Sunny Joseph v. State of Kerala and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** ## **WEDNESDAY, THE 23RD DAY OF AUGUST 2017/1ST BHADRA, 1939** ## **WP(C).No. 2562 of 2016 (U)** **---------------------------** ## **PETITIONER :** **--------------------** **SUNNY JOSEPH,AGED 47 YEARS, S/O.JOSEPH, PRESENTLY RESIDING AT NO.275/2/B, MAIN BLOCK-1, BEL LAY OUT, VIDHYARANYAPURAM, BANGALORE.** ## **BY ADV. SMT.MEREENA JOSEPH** **RESPONDENT(S):** **----------------------------** **1. THE STATE OF KERALA, REPRESENTED BY THE SECRETARY, DEPARTMENT OF REVENUE, STATE SECRETARIAT,** **THIRUVANANTHAPURAM -695 001** **2. THE REVENUE DIVISIONAL OFFICE/SUB COLLECTOR, FORT KOCHI, ERNAKULAM -682 028** **3. THE ADDITIONAL TAHSILDAR, PARAVUR -682 068** **4. PUTHENVELIKKARA GRAMA PANCHAYAT, REP. BY THE SECRETARY, ERNAKULAM -682 068** **5. THE AGRICULTURAL OFFICER, KUNNUKARA, ERNAKULAM -682 021** **R1 TO R3,R5 BY ADV. GOVERNMENT PLEADER SMT. VINEETHA HARIRAJ** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 23-08-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **sts** ## **WP(C).No. 2562 of 2016 (U)** ## **----------------------------------------** ## **APPENDIX** **PETITIONER(S)' EXHIBITS ---------------------------------------** - **P1: TRUE COPY OF THE SALE DEED IN FAVOUR OF THE PETITIONER DATED 15.09.2007** - **P2: TRUE COPY OF THE LAND TAX RECEIPT DATED 06.10.2009** - **P2(A): TRUE COPY OF THE LAND TAX RECEIPT DATED 16.08.2013** **P2(B): TRUE COPY OF THE LAND TAX RECEIPT DATED 02.12.2014** - **P3: TRUE COPY OF THE DATA BANK OF PADDY LAND AND WET LAND MAINTAINED BY THE KUNNUKARA GRAMA PANCHAYAT** - **P4: TRUE COPY OF THE PROHIBITORY ORDER PASSED BY THE 2ND RESPONDENT DATED 03.07.2015** - **P5: TRUE COPY OF THE REPORT SUBMITTED BY THE AGRICULTURAL OFFICER, KUNNUKARA TO THE REVENUE DIVISIONAL OFFICER, ERNAKULAM DATED 03.08.2015** - **P6: TRUE COPY OF THE REPORT SUBMITTED BY THE VILLAGE OFFICER, PUTHENVELIKKARA TO HTE REVENUE DIVISIONAL OFFICER, FORT KOCHI DATED 17.04.2015** - **P7: TRUE COPY OF THE THANDAPER ACCOUNT ISSUED TO HIM BY THE VILLAGE OFFICER, PUTHENVELIKKARA** **P8: TRUE COPY OF THE ORDER PASSED BY THE 2ND RESPONDENT DATED 30.09.2015** **RESPONDENT(S)' EXHIBITS: NIL** **------------------------------------------** **/TRUE COPY/** ## **P.A.TO JUDGE** **sts** ## **K. VINOD CHANDRAN, J.** -----------------------------------------W.P.(C) No. 2562 of 2016 (U) -----------------------------------------Dated: 23[rd] August, 2017 ## **J U D G M E N T** The petitioner is aggrieved with Ext.P8 order passed by the Revenue Divisional Officer (RDO). The petitioner submits that the petitioner purchased 1 Acre 2.25 cents of land comprised in Survey Nos.22/8, 23/2 and 22/8/1 in Puthenvelikkara Village, Paravur Taluk, as per Ext.P1 deed. The petitioner had also been regularly paying the land tax, as evidenced by Ext.P2 series of receipts produced. Ext. P2 series show the land to be described as 'purayidam' in the remarks column. The extract of the notified data bank for the area is produced by the petitioner as Ext.P3, which shows the petitioner's land to be included as 'converted 15 years back'. ## **W.P.(C) No. 2562/2016** **-2-** 2. The petitioner was carrying on leveling activity in order to cut a road through the property, when the petitioner was issued with a prohibitory order by the RDO, as seen from Ext.P4. The RDO obviously issued the prohibitory order under the Kerala Land Utilization Order, 1967, (for brevity “KLU Order”). Reports were also called for from the Agricultural Officer and the Village Officer, which are produced as Exts.P5 and P6. Despite the favourable reports, the RDO has directed resumption of the property as per Ext.P8. The learned Government Pleader submits that Ext.P8 is an appealable order. 3. Ext.P5 is the report of the Agricultural Officer, which clearly indicates that the properties in Survey Nos.23/2, 22/8-1 and 22/8 are included in the data bank as 'converted 15 years back'. It is also reported by the Agricultural Officer that there are standing coconut **-3-** ## **W.P.(C) No. 2562/2016** trees of age 30 years and nutmeg trees of 15 years age existing in the property. The activity carried on by the petitioner in the property was also found to be cutting of a road and laying it with quarry waste. There is no finding recorded as to any cultivation having been changed in the property. Ext.P6 is the report of the Village Officer, which is in tandem with the report of the Agricultural Officer. The Village Officer however reports that the properties are described as 'nilam' in the Basic Tax Register (BTR). It is seen from the extract of the BTR, as produced by the petitioner itself, that the properties are described as 'nilam'. 4. The RDO has found that in the BTR the properties are described as 'nilam' and that there was no permission obtained for conversion of user at the time when such conversion was effected. In response to the contention of the learned Government Pleader ## **W.P.(C) No. 2562/2016** **-4-** that there is alternate remedy, the petitioner submits that there is no authority conferred on the District Collector or the RDO to resume the properties under the KLU Order. 5. This Court is inclined to find favour with the aforesaid contention and in such circumstance despite the alternate remedy this Court would invoke the special jurisdiction under Article 226 of the Constitution of India. Further, it is to be noticed, on a reading of Clause 6 and 7 of the KLU Order; it is expected of the revenue officers to be alert insofar as detecting any conversion of user of land in which cultivation was carried out continuously for a period of three years. The power under the KLU Order as also under the Paddy Land Act have been looked into by this Court in **Shivadasan v. Revenue Divisional Officer – 2017 (3) KLT 822** . This Court has specifically found, based ## **W.P.(C) No. 2562/2016** **-5-** on the decision of the Hon'ble Supreme Court in **Revenue Divisional Officer v. Jalaja Dileep - 2015 (1) KLT 984 SC** that the paddy lands which are converted prior to the Paddy Land Act are covered under the KLU Order. In the circumstance of such lands being included in the data bank and there being a description shown as converted land prior to 2008, necessarily, the land holder is entitled to the conversion of user, as permissible under Clause (6) of the KLU Order. 6. In such circumstance, considering the reports of the Agricultural Officer and the Village Officer, as also the inclusion of the property in the data bank as 'converted 15 years back', the petitioner would be entitled to file a Clause (6) application, which would have to be allowed by the District Collector/RDO before whom it is filed. ## **W.P.(C) No. 2562/2016** **-6-** 7. Ext.P8 is found to be totally without jurisdiction for reason of there being no power conferred on the RDO under the KLU Order for directing resumption of the property. The power conferred under the KLU Order is only to auction the right to cultivate the land, which, as of now, cannot be auctioned for reason of there being no possibility of paddy cultivation in the said land, despite it being described as 'nilam' in the revenue records. 8. In such circumstance, Ext.P8 is set aside and the petitioner is directed to file an application under Clause (6) of the KLU Order. On such conversion of user being obtained, the petitioner could also seek change of categorisation before the land tax authorities and seek fresh assessment of the land as 'garden land', as has been declared in ## **W.P.(C) No. 2562/2016** **-7-** # **Kizhakkambalam Grama Panchayath V. Mariumma** **- 2015(2) KLT 516** . The writ petition is allowed. No Costs. Sd/K.VINOD CHANDRAN, JUDGE jjj 23/8/17