V.J. THOMAS v. STATE OF KERALA

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE AMIT RAWAL** **WEDNESDAY, THE 04TH DAY OF MARCH 2020 / 14TH PHALGUNA, 1941** ## **WP(C).No.1404 OF 2020(A)** ## **PETITIONER/S:** **V.J. THOMAS, S/O. LATE K.T. JOSEPH, VALLAYIL KALAPURACKAL, KUDAKKACHIRA, PALA-686635, KOTTAYAM DISTRICT.** **BY ADVS. SRI.MATHEW JOHN (K) SRI.MATHEW DEVASSI SRI.ABY J AUGUSTINE** ## **RESPONDENT/S:** - **1 STATE OF KERALA, REPRESENTED BY ITS SECRETARY TO GOVERNMENT, REVENUE DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695001.** - **2 CHAIRMAN, LOCAL LEVEL MONITORING COMMITTEE, KAROOR PANCHAYATH, PALAI, KOTTAYAM DISTRICT, PIN-686575.** - **3 REVENUE DIVISIONAL OFFICER, REVENUE DIVISION OFFICE, PALA, KOTTAYAM DISTRICT-686575.** - **4 ADDITIONAL TAHSILDAR, MEENACHIL TALUK OFFICE, PALA, KOTTAYAM DISTRICT, PIN686575.** - **5 VILLAGE OFFICER, VALLICHIRA VILLAGE OFFICE, PALA, KOTTAYAM DISTRICT686574.** ## **OTHER PRESENT:** ## **SR GP SRI RAJASEKHARAN NAIR** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 06-02-2020, THE COURT ON 04-03-2020 DELIVERED THE FOLLOWING:** **WP(C).No.1404 OF 2020(A)** **2** ## **JUDGMENT** ## **Dated this the 4th day of March 2020** The facts leading to filing of this writ petition are that the petitioner is the owner of 55.58 ares of property lying in Sy.Nos. 217/10, 217/10/1, 217/11 and 217/11/1 situated in Vallichira Village, Meenachil Taluk, Kottayam. Prior to the purchase of the property, the same was already used as a garden land consisting of coconut, jack fruit trees etc,. The existence of paddy fields has attempted to be brought on record by the respondent, was emphatically, denied. 2. The learned counsel appearing on behalf of the petitioner submits that all the properties in the adjoining areas are rubber plantations. The property of the petitioner, prior to the year 2008, was a converted land. Since the land reflected in the data bank as reclaimed, the petitioner necessarily submitted an application before the Local Level Monitoring Committee (LLMC) constituted/established under Section 5 of the Kerala Conservation of Paddy Land and Wetland Act, 2008 (hereinafter referred to as '2008 Act'. **WP(C).No.1404 OF 2020(A)** **3** Another application, as provided under clause 6(2) of the erstwhile Kerala Land Utilization Order, 1967, was also submitted to the Revenue Divisional Officer/3[rd] respondent vide Ext.P3. Since the application remained pending, the petitioner approached this Court vide W.P.(C) No.13787 of 2018. This Court vide order dated 13[th] April 2018 disposed of the writ petition with certain directions. 3. Sanguine of the fact that the authorities are to take necessary action, the petitioner produced the copy of the judgment before the 2[nd] respondent ie., the Chairman LLMC which was required to take action within a period of one month. Vide impugned order dated 14[th] November 2019, Ext.P5, Revenue Divisional Officer dismissed the application by directing the petitioner to submit an application in respect of the property under the provisions of 2008 Act. It is in these circumstances, the cause of action accrued to file the present writ petition. In support of the contentions, over and above the grounds referred to in the writ petition, Mr.Mathew John raised the following submissions: a. The Judgment, Ext.P4 is an inter-party judgment and the authorities are bound to take into consideration the **WP(C).No.1404 OF 2020(A) 4** directions in letter and spirit. The import of the judgment do not entail into a mystery to be solved by the RDO, as the directions were in plain and unambiguous terms. It is trite that the inter party judgment have to be strictly followed and adhered to. In support of the aforementioned contention, reliance has been laid to the judgment of this Court dated 20[th] of December 2019 rendered in W.P.(C) No.15668 of 2019 (Ushakumari v. Revenue Divisional Officer and others). b. The ratio of decidendi culled out in paragraph 5 of the judgment of the Division Bench of this Court in **Salim v. State of Kerala reported in 2019 (3) KLT 604** cannot be read against the petitioner but rather would come to the rescue. The report of the Agricultural Officer referred to in the impugned order under Reference No.4 leads to a irresistible conclusion that the land was converted prior to the date, on which the Kerala conservation of Paddy Land and Wet Land Act was enacted. Thus, before and after that, for all intends and purposes, there would be no applicability of the provisions of Section 27A of the 2008 Act as it would be a deemed order of the reclamation under the provisions of clause 6(2) of erstwhile, KLU Order, 1967. **WP(C).No.1404 OF 2020(A) 5** c. The Revenue Divisional Officer has no jurisdiction to take into consideration the request dated 18[th] April 2018 as the 2008 Act was amended on 6[th] July 2018 but had retrospective effect from 30[th] December 2017. Once the data bank reflects the nature of the land as reclaimed, reflection of the land as 'Nilam' in Basic Tax Register (BTR) and survey number would be inconsequential. It is in that back ground of the matter, the directions 2(i) and 3(i) were issued but have not been taken into consideration in correct perspective, thus there is a aberration and illegality, much less repugnancy. It is a settled law that even if the judgment is against the statue, the directions have a binding force. 4. Though the arguments aforementioned were redressed at the preliminary stage, Mr.Rajasekharan Nair, learned Government Pleader rendered assistance to the court in supporting the order under challenge on the ground that condition No.2(i) and 3(i) would be effective only when the first condition is complied with. He also relied upon the judgment of the Division Bench of this Court to submit that it is the date of the application, which is to be considered as to whether the conditions enshrined in Section 27A would be **WP(C).No.1404 OF 2020(A)** **6** applicable or not. 5. I have heard the learned counsel for the parties, appraised the paper book, the documents attached thereto and the judgment cited above, there is no force and merits in the submissions. For assigning reasons and applying the ratio of inter-parte judgment, it would be in the fitness of things to extract the directions sought to be applied and implemented contained in the order of this Court dated 13[th] April 2018. “(i) The 2[nd] respondent shall consider and pass orders on Ext.P2 application preferred by the petitioner within a period of three months from the date of receipt of a copy of this judgment, if need be, after hearing the petitioner. (ii) In the event of the 2nd respondent passing an order excluding the land belonging to the petitioner from the Land Data Bank, then then the 3[rd] respondent shall consider Ext.P3 application preferred by the petitioner for conversion of user of the said land, and pass orders thereon within a period of one month from the date of production of the order of the 2[nd] respondent, before him. (iii) The petitioner shall, in the event of receipt of the order from the 2nd respondent, and the order from the 3rd respondent permitting conversion under the KLU Order, produce copies of the same before the Land Tax Authorities, for causing a fresh assessment and consequential change in the classification of the land in the Basic Tax Register.” **WP(C).No.1404 OF 2020(A) 7** There is no quarrel to the proposition in respect of the ratio qua applicability of the directions pertaining to the inter-parte judgments. The argument of Mr. Mathew John though very eloquently act with vehements attempted to bring the case within the parameters as inter-parte judgment, I am afraid that the said contention cannot be accepted and must fail. Reference to the KLU order in direction No.3(i) is not to be construed in isolation but have to be in-conjunction with direction in 2(i). Import of the judgment is in three stages and on surpassing a particular stage, envisioning a situation as contemplated under the provisions of the Act directions were issued in order to prevent litigant to undergo rigmarole of successive litigation. 6. No doubt report of the Village officer reveals the nature of the land as 'Reclaimed'. But that would not efface the effect of the amendment introduced to Section 27A effective from 30[th] December 2017. It cannot be deemed to be a non wet land, particularly, when the Basic Tax Register and the survey numbers in the revenue records reflects as a wet land. The procedure for removal of the land has been enshrined under the provisions of 2008 Act ie., under Section **WP(C).No.1404 OF 2020(A) 8** 5(4) of the 2008 Act. However, the aforementioned provisions, presumably, would not be brought into action by the petitioner in view of the report of the Village Officer but for seeking permission to use the land other than the wet land as a necessary implication permission under Section 27A is required, as the moot point would be the 'cut of date'. Concededly, the request in the instant case was made on 18[th] April 2018, ie., post amendment, effective from 30[th] December 2017. 7. The Division Bench of this Court in Salim's case (supra) on a proposition of applicability of the provisions of Section 27A in respect of submission of application prior to the introduction of 27A came to be pondered and in paragraph 5 of the judgment, it was held as under: Having regard to the above submission, the first thing that need to be noticed here is that the application of the petitioner was filed under clause 6(2) of the KLU Order and application was not filed, under the Paddy Act. In such circumstances, the amendment to the Paddy Act and the resultant incorporation of S.27A thereto could not, in our mind, apply to a consideration of the petitioner's pending application, under the KLU Order. In any case, the new provision relates to the change of nature of unnotified land under Section 27A of the Paddy Act but cannot be directed to be applied to an application, filed **WP(C).No.1404 OF 2020(A)** **9** under clause 6(2) of the KLU Order. The finding reflected in the impugned order relegating the petitioner to avail the remedy under Section 27A cannot be found fault with. 8. It is not a case set out herein that the permission has already been granted under Section 7A on the question with regard to the applicability of payment of fee or otherwise would be a point of determination or not. As regards the effect of the judgment rendered in **Line Properties Private Limited v. State of Kerala (2019 (3) KLT 420)** it was a case where the land had already been converted prior to 2008 and it was not described to be a paddy or wet land, thus would also not come to the rescue to the petitioner as that the relevant date would be a determining factor. In the cited case, the application was submitted on 22[nd] September 2017 which is not the situation in the present case. 9. The ratio decidendi culled out in Ushakumari's case would not also the relevant in the instant case. Almost identical directions were given in the judgment which were sought to be implemented in a subsequent litigation after **WP(C).No.1404 OF 2020(A)** **10** seeking a clarification and moving a separate application but fact of the matter remains that in para 7 of Ushakumari's case, this Court gave the following reasoning: 7. Obviously, therefore, the directions in Ext.P1 judgment still remains and it has been now made clear by the same learned Judge who issued them, that since the judgment was delivered prior to the amendment, the directions therein will have to be complied with scrupulously.” On plain and simple reading of the aforementioned, there is not ambiguity that a judgment in the previous case was rendered prior to the amendment. I do not find any illegality in the impugned order. The writ petition is accordingly dismissed. **Sd/-** **AMIT RAWAL** sab **JUDGE** **WP(C).No.1404 OF 2020(A)** **11** ## **APPENDIX** **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 TRUE COPIES OF THE LAND TAX RECEIPTS.** **EXHIBIT P2 TRUE COPY OF THE APPLICATION DATED 21/05/2017 SUBMITTED BY THE PETITIONER BEFORE THE AGRICULTURAL OFFICER ATTACHED TO THE AGRICULTURAL OFFICE.** **EXHIBIT P3** **TRUE COPY OF THE APPLICATION SUBMITTED BY THE PETITIONER BEFORE THE RDO PALA AS PROVIDED UNDER CLAUSE 6(2) OF THE KERALA LAND UTILIZATION ORDER, 1967.** **EXHIBIT P4** **A TRUE COPY OF THE JUDGMENT DELIVERED BY THIS HON'BLE COURT IN WRIT PETITION NO.13787/2018.** **EXHIBIT P5** **TRUE COPY OF THE ORDER DATED 14/11/2019 PASSED BY THE 2ND RESPONDENT.**