Sushil Vijoy v. State of Kerala and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **THURSDAY, THE 25TH DAY OF JUNE 2020 / 4TH ASHADHA, 1942** ## **WP(C).No.12523 OF 2020(M)** ## **PETITIONER:** **SUSHIL VIJOY NO.4A, J.M.TOWERS, NEAR CHINMAYA VIDYALAYA, OPPOSITE PALLIKKAVU TEMPLE ROAD, VADUTHALA, KOCHI-682023.** **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, KAKKANAD, ERNAKULAM, KOCHI-682030. 3 THE REVENUE DIVISIONAL OFFICER, FORTKOCHI-682001. 4 THE LOCAL LEVEL MONITORING COMMITTEE, REPRESENTED BY ITS CONVENER, KRISHI BHAVAN, TRIPUNITHURA-682306. 5 THE TAHSILDAR, KANAYANNUR TALUK, PARK AVENUE ROAD, KOCHI-682011. BY SRI.K.J.MANU RAJ, GOVT.PLEADER** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 25.06.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** WP(C).No.12523 OF 2020(M) 2 ## **ALEXANDER THOMAS, J.** ------------------------------------------W.P.(C)No.12523 of 2020 ---------------------------------------------Dated this the 25[th] day of June, 2020 ## **JUDGMENT** The case set up in this Writ Petition (Civil) is as follows:- _That the petitioner, who is the owner in possession and enjoyment of 66 cents of land comprised in Survey No.1514/1(old), Resurvey No.26, Block No.343 of Nadama Village in Kanayannur Taluk, Ernakulam District, has submitted Ext.P-1 application dated 06.03.2017, requesting the 2nd respondent-District Collector, Ernakulam, to grant permission to utilise the land for other purposes other than agriculture. Further, the petitioner filed Ext.P-2 W.P.(C) No.13512 of 2017 before this Court praying to dispose of Ext.P-1 application. The petitioner obtained Ext.-P3 report dated 13.10.2017, from the Kerala State Remote Sensing and Environment Centre, Trivandrum, regarding the nature of the property. The 4th respondent-Local Level Monitoring Committee, by Ext.P-4 report dated 16.02.2018, has reported_ WP(C).No.12523 OF 2020(M) 3 _to the 2nd respondent- District Collector that the land is converted land and that it could be removed from the data bank. The 2nd respondent-District Collector, so far, has not taken any steps to comply with the judgment till date. Meanwhile Section 27 A was included in the Act 28 of 2008 enabling the landowners to change the entry in the Basic Tax Register and the petitioner has preferred Ext.P-5 representation dated 01.12.2019 to the 2nd respondent-District Collector for concluding the proceedings in Clause 6(2) and to change the entry in the Basic Tax Register. Aggrieved by the non-consideration of Ext.P-1 application and Ext.P-5 representation, the petitioner approached this Court in this writ proceedings seeking appropriate remedy, in accordance with law._ 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) issue a writ of mandamus or such other writ, direction or order compelling the 2nd respondent to conclude the proceedings in Exhibits P1 application affording opportunity of hearing to the petitioners within a time frame to be fixed by this Honourable Court granting permission to develop the land;_ _ii) declare that the entry in the BTR is to be corrected as purayidom in respect of 66 cents of land comprised in_ WP(C).No.12523 OF 2020(M) 4 _Survey No.1514/1(old) Resurvey No.26, Block No.343 of Nadama Village in Kanayannur Taluk, Ernakulam District as per registered document Nos.2770/2014 and 2771 of 2014 of S.R.O, Tripunithura;_ _iii) 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. According to the petitioner, the subject property though continues to be described as paddy land/nilam in the Basic Tax Register (BTR), has been converted as garden land/purayidom much prior to 12.08.2008 (date of coming into force of Kerala Conservation of Paddy Land and Wetland Act). Further that, the property has been included in the draft data bank as converted land prior to 2008. That, the petitioner has submitted Ext.P-1 application dated 06.03.2017 under Rule 6(2) of the Kerala Land Utilisation (KLU) Order, 1967, before the 2[nd] respondent-District Collector seeking for statutory permission for change of user of the land for any nonagricultural purposes. Since no action has been taken on Ext.P-1 application, the petitioner was constrained to approach this Court by filing W.P.(C) No.13512/2017, which this Court WP(C).No.12523 OF 2020(M) 5 has disposed of as per Ext.P-2 judgment dated 08.11.2017, whereby it has been ordered that the petitioner should initially approach the 4[th] respondent-Local Level Monitoring Committee, who should ensure that the satellite picture and expert opinion of the Kerala State Remote Sensing and Environment Center (KSREC), Thiruvananthapuram, are obtained to ascertain the ground realities of the property as on 12.08.2008 and then the 4[th] respondent-Local Level Monitoring Committee should issue a certificate as to whether the subject property has been converted prior to 2008 and forward the same to the 2[nd] respondent-District Collector, who thereafter should take a decision on the request of the petitioner under Rule 6(2) of the Kerala Land Utilisation Order, 1967, for change of user of the land, within the time limit mentioned in the judgment. 4. Thereafter, the petitioner had made the requisite application before the 4[th] respondent-Local Level Monitoring Committee and also paid the requisite fee for obtaining the satellite pictures from the Kerala State Remote Sensing and Environment Center (KSREC), Thiruvananthapuram, and that the said expert agency (KSREC) has issued Ext.P-3 report dated WP(C).No.12523 OF 2020(M) 6 13.10.2017 along with the satellite pictures to the Agricultural Officer concerned, who is the Ex-officio Convenor of the 4[th] respondent-Local Level Monitoring Committee giving their opinion in the matter that the property has been converted prior to 12.08.2008 (the date of coming into force of the Kerala Conservation of Paddy Land and Wetland Act, 2008), etc. Then, thereafter, the Agricultural Officer, who is the Ex-officio Convenor of the 4[th] respondent-Local Level Monitoring Committee has submitted Ext.P-4 report dated 22.02.2018 before the 2[nd] respondent-District Collector, as directed by this Court in Ext.P-2 judgment. 5. The complaint of the petitioner is that thereafter the 2[nd] respondent-District Collector has not taken any action for compliance of the directions in Ext.P-2 judgment, rendered as early as on 08.11.2017, in spite of the expiry of the time limit in that regard. 6. The petitioner has now approached this Court for directions to ensure that the proceedings under Rule 6(2) of the Kerala Land Utilisation Order is finalised at least by the 3[rd] respondent-Revenue Divisional Officer, who is having all the powers of the notified Collector without any further delay. WP(C).No.12523 OF 2020(M) 7 7. After hearing both sides, this Court is of the considered view that the inaction on the part of the 2[nd] respondent-District Collector in finalising action in compliance with the directions issued by this Court in Ext.P-2 judgment, strictly in terms of Rule 6(2) of the Kerala Land Utilisation Order, 1967, cannot be appreciated. However, being faced with the fait accompli on account of the stand of the 2[nd] respondent, what this Court can now do is to ensure that at least justice is rendered to the petitioner at this late juncture. 8. This Court is now apprised that the 2[nd] respondentDistrict Collector, being the head of the District as well as the head of the District Revenue Administration, may be quite busy with various duties and responsibilities, more supposedly in connection with the issues arising out of the COVID-19 pandemic. 9. The 3[rd] respondent-Revenue Divisional Officer is also empowered to exercise concurrently all the powers of the notified District Collector in terms of Rule 6 of the Kerala Land Utilisation Order, 1967. Further, there cannot be any doubt whatsoever, that the petitioner has, in fact, filed Ext.P-1 application dated 06.03.2017 under Rule 6(2) of the Kerala WP(C).No.12523 OF 2020(M) 8 Land Utilisation Order, 1967, which is before the cut off date of 30.12.2017 (date of coming into force of the amended provisions of the Kerala Conservation of Paddy Land and Wetland Act, 2008) which has introduced Section 27A thereof. This is all the more so the fact that the petitioner has filed Ext.P-1 application before the cut off date of 30.12.2017 is also crystal clear from Ext.P-2 judgment wherein the appendix of which would also refer to Ext.P-1 application dated 06.03.2017. 10. 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 WP(C).No.12523 OF 2020(M) 9 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 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.6A 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 WP(C).No.12523 OF 2020(M) 10 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)]. 11. Hence it is only to be ordered and declared that the petitioner is legally entitled to get his request as per Ext.P-1 dated 06.03.2017 considered strictly in terms of the provisions contained in Rule 6(2) of the Kerala Land Utilisation Order, 1967, without being compelled to pay the amounts as conceived as per the amended provisions of the Kerala Conservation of Paddy Land and Wetland Act, 2008, which has introduced Section 27A thereof and the amended provisions of the Rules including Rule 12(17) thereof. Accordingly the following orders and directions are passed:- (i) The 2nd respondent-District Collector, will immediately transfer and forward Ext.P-1 application dated 06.03.2017 to the 3rd respondent-Revenue Divisional Officer, for finalisation of the action in terms of Rule 6(2) of the Kerala Land Utilisation Order, 1967, without any further delay, at any rate, within a period of two weeks from the date of production WP(C).No.12523 OF 2020(M) 11 of a certified copy of this judgment. (ii) The petitioner will also simultaneously produce a certified copy of this judgment as well as a copy of the memorandum of this writ petition (civil) along with all the exhibits and as also a copy of Ext.P-1 application dated 06.03.2017 attested by his Advocate before the 3rd respondentRevenue Divisional Officer, within two weeks from the date of receipt of a certified copy of this judgment. (iii) In case, the 3rd respondent-Revenue Divisional Officer does not receive the papers in relation to Ext.P-1 from the 2nd respondent-District Collector, within a period of two weeks from the date of receipt of a copy of this judgment, then the 3rd respondent should proceed to act upon Ext.P-1 application by treating as if the copy of Ext.P-1 application so given by the petitioner, as directed herein above is the said application filed under Rule 6(2) of the Kerala Land Utilisation Order, before the cut off date of 30.12.2017. (iv) Thereafter, the 3rd respondent-Revenue Divisional Officer may ensure that appropriate inspection of the subject property is conducted with due prior notice to the petitioner and should ensure that copy of the inspection report is given to WP(C).No.12523 OF 2020(M) 12 the petitioner in advance, and thereafter should afford reasonable opportunity of being heard to the petitioner through his authorised representative/counsel, if any, and after taking due note of the contents of Ext.P-3 report of the KSREC as well as Ext.P-4 report of the 4th respondent-Local Level Monitoring Committee, and should take a considered decision on the plea of the petitioner for statutory permission for change of user of land for any non-agricultural purposes under Rule 6(2) of the Kerala Land Utilisation Order, 1967, without much delay, preferably within a period of two months from the date of production of a certified copy of this judgment and without making the petitioner to pay any amounts as conceived as per the amended provisions of the Kerala Conservation of Paddy Land and Wetland Act, 2008, introducing Section 27A thereon and the amended provisions of the Rules including Rule 12(17) thereof. (v) After securing necessary permission from the 3rd respondent-Revenue Divisional Officer on Ext.P-1 application under Rule 6(2) of the Kerala Land Utilisation Order, 1967, the petitioner will be at liberty to file appropriate application before the 5th respondent-Tahsildar, seeking for re-assessment of the WP(C).No.12523 OF 2020(M) 13 subject property, in terms of Section 6A of the Kerala Land Tax Act. On receiving a copy of such representation along with a copy of the proceedings so issued by the 3rd respondent granting permission under Rule 6(2) of the Kerala Land Utilisation Order, 1967, the 5th respondent will, after affording reasonable opportunity of being heard to the petitioner should pass orders in the matter of re-assessment of the subject property in terms of Section 6A of the Kerala Land Tax Act, 1961, so as to secure additional entries in the Basic Tax Register to correctly show the change in nature of the land as 'garden land/purayidom' instead of the earlier Basic Tax Register entries as 'paddy land/nilam', within one month from the date of filing of such application along with a copy of the proceedings issued by the 3rd respondent granting permission and strictly in accordance with the dictum laid down by the Division Bench of this Court in decisions as in _**LLMC, Kizhakkambalam Grama Panchayath and others v. Mariumma and another**_ [2015 (2) KLT 516 (DB)] (supra) and _**Thasildar, Thodupuzha Taluk and another v. Renjith George**_ [2020 (1) KHC 865 (DB) (supra) and without making the petitioner to pay any amounts as conceived as per the amended WP(C).No.12523 OF 2020(M) 14 provisions of the Kerala Conservation of Paddy Land and Wetland Act, 2008, and the amended provisions of the Rules framed thereunder, including Rule 12(17) thereof, etc. 12. The petitioner will produce certified copies of this judgment as well as a copies of the memorandum of this writ petition (civil) along with all the exhibits before the 2nd respondent-District Collector and the 3rd respondent-Revenue Divisional 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** Skk//17032020 WP(C).No.12523 OF 2020(M) 15 ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF THE REPRESENTATION DATED 6.3.2017 SUBMITTED TO THE 2ND RESPONDENT.** **EXHIBIT P2 TRUE COPY OF THE JUDGMENT DATED 8.11.2017 IN W.P.(C)NO.13512 OF 2017 OF THIS HONOURABLE COURT. EXHIBIT P3 TRUE COPY OF THE REPORT DATED 13.10.2017 OF KSREC. EXHIBIT P4 TRUE COPY OF THE REPORT DATED 16.2.2018 OF THE 4TH RESPONDENT. EXHIBIT P5 TRUE COPY OF THE REPRESENTATION DATED 1.12.2019 SUBMITTED TO 2ND RESPONDENT.** **RESPONDENTS' EXHIBITS: NIL**