Satheesh v. State of Kerala and Others

W.P. © No. 13739 of 2020 ..1.. ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **TUESDAY, THE 14TH DAY OF JULY 2020 / 23RD ASHADHA, 1942** ## **WP(C).No.13739 OF 2020(N)** ## **PETITIONER:** **SATHEESH, MOOTHEDATH VEEDU, GURUVAYUR ROAD, POOTHOLE P O, THRISSUR-4.** **BY ADVS.SMT.K.P.SANTHI, SMT.TARA PREM** ## **RESPONDENTS:** |**1**|**STATE OF KERALA,**| |---|---| ||**REPRESENTED BY THE SECRETARY TO GOVERNMENT,**| ||**REVENUE DEPARTMENT, SECRETARIAT,**| ||**THIRUVANANTHAPURAM-695001.**| |**2**|**THE DISTRICT COLLECTOR,**| ||**CIVIL STATION, AYYANTHOLE, THRISSUR-680002.**| |**3**|**THE REVENUE DIVISIONAL OFFICER,**| ||**REVENUE DIVISIONAL OFFICE, THRISSUR-680004.**| |**4**|**THE TAHSILDAR,**| ||**TALUK OFFICE, AYYANTHOLE, THRISSUR-680003.**| |**5**|**LOCAL LEVEL MONITORING COMMITTEE**| ||**KRISHI BHAVAN, THRISSUR-680003,**| ||**REPRESENTED BY ITS CONVENER.**| ||**SRI.K.J.MANU RAJ, GOVT.PLEADER**| |**THIS **|**WRIT PETITION (CIVIL) HAVING COME UP FOR**| |**ADMISSION**|**ON 14.07.2020, THE COURT ON THE SAME DAY**| |**DELIVERED**|**THE FOLLOWING:**| W.P. © No. 13739 of 2020 ..2.. ## ALEXANDER THOMAS, J. --------------------------------------W.P. © No. 13739 of 2020 --------------------------------------Dated this the 14[th] day of July, 2020 ## J U D G M E N T The prayers in the above Writ Petition (Civil) are as follows: “ - _i. Issue a writ of mandamus or such other writ, direction or order compelling the 3[rd] respondent to consider and pass orders on Exhibit P1 within a time frame to be fixed by this Honourable Court and grant permission to develop the land under Clause 6(2) of KLU;_ - _ii. direct the 5[th] respondent to remove the entry from the data bank allowing Exhibit P2 application, within a time frame to be fixed by this Honourable Court issue such other writ, direction or order as is deemed just and necessary in the facts, features and circumstances of the case.”_ 2. Heard Smt.K.P.Santhi, learned counsel appearing for the petitioner and Sri.K.J.Manu Raj, learned Government Pleader appearing for the respondents. 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 much prior to 12.8.2008 (date of coming into force of the Kerala Conservation of Paddy Land and Wet Land Act, 2008). Further that, the property has been shwon as nilam/paddy land in the data bank W.P. © No. 13739 of 2020 ..3.. prepared as per the provisions of the 2008 Act. Further, the case of the petitioner is that, he has filed Ext.P-2 application dated 25.8.2017 before the 5[th] respondent Local Level Monitoring Committee(LLMC) for orders so as to exclude the subject property from the data bank. Further that, the petitioner has also filed Ext.P-1 application dated 25.8.2017 before the 3[rd] respondent RDO seeking for statutory permission for change of user of land in terms of Rule 6(2) of the Kerala Land Utilization Order, 1967 (KLU Order). It is also averred that, the petitioner has also entered into a lease agreement with a third party as per Ext.P-3, as the said third party has been granted Ext.P-4 letter of intend by the Indian Oil Corporation for setting up of a petroleum pump, and the said party intends to set up a petroleum pump in the subject property, which is now also covered by Ext.P-3 lease. The petitioner submits that even till date respondents 5 & 3 have not considered and disposed of the matters in Exts.P-2 & P-1 respectively, and urgent orders are required in the matter. 4. It is by now well established 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**_ W.P. © No. 13739 of 2020 ..4.. ## _**[2019 (3) KLT 604 (DB)], LLMC Kizhakkambalam Grama**_ _**Panchayat v. Mariumma [2015 (2) KLT 516 (DB)]**_ that in a case where the subject property has been converted as ‘garden land’ or ‘purayidam’ prior to 12.8.2008 (date of coming into force of the 2008 Act) and where the party concerned has filed the requisite application under Rule 6(2) of the Kerala Land Utilization Order, 1967, for conversion of the property and for its use for any non-agricultural purposes, before 30.12.2017 (which is the date of coming into force of the amended provisions of the 2008 Act, which has introduced Sec. 27A thereof), then the statutory revenue authorities are obliged the duty to treat such a case strictly within the purview of Rule 6(2) of the KLU Order, 1967, and in such a case, the party cannot be mulcted to pay the higher amounts conceived as per the amended provisions of the Act including Sec. 27A thereof, which has come into force on 30.12.2017 and the amended Rules framed thereunder. Further, it has also been categorically held by the judgments of the Division Bench of this Court as in _**Mariumma’s case (supra) [2015 (2) KLT 516 (DB)] and Renji's case (supra) [2019 (2) KLT 262]**_ that in such a case where the property holder has filed application under Rule 6(2) of the W.P. © No. 13739 of 2020 ..5.. KLU Order before 30.12.2017, then the party is also equally entitled to maintain an application under Sec.6A of the Kerala Land Tax Act, 1961, for securing additional entries in the BTR to show the property as ‘garden land’ or ‘purayidam’ instead of the earlier BTR entries as ‘nilam’ or ‘paddy land’ and without having to pay the higher amounts conceived as per the amended provisions of the 2008 Act including Sec. 27A thereof and the amended Rules framed thereunder. 5. The learned Government Pleader would submit that, he has no factual instructions as to whether Ext.P-1 application has been filed by the petitioner before the 3[rd] respondent RDO before the cut-off date of 30.12.2017 (which is the date of coming into force of the amended provisions of the 2008 Act, which has introduced Sec. 27A thereof), and only in case the petitioner has actually filed an application for orders under Rule 6(2) of the KLU Order before the competent officer prior to 30.12.2017, can the application be considered in terms of Rule 6(2) of the KLU Order, and in case the application has been filed on or after 30.12.2017, then going by the mandate of Sec. 27A(13) of the Act, such a request for permission for change of user of land could be considered only in terms of Sec. 27A(1) of the Act, upon which the party is also liable to pay the W.P. © No. 13739 of 2020 ..6.. amounts as envisaged in Sec. 27A(3), and the rules prescribed there under. 6. The petitioner would assert that Ext.P-1 application has been filed in August, 2017, itself etc. 7. This Court is not proposing to adjudicate to resolve said issue, and that is a matter which will have to be verified and ascertained by the 3[rd] respondent RDO. Accordingly, without getting into the merits of the controversy in any manner the following directions and orders are passed: 1. The 5[th] respondent LLMC will take up the matters raised by the petitioner in Ext.P-2 application dated 25.8.2017 and may ensure that the petitioner is permitted to pay the prescribed fee for obtaining satellite pictures and expert opinion of the Kerala State Remote Sensing and Environment Centre (KSREC), Thiruvananthapuram, in regard to the subject property covered by Ext.P-2. 2. Thereafter, the ex-officio convener of the 5[th] respondent LLMC should ensure that a proper requisition is send to KSREC so as to obtain satellite pictures of subject property. W.P. © No. 13739 of 2020 ..7.. 3. On receipt of requisition, the KSREC will ensure that satellite pictures and expert opinion are duly forwarded to the Convener of the 5[th] respondent LLMC, within 2 months from the date of receipt of requisition in that regard along with a certified copy of this judgment. It shall also be ensured that copy of satellite pictures and expert opinion of the KSREC are also given to the petitioner. 4. To obviate any further delay, without waiting for obtaining the satellite pictures and expert opinion of the KSREC, the 5[th] respondent LLMC will ensure that an appropriate inspection of the subject property is conducted with due prior notice to the petitioner, and copy of inspection report is also given to the petitioner in advance. 5. After receipt of satellite pictures and expert opinion of the KSREC, the 5[th] respondent LLMC will afford reasonable opportunity of being heard to the petitioner W.P. © No. 13739 of 2020 ..8.. and after duly taking into account the contents of inspection report as well as the expert opinion and satellite pictures provided by the KSREC, may take a considered decision on the plea of the petitioner in Ext.P-2 for exclusion of subject property from data bank, without much delay preferably within a period of 6 weeks from the date of receipt of the expert opinion and satellite pictures from the KSREC. Thereupon, the proceedings and decision of the 5[th] respondent LLMC shall be duly forwarded to the petitioner as well as to the 3[rd] respondent RDO. 6. In the meanwhile, the 3[rd] respondent RDO will ascertain from the records as to whether the petitioner has filed application under Rule 6(2) of the KLU Order, before the cut-off date of 30.12.2017, and as to whether Ext.P-1 application dated 25.8.2017 has thus been filed before the cut-off date. 7. If it is found that Ext.P-1 application has been filed before the cut-off date of 30.12.2017, then the 3[rd] respondent W.P. © No. 13739 of 2020 ..9.. RDO is obliged to ensure that the said request is considered strictly in terms of Rule 6(2) of the KLU Order. In such a case, the 3[rd] respondent cannot insist the petitioner should be compelled to pay any amounts as conceived as per the amended provisions of the 2008 Act, including Sec.27A thereof and the amended rules framed there under including Rule 12(17) thereof. 8. If on the other hand it is found that the said application under Rule 6(2) has not been filed before the cut-off date of 30.12.2017, then respondents 2 & 3 will be at liberty to insist the petitioner to file the requisite application in the prescribed proforma (in form No.6 or form No.7 as the case may be) for orders under Sec.27A(1) of the 2008 Act and the Rules framed there under. 9. In case, if it is found by the 3[rd] respondent that Ext.P-1 application has been filed before 30.12.2017, and in case the petitioner secures orders from the 5[th] respondent excluding property from data bank, then thereafter the - 3[rd] respondent will ensure that the requisite procedure is W.P. © No. 13739 of 2020 ..10.. followed, and reasonable opportunity of being heard shall be afforded to the petitioner through authorized representative/counsel if any, and may also examine the expert opinion and satellite pictures provided by the KSREC as well as the orders of the 5[th] respondent LLMC, and then may pass orders on the request of the petitioner under Rule 6(2) of the KLU Order, without much delay preferably within a period of 6 weeks from the date of receipt of the proceedings of the 5[th] respondent LLMC on Ext.P-2 application as afore directed. - 10.In case the petitioner secures necessary order of permission under Rule 6(2) of the KLU Order from the 3[rd] respondent RDO on Ext.P-1 application as aforesaid, then the petitioner will thereafter be entitled to maintain the requisite application before the 4[th] respondent Tahsildar for re-assessment of subject property under Sec.6A of the Kerala Land Tax Act, 1961, so as to secure additional entries in the BTR to show the changed nature of land as garden land or purayidam, instead of the earlier BTR entries as nilam/paddy land. W.P. © No. 13739 of 2020 ..11.. 11. On the petitioner filing such application along with copy of order of the 3[rd] respondent RDO granting permission under Rule 6(2) of the KLU Order and along with a certified copy of this judgment, then the 4[th] respondent Tahsildar after affording reasonable opportunity of being heard to the petitioner, shall pass orders of re-assessment in terms of Sec.6A of the Kerala Land Tax Act, 1961, so as to secure additional entries in the BTR to show the changed nature of land as garden land or purayidam, without much delay preferably within a period of one month from the date of filing of such application, strictly in accordance with the dictum laid down by the Division Bench of this Court in the cases as in _**Mariumma’s case (supra)**_ and _**Renji's case (supra)**_ and without compelling the petitioner to pay any amounts as conceived as per the amended provisions of the 2008 Act, including Sec.27A thereof and the amended rules framed there under including Rule 12(17) thereof. 12.The abovesaid directions will come into play only in case W.P. © No. 13739 of 2020 ..12.. if it is found by the 3[rd] respondent RDO that the petitioner has filed application under Rule 6(2) of the KLU Order before 30.12.2017, and in case the said application is allowed by the 3[rd] respondent granting such statutory permission, and such orders of re-assessment will be only in relation to the subject property covered by such orders of permission under Rule 6(2) of the KLU Order. The petitioner will produce certified copies of this judgment along with copies of memorandum of this WP(C) with all exhibits before the 5[th] respondent LLMC and the 3[rd] respondent RDO 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 MMG W.P. © No. 13739 of 2020 ..13.. ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** |**EXHIBIT P1**|**TRUE COPY OF THE APPLICATION DATED**|**TRUE COPY OF THE APPLICATION DATED**| |---|---|---| ||**25.08.2017**<br>**SUBMITTED**<br>**TO**|**3RD**| ||**RESPONDENT.**|| |**EXHIBIT P2**|**TRUE COPY OF THE APPLICATION DATED**|| ||**25.08.2017**<br>**SUBMITTED**<br>**TO**|**5TH**| ||**RESPONDENT.**|| |**EXHIBIT P3**|**TRUE COPY OF THE LEASE **|**DEED**| ||**NO.3155/2018 OF S.R.O. AYYANTHOLE.**|| |**EXHIBIT P4**|**TRUE COPY OF THE LETTER IN INTEND**|| ||**DATED 22.3.2019.**|| |**EXHIBIT P5**|**TRUE COPY OF THE PHOTOGRAPHS.**||