ROJA P.K. v. Revenue Divisional Officer, Palakkad and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **MONDAY, THE 01ST DAY OF JUNE 2020 / 11TH JYAISHTA, 1942** ## **WP(C).No.4422 OF 2020(C)** ## **PETITIONER:** **ROJA.P.K AGED 73 YEARS** **W/O (LATE) P.E.VENKITARAMAN, 14/155, ANAGHA, CALICUT BY-PASS ROAD, KALPATHY P.O.PALAKKAD.** **BY ADVS.** **SRI.JACOB SEBASTIAN SRI.K.V.WINSTON SMT.ANU JACOB** ## **RESPONDENTS:** - **1 THE REVENUE DIVISIONAL OFFICER OFFICE OF THE REVENUE DIVISIONAL OFFICER, PALAKKAD-678 001.** - **2 THE LOCAL LEVEL MONITORING COMMITTEE FOR PALAKKAD MUNICIPALITY CONSTITUTED UNDER THE CONSERVATION OF PADDY LAND AND WETLAND ACT, REPRESENTED BY ITS CONVENOR, THE AGRICULTURAL OFFICER, PALAKKAD, PALAKKAD,PIN-678 001.** - **3 THE THAHSILDAR, TALUK OFFICE, PALAKKAD-678 001.** - **4 THE VILLAGE OFFICER, PALAKKAD-11 VILLAGE OFFICE, PALAKKAD-678 001.** - **5 THE STATE OF KERALA, REPRESENTED BY ITS SECRETARY, DEPARTMENT OF LOCAL SELF GOVERNMENT, THIRUVANANTHAPURAM,PIN-695 001.** **BY ADVS. SRI.SAIGI JACOB PALATTY, SR.GOVT.PLEADER** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 01.06.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** W.P(C). No. 4422 of 2020 2 ## ALEXANDER THOMAS, J. ------------------------------------ ## W.P(C). No. 4422 of 2020 -----------------------------------Dated this the 1[st ] day of June, 2020 ## **JUDGMENT** ## The prayers in the above writ petition (C) are as follows:- - _i) Quash Ext.P8 insofar as it imposes conditions on the petitioner for carrying out constructions in her property._ - _ii) Issue a writ in the nature of mandamus commanding respondents 1, 3 and 4 to change the entry regarding the petitioner’s property in the BTR as garden land fit for construction purpose._ - _iii) Declare that inasmuch as the petitioner has converted the property on the strength of KLU Order prior to coming into force of Act 28 of 2008, the provisions of Act 28 of 2008 are not applicable to the petitioner._ - _iv) Issue such other writ, order or direction as this Hon’ble Court deems fit and proper in the circumstances of the case._ 2. Heard Sri.Jacob Sebastian, learned counsel appearing for the petitioner and Sri.Saigi Jacob Palatty, learned Senior Government Pleader appearing for the respondents. 3. It is beyond any dispute that the subject property of the petitioner though classified as nilam/paddy land as per the BTR/revenue records, have been converted as garden land or purayidam much prior to 12-08-2008 (date of coming into force of W.P(C). No. 4422 of 2020 3 Kerala Conservation of Paddy Land and Wetland Act, 2008). As a matter of fact that the petitioner had filed a requisite application under Rule 6(2) of the KLU Order before the 1[st] respondent RDO even prior to 12-08-2008. Since no action has been taken thereon, this Court as per Ext.P9 judgment dated 04-04-2008 in W.P(C) No.11586 and connected cases, has directed the respondent RDO to consider and take decision on the request made by the petitioner in the said application filed under Rule 6(2) of the KLU Order (Ext.P1 therein). Pursuant thereto Ext.P9 judgment dated 04-04-2008 in W.P(C) No.11586 of 2008 as well as Ext.P10 judgment dated 10-042008 in W.P(C) No.12466 of 2008 that the respondent RDO should consider and pass orders on those applications filed under Rule 6(2) of the KLU Order (produced as Ext.P1 respectively both the writ petitions). 4. It is also not in a dispute that the respondent RDO has in fact passed Ext.P11 proceedings dated 11-06-2008 as corrected by Ext.P12 proceedings dated 25-11-2009 as well as Ext.P13 proceedings dated 11-06-2008, granting the petitioner requisite permission for change of use of the land in terms of Rule 6(2) of the KLU Order, W.P(C). No. 4422 of 2020 4 1967. A reading of Exts.P11 to P13 would make it clear that like the day light that in fact the petitioner has been granted such statutory permission under Rule 6(2) of the KLU Order, even before 12-082008 (date of coming into force of the 2008 Act). 5. However, since the subject property covered by Exts.P11 to P13 continues to be classified as nilam/paddy land in the BTR, the local body concerned had refused to grant the petitioner’s building permit citing that ground and some other ground in relation to the pendency of old DTP scheme etc,. This Court as per Ext.P3 judgment dated 02-06-2017 in W.P(C) No.255/2017 conclusively found that the petitioner has already secured necessary permission under the KLU Order even before coming into force of the 2008 Act, as can be seen from Exts.P11 to P13 herein (Exts.P1 to P3 therein) and that therefore there is no question of including the said property of the land data bank and the respondent authority concerned was directed to immediately take steps to exclude the property from the land data bank. This Court also conclusively found and declared in Ext.P3 judgement that the petitioner is also entitled for the benefit of fresh assessment/reassessment of the subject property under Sec.6A of W.P(C). No. 4422 of 2020 5 the Kerala Land Tax Act,1961 for securing additional entries in the BTR to show the change in nature of the land as garden land/purayidam instead of the earlier BTR entries as nilam/paddy land, in the light of the dictum laid down by the Division Bench of this Court in case in _**LLMC, Kizhakkambalam Grama Panchayath v. Mariumma**_ [2015 (2) KLT 516 (DB)]. This Court also has inter alia held that the insistence by the respondent local authority therein (Palakkad Municipality), to refuse grant of building permit on the other ground citing the pendency of an old DTP scheme was also held to be illegal and ultra vires and directed the authority to reconsider the matter etc,. It appears that the petitioner has subsequently secured building permit as per Ext.P5. 6. The troubles faced by the petitioner did not end there. It appears that instead of approaching the Tahsildar seeking fresh assessment of the subject property under Sec.6A of the Kerala Land Tax Act, 1961, the petitioner made the said request before the 1[st] respondent RDO, who has taken the stand in Ext.P6 proceedings dated 29-07-2019, that the petitioner is liable to pay the higher amounts as per the provisions contained in the amended provisions W.P(C). No. 4422 of 2020 6 of the 2008 Act as per Sec.27 A(3) as well as the amended provisions of the rules as per Rule.12 (9) etc,. This Court as per Ext.P7 judgment dated 31-10-2019 in W.P(C) No.28424/2019 found that the said stand of the 1[st] respondent as per Ext.P9 as illegal and had directed the said respondent to reconsider the matter and pass fresh orders. 7. This Court has done as it is well settled that where the requisite Rule 6(2) application under the KLU Order has been filed before 30-12-2017 (date of coming into force of the amended provisions of 2008 Act, which was introduced Sec.27A thereof) then the party is entitled to get such Rule 6(2) permission as well as the consequential reassessment of the subject property under Sec.6A of the Kerala Land Tax Act to show the change in nature of the property in BTR, without having to pay any higher amounts as conceived as per the amended provisions of the 2008 Act, including Sec.27A and the amended provisions of the rules etc,. However for reasons which are absolutely incomprehensible to this Court, the 1[st] respondent RDO has shown the audacity in again flagrantly violating the law and the binding judgements of this Court by issuing Ext.P8 proceedings dated 10-01-2020, incorporating various conditions and also W.P(C). No. 4422 of 2020 7 directing that since the proposed building construction of the petitioner comes to 3000 sq.ft, the petitioner will have to pay extra amounts thereon etc., in terms of the amended provisions of the 2008 Act. 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 W.P(C). No. 4422 of 2020 8 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 _**Mariumma’s case**_ (supra) [2015 (2)KLT 516 (DB)] 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 instant case the very same respondent RDO has passed orders as per Exts.P11 to P13 unconditionally granting permission to the petitioner for change of use of land in terms of the Rule 6(2) of the KLU Order and this has been so done as per Ext.P11 to P13 even before 12-08-2008 (date of coming into force of the 2008 9 W.P(C). No. 4422 of 2020 Act). Since that is the admitted position, this Court cannot understand as to why the 1[st] respondent has taken the illegal stand as per Ext.P6 directing the petitioner to pay higher amounts as per the amended provisions of the Act. Exhibit P6 was interdicted and matter was remitted to the 1[st] respondent again. Therefore the stand taken by the 1[st] respondent RDO as per Ext.P8 again imposing harsher and stricter conditions is nothing but a utter and contumacious conduct on the part of the 1[st] respondent in throwing elementary canons of rule of law as per his whims and fancies and in blatant violation of the concluded judgment of this Court as per Exts.P3 as well as P7 which are all _inter partes_ judgments and also the series of judgments cited hereinabove which has laid down the law on the subject. There is no rhyme or logic on the part of the 1[st] respondent RDO to insist that the petitioner has to again go through the process of getting permission for change of the use of the land by paying the higher amounts as to the amended provisions of 2008 Act, in a case like this, where he has already granted permission under Rule 6(2) of the KLU Order as per Exts.P8 to P11 even before coming into force of the 2008 Act. As this Court has already held in Ext.P3 W.P(C). No. 4422 of 2020 10 judgment, all what remain was a formal exclusion of the land from the land data bank and the fresh assessment/reassessment of the property for securing additional entries in the BTR etc,. It appears that Local Level Monitoring Committee has already passed orders for excluding the property from the land data bank in compliance of the Ext.P3 judgment. These are the admitted facts, the abovesaid conduct of the 1[st] respondent is not only illegal and ultra vires, but also would amount to acts which are nothing but contumacious in nature and in defiance of the authority of this Court. 11. Therefore Exts. P6 and P8 orders will stand set aside and quashed. Since the petitioner has already secured the necessary statutory permission under Rule 6 (2) of the KLU Order as per Ext.P11 to P13, it is ordered and declared that the said orders would confer the petitioner with the right to use the subject property mentioned therein, for any non-agricultural purposes including for the purpose of constructing any residential or commercial building etc,. The application of the petitioner for fresh assessment/reassessment of the subject property in terms of Sec.6A of the Kerala Land Tax Act will stand remitted to the 3[rd] respondent W.P(C). No. 4422 of 2020 11 Tahsildar for consideration and decision afresh. It is pointed out that the copy of the said application is not immediately available with the petitioner. To avoid any further delay it is ordered that the petitioner may file an application in that regard before the 3[rd] respondent Tahsildar, without any further delay, at any rate within two weeks along with a certified copy of this judgment. If such an application is filed, the 3[rd] respondent will immediately take up for consideration the same and after affording reasonable opportunity of being heard to the petitioner through authorised representative or counsel if any, should pass orders of reassessment/fresh assessment of the subject property covered by Ext.P11 to P13, in order to secure additional entries in the BTR to show the change in nature of the land as garden land/purayidam instead of the earlier BTR entries as paddy land/nilam, without much delay at any rate, within a period of one month from the date of production of a certified copy of this judgment and in the light of the abovesaid judgments of the Division Bench of this Court in cases as in _**Mariumma’s case**_ (supra) [2015 (2)KLT 516(DB)] and _**Renjith's case**_ (supra) [2020 (1) KHC 865 (DB)] and without making the petitioner pay any higher amounts as W.P(C). No. 4422 of 2020 12 conceived as per the provisions of the amended provisions of the Act and the amended provisions of the rules. 12. 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 as well as the said application under Sec.6A of the Kerala Land Tax Act before the 3[rd] respondent Tahsildar 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** KAS 13 W.P(C). No. 4422 of 2020 ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1** **A TRUE COPY OF THE POSSESSION CERTIFICATE DATED JUNE 3,2016 ISSUED IN RESPECT OF THE PROPERTY COVERED IN THE NAME OF THE PETITIONER** **EXHIBIT P2 A TRUE COPY OF THE REPORT OF THE LOCAL LEVEL MONITORING COMMITTEE ALONG WITH THE MEMO FILED BY THE GOVERNMENT PLEADER DATED MARCH 15,2017 IN WPC 255/2017 OF THIS HONOURABLE COURT** - **EXHIBIT P3 A TRUE COPY OF THE JUDGMENT DATED 2.6.2017 IN WPC 255/2017 OF THIS HONURABLE COURT** - **EXHIBIT P4 A TRUE COPY OF THE RELEVANT PAGES OF THE CORRIGENDUM NOTIFICATION DATED AUGUST 31,2019** - **EXHIBIT P5 A TRUE COPY OF THE BUILDING PERMIT DATED OCTOBER 17,2018 ISSUED BY THE PALAKKAD MUNICIPALITY.** - **EXHIBIT P6 A TRUE COPY OF THE ORDER DATED JULY 29, 2019 ISSUED BY THE FIRST RESPONDENT** - **EXHIBIT P7 A TRUE COPY OF THE JUDGMENT DATED OCTOBER 31,2019 IN WPC 28424/2019 OF THIS HONOURABLE COURT** - **EXHIBIT P8 A TRUE COPY OF THE ORDER DATED 10 JANUARY 2020 ISSUED BY THE FIRST RESPONDENT** **EXHIBIT P9 A TRUE COPY OF THE JUDGMENT DATED 4 APRIL 2008 IN WPC 11586/2008 OF THIS HONOURALE COURT.** **EXHIBIT P10 A TRUE COPY OF THE JUDGMENT DATED 10 APRIL 2008 IN WPC 12466/2008 OF THIS HONOURABLE COURT.** W.P(C). No. 4422 of 2020 14 **EXHIBIT P11** **A TRUE COPY OF THE PROCEEDINGS/ORDER IN TERMS OF CLAUSE 6 (2) OF THE KLU ISSUED BY THE REVENUE DIVISIONAL OFFICER DATED JUNE 11, 2008** **EXHIBIT P12** **A TRUE COPY OF THE PROCEEDINGS/ORDER IN TEREMS OF CLAUSE 6 (2) OF THE KLU ISSUED BY THE REVENUE DIVISIONAL OFFICER DATED NOVERMBER 25,2009** - **EXHIBIT P13** **A TRUE COPY OF THE PROCEEDINGS/ORDER IN TERMS OF CLAUSE 6 (2) OF THE KLU ISSUED BY THE REVENUE DIVISIONAL OFFICER DATED JUNE 11,2008** - **EXHIBIT P14** **A TRUE COPY OF REGISTERED GIFT DEED NUMBER 1306/2016 OF THE SRO OLAVAKKODE.** - **EXHIBIT P15** **A TRUE COPY OF THE JUDGMENT DATED 25 JUNE 2018 IN WPC 16536/2018 OF THIS HONOURABLE COURT.** **RESPONDENT'S/S EXHIBITS: NIL** **//TRUE COPY//** **PA TO JUDGE**