s building construction is for 153.35 Sq.m, as can be seen from Ext.P-8 building permit, the permission granted as per Ext.P-10 will not be in any manner of benefit to the petitioner. So as a matter of fact, the petitioner has in fact filed Ext.P-5 application for permission under Rule 6(2) of the KLU Order before the cut- off date of 30.12.2017, then it was the bounden duty of the 2[nd] respondent-RDO to have consider the merits of the said application and pass orders thereon strictly in accordance with Rule 6(2) of the KLU Order and without compelling the petitioner in any manner to pay the amounts as conceived as per the amended provisions of the 2008 Act and the Rules framed thereunder. All relevant aspects in the matter including the abovesaid observations and findings made by this Court should be duly borne in mind by the 2[nd] respondent-RDO while taking decision. W.P(C) No.13606 of 2020 15 13. While passing orders it should be ensured by the 2[nd] respondent-RDO that if as a matter of fact the petitioner has filed Ext.P-5 application before the cut-off date of 30.12.2017, then he cannot be compelled in any manner to pay the amounts as conceived as per the amended provisions of the 2008 Act and the amended Rules framed thereunder, including Rule 12(17) thereof. 14. After the petitioner secures orders of permission for change of user of the land from the 2[nd] respondent-RDO, he may file the consequential application, as aforedirected before the 5[th] respondentTahsildar under Sec.6A of the Kerala Land Tax Act for re-assessment of the subject property, so as to secure additional entries in the BTR to show the changed nature of the land as ‘garden land or purayidom’ instead of the earlier BTR entries as ‘Nilam/Paddy land’. The petitioner may file such application before the 5[th] respondent-Tahsildar along with a copy of the order of the 2[nd] respondent granting permission under Rule 6(2) of the KLU Order along with a copy of this judgment. If the said formalities are duly observed by the petitioner, then the 5[th] respondent-Tahsildar will afford a reasonable opportunity of being heard to the petitioner and should pass orders of re-assessment under Sec.6A of the Kerala Land Tax Act in respect of such property for which Rule 6(2) permission has been given by W.P(C) No.13606 of 2020 16 the 2[nd] respondent, so as to secure additional entries in the BTR to show the changed nature of the land as ‘garden land or purayidom’, without much delay, preferably within a period of one month from the date of filing of such application along with a copy of the order passed by the 2[nd] respondent-RDO granting permission under Rule 6(2) strictly in accordance with the dictum laid down by the Division Bench of this Court in cases as in **Mariummas’s case** (supra) & Renjith Geroge’s case (supra) and without compelling the petitioner in any manner to pay the amounts as conceived as per the provisions of the 2008 Act and the Rules framed thereunder, including Rule 12(17) thereof. 15. After the petitioner secures orders from the 2[nd] respondentRDO under Rule 6(2) of the KLU Order as well as the consequential orders to be passed by the 5[th] respondent-Tahsildar under Sec.6A of the Kerala Land Tax Act, as aforedirected, the petitioner may produce copies of those proceedings before the 4[th] respondent-Secretary of the Grama Panchayat. Upon which the 4[th] respondent-Secretary of the Panchayat will reconsider the application of the petitioner for numbering of the building covered by Ext.P-8 building permit, without much delay, preferably within a period of one month from the date of receipt of the request in that regard submitted by the petitioner along with copies of the abovesaid proceedings. W.P(C) No.13606 of 2020 17 16. The petitioner will produce copies of this judgment along with copies of the Memorandum of this W.P(C) with all the exhibits before the 2[nd] respondent-RDO and the 4[th] respondent-Secretary of the Grama Panchayat, for necessary information and further action. With these observations and directions, the above Writ Petition (Civil) will stand finally disposed of. Sd/- **ALEXANDER THOMAS JUDGE** vgd W.P(C) No.13606 of 2020 18 ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1** **A TRUE COPY OF THE LAND TAX RECEIPT ISSUED BY THE VILLAGE OFFICER, CHERTHALA NORTH VILLAGE IN RESPECT OF 4.86 ARES OF PROPERTY IN SURVEY NO.108/16B DATED 20.11.2019.** - **EXHIBIT P2 A TRUE COPY OF THE RELEVANT EXTRACT OF THE BASIC TAX REGISTER IN RESPECT OF 4.86 ARES OF PROPERTY IN SURVEY NO.108/16B OF CHERTHALA NORTH VILLAGE.** - **EXHIBIT P3 A TRUE COPY OF THE LETTER DATED 16.01.2017 BEARING NO.A3-420/2017 ISSUED BY THE 4TH RESPONDENT.** - **EXHIBIT P4 A TRUE COPY OF THE ORDER DATED 28.03.2017 BEARING NO.A3-420/2017 ISSUED BY THE 4TH RESPONDENT.** - **EXHIBIT P5 A TRUE COPY OF THE APPLICATION DATED 15.04.2017 SUBMITTED BY THE PETITIONER UNDER CLAUSE 6 OF THE KERALA LAND UTILIZATION ORDER BEFORE THE 2ND RESPONDENT.** **EXHIBIT P6 A TRUE COPY OF THE REPORTS OF THE VILLAGE OFFICER, CHERTHALA NORTH VILLAGE.** - **EXHIBIT P6 (a) A TRUE COPY OF THE REPORT DATED 23.12.2017 OF THE AGRICULTURAL OFFICER, CHERTHALA.** - **EXHIBIT P6 (b) A TRUE COPY OF THE AFFIDAVIT DATED 23.12.2017 OF THE PETITIONER.** - **EXHIBIT P6 (c) A TRUE COPY OF THE MAHAZAR DATED 02.12.2017 PREPARED BY THE VILLAGE OFFICER, CHERTHALA NORTH VILLAGE.** - **EXHIBIT P6 (d) A TRUE COPY OF THE RELEVANT EXTRACT OF THE THANDAPER ACCOUNT OF THE PETITIONER'S PROPERTY.** **EXHIBIT P7 A TRUE COPY OF THE APPLICATION SUBMITTED BY THE PETITIONER BEFORE THE 2ND RESPONDENT WITH THE ENDORSEMENT MADE THEREIN DATED** W.P(C) No.13606 of 2020 19 **11.01.2018.** **EXHIBIT P7 (a) A TRUE COPY OF THE CIRCULAR NO.1858832/RA1/2017/LSGD DATED 06.12.2017 ISSUED BY THE LSG DEPARTMENT.** **EXHIBIT P8 A TRUE COPY OF THE BUILDING PERMIT DATED 26.05.2018 ISSUED BY THE 4TH RESPONDENT TO THE PETITIONER.** **EXHIBIT P9 A TRUE COPY OF THE APPLICATION DATED 08.02.2018 SUBMITTED BY THE PETITIONER BEFORE THE 2ND RESPONDENT.** **EXHIBIT P10 A TRUE COPY OF THE ORDER NO.C-7114/18/K.DIS DATED 05.03.2018 ISSUED BY THE 2ND RESPONDENT.** - **EXHIBIT P11 A TRUE COPY OF THE RELEVANT EXTRACT OF THE FAIR VALUE OF THE LAND IN RESPECT OF SURVEY NO.108/16B OF CHERTHALA NORTH VILLAGE.** **EXHIBIT P12 A TRUE COPY OF THE RECEIPT DATED 23.03.2020 ISSUED BY VILLAGE OFFICER.** **EXHIBIT P13 A TRUE COPY OF THE COMMUNICATION DATED 04.06.2020 BERING NO.A3-306/2020 ISSUED BY THE 4TH RESPONDENT.** **EXHIBIT P14 A TRUE COPY OF THE REPRESENTATION DATED 25.06.2020 SUBMITTED BY THE PETITIONER BEFORE THE 2ND RESPONDENT.**