Sreekumar.K.N. v. State of Kerala and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **FRIDAY, THE 05TH DAY OF JUNE 2020 / 15TH JYAISHTA, 1942** ## **WP(C).No.11021 OF 2020(C)** ## **PETITIONER:** **SREEKUMAR.K.N., S/O. SAROJINI AMMA, VIJAYASADANAM HOUSE, NEDUMBASSERY KARA, CHENGAMANADU VILLAGE, MEKKAD P.O., ERNAKULAM DISTRICT, PIN-683 589.** **BY ADV. SRI.DINESH MATHEW J.MURICKEN** ## **RESPONDENTS:** - **1 STATE OF KERALA REPRESENTED BY THE SECRETARY, REVENUE DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM-695 001.** - **2 THE REVENUE DIVISIONAL OFFICER, OFFICE OF THE REVENUE DIVISIONAL OFFICER, FORT KOCHI, ERNAKULAM DISTRICT, PIN-682 001.** - **3 THE TAHSILDAR, TALUK OFFICE, ALUVA, SUB JAIL ROAD, PERIYAR NAGAR, ALUVA P.O., PIN-683 101.** - **4 NEDUMBASSERRY GRAMAPANCHAYAT, KARIYADU, MEKKADU P.O., PIN-683 589.** **5 THE SECRETARY, NEDUMBASSERRY GRAMAPANCHAYAT, KARIYADU, MEKKADU P.O., PIN-683 589. SRI.K.J.MANU RAJ, GOVT.PLEADER** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 05.06.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** WP(C).No.11021 OF 2020(C) 2 ## **ALEXANDER THOMAS, J.** ------------------------------------------- W.P.(C)No.11021 of 2020 ---------------------------------------------Dated this the 5[th] day of June, 2020 ## **JUDGMENT** The case set up in this Writ Petition (Civil) is as follows:- _The petitioner and his mother are the joint owners and in possession of 7.49 ares of property in Re. Sy. No.258/6-3 of Chengamanadu Village, Aluva Taluk. In the revenue records, the nature of the property was shown as nilam. The petitioner was granted permission as per Ext.P7 order under Clause 6 of the Land Utilisation Order to convert the land after remitting the fee as prescribed in Sub Section 3 of Section 27A of the Kerala Conservation of Paddy Land and Wetland Act. The petitioner aggrieved by the said condition in Ext.P7 order preferred W.P. (C) No.24792/2019 and this Honourable Court was pleased to allow W.P.(C) No.l24792/2019 by Ext.P8 order setting aside the condition in Ext.P7 order directing the petitioner to remit fee under Section 27A of the Kerala Conservation of Paddy Land and Wetland Act. By Ext.P9 order, the permission under Clause 6 of_ WP(C).No.11021 OF 2020(C) 3 _the Land Utilisation Order was incorporated in the revenue records. In spite of the above orders, the 5[th] respondent had taken the stand that permission cannot be granted for construction of building and the same was communicated by Exhibit P10. The stand taken in the Exhibit P10 by the 5[th] respondent is illegal, arbitrary and violative of Article 14 and 300A of the Constitution of India._ It is in the light of the above factual averments and contentions that the petitioner has filed instant Writ Petition (Civil) with the following prayers:- _"i) Declare that the petitioner is entitled to make construction of building in the property having 7.49 ares in Re. Sy. No.258/6-3 of Chengamanadu Village, Aluva Taluk without remitting fees as prescribed under Section 27A of the Kerala Conservation of Paddy Land and Wetland Act._ _ii) Issue a writ of certiorari or any other appropriate writ or direction calling for the records leading to Exhibit P10 and to quash the same. iii) Grant such other reliefs, which this Honourable Court may deem fit and proper in the circumstances of the case."_ 2. Heard Sri.Dinesh Mathew J. Murikan, learned counsel appearing for the petitioner, Sri.K.J. Manu Raj, learned Government Pleader appearing for respondents 1 to 3. In the nature of orders proposed to be passed in this writ petition, notice to 4[th] and 5[th] respondents (Nedumassery Grama Panchayat) will WP(C).No.11021 OF 2020(C) 4 stand dispensed with. 3. It is beyond any dispute that the subject property has been converted though described as Nilam/Paddy land in the Basic Tax Register has been converted as garden land/purayidom long prior to 12.08.2008 (date of coming into force of the Kerala Conservation of Paddy Land and Wetland Act, 2008). It is also beyond any dispute that petitioner has, in fact, filed the requisite application under Rule 6(2) of the Kerala Land Utilisation (KLU) Order, 2007as can be seen from Ext.P5 dated 03.05.2017 before the 2[nd] respondent-Revenue Divisional Officer, which is much before the cut off date of 30.12.2017 (date of coming into force of the amended provisions of the 2008 Act) which has introduced Section 27A thereof. 4. Pursuant to the directions issued by this Court in Ext.P6 judgment dated 09.08.2017 in W.P.(C) No.17883/2017, the 2[nd] respondent-Revenue Divisional Officer has allowed the request of the petitioner for permission for change of the use of the land in terms of Clause 6(2) of the KLU Order, 2007, but adding a rider that petitioner will have to pay the higher amounts conceived as per the amended provisions of the Act including Section 27A thereof and the amended provisions of the Rules framed WP(C).No.11021 OF 2020(C) 5 thereunder. The orders so passed by the 2[nd] respondent-Revenue Divisional Officer under Rule 6(2) of the KLU Order is produced as Ext.P7. This Court, as per Ext.P8 judgment rendered on 28.10.2019 in W.P.(C) No.24792/2019 has held that the above said restriction placed by 2[nd] respondent-Revenue Divisional Officer in Ext.P7 order that petitioner should pay the higher amounts as per the amended provisions of the Act and amended provisions of the Rules is illegal and ultravires inasmuch as petitioner has filed the requisite Rule 6(2) application much before the cut off date of 30.1.2.2017. This Court, accordingly quashed the said restriction imposed y the 2[nd] respondentRevenue Divisional Officer in Ext.P7. This Court, further ordered in Ext.P8 judgment that petitioner is equally entitled to maintain an application under Section 6 A of the Kerala Land Tax Act, 1961, which the petitioner may so file before the 3[rd] respondentTahsildar seeking for fresh assessment/re-assessment of the subject property so as to secure additional entries in the Basic Tax Register to correctly show the changed nature of the land as garden land/purayidom instead of the earlier Basic Tax Register entries as Nilam/Paddy land, etc. Very curiously, the 3[rd] respondent-Tahsildar has allowed the request of the petitioner WP(C).No.11021 OF 2020(C) 6 under Section 6 A of the Kerala Land Tax Act, 1961, that the description of the property shown as Nilam/Paddy land in the Basic Tax Register will continue as such and he would incorporate the remarks in the Thandaper account that petitioner has secured Rule 6(2) permission from the Revenue Divisional Officer. 5. It is by now well settled by a series of ruling 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 coming into force of the 2008 Act and where the requisite application under Rule 6(2) of the Kerala Land Utilization Order, 1967 has been submitted by the party concerned before 30.12.2017 (date of coming into force of the amended provisions of the 2008 Act) introducing Sec.27A thereof, etc., then none of the detrimental and adverse conditions flowing out from the said amended provisions can be pressed into service as against the party concerned and the respondent-RDO is statutorily obliged to consider the said plea for conversion on the basis of the provisions contained in Rule 6(2) of the Kerala Land Utilization Order, 1967. This aspect of the matter has also been reiterated by WP(C).No.11021 OF 2020(C) 7 a recent judgment of the Division Bench of this Court in _**Thasildar, Thodupuzha Taluk and another v. Renjith George**_ [2020 (1) KHC 865 (DB)] that in a case where the subject property has been converted prior to the coming into force of the 2008 Act and where Rule 6(2) application under the Kerala Land Utilization Order, 1967 has been submitted before 30.12.2017, then the said plea of the party has to be considered in terms of the provisions contained in Rule 6(2) of the Kerala Land Utilization Order and that none of the adverse provisions contained in the amended provisions of the 2008 Act can be pressed into service as against such a party. Moreover, the Division Bench has also reiterated in **Renjith’s case** (supra) [2020 (1) KHC 865 (DB)] that in respect of such a property, the party is also legally entitled to maintain an application Sec.6 A of the Kerala Land Tax Act for re-assessment of the subject property, so as to make additional entries in the Basic Tax Register to show the classification of the land as purayidam or garden land, instead of the earlier BTR entries as paddy land or Nilam, as the case may be, in view of the earlier dictum laid down by another Division Bench of this Court in _**LLMC, Kizhakkambalam Grama Panchayath and others v. Mariumma and another**_ [2015 (2) KLT 516 (DB)]. WP(C).No.11021 OF 2020(C) 8 6. After hearing both sides, this Court is of the constrained to hold that that the above said restricted conditions imposed by the 3[rd] respondent-Tahsildar as per the impugned Ext.P9 order to the extent that he would continue to retain the description of the property as Nilam/Paddy land in the Basic Tax Register (BTR) but would only incorporate remarks in the Thandaper account that petitioner has secured Ext.P7 order from the 2[nd] respondent-Revenue Divisional Officer as per Rule 6(2) of the KLU, etc., is to the say the highly mischievous, illegal and ultravires. 7. Going by the dictum well settled by the Division Bench of this Court in cases as in _**LLMC, Kizhakkambalam Grama Panchayath and others v. Mariumma and another**_ [2015 (2) KLT 516 (DB)] and _**Thasildar, Thodupuzha Taluk and another v. Renjith George**_ [2020 (1) KHC 865 (DB)], the 3[rd] respondent-Tahsildar is bound to entertain the application under Rule 6 A of the Kerala Land Tax Act, 1961, so as to make additional entries in the Basic Tax Register to show the change in the nature of the land as 'Garden land/purayidom' instead of the earlier entries in the Basic Tax Register as 'Nilam/Paddy land'. The position in this regard is declared and ordered. The 3[rd] should WP(C).No.11021 OF 2020(C) 9 have done this without making the petitioner to pay any higher amounts as per the amended provisions of the Kerala Conservation of Paddy Land Wetland Act, 2008 and the amended Rules. The position in this regard is already concluded by Ext.P8 inter partes judgment secured by the petitioner in this case. The last paragraph of Ext.P9 order, issued by the 3[rd] respondent reads as follows:- "ta kmlNcy¯n Beph Xmeq¡v sN§a\mSv hntÃPv kÀsÆ 258/6þ3  s¸« 7.49 BÀ hkvXp¡fpsS `q \næXn tIcf`q \næXn N«w 1972 t^mdw _n bn t\m«okv At]£I\v \evInbn«pÅXpw BbXn \næXn ]p\À\nÀWbnç¶Xn Bt£]samìw e`n¨n«nÃm¯ kmlNcy¯n t^mdw kn bn \næXn ]p\À\nÀWbn¨psImണ pw hkvXphnsâ Xcw ASnØm\ \næXn cPnÌdn \nesaìw Xണ t¸cnsâ dnamÀ¡vkv tImf¯n "t^mÀ«v sIm¨n kºv IfÎdpsS 19.09.2018 XnbXnbnse sI1þ7558/17/sIUnkv \¼À D¯chv {]Imcw' ImÀjntIXc Bhiy§Ä¡v D]tbmKnç¶Xn\v AëaXn Fìqw IqSpXembn tNÀç¶Xnëw sN§a\mSv hntÃPv Hm^okÀ¡v \nÀt±iw \evIns¡m ണv CXn\m D¯chmæì."" 8. Accordingly it is ordered that the 3[rd] respondentTahsildar will, immediately, pass fresh orders granting the request of the petitioner under Section 6 A of the Kerala Land Tax Act, so as to make additional entries in the Basic Tax Register to show the changed nature of the land as 'garden land/purayidom' instead of the earlier Basic Tax Register entries and 'Nilam/Paddy land' and without making the petitioner to pay the higher amounts conceived as per the amended provisions of the Act and the WP(C).No.11021 OF 2020(C) 10 amended provisions of the Rules. Orders in this regard should be duly passed by the 3[rd] respondent-Tahsildar within two weeks from the date of production of a certified copy of this judgment. The respondents cannot make the petitioner run from pillar to post. Petitioner may, thereafter, produce the aforesaid proceedings of the 3[rd] respondent-Tahsildar as well as a copy of Ext.P8 judgment (W.P.(C) No.24792/2019 dated 28.10.2019) before the 5[th] respondent-Secretary of the Nedumassery Grama Panchayat for getting his application for building permit considered. 9. It is made clear and declared that since the petitioner has already secured necessary permission for change of use of the land as per Ext.P7 and as declared by this Court in Ext.P6 judgment, petitioner is enabled to make use of the said subject property for any purpose including non-agricultural purposes and for construction of residential or commercial building. Needless to say that any such construction should be otherwise in consonance with the provisions of the applicable building Rules. 10. Petitioner may produce certified copy of this judgment along with a copy of memorandum of this writ petition (civil) before the 3[rd] respondent-Tahsildar as well as the 5[th] respondent- WP(C).No.11021 OF 2020(C) 11 Secretary of the Nedumasserry Grama Panchayat, for necessary information and further action. 11. In view of the above said aspects, it is also ordered that the 3[rd] respondent-Tahsildar should, immediately file a report before this Court, regarding compliance of the afore said directions and such report shall be filed by him within three weeks through the learned Government Pleader and a copy of the proceedings issued by him in compliance of the aforesaid directions should also be produced in the said report and upon receipt of said report Registry will place the said report on the judicial side of this Court for consideration of the same in this writ proceedings. With these observations and directions, the above Writ Petition (Civil) will stand finally disposed of. ## **Sd/-** ## **ALEXANDER THOMAS, JUDGE** Skk//18062020 WP(C).No.11021 OF 2020(C) 12 ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** |**EXHIBIT P1**|**TRUE COPY OF THE PARTITION DEED NO. 4301/1998**| |---|---| ||**OF SUB REGISTRAR OFFICE, CHENGAMANADU EXECUTED**| ||**BY THE PETITIONER AND OTHERS DATED 28.10.1998.**| |**EXHIBIT P2**|**TRUE COPY OF THE PROPERTY TAX RECEIPT**| ||**PERTAINING TO THE PETITIONERS PROPERTY ISSUED**| ||**FROM THE VILLAGE OFFICE, CHENGAMANAD DATED**| ||**07.05.2020.**| |**EXHIBIT P3**|**TRUE COPY OF THE RELEVANT PAGE OF THE DATA BANK**| ||**ISSUED TO THE PETITIONER BY THE AGRICULTURAL**| ||**OFFICER, DATED 10.05.2017.**| |**EXHIBIT P4**|**TRUE COPY OF THE BUILDING TAX RECEIPT ISSUED BY**| ||**THE NEDUMBASSERY GRAMA PANCHAYATH DATED**| ||**22.11.2002.**| |**EXHIBIT P5**|**TRUE COPY OF THE APPLICATION SUBMITTED BY THE**| ||**PETITIONER BEFORE THE 2ND RESPONDENT DATED**| ||**03.05.2017.**| |**EXHIBIT P6**|**TRUE COPY OF THE JUDGMENT IN WPC NO. 17883/2017**| ||**PASSED BY THIS HONOURABLE COURT DATED**| ||**09.08.2017.**| |**EXHIBIT P7**|**TRUE COPY OF THE ORDER IN KI-7558/2017 PASSED**| ||**BY THE 2ND RESPONDENT DATED 19.09.2018.**| |**EXHIBIT P8**|**TRUE COPY OF THE JUDGMENT IN WPC NO. 24792/2019**| ||**PASSED BY THIS HONOURABLE COURT DATED**| ||**28.10.2019.**| |**EXHIBIT P9**|**TRUE COPY OF THE ORDER NO. C.8.9604/19 PASSED**| ||**BY THE 3RD RESPONDENT DATED 07.02.2020.**| |**EXHIBIT P10**|**TRUE COPY OF THE REPLY RECEIVED FROM THE 4TH**| ||**RESPONDENT BY THE PETITIONER DATED 19.05.2020.**| |**EXHIBIT P11**|**TRUE COPY OF THE CIRCULAR NO. REV.P1/248/2019-**| ||**REV ISSUED BY THE REVENUE DEPARTMENT DATED**| ||**17.02.2020.**| **RESPONDENTS' EXHIBITS: NIL**