Saj Jacob v. Revenue Divisional Officer, RDO Office, Idukki; Tahasildar (Land Records), Taluk Office, Thodupuzha; Village Officer, Village Office, Manakkad; Agricultural Officer, Krishi Bhavan, Convenor, Local Level Monitoring Committee, Thodupuzha Municipality, Thodupuzha, Idukki

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **WEDNESDAY, THE 12TH DAY OF AUGUST 2020 / 21ST SRAVANA, 1942** ## **WP(C).No.15365 OF 2020(U)** ## **PETITIONER/S:** **SAJ JACOB AGED 56 YEARS S/O.CHACKO, PULIMOOTTIL HOUSE, KOLANI P.O., CHUNKOM, THODUPUZHA-685 608.** **BY ADVS.** **SRI.RINNY STEPHEN CHAMAPARAMPIL SRI.THOMAS J.ANAKKALLUNKAL** ## **RESPONDENT/S:** **1 REVENUE DIVISIONAL OFFICER RDO OFFICE, IDUKKI-685 613. 2 THE TAHASILDAR (LAND RECORDS), TALUK OFFICE, THODUPUZHA, IDUKKI DISTRICT-685 584. 3 THE VILLAGE OFFICER, VILLAGE OFFICE, MANAKKAD, IDUKKI DISTRICT-685 608. 4 AGRICULTURAL OFFICER, KRISHI BHAVAN, CONVENOR, LOCAL LEVEL MONITORING COMMITTEE, THODUPUZHA MUNICIPALITY, THODUPUZHA, IDUKKI-685 605.** ## **OTHER PRESENT:** ## **SRI.K.J.MANU RAJ, GOVT.PLEADER** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 12.08.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** _WP(C).No.15365 OF 2020(U)_ _2_ ## **ALEXANDER THOMAS, J.** ## **-----------------------------------------** ## **W.P.(C.) No. 15365 of 2020** ## **----------------------------------------Dated this the 12[th] day of August, 2020** ## **JUDGMENT** ## The prayers in the Writ Petition (Civil) are as follows : _i. “Issue a Writ of Mandamus, or any other appropriate Writ, Order or Direction commanding the 1st respondent to consider Exhibit P4 application dated 28/09/2017 and to pass orders thereon expeditiously within a time frame to be fixed by this Hon’ble Court as provided under Rule 6 (2) of the KLU Order, 1967 allowing the Petitioner to make use of his land covered by Exts. P1 and P2 for non agricultural purposes without insisting for payment of any amount under Section 27A of the Kerala Conservation of Paddy Land and Wet Land Act, 2008 or under Rule 12(17) of the Kerala Conservation of Paddy Land and Wet Land Rules, 2008 and without imposing any conditions as conceived thereunder by following the dictum laid down in_ _**Geo Peter Vs. RDO 2019 (4) KHC 400** ._ _ii. Issue a Writ of Mandamus, or any other appropriate Writ, Order or Direction commanding the 2nd respondent to carry out consequent corrections in the revenue records by classifying the Petitioner’s land covered by Exts. P1 and P2 in Manakkad Village of Thodupuzha Taluk as ‘Purayidom’ on the basis of the Order on Exhibit P4 KLU Application in the light of the Judgment in_ _**LLMC Kizhakkambalam Grama Panchayat Vs. Mariumma & Anr. (2015 (3) KHC 19 DB)** without insisting for payment of any amount prescribed under Section 27A of the Kerala Conservation of Paddy Land and Wet Land Actor under Rule 12(17) of the Kerala Conservation of Paddy Land and Wet Land Rules._ _Iii. Issue an appropriate Writ, Order or Direction declaring that the 1st respondent is bound to consider Exhibit P4 KLU application and to pass orders thereon as provided under Rule 6 (2) of the KLU Order & to grant permission to utilize the Petitioner’s covered by Exts. P1 and P2 in Manakkad Village of Thodupuzha Taluk for non agricultural purposes in the light of the Judgment in_ _**Geo Peter Vs. RDO 2019 (4) KHC 400** without insisting for payment of any amount under Section 27A of the Kerala Conservation of Paddy Land and Wet Land Act or under Rule 12(17) of the Conservation of Paddy Land and Wet Land Rules._ _v. Pass such other appropriate Writs, Orders or Directions as this Hon’ble Court may deem just and proper to issue in the circumstances of the case.”_ ## 2. Heard Sri.Rinny Stephen Chamaparambil, learned counsel appearing for the petitioner and Sri.K.J.Manuraj, learned Government Pleader appearing for the respondents. _WP(C).No.15365 OF 2020(U)_ _3_ 3. The case of the petitioner is that the subject property though continues to be described as nilam/paddy land in the Basic Tax Register (BTR) has been converted as garden land/purayidam long prior to 12.8.2008 (date of coming into force of the Kerala Conservation of Paddy Land and Wetland Act, 2008 viz., State Act 28 of 2008). Further that the subject property has not been included in the land data bank prepared as per the provisions of State Act 28 of 2008. That the petitioner has preferred Ext.P4 application dated 28.9.2017 under Rule 6(2) of the Kerala Land Utitlization Order, (KLU Order,) 1967 before the 1[st] respondent-RDO seeking for formal orders for change of user of the land for any nonagricultural purposes, as conceived in the statutory provisions. The receipt of Ext.P4 application dated 28.9.2017 has been duly acknowledged as per Ext.P5 receipt dated 28.9.2017 issued by the office of the 1[st] respondentRDO. 4. That thereafter, since no action was forthcoming on the matters in Ext.P4 application, the petitioner was constrained to approach this Court by filing the Writ Petition (Civil) No.31780/2017 before this Court. This Court as per Ext.P6 judgment rendered as early as on 5.10.2017 has finally disposed of W.P.(C.) No.31780/2017 filed by the petitioner by directing that the respondent –Local Level Monitoring Committee should ascertain as to whether the subject property has been included in the land data bank and if not included, should give a certificate stating that the subject _WP(C).No.15365 OF 2020(U)_ _4_ property has not been included in the land data bank. That the petitioner may produce such certificate of the Local Level Monitoring Committee before the 1[st] respondent-RDO was thereafter, directed to consider the said application dated 28.9.2017 (produced as Ext.P4 in Ext.P6 W.P.(C.)) strictly in accordance with Rule 6(2) of the KLU Order and in the light of the judgments of this Court as in decisions in _**Puthan Purakkal Joseph v. Sub Collector**_ [2015 (3) KLT 182], _**Shivadasan v.Revenue Divisional Officer**_ [2017 (3) KLT 822] etc. 5. It was also directed that after securing orders or permission under Rule 6(2) of the KLU Order from the 1[st ] respondent –RDO will be at liberty to approach the Tahsildar concerned seeking for fresh 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 correctly the changed nature of the land as garden land/purayidam and in the light of the dictum laid down by the Division Bench of this Court in decisions as in _**LLMC, Kizhakkambalam Grama Panchayat v. Mariumma**_ [2015 (2) KLT 516 (DB)]. 6. Thereafter, it appears that the 1[st] respondent has issued Ext.P7 letter dated 13.8.2018 directing the petitioner to produce certificate of the 4[th] respondent –LLMC as directed in Ext.P6 judgment and in Ext.P7 letter dated 13.8.2018, the 1[st] respondent has clearly admitted the filing and receipt of Ext. P4 application dated 28.9.2017 which has been referred to as _WP(C).No.15365 OF 2020(U)_ _5_ item No.1 of Ext.P7. That thereafter, petitioner has produced Ext.P8 certificate issued by the 4[th] respondent-Convener of the Local Level Monitoring Committee certifying that the subject property has not been included in the land data bank. 7. The complaint of the petitioner is that thereafter, no effective action has been forthcoming from the 1[st] respondent so as to comply with the directions in Ext.P6 judgment rendered as early as on 5.10.2017. Further that, the enquiries of the petitioner have revealed that the officials of the 1[st] respondent are taking steps to assess the fair value of the subject property covered by Ext.P4 application as a request made by him under **Sec.27A(1)** of the amended provisions of the State Act 28 of 2008 and thus compelled the petitioner to pay the amounts as conceived as per the said amended provisions which has introduced Sec.27A thereof and the amended Rules framed thereunder including Rule 12(17) thereof. 8. The petitioner’s grievance is that unless directions are issued by this Court clarifying the aspect that the amended provisions in terms of sec.27A and the rules framed thereunder cannot be made applicable to the petitioner, the 1[st] respondent would compel the petitioner to pay the amounts as per the amended provisions of the Act and the amended Rules framed thereunder etc. 9. The facts in this case are not in dispute. The petitioner has filed Ext.P4 application under Rule 6(2) of the KLU order as early as on _WP(C).No.15365 OF 2020(U)_ _6_ 28.9.2017, which has been duly acknowledged by the 1[st] respondent in Ext.P5 receipt dated 28.9.2017. Further, a reading of Ext.P6 judgment would also make it clear that the said application as per Ext.P4 herein has been produced and marked therein as Ext.P4. So also, the 1[st] respondent has admitted in Ext.P7 letter dated 13.8.2018 that the petitioner has in fact filed Ext.P4 application dated 28.9.2017, which has been referred to as item No.1 in Ext.P7. In other words, it is beyond the pale of any controversy whatsoever that the petitioner has in fact filed Ext.P4 application as early as on 28.9.2017 under Rule 6(2) of the KLU Order which is prior to the cutoff date of 30.12.2017 (date of coming into force of the amended provisions of the State Act 28 of 2008, which has introduced Sec.27A thereof). 10. Sec.27A(13) of the State Act 28 of 2008 after the abovesaid amendment made effective from 30.12.2017 reads as follows : _“Any application received for the change of nature of unnotified land from the date of commencement of the Kerala Conservation of Paddy Land and Wetland (Amendment) Act, 2018 shall be considered and disposed of only in accordance with the provisions of the Act.”_ 11. Therefore, it is crystal clear from a mere reading of Sec.27A(13) that the legislature itself has mandated expressively and beyond the pale of any doubt that it is only those applications for change of user of the land filed on or after the coming into force of the amended provisions of the Act viz. 30.12.2017, that will have to be considered in terms of the said provisions of the 2008 Act. In other words, the applications for change of user of the land filed before the cut-off date of 30.12.2017 has necessarily to _WP(C).No.15365 OF 2020(U)_ _7_ be considered and decided strictly in terms of Rule 6(2) of the KLU order, without any application of the amended provisions of the 2008 Act, including Sec.27A thereof and the amended Rules framed thereunder, including Rule 12(17) thereof. 12. It is by now well settled by a series of rulings of this Court as in _**Geo Peter** v._ _**Revenue Divisional Officer**_ [2019 (3) KLT 838] _,_ _**Renji K.Paul** v._ _**Revenue Divisional Officer**_ [2019 (2) KLT 262] _**, Salim** v._ _**State of Kerala**_ [2019 (3) KLT 604 (DB)] that in a case where the subject property has been converted prior to 2008 Act and whether the property holder has submitted application under Rule 6(2) of the Kerala Land Utilization Order before 30.12.2017 (date of coming into force of the amended provisions of the 2008 Act introducing Sec.27A thereof), then in such a case, the respondent RDO is legally obliged to consider the case of such a property holder, strictly in terms of the provisions contained in Rule 6(2) of the KLU Order and in such a case, none of the detrimental and adverse conditions flowing out from the amended provisions of the 2008 Act introducing Sec.27A thereof can in any manner affect such an applicant. 13. These aspects of the matter has been dealt with in detail by this Court in decisions as in _**Fr.Jose Uppani v.District Collector**_ [2020 (3) KLT 492]. The abovesaid single Bench decision in _**Fr.Jose Uppani’s case (supra)**_ [2020 (3) KLT 492] has been affirmed by the Division Bench of this Court in the judgment dated in W.A.No.876/2020 in the case _WP(C).No.15365 OF 2020(U)_ _8_ in _**District Collector.v.Fr.Jose Uppani**_ [2020 (4) KLT 612 (DB)]. So also, it has been held by this Court in quite a few decisions that in view of the abovesaid provisions, in a case where the party seeking change of user of the land, in respect of a converted land has filed application under Rule 6(2) of the KLU Order, prior to the cut-off date of 30.12.2017, then the party is entitled to get the application considered strictly in terms of Rule 6 (2) of the KLU order. In such a case, the party cannot be compelled to pay any amounts as 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(17) thereof. Further, it has also been clarified by this Court in quite a few decisions that in view of the abovesaid legislative mandate contained in Sec.27A (13), the provision made by the rule making authority under Rule 12(17) is clearly beyond the limits of Sec.27A(13) and therefore, the said provision of rule contained in Rule 12(17) is ultravires the provisions contained in Sec.27A(13) of the parent Act and hence, the said statutory rule would unenforceable and illegal. The position in that regard is also clarified and declared in this case as well. 14. Accordingly, it is ordered that it is not known as to why the 1[st] respondent-RDO has not taken final decision on the matters in Ext.P4 application dated 28.9.2017, in spite of the directions issued by this Court in Ext.P6 judgment in W.P.(C.) No.31780/2017 rendered as early as on 5.10.2017 and in spite of the submission of Ext.P8 certificate by LLMC. _WP(C).No.15365 OF 2020(U)_ _9_ 15. Taking note of the abovesaid facts and circumstances of this case, it is ordered that the 1[st] respondent–RDO will take up the matters in Ext.P4 application dated 28.9.2017 for consideration, without much delay, and should ensure that the 3[rd] respondent should immediately conduct an inspection of the subject property, with due prior notice to the petitioner to ascertain the ground realities of the subject property as on 12.8.2008 and as to whether the subject property was cultivable and suitable for cultivation as on 12.8.2008 and consequently, the issue as to whether the subject property would fulfill the definition of paddy land as per Sec.2(xii) of the Act as on 12.8.2008 and copy of the said inspection report should be given to the petitioner in advance and the inspection process should be completed within 3 weeks from the date of receipt of a copy of this judgment and copy of the inspection report should be given to the petitioner in advance and thereafter, the 1[st] respondent-RDO will afford reasonable opportunity of being heard to the petitioner through authorised representative/counsel, if any and then should take a considered decision on the matters raised in Ext.P4 application dated 28.9.2017 strictly in terms of Rule 6(2) of the KLU order and after duly adverting to the submissions of the petitioner, contents of the abovesaid inspection report and the records of the LLMC in relation to Ext.P8, so as to pass orders on Ext.P4 application, without much delay, preferably within a period of 2 months from the date of production of a certified copy of this judgment. _WP(C).No.15365 OF 2020(U)_ _10_ Copy of the said proceedings so issued by the 1[st] respondent on Ext.P4 application shall be forthwith communicated to the petitioner. 16. Thereafter, in case, the petitioner secures orders or permission under Rule 6(2) of the KLU order on Ext.P4 application issued by the 1[st] respondent, then thereafter, the petitioner may file the requisite application before the 2[nd] respondent-Tahsildar seeking the benefit under Sec.6A of the Kerala Land Tax Act in the matter of fresh assessment of the subject property, covered by such permission under Rule 6(2), so as to secure additional entries in the BTR to show the nature of the land as garden land/purayidam, instead of the earlier BTR entries as paddy land/nilam. On filing of such application along with the copy of the proceedings of permission granted by the 1[st] respondent on Ext.P4 application as well as the copy of the judgment, the 2[nd] respondentTahsildar will then immediately ascertain as to whether the subject property covered by such application filed under Sec.6A is the same as the one covered by orders or permission granted by the 1[st] respondent under Rule 6(2) of the KLU order and if it is the same property, then the 2[nd] respondent should pass orders under 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/purayidam instead of the earlier BTR entries as nilam/paddy land, within one month from the date of filing of such application and strictly on the basis of the dictum laid down by the Division _WP(C).No.15365 OF 2020(U)_ _11_ Bench of this Court in decisions as in _**Mariumma’s**_ case (supra) [2015 (2) KLT 516 (DB)] and without compelling the petitioner to pay any amounts as 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(17) thereof. 17. The petitioner will produce certified copies of this judgment along with the copies of the memorandum of this W.P.(C.) with all the exhibits before the 1[st] respondent-RDO and 3[rd] respondent-Village Officer 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** ## **SKS** _WP(C).No.15365 OF 2020(U)_ _12_ ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 A TRUE COPY OF THE PROPERTY TAX RECEIPT DATED 12.04.2017 ISSUED FROM THE VILLAGE OFFICE, MANAKKAD.** **EXHIBIT P2 A TRUE COPY OF THE PROPERTY TAX RECEIPT DATED 05.06.2020 ISSUED AFTER RE-SURVEY FROM THE VILLAGE OFFICE, MANAKAKD.** - **EXHIBIT P3 A TRUE COPY OF RUBBER PLANTATION DEVELOPMENT SCHEME PERMIT DATED 20.12.2001 ISSUED BY THE RUBBER BOARD TO THE PETITIONER.** **EXHIBIT P4 A TRUE COPY OF THE APPLICATION SUBMITTED BY THE PETITIONER ON 28.09.2017 BEFORE THE 1ST RESPONDENT UNDER RULE 6(2) OF THE KLU ORDER. EXHIBIT P5 A TRUE COPY OF THE ACKNOWLEDGMENT RECEIPT DATED 28.09.2017 ISSUED BY THE 1ST RESPONDENT. EXHIBIT P6 A TRUE COPY OF THE JUDGMENT DATED 05.10.2017 IN WPC NO.31780/2017. EXHIBIT P7 A TRUE COPY OF THE NOTICE DATED 13.08.2018 ISSUED BY THE 1ST RESPONDENT TO THE PETITIONER. EXHIBIT P8 A TRUE COPY OF THE CERTIFICATE ISSUED BY THE 4TH RESPONDENT BEFORE THE 1ST RESPONDENT.**