Sakheer Hussain S/O Moideenkutty v. District Collector, Palakkad, and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **TUESDAY, THE 21ST DAY OF JULY 2020 / 30TH ASHADHA, 1942** ## **WP(C).No.14073 OF 2020(H)** ## **PETITIONER:** **SAKHEER HUSSAIN S/O. MOIDEENKUTTY, AGED 57 YEARS, OMK HOUSE PULIKKALTHARA, VALLANGI, NENMARA, PALAKKAD DISTRICT, REP BY HIS POWER OF ATTORNEY HOLDER, BROTHER NAZAR HUSSAIN, AGED 46 YEARS, S/O. MOIDEENKUTTY, OMK HOUSE, PULIKKALTHARA, VALLANGHI, NENMARA PALAKKAD DISTRICT.** **BY ADVS. SRI.K.MOHANAKANNAN SMT.T.V.NEEMA** ## **RESPONDENTS:** - **1 DISTRICT COLLECTOR CIVIL STATION, PALAKKAD 678 001.** - **2 REVENUE DIVISIONAL OFFICER, PARAKKUNNAM, VIDYUT NAGAR, PALAKKAD 678 001.** - **3 LOCAL LEVEL MONITORING COMMITTEE, NEMMARA, REPRESENTED BY AGRICULTURAL OFFICER, NEMMARA, PALAKKAD DISTRICT 678 508.** - **4 VILLAGE OFFICER, VALLANGHI, NEMMARA, PALAKKAD DISTRICT 678 508** - **5 NEMMARA GRAMA PANCHAYAT, REPRESENTED BY ITS SECRETARY, PALAKKAD DISTRICT 678 508.** - ***6. THE TAHSILDAR, CHITTUR TALUK, CHITTUR,** - **PALAKKAD DISTRICT.** **(SUO MOTU IMPLEADED AS PER THE ORDER DATED** - **21.07.2020 OF THIS COURT IN THIS W.P(C))** ## **SRI.K.J.MANU RAJ, GOVT.PLEADER** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 21.07.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** W.P(C) No.14073 of 2020 2 # **ALEXANDER THOMAS, J.** ## **===========================** ## **W.P(C) No.14073 of 2020** **===========================** Dated this the 21[st] day of July, 2020 ## **JUDGMENT** The prayers in the above Writ Petition (Civil) are as follows: - _"i) To issue a Writ Pf mandamus or any other appropriate writ or order or direction permitting the Petitioner to effect construction of a residential house in the property covered by Extas.P1 and P2 and covered as per Ext.P3 Kerala Land Utilisation Order. issued by the 2[nd] Respondent under Claused 6(2) within a time frame to be fixed by this Hon'ble Court;_ - _ii) To issue a Writ of mandamus or any other appropriate writ or order or direction directing the 2[nd] Respondent to consider and pass orders on Ext.P5 representation, removing the Petitioner's property from the data bank and allow to use the same for non agricultural purposes;_ - _iii) To issue a Writ of mandamus or any other appropriate writ or order or direction directing the 2[nd] Respondent to issue building permit to the Petitioner's property as applied for by him and evident from Ext.P5 without insisting an order from the Revenue Divisional Officer under the provision of the Kerala_ - _Conservation of Paddy and Wet Land Act, 2008._ - _iv)To grant such other and further reliefs as are just, proper and necessary in the facts and circumstances of the case."_ 2. Heard Sri.K.Mohanakannan, learned counsel appearing for the petitioner and Sri.K.J.Manu Raj, learned Government Pleader appearing for the respondents. W.P(C) No.14073 of 2020 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) as converted land, much long prior to 12.08.2008 (date of coming into force of the Kerala Conservation of Paddy Land & Wetland Act, 2008). Further that the petitioner has indeed filed the requisite application under Rule 6(2) of the Kerala Land Utilization Order, 1967 before the 2[nd] respondent-Revenue Divisional Officer, who is also a notified Collector in terms of that Rule, seeking for statutory permission for change of user of the land for any non-agricultural purposes and that the said application has been filed in the year 2006. That on receiving the said application, the 2[nd] respondent had directed the 4[th] respondent-Village Officer to conduct an enquiry and inspection in the matter and thereupon, the 4[th] respondentVillage Officer had submitted inspection report dated 29.08.2006 before the 2[nd] respondent-RDO stating that there are no objections for permission for conversion of the land in terms of Rule 6(2) of the KLU Order. Thereafter, the 2[nd] respondent-RDO has passed Ext.P-3 proceedings dated 12.03.2007 granting permission to the petitioner under Rule 6(2) of the KLU Order. That the total extent of the subject property covered by Ext.P-3 proceedings dated 12.03.2007 granting permission under Rule 6(2) of the KLU Order is 5 cents lying in Survey No.263/1 of Vallanghi Village **,** Chittur **,** Palakkad District. Further that the 3[rd] respondent-Local Level W.P(C) No.14073 of 2020 4 Monitoring Committee (LLMC) has wrongly included the subject property covered by Ext.P-3 in the draft data bank, as can be seen from serial No.93 of Ext.P-5, presumably as converted land five years prior to the 2008 Act. 4. That the petitioner had given application for grant of building permit before the 5[th] respondent-Nenmara Grama Panchayat, as can be seen from Ext.P-4 receipt dated 21.05.2020 and the petitioner was instructed by the 5[th] respondent that the petitioner should necessarily obtain statutory permission under Sec.27A(1) of the amended provisions of the 2008 Act before his request for building permit could be considered. Further that, no written order in that regard has been issued by the 5[th] respondent and the petitioner has only been orally informed about the same. That the petitioner by way of abundant caution has filed Ext.P-6 application dated 30.06.2020 before the 3[rd] respondent-LLMC for exclusion of the subject property from the land data bank. 5. After hearing both sides, this Court is of the prima facie view that since the petitioner has already obtained statutory permission under Rule 6(2) of the KLU Order, as per Ext.P-3 proceedings issued as early as on 12.03.2007 by the 2[nd] respondent-RDO, the inclusion of the property in the land data bank appears to be a mistake or error. At any rate, if the property covered by Ext.P-3 permission granted under Rule 6(2) of the KLU Order is the same as the one covered by Ext.P-5 data bank and Ext.P-6 W.P(C) No.14073 of 2020 5 application, then ordinarily, the subject property is liable to be excluded from the land data bank. It has also to be borne in mind that Ext.P-3 proceedings has been issued by the 2[nd] respondent on 12.03.2007, which is even prior to the date of coming into force of the 2008 Act viz., 12.08.2008. Since the property has been included in the land data bank, it is only in the fitness of things that the petitioner should secure formal orders from the 3[rd] respondent-LLMC on Ext.P-6 application for exclusion of the subject property from the land data bank. Thereafter, in the light of Ext.P-3 proceedings dated 12.03.2007, the petitioner will be legally entitled to maintain application before the 6[th] respondent-Tahsildar seeking re-assessment of the subject property covered by Ext.P-3, in terms of Sec.6A of the Kerala Land Tax Act for securing 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’. 6. In view of Sub-section (13) of Sec.27A of the 2008 Act, it is only those applications for change of user of the land submitted 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) has to be considered in terms of Sec.27A. In other words, applications for change of user of the land filed before the cut-off date of 30.12.2017 has to be construed only in terms of the provisions of Rule 6(2) of the Kerala Land Utilization Order. W.P(C) No.14073 of 2020 6 This position has been settled in a series of decisions of this Court (see _**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 m (1) KHC 865 (DB)] _**LLMC, Kizhakkambalam Grama Panchayath and others v. Mariumma and another**_ [2015 (2) KLT 516 (DB), etc.). Further it has also been held by this Court in **Mariumma’s case** (supra) and **Renjith George's case** (supra) that in such a case, after the party secures statutory permission under Rule 6(2) of the KLU Order will be legally entitled to maintain application under Sec.6A of the Kerala Land Tax Act to secure additional entries in the BTR, to show the changed nature of the land as ‘garden land or purayidom’ and without having to pay the amounts as conceived as per the amended provisions of the 2008 Act. Hence, the stand of the 5[th] respondent-Grama Panchayat that the petitioner should necessarily again secure statutory permission under Sec.27A(1) of the 2008 Act is legally untenable and wrong, so long as the subject property covered by the building permit referred to in Ext.P-4, Ext.P-5 land data bank, Ext.P-6 application, etc. is the same as the one covered by Ext.P-3 order dated 12.03.2007 issued by the 2[nd] respondentRDO under Rule 6(2) of the KLU Order. The position in that regard is ordered and declared. Accordingly the following directions and orders are W.P(C) No.14073 of 2020 7 passed: (i) The 3[rd] respondent-LLMC will take up for consideration Ext.P-6 application filed by the petitioner and after conducting inspection with due prior notice to the petitioner and after ensuring that copy of the inspection report is given to the petitioner in advance and after affording opportunity of being heard to the petitioner through his authorized representative/counsel, if any, should pass orders on Ext.P-6 application on the plea of the petitioner for exclusion of the subject property from the land data bank and also duly taking into account Ext.P-3 permission already secured by the petitioner under Rule 6(2) of the KLU Order on 12.03.2007 issued by the 2[nd] respondent-RDO. Orders in this regard on Ext.P-6 application should be duly rendered by the 3[rd] respondent-LLMC, within six weeks from the date of production of a certified copy of this judgment. (ii) Thereafter, the petitioner may file requisite application under Sec.6A of the Kerala Land Tax Act, for re-assessment of the subject property covered by Ext.P-3 order. If such application is filed along with a copy of Ext.P-3 order as well as the copy of this judgment and a copy of the order issued by the W.P(C) No.14073 of 2020 8 3[rd] respondent-LLMC on Ext.P-6 application, then the 6[th] respondent-Tahsildar, after affording opportunity of being heard to the petitioner, should pass orders thereon, in the light of the dictum laid down by the Division Bench of this Court in decisions as in **Mariumma’s case** (supra) and **Renjith George's case** (supra) and in such a scenario, the petitioner will not be liable to pay any amounts as conceived as per the amended provisions of the 2008 Act and the amended Rules framed thereunder including Rule 12 (17) thereof, inasmuch as the petitioner has secured Ext.P-3 permission on 12.03.2007. (iii)Orders in this regard may be passed by the 6[th] respondent within one month from the date of filing of such application under Sec.6A of the Kerala Land Tax Act, along with the other documents mentioned hereinabove. (iv) Thereafter, the petitioner may approach the 5[th] respondentSecretary of the Nenmara Grama Panchayat for further consideration of his application for building permit referred to in Ext.P-4 receipt dated 21.05.2020 , which may then be considered, in accordance with the applicable statutory Building Rules. W.P(C) No.14073 of 2020 9 7. The petitioner will produce certified copy of this judgment along with a copy of the Memorandum of this W.P(C) with all the exhibits before respondent Nos.2 to 6, 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.14073 of 2020 10 ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF THE DOCUMENT NO. 1781/2006 OF SRO, NEMMARA, DATED 5.7.2006.** **EXHIBIT P2 TRUE COPY OF THE BASIC TAX RECEIPT DATED 10.6.2020.** **EXHIBIT P3 TRUE COPY OF THE ORDER OF THE 2ND RESPONDENT DATED 12.3.2007.** **EXHIBIT P4 TRUE COPY OF THE RECEIPT ISSUED BY THE PANCHAYAT DATED 21.5.2020.** **EXHIBIT P5 TRUE COPY OF THE RELEVANT PAGE OF THE DATA BANK MAINTAINED BY VALLANGI VILLAGE.** **EXHIBIT P6 TRUE COPY OF APPLICATION DATED 30.6.2020 SUBMITTED BY THE PETITIONER UNDER THE PROVISION OF THE KERALA CONSERVATION OF PADDY AND WET LAND ACT ON.** **EXHIBIT P7 TRUE COPY OF THE REPRESENTATION SUBMITTED BY THE PETITIONER BEFORE THE 2ND RESPONDENT DATED 2.7.2020.**