W.P.(C) Nos.11648, 11646 & 11642 of 2020

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **MONDAY, THE 15TH DAY OF JUNE 2020 / 25TH JYAISHTA, 1942** ## **WP(C).No.11648 OF 2020(E)** ## **PETITIONERS:** - **1 RAJAGOPALA KURUP AGED 76 YEARS, S/O.RAMAN PILLAI, SRINGERI HOUSE, THIRUNAKKARA.P.O, KOTTAYAM-686001.** **2 RESHMI RAJAN, AGED 45 YEARS, D/O.RAJAGOPALA KURUP, NOW RESIDING AT PRASANTHI HOUSE, MANGANAM.P.O, KOTTAYAM-686018.** **BY ADV. SRI.GIKKU JACOB** ## **RESPONDENTS:** - **1 STATE OF KERALA REPRESENTED BY SECRETARY, REVENUE DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM-695001.** - **2 REVENUE DIVISIONAL OFFICER, REVENUE TOWER,THIRUNAKKARA.P.O, KOTTAYAM-686001.** - **3 TAHASLDAR, REVENUE TOWER,THIRUNAKKARA.P.O, KOTTAYAM-686001.** ## **SRI.SAIGI JACOB PALATTY, SR.GOVT.PLEADER** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 15.06.2020, ALONG WITH WP(C).11642/2020(E), WP(C).11646/2020(E), THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** W.P.(C)Nos.11648,11646&11642/2020 2 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **MONDAY, THE 15TH DAY OF JUNE 2020 / 25TH JYAISHTA, 1942** ## **WP(C).No.11642 OF 2020(E)** ## **PETITIONER:** **SREELAKSHMI SUNIL KUMAR AGED 38 YEARS, W/O P.G.SUNIL KUMAR, SHANTHI NIVAS, MANGANAM P.O.KOTTAYAM-686 018.** **BY ADV. SRI.GIKKU JACOB** ## **RESPONDENTS:** - **1 STATE OF KERALA REPRESENTED BY SECRETARY, REVENUE DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM-695 001.** - **2 REVENUE DIVISIONAL OFFICER, REVENUE TOWER, THIRUNAKKARA P.O.KOTTAYAM-686 001.** - **3 TAHASILDAR,** **REVENUE TOWER, THIRUNAKKARA P.O.KOTTAYAM-686 001.** **SRI.SAIGI JACOB PALATTY, SR.GOVT.PLEADER** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 15.06.2020, ALONG WITH WP(C).11646/2020(E), WP(C).11648/2020(E), THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** W.P.(C)Nos.11648,11646&11642/2020 3 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **MONDAY, THE 15TH DAY OF JUNE 2020 / 25TH JYAISHTA, 1942** ## **WP(C).No.11646 OF 2020(E)** ## **PETITIONERS:** **SUNIL KUMAR P.G. AGED 52 YEARS, S/O. P.K.GOPINATHAN NAIR, SHANTHI NIVAS, MANGANAM P.O., VIJAYAPURAM VILLAGE, KOTTAYAM-686 018.** ## **BY ADV. SRI.GIKKU JACOB** ## **RESPONDENTS:** - **1 STATE OF KERALA REPRESENTED BY SECRETARY, REVENUE DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM-695 001.** - **2 REVENUE DIVISIONAL OFFICER REVENUE TOWER, THIRUNAKKARA P.O., KOTTAYAM-686 001.** - **3 TAHASILDAR REVENUE TOWER, THIRUNAKKARA P.O., KOTTAYAM-686 001.** **SRI.SAIGI JACOB PALATTY, SR.GOVT.PLEADER** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 15.06.2020, ALONG WITH WP(C).11642/2020(E), WP(C).11648/2020(E), THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** W.P.(C)Nos.11648,11646&11642/2020 4 ## **ALEXANDER THOMAS, J.** ------------------------------------------- W.P.(C)Nos.11648, 11646 & 11642 of 2020 ---------------------------------------------Dated this the 15[th] day of June, 2020 ## **JUDGMENT** As common issues are raised in these matters, these writ petitions (civil) are disposed of on the basis of this common judgment. The prayers in W.P.(C) No.11648 of 2020 are as follows:- _“i) Issue a writ of certiorari and quash Exhibit P-3 order dated 27.1.2018 to the extent it stipulates that permission granted under clause 6 of Kerala Land Utilisation Order 1967 should not be acted upon, effecting changes in the revenue records only after the compliance of the provisions under Section 27A of the Kerala Conservation of Paddy Land and Wetland (Amendment) Ordinance 2017 and to set apart 10% of the total area of the land for water conservation measures;_ _ii) To declare that the provisions contained in Section 27A and Section 27 C of the Kerala Conservation of Paddy Land and Wetland (Amendment) Ordinance 2017, is illegal and unconstitutional;_ _and_ _iii) Issue such other writ or order or direction as this Hon'ble Court may deem fit and necessary, in the circumstances of the case, in the interest of justice”_ The prayers in W.P.(C) No.11646 of 2020 are as follows:- _“i) Issue a writ of certiorari and quash Exhibit P-3 order dated 23.1.2018 to the extent it stipulates that permission granted under clause 6 of Kerala Land Utilisation Order 1967 should not be acted upon, effecting changes in the revenue records only after the compliance_ W.P.(C)Nos.11648,11646&11642/2020 5 _of the provisions under Section 27A of the Kerala Conservation of Paddy Land and Wetland (Amendment) Ordinance 2017 and to set apart 10% of the total area of the land for water conservation measures;_ _ii) To declare that the provisions contained in Section 27A and Section 27 C of the Kerala Conservation of Paddy Land and Wetland (Amendment) Ordinance 2017, is illegal and unconstitutional;_ _and_ _iii) Issue such other writ or order or direction as this Hon'ble Court may deem fit and necessary, in the circumstances of the case, in the interest of justice”_ The prayers in W.P.(C) No.11642 of 2020 are as follows:- _“i) Issue a writ of certiorari and quash Exhibit P-3 order dated 27.1.2018 to the extent it stipulates that permission granted under clause 6 of Kerala Land Utilisation Order 1967 should not be acted upon, effecting changes in the revenue records only after the compliance of the provisions under Section 27A of the Kerala Conservation of Paddy Land and Wetland (Amendment) Ordinance 2017 and to set apart 10% of the total area of the land for water conservation measures;_ _ii) To declare that the provisions contained in Section 27A and Section 27 C of the Kerala Conservation of Paddy Land and Wetland (Amendment) Ordinance 2017, is illegal and unconstitutional;_ _and_ _iii) Issue such other writ or order or direction as this Hon'ble Court may deem fit and necessary, in the circumstances of the case, in the interest of justice”_ 2. Heard Sri.Gikku Jacob, learned counsel appearing for the petitioner and Sri. Saigi Jacob Palatty, learned Senior Government Pleader appearing for the respondents. W.P.(C)Nos.11648,11646&11642/2020 6 3. In these cases it is indisputable that the subject properties though, described as 'nilam/paddy land' in the Basic Tax Register have 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). So also, each of these applicants have filed Ext.P-1 application dated 17.10.2017 under Rule 6(2) of the Kerala Land Utilisation Ordinance, 1967, before the 2[nd] respondent-Revenue Divisional Officer, seeking for statutory permission for change of use of the land. Since Ext.P-1 application has not been considered, these petitioners were constrained to approach this Court and Ext.P-2 is the common judgment dated 24.10.2017, rendered by this Court in W.P.(C)No.33884/2017 and W.P.(C)No.33800/2017, directing the 2[nd] respondent-Revenue Divisional Officer to consider and pass orders on the said application filed on 17.10.2017 under Rule 6(2) of the Kerala Land Utilisation Ordinance, 1967, within two months. So also, the petitioner in W.P.(C)No.11648/2020 has secured Ext.P-2 judgment dated 07.11.2017 in W.P. (C)No.33936/2020 directing the 2[nd] respondent-Revenue Divisional Officer to take decision on Ext.P-1 application therein W.P.(C)Nos.11648,11646&11642/2020 7 (dated 17.10.2017, filed under Rule 6(2) of the Kerala Land Utilisation Ordinance, 1967). The fact that these petitioners have filed the above said application under Rule 6(2) of the Kerala Land Utilisation Ordinance, 1967, 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), is also clear and manifest from a mere reading of the above said judgments produced as Ext.P-2 in these cases, wherein the said respective application as per Ext.P-1 has been produced as Ext.P-1 therein. As a matter of fact, petitioners have also secured Ext.P-2 judgment on 24.10.2017 and 07.11.2017 and therefore, there cannot be any dispute that Ext.P-1 application has been filed in each of these cases before the cut off date of 30.12.2017. 4. Now the 2[nd] respondent-Revenue Divisional Officer has passed the impugned Ext.P3 order dated 27.01.2018 in each of these three cases, allowing the pleas of the petitioners under Rule 6(2) of the Kerala Land Utilisation Ordinance, 1967, but with the condition that the respective petitioners will have to pay the higher amounts in terms of Section 27A(1) and the Rules framed W.P.(C)Nos.11648,11646&11642/2020 8 thereunder for getting the said benefit and also certain other restrictive conditions flowing from the amended provisions of the 2008 Act. 5. The above said judgments of this Court as per Exts.P2, this Court had also given consequential directions that after the petitioners securing necessary permission from the 2nd respondent-Revenue Divisional Officer under Rule 6(2) of the Kerala Land Utilisation Ordinance, 1967, they are entitled to approach the local body concerned, for grant of building permit for construction of building in the subject property, etc. 6. Petitioners are essentially aggrieved by the restrictive conditions in Ext.P-3 orders passed in these cases to the extent petitioners have been directed to pay higher amount in terms of the amended provisions of the Kerala Conservation of Paddy Land and Wetland Act, 2008 Act, which has introduced Section 27A thereof and the amended Rules framed thereunder as also the other restrictive conditions imposed on the basis of those amended provisions in the matter of taking steps for water conservation measures. 7. It is by now well settled by a series of ruling of this W.P.(C)Nos.11648,11646&11642/2020 9 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 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 W.P.(C)Nos.11648,11646&11642/2020 10 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 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)]. 8. Since the petitioners in these cases have been filed requisite application under Rule 6(2) of the Kerala Land Utilisation Ordinance, before the cut off date of 30.12.2017, it is only to be held that the impugned restrictions imposed in Ext.P-3 W.P.(C)Nos.11648,11646&11642/2020 11 orders that petitioners will have to pay the higher amounts in terms of the amended provisions of the Act and the amended Rules as well as the other conditions flowing therefrom, is illegal and ultra vires. 9. However, it is ordered and declared that Ext.P-3 order produced in these cases to the extent it grants permission to the respective petitioners under Rule 6(2) of the Kerala Land Utilisation Ordinance, 1967, for change of use of the land is affirmed and upheld. The impugned restrictions therein for payment of the higher amounts in terms of the amended provisions of the Kerala Conservation of Paddy Land and Wetland Act, 2008, which has introduced Section 27A thereof and the amended Rules framed thereunder as well as the other restrictions flowing out from the amended provisions of the Kerala Conservation of Paddy Land and Wetland Act will stand set aside and quashed. Ext.P-3 orders passed in these cases should be treated as an unconditional order granted by the 2[nd] respondentRevenue Divisional Officer giving permission under Rule 6(2) of the Kerala Land Utilisation Ordinance, 1967, in each of these three cases for change of use of the land so that the land could be used W.P.(C)Nos.11648,11646&11642/2020 12 for any non-agricultural purposes, including for construction of building, etc. However, it is made clear that any such building construction should be in consonance with the applicable statutory Building Rules. 10. It is further ordered that the petitioners may submit necessary applications before the 3[rd] respondent-Tahsildar for consequential orders under Section 6A of the Kerala Land Tax Act, 1961, for making additional entries in the Basic Tax Register to show the change in nature of the land as 'garden land/purayidom' instead of the earlier Basic Tax Register entries as 'nilam/paddy land'. Petitioners may file such applications under Section 6A of the Kerala Land Tax Act, 1961, before the 3[rd] respondent-Tahsildar along with a certified copy of this judgment. 11. On receipt of such representation the 3[rd] respondentTahsildar will afford reasonable opportunity of being heard to the petitioner and then should pass necessary orders thereon under Section 6A of the Kerala Land Tax Act, 1961, in the matter of reassessment of the subject property so as to check the additional entries in the Basic Tax Register to show the change of use of land as 'garden land/purayidom' instead of the earlier Basic Tax W.P.(C)Nos.11648,11646&11642/2020 13 Register entries as 'nilam/paddy land', without much delay and in the light of the dictum laid down by a Division Bench of this Court in decisions as in **Renjith's case** (supra) [2020 (1) KHC 865 (DB)], **Mariumma's case** (supra) [2015 (2) KLT 516 (DB)] and within one month from the date of production of a certified copy of this judgment and without compelling the petitioners to pay the amounts amended as per the amended provisions of the 2008 Act which has introduced Section 27A thereto and the amended Rules thereunder including of Rule 12(17). 12. Thereafter, it is for the petitioners to produce copy of the said proceedings issued by the 3[rd] respondent-Tahsildar along with a certified copy of this judgment before the local body concerned, in support of their applications for building permit, which will have to be considered in accordance with the applicable Building Rules. Petitioners will produce certified copies of this judgment along with the copies of the memorandum of this writ petition (civil) with all the exhibits before the 2[nd] respondentRevenue Divisional Officer and the 3[rd] respondent-Tahsildar, for necessary information and further action. W.P.(C)Nos.11648,11646&11642/2020 14 With these observations and directions, the above Writ Petitions (Civil) will stand finally disposed of. ## **Sd/-** **ALEXANDER THOMAS, JUDGE** Skk//27062020 W.P.(C)Nos.11648,11646&11642/2020 15 ## **APPENDIX OF WP(C) 11648/2020** **PETITIONERS' EXHIBITS:** **EXHIBIT P1 TRUE COPY OF THE APPLICATION FILED ON 17.10.2017 BEFORE 2ND RESPONDENT. EXHIBIT P2 TRUE COPY OF THE JUDGMENT DATED 7.11.2017 IN W.P(C)NO.33936/2017 OF THIS HON'BLE COURT. EXHIBIT P3 TRUE COPY OF THE ORDER DATED 27.1.2018 BY THE 2ND RESPONDENT.** **RESPONDENTS' EXHIBITS: NIL** W.P.(C)Nos.11648,11646&11642/2020 16 ## **APPENDIX OF WP(C) 11642/2020** **PETITIONER'S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF THE APPLICATION UNDER CLAUSE 6 OF KERALA LAND UTILIZATION ORDER 1967 DATED 17.10.2017 FILED BEFORE THE 2ND RESPONDENT EXHIBIT P2 TRUE COPY OF THE JUDGMENT DATED 24.10.2017 IN WPC NO 33884/2017 OF THIS HON'BLE COURT** **EXHIBIT P2 IN WPC NO 33884/2017 OF THIS HON'BLE COURT EXHIBIT P3 TRUE COPY OF THE ORDER OF THE 2ND RESPONDENT DATED 27.1.2018** **RESPONDENTS' EXHIBITS: NIL** W.P.(C)Nos.11648,11646&11642/2020 17 ## **APPENDIX OF WP(C) 11646/2020** **PETITIONER'S EXHIBITS:** **EXHIBIT P1** **TRUE COPY OF THE APPLICATION FILED ON 17.10.2017 BEFORE THE 2ND RESPONDENT.** **EXHIBIT P2 TRUE COPY OF THE JUDGMENT DATED 24.10.2017 IN WPC NO.33800/2017 OF THIS HON'BLE COURT. EXHIBIT P3 TRUE COPY OF THE ORDER DATED 23.1.2018 BY THE 2ND RESPONDENT.** **RESPONDENTS' EXHIBITS: NIL**