Rajendran v. District Collector, Thrissur and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** ## **WEDNESDAY, THE 26TH DAY OF AUGUST 2020 / 4TH BHADRA, 1942** ## **WP(C).No.17233 OF 2020(D)** ## **PETITIONER:** **RAJENDRAN AGED 64 YEARS** **S/O. KRISHNAN, CHEMBAKASSERY HOUSE, KONATHUKUNNU, MUKUNDAPURAM TALUK, THRISSUR-680 683.** **BY ADV. SRI.K.PRAVEEN KUMAR** ## **RESPONDENTS:** - **1 THE DISTRICT COLLECTOR CIVIL STATION (PO), THRISSUR-680 001.** - **2 THE REVENUE DIVISIONAL OFFICER CIVIL STATION (PO), THRISSUR-680 001.** - **3 THE REVENUE DIVISIONAL OFFICER IRINJALAKKUDA, THRISSUR-680 121.** - **4 THE TAHASILDAR (LAND RECORDS) MUKUNDAPURAM TALUK, THRISSUR-680 683.** - **5 THE VILLAGE OFFICER THEKKUMKARA VILLAGE, THEKKUMKARA, THRISSUR-680 608.** - **6 STATE OF KERALA** **REPRESENTED BY ITS SECRETARY, REVENUE DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM-695 001.** ## **SRI.K.J.MANU RAJ, GOVT.PLEADER** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 26.08.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** W.P(C) No.17233 of 2020 2 # **ALEXANDER THOMAS, J.** **============================= W.P(C) No.17233 of 2020** **=============================** Dated this the 26[th] day of August, 2020 ## **JUDGMENT** The prayers in the above Writ Petition (Civil) are as follows : “i) issue a writ of certiorari or any other writ, order or direction calling for the records leading to Ext.P2 and to quash the original of the same to the extent it relates to conditions prescribed thereunder for compliance of Ordinance 41 of 2017 (Act 29 of 2018) as it is against the law laid down by this Hon'ble court. ii) issue a writ of mandamus or any other writ, order or direction to 4[th] respondent to consider Ext.P3 application and carry out additions in respect of the property in the BTR by adding dry land/garden land instead of current entry of 'nilam'/paddy land as held by this Hon'ble Court in Kizhakkambalam Grama Panchayat Vs Mariumma (2015 (2) KLT 516); iii) to issue such other writ, order or direction as this Honourable Court may deem fit and proper in the circumstances of the case.” 2. Heard Sri.K.Praveen Kumar, learned counsel appearing for the petitioner and Sri.K.J.Manu Raj, learned Government Pleader appearing for the respondents. 3. In the instant case, it is indisputable that the petitioner had already filed the requisite application under Rule 6(2) of the Kerala Land Utilization (KLU) Order before the 2[nd] respondent-Revenue Divisional Officer (RDO) as early as on 02.03.2017, as can be seen from the said document marked as Ext.P-2 in Ext.P-1 W.P(C) No.9266/2017 filed by the W.P(C) No.17233 of 2020 3 petitioner previously before this Court. This Court as per Ext.P-1 judgment directed the consideration of the said application, in accordance with Rule 6(2) of the KLU Order, which resulted in Ext.P-2 order dated 14.03.2018 issued by the 2[nd] respondent-RDO. It appears that the petitioner has given a subsequent application or reminder on 06.12.2017 along with a copy of Ext.P-1 judgment and the said application/reminder dated 06.12.2017 is referred to as item No.1 in Ext.P-2. Suffice to say, there is no dispute that the petitioner has in fact filed the application under Rule 6(2) of the KLU Order before the cut-off date of 30.12.2017 (the date of coming into force of the amended provisions of the 2008 Act, which has introduced Sec.27A thereof) and as a matter of fact, thereon, the 2[nd] respondent has issued Ext.P-2 order dated 14.03.2018, whereby the substantive decision has been taken to grant permission to the petitioner under Rule 6(2) of the KLU Order for change of user of the land. However, a rider is added to Ext.P-2 by the 2[nd] respondent that the petitioner should also pay the requisite amounts as conceived as per the amended ordinance of the State Act 28 of 2008, before he may get orders for building permit, etc. It is this restrictive condition in Ext.P-2 that is under challenge in this W.P(C). The petitioner has also filed the consequential application as per Ext.P-3 dated 23.10.2019 before the 4[th] respondent-Tahsildar, for fresh assessment of the subject property, in terms of Sec.6A of the Kerala Land W.P(C) No.17233 of 2020 4 Tax Act for alteration in the Basic Tax Register (BTR). The legal position in this regard is no longer _res integra_ and is covered by a series of rulings of this Court 4. 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 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**_ W.P(C) No.17233 of 2020 5 _**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.]. 5. 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 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. 6. It has also been held by this Court in decisions as in _**District Collector and others v. Fr.Jose Uppani**_ [2020 (4) KLT 612 (DB)] in the common judgment dated 21/07/2020 rendered in W.A.Nos.876 & 918 of 2020 that the amended provisions of the Act cannot be applied to the petitions filed before the cut-off date viz. 30.12.2017. 7. It has also been held by this Court in decisions as in _**Sealand Builders Pvt. Ltd. v. Revenue Divisional Officer**_ [2020 (5) KLT 56] in the judgment dated 27.07.2020 in W.P(C) No.14531/2020 and W.P(C) No.17233 of 2020 6 ## paragraph Nos.11 & 13 of the said judgment reads as follows : “11. It has also to borne in mind the legislature has specifically mandated Sub Sec (13) of Sec.27A that it is only those application received for change of nature of unnotified land from the date of commencement of the Kerala Conservation of Paddy Land and Wetland (Amendment) Act, 2018 (viz, 30-12-2017) that shall be considered and disposed of only in accordance with the provisions of the said Act. Therefore in other words application for change of user of the land received by the notified Collector before 30-12-2017 has to be considered only in terms of Rule 6(2) of the KLU Order and not in terms of Sec.27A and the rules framed thereunder. XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX 13. Since it is specifically mandated in Sec.27A(13) by the legislature that it is only those applications received for change of nature of the unnotified land from the date of commencement of the Amendment Act (viz, 30-12-2017) that has to be considered and decided in terms of the said Act, and in view of the abovesaid well settled legal positions mentioned herein above, it has only to be held that Rule 12(17) is ultra vires the provisions contained in Sec.27A(13) and is unenforceable. It is all the more so, as this Court has repeatedly held in various decisions that in a case that the party has filed requisite application under Rule 6(2) of the KLU Order before 30-12-2017 and the same has to be considered in terms of Rule 6(2) of the KLU Order and not in terms of Sec.27A of the Act and without compelling the party to pay the amounts as conceived as per the amended provisions of the 2008 Act, including Sec.27A thereof and the rules framed thereunder including Rule 12(17) thereof. The position in that regard is declared and ordered in this case as well.” 8. Therefore, in view of the explicit mandate made by the Legislature in Sec.27A(13) of the Act only those applications for change of user of the land filed on or after 30.12.2017 (date of coming into force of the amended provisions of the 2008 Act, which has introduced Sec.27A thereof), that alone could be considered in terms of the provisions of the Act and in other words, the application for change of user of the land filed before 30.12.2017 will have to be necessarily and statutorily considered W.P(C) No.17233 of 2020 7 only in terms of Rule 6(2) of the KLU Order, in which case, none of the adverse provisions in the said amended provisions of the Act including the requirement to pay fee as per the amended provisions of the Rule, including Rule 12(17) thereof would be applicable. In view of the abovesaid aspect, there cannot be any doubt that Rule 12(17) of the Rules is _ultra vires_ the provision contained in Sec.27A(13) of the parent Act and hence it is illegal and unenforceable. 9. In that view of the matter, it is ordered that Ext.P-2 proceedings to the limited extent, it orders that the petitioner should also comply with the requirements in the amended provisions of the 2008 Act, is illegal and _ultra vires_ and the same will stand quashed, rescinded and struck down. Accordingly, it is ordered and declared that Ext.P-2 proceedings is a substantive decision taken by the 2[nd] respondent-RDO, which is unconditional and it grants statutory permission to the petitioner for change of user of the land for any non-agricultural purposes, including construction of buildings. Accordingly, it is ordered that the 4[th] respondent-Tahsildar will immediately take up for consideration the matters raised in Ext.P-3 application dated 23.10.2019, without much delay and may ascertain as to whether the subject property covered by Ext.P-3 is the same or part of the one covered by Ext.P-2 and if the subject property covered by Ext.P-3 application filed under Sec.6A of the Kerala Land Tax W.P(C) No.17233 of 2020 8 Act is the same or part of the one covered by Ext.P-2 proceedings under Rule 6(2) of the KLU Order, then the 4[th] respondent-Tahsildar will afford reasonable opportunity of being heard to the petitioner, should pass orders for re-assessment of the subject property, in terms of Sec.6A of the Kerala Land Tax Act, so as to secure additional entries in the BTR to show the changed nature of the land as ‘garden land/purayidom’ instead of the earlier BTR entries as ‘Nilam/paddy land’, within one month from the date of receipt of a certified copy of this judgment and strictly in accordance with the dictum laid down by the Division Bench of this Court in cases as in **Mariyummas’s case** (supra) and without compelling the petitioner to pay any amounts conceived as per the amended provisions of the 2008 Act, which has introduced Sec.27A thereof and the amended Rules framed thereunder, including Rule 12(9) and Rule 12(17) thereon. Thereafter, after passing orders on re-assessment and alteration in the BTR, the 4[th] respondent-Tahsildar should give consequential directions to the 5[th] respondent-Village Officer to actually carry out such corrections and alterations in the BTR and thereafter, the 5[th] respondent-Village Officer would then accept land tax from the petitioner and issue land tax receipt showing such alterations in the BTR. Steps in that regard should be duly completed by the 5[th] respondent-Village Officer within three weeks from the date of receipt of a copy of the proceedings of the 4[th] respondent- W.P(C) No.17233 of 2020 9 Tahsildar, as aforedirected. 10. The petitioner will produce a certified copy of this judgment along with a copy of the Memorandum of this W.P(C) with all the exhibits before respondent Nos.4 & 5, for necessary information. With these observations and directions, the above Writ Petition (Civil) will stand finally disposed of. **Sd/-** **ALEXANDER THOMAS JUDGE** vgd W.P(C) No.17233 of 2020 10 ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF THE COMMON JUDGMENT DATED 13.11.2017 IN WPC NO.9266/17. EXHIBIT P2 TRUE COPY OF THE ORDER NO.B220935/2017/D.DIS DATED 14.3.2018 ISSUED BY THE 2ND RESPONDENT.** **EXHIBIT P3 TRUE COPY OF THE APPLICATION DATED 23.10.2019 SUBMITTED BY THE PETITIONER BEFORE THE 4TH RESPONDENT.** **EXHIBIT P4 TRUE COPY OF THE JUDGMENT IN WPC NO.30602/19 DATED 19.11.2019.**