RadhaKrishnan Nair and Sijimol v. State of Kerala and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **WEDNESDAY, THE 19TH DAY OF AUGUST 2020 / 28TH SRAVANA, 1942** ## **WP(C).No.15808 OF 2020(A)** ## **PETITIONERS:** **1 RADHAKRISHNAN NAIR AGED 78 YEARS S/O NARAYANAN NAIR,PADINJAREPULIKKOOTTIL HOUSE,CHAKKAMPUZHA.P.O,KOTTAYAM, PIN-686574.** **2 SIJIMOL, AGED 42 YEARS W/O ANISH.R,ELAVUMTHANATH HOUSE, PANAMATTAM.P.O, KOTTAYAM,PIN-686522.** **BY ADVS. SRI.ROY CHACKO SRI.K.C.VINCENT** ## **RESPONDENTS:** - **1 STATE OF KERALA REPRESENTED BY SECRETARY, DEPARTMENT OF REVENUE,SECRETARIAT, THIRUVANANTHAPURAM-695001.** - **2 THE REVENUE DIVISIONAL OFFICER, PALA,PALA.P.O, PIN-686575.** - **3 THE TAHSILDAR(RECORDS), MEENACHIL TALUK,PALA.P.O, PIN-686575.** - **4 THE VILLAGE OFFICER VELLILAPPILLY,RAMAPURAM BAZAR.P.O,PIN-686576. SRI.SAIGI JACOB PALATTY, SR.GOVT.PLEADER** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 19.08.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** Wpc 15808/2020 2 ## **ALEXANDER THOMAS, J.** **=========================== W.P(C) No. 15808 of 2020** **===========================** Dated this the 19[th] day of August, 2020 ## **JUDGMENT** The prayers in the above writ petition are as follows:- “a) Issue a writ of certiorari or any other appropriate writ, direction or order calling for the records leading to Ext.P6 and quash the same. b) Issue a writ of mandamus or any other appropriate writ, direction or order directing the 3[rd] respondent to reconsider Ext.P5, application under Section 6A of the Kerala Land Tax Act, 1961 and to re-assess the basic tax relating to 9.30 Ares in re-survey No.222/6 in Block No.24 of Vellilappilly Village, relying on Ext.P3 and P4 and to change the categorization of the subject lands, without demanding any payments. c) Issue such other writ, order or direction as this Honourable Court deems fit and proper to grant in the facts and circumstances of the case”. ## 2. Heard Sri K.C.Vincent, learned Counsel appearing for the petitioners and Sri Saigi Jacob Palatty, learned Senior Government Pleader appearing for the respondents. ## 3. The case of the petitioners is that the subject property in dispute which is nilam, has been converted as Garden Land long prior to 12.08.2008 (date of coming into force of the Kerala Conservation of Paddy Land and Wetland Act, 2008). It is undisputed that the petitioners have filed application under Rule Wpc 15808/2020 3 6(2) ) of the Kerala Land Utilization Order, 1967 as early as on 30.11.2017 before the 2[nd] respondent R.D.O as is stated in Ext.P4 judgment. Since no action was forthcoming thereunder, petitioners were constrained to approach this Court by filing WP(C)No.3475 of 2018, in which this Court rendered judgment dated 02.03.2018 directing the respondent R.D.O to consider and pass orders on the application filed by the petitioner. Thereafter, second respondent R.D.O has considered the request of the petitioner under Rule 6(2) of the KLU order and passed Ext.P3 order, disposing of petitioner's application in accordance with the provisions, but also adding a rider therein that the said order will be subject to the provisions of Kerala Conservation of Paddy Land-Wetland (Amendment) Ordinance, which came into force on 30.12.2017. The petitioner was aggrieved by Ext.P3 to the limited extent it necessitated that the petitioner will have to comply with the above rider and will be subject to the amended provisions of Section 27(A) of the Act. And being so aggrieved, petitioner has filed WP(C)No.20134 of 2018 before this court challenging Ext.P3 herein to the said limited extent. This Court allowed the said plea of the petitioner vide Ext.P4 judgment dated 29.07.2019 and held that the condition imposed in Ext.P3 issue is covered by the judgment of this Court referred to therein and that Wpc 15808/2020 4 the stand of the 2[nd] respondent in Ext.P3 necessitating for the adherence to the provisions contained in Section 27A of the Act and the rules framed thereunder is not supported by the provisions contained in the Act. As per Section 27A and the amended provisions, it has been mandated by legislature that if application is filed after coming into force of the Act, it will be considered in accordance with the proceedings of the Act. In other words, it is exclusively mandated that where the application is filed before 30.12.2017, then such application will be considered strictly in terms of KLU order and not in accordance with the amended provisions of the Act as per Section 27A and the rules framed thereunder. Accordingly, this Court is constrained to hold that Ext.P3 order to the limited extent it directed that the said order will be subject to the orders to be obtained under the amended provisions of the Act 2008 is illegal, ultra vires and unenforceable. It is also pertinent to note that this Court, in judgment dated 02.03,2018 in WP(C) No.3475 of 2018 as well as in Ext.P4 judgment dated 29.07.2019 in WP(C) N.20134 of 2018 has also ordered that the petitioner is also equally entitled for fresh assessment of the said property strictly in terms of KLU order and not in accordance with the amended provisions of the Act as per Section 27A and the rules framed thereunder. Wpc 15808/2020 5 Petitioners have filed Ext.P5 application dated 11.10.2019, calling for orders of fresh assessment under Rule 6(A) of the Kerala Land Tax Act, 1960, for securing change of nature of land as garden land. Now very strangely, 3[rd] respondent Tahsildar has passed the impugned Ext.P6 order directing the petitioners to pay the amounts as fee as per the amended provisions of the Act which is the fees prescribed as per Rule 12(9) of the amended rules on the specific ground that the order under Rule 6(2) of the KLU order has been issued by the 2[nd] respondent R.D.O as per Ext.P3 dated 01.06.2018, which is after the cut off date of 30.12.2017. This Court has no hesitation to hold that the stand of the Tahsildar, to say the least, is absolutely illegal, improper, capricious and whimsical. Such an order could not have been passed by the Tahsildar in spite of the directions in Ext.P4 judgment dated 29.07.2019 in WP(C) No.20134 of 2018. The act of passing such orders by the Tahsildar, is in defiance of the authority of this Court which resulted in the Ext.P4 judgment and the said act of a functionary of the Executive Department, who is only in the rank of Tahsildar, would amount to violation of the mandatory provisions of the legislature contained in Section 27A(13) of the Act. 4. Section 27A(13) reads as follows:- (13) any application received for the change of nature of unnotified land from the date of commencement of the Kerala Wpc 15808/2020 6 conservation of Paddy land and Wetland (Amendment Act, 2018) shall be considered and disposed of only in accordance with the provisions of the act”. ## 5. The amended provisions of Rule 12(17) of the Kerala Conservation of Paddy Land and Wetland Act, 2008 reads as follows:- “Rule 12(17) of the Kerala Conservation of Paddy Land Wetland Act, 2008 provides as follows: _(17)_ "2018 ലല കകരള ലനൽവയൽ തണണർതട സസരകണ _**(**_ കഭദഗതത _**)**_ നതയമസ പപരരബലപയതതൽ വനതതനന മനൻപപ _**,** 1967-_ ലല കകരളഭഭവതനതകയരഗ ഉതരവപ പപരകരരസ വണടപ ലവയപകരകനര മറപ ആവശപയങൾകകരനതലസ പരതവർതനലപടനതരൻ നതയമപരമരയത അനനമതത വരങതയതപ സസബനതച ഉതരവനകൾ ഹരജരരകനനപകസഅപപരകരരമനളഭഭമതകപലറവനപയഭ കരഖകളതൽ സപവഭരവ വപയതതയരനസ വരനതനനതതനപ ലഷഡപയഭളതൽ പറഞതരതകനന ഫണസതലന _**25%**_ നതരകതൽഅടവപവരനകതണതരണപ _**.”**_ ## 6. On a bare reading of Section 27A which is indicated above, it is clear like blue sky to any person having ordinary minimum knowledge of law that it is only those applications for change of use of land filed after the cut off date of 30.12.2017 that have to be considered in accordance with the said provisions of the Act. In this case, in view of the directions already issued by this Court in the previous two judgments, it is beyond doubt that the petitioner has filed application as early as on 30.11.2017 which is prior to the cut off date mentioned under the rules. The reason invented by the 3[rd] respondent that the petitioner's case will be regulated by the amended provisions of the Act, including Section 27A and Rule 12(17) thereof is on the specific ground that Wpc 15808/2020 7 Ext.P3 order has been passed by the R.D.O after the cut off date, even though it is evident that the application has been filed before the cut off date. It is not known as to how an officer of the rank of 3[rd] respondent Tahsildar would blatantly violate the mandate of legislature contained in Section 27A (13) of the Act. 7. In the decision reported by a Division Bench of this Court in **District Collector and others v. Fr.Jose Uppani** ([2020(4) KLT 612(DB)] it has been held that in such case where the party has filed request before the cut off date, then there is no question of compelling the party for paying any amounts as conferred under the amended provisions of the Act, including Section 27A and the amended rules framed thereunder including Rule 12(17) thereof. It goes without saying that in such circumstances, there cannot be any obligation of paying fees in terms of Rule 12(17). This Court has also declared and held in a few decisions that in view of the above said aspects, and in the light of the mandatory provisions contained in Section 27A(13), the provisions made as per Rule 12(17) of the Rules is ultravires the provisions contained in Section 27A(13) and therefore is unsustainable so that in a case where the party has filed requisite application before the cut off date, he is entitled to get application under Rule 6(2) of the KLU order without having to pay amounts Wpc 15808/2020 8 as per the amended provisions of the Act and the rules framed thereunder. Equally also it has been held in such case that the Tahsildar concerned is bound to pass orders on the application for alteration of the entries without compelling the party to pay any amounts as conferred under the amended provisions of the Rules including Rule 12(9) and 12(17) thereof, provided the subject property covered by the application under the relevant section is the same as the one covered by the orders passed under Rule 6(2) of the KLU order as aforesaid. These aspects show that this Court has been constrained to reiterate the settled position in the judgments after judgments in such similar cases. In view of the above said concluded findings of this Court as per Ext.P4 judgment, it is only to be held that Ext.P3 proceedings dated 01.06.2018 issued by the 2[nd] respondent is an unconditional order passed under Section 6(2) of the KLU order for change of any non agricultural purpose. Accordingly, it is ordered that the impugned Ext.P6 order will stand set aside and quashed. Ext.P5 application dated 11.10.2019 will stand remitted to the 3[rd] respondent Tahsildar who will immediately grant reasonable opportunity to the petitioner of having heard and if the subject property covered in Ext.P5 application is the same covered by Ext.P3, the order dated 01.06.2018, then the 3[rd] respondent Tahsildar shall pass Wpc 15808/2020 9 orders on Ext.P5 application regarding fresh assessment of the subject property so as to show change of the nature of the land as garden land/purayidam instead of nilam/paddy land, without any further delay, preferably within one month from the date of production of a certified copy of this judgment, and without in any manner compelling the petitioner to pay any amounts as conferred under the amended provisions of the Rules including Rule 12(9) and 12(17) thereof. The petitioner will furnish a copy of this judgment to the 3[rd] respondent for necessary information and further action. With these observations and directions, the above Writ Petitions (Civil) will stand finally disposed of. Sd/- **ALEXANDER THOMAS JUDGE** lgk Wpc 15808/2020 10 ## **APPENDIX** **PETITIONER'S/S EXHIBITS: EXHIBIT P1 TRUE COPY OF TAX RECEIPT OF 18/08/2017. EXHIBIT P2 TRUE COPY OF THE DEATH CERTIFICATE DATED 10/07/2020. EXHIBIT P3 TRUE COPY OF THE PROCEEDINGS OF THE 2ND RESPONDENT DATED 01/06/2018. EXHIBIT P4 TRUE COPY OF THE JUDGMENT OF THIS HONOURABLE COURT DATED 29/07/2019 IN W.P. (C) NO.20134 OF 2018. EXHIBIT P5 TRUE COPY OF THE APPLICATION IN FORM A ALONG WITH COVERING LETTER AND RECEIPT DATED 11/10/2019. EXHIBIT P6 TRUE COPY OF THE ORDER OF THE 3RD RESPONDENT, TAHSILDAR, DATED 09/07/2020.**