W.P.(C) Nos.6658 of 2020 (F) & 6727 of 2020 (M)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** ## **THURSDAY, THE 05TH DAY OF MARCH 2020 / 15TH PHALGUNA, 1941** ## **WP(C).No.6658 OF 2020(F)** ## **PETITIONERS:** - **1 SUSHIL VIJOY AGED 58 YEARS, NO.4A,J.M.TOWERS, NEAR CHINMAYA VIDYALAYA, OPPOSITE PALLIKKAVU TEMPLE ROAD, VADUTHALA, KOCHI-682 023** - **2 NUMRUTHA VIJOY ARORA NO.4A, J.M.TOWERS, NEAR CHINMAYA VIDYALAYA, OPPOSITE PALLIKKAVU TEMPLE ROAD, VADUTHALA, KOCHI-682 023** - **3 DIVYA VIJOY ARORA NO.4A, J.M.TOWERS, NEAR CHINMAYA VIDYALAYA, OPPOSITE PALLIKKAVU TEMPLE ROAD, VADUTHALA, KOCHI-682 023** - **BY ADVS. SMT.K.P.SANTHI SMT.TARA PREM** ## **RESPONDENTS:** - **1 STATE OF KERALA REPRESENTED BY THE SECRETARY TO GOVERNMENT, REVENUE DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM-695 001** - **2 THE DISTRICT COLLECTOR, CIVIL STATION, KAKKANAD, ERNAKULAM, KOCHI-682 030** - **3 THE LOCAL LEVEL MONITORING COMMITTEE, REPRESENTED BY ITS CONVENER, KRISHI BHAVAN, TRIPUNITHURA-682 306** - **4 THE TAHSILDAR KANAYANNUR TALUK, PARK AVENUE ROAD, KOCHI-682 011** **BY SRI.K.J.MANU RAJ, GOVT.PLEADER** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 05.03.2020, ALONG WITH WP(C).6727/2020(M), THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** WP(C).No.6658 OF 2020(F) & WP(C).No.6727 OF 2020(M) 2 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **THURSDAY, THE 05TH DAY OF MARCH 2020 / 15TH PHALGUNA, 1941** ## **WP(C).No.6727 OF 2020(M)** ## **PETITIONER:** **PUSHPA VIJOY AGED 85 YEARS, 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 P.O.,**| ||**ERNAKULAM, KOCHI-682030.**| |**3**|**THE LOCAL LEVEL MONITORING COMMITTEE,**| ||**REPRESENTED BY ITS CONVENOR, KRISHI BHAVAN,**| ||**TRIPUNITHURA-682306.**| |**4**|**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 05.03.2020, ALONG WITH WP(C).6658/2020(F), THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** WP(C).No.6658 OF 2020(F) & WP(C).No.6727 OF 2020(M) 3 ## **ALEXANDER THOMAS, J.** ------------------------------------------- W.P.(C)Nos.6658 of 2020 & 6727 of 2020 ---------------------------------------------Dated this the 5[th] day of March, 2020 ## **JUDGMENT** ## The prayers in Writ Petition (Civil) No.6658/2020 are as follows:- _“(i) issue a writ of mandamus or such other writ, direction or order compelling the 2[nd] respondent to consider Exhibits P1 and P5 applications 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 44 cents of land comprised in Survey No.1514/1 (old), Resurvey No.26, Block No.343 of Nadama Village in Kanayannur Taluk without insisting for payment as per Section 27A of Act 28 of 2008;_ _(iii) issue such other writ, direction or order as is deemed just and necessary in the facts, features and circumstances of the case.”_ The prayers in Writ Petition (Civil) No.6727/2020 are as follows:- _“(i) issue a writ of mandamus or such other writ, direction or order compelling the 2[nd] respondent to consider Exhibits P1 and P5 applications affording opportunity of hearing to the petitioner 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 44 cents of land comprised in Survey No.1514/1 (old), Resurvey No.26, Block No.343 of Nadama Village in Kanayannur Taluk without insisting for payment as per Section 27A of Act 28 of 2008;_ _(iii) issue such other writ, direction or order as is deemed just and necessary in the facts, features and circumstances of the case.”_ WP(C).No.6658 OF 2020(F) & WP(C).No.6727 OF 2020(M) 4 2. According to the petitioners, the subject properties have been converted as garden land/dry land much prior to coming into force of the Kerala Conservation of Paddy Land and Wetland Act, 2008 and that the subject property in W.P.(C) No.6658/2020 was earlier owned by the 1[st] petitioner. The subject property in W.P.(C) No.6727/2020 continues to be owned by the petitioner therein. That the 1[st] petitioner in W.P.(C) No.6658/2020 and the sole petitioner in W.P.(C) No.6727/2020 had filed a common application dated 06.03.2017, under Clause 6(2) of the Kerala Land Utilization Order (KLU Order), 1967, before the 2[nd] respondent-District Collector, Ernakulam, seeking for formal orders for permission to convert properties as garden land/purayidom and for permission to use the said properties for any non-agricultural purposes and the same was not considered. Aggrieved by the same, petitioners approached this court by filing W.P.(C) No.13512/2017 in which this Court had directed the Local Level Monitoring Committee should consider the plea of the applicants/petitioners for deletion of the subject properties from the Data Bank and take a considered decision thereon, within a period of one month. Further, it was ordered that after the petitioner obtains such orders from the Local Level Monitoring WP(C).No.6658 OF 2020(F) & WP(C).No.6727 OF 2020(M) 5 Committee, the respondent officer concerned should consider and take a decision on Ext.P1 application dated 06.03.2017, as per the provisions contained in Clause 6(2) of the KLU Order 1967, within a further period of one month. It was also ordered that if the requests of the petitioners are granted under Clause 6(2) of the KLU Order, 1967, they will be entitled to move separate applications under the Kerala Land Tax Act, seeking for fresh assessment of the subject property as garden land and on submission of the same, it can be considered in the light of the dictum laid down by this Court in **Kizhakkambalam Grama Panchayat v. Mariumma [2015(2) KLT 516],** within a period of one month thereafter, etc. 3. It appears that the 2[nd] respondent Local Level Monitoring Committee has secured Ext.P3 satellite pictures from the expert agency in respect of the subject properties and thereafter issued Ext.P4 proceedings, as produced in these two writ petitions ordering that the properties could be deleted from the Data Bank, etc. The complaint of the petitioners is that in spite of the fact that this court kept favourable orders from the Local Level Monitoring Committee for deletion of the subject property from the Data Bank, the respondent District Collector WP(C).No.6658 OF 2020(F) & WP(C).No.6727 OF 2020(M) 6 has not, so far, considered and passed orders on Ext.P1 application dated 06.03.2017 under Clause 6(2) of the KLU Order 1967. Since there was delay in that regard, petitioners have reminded the District Collector as per Ext.P5 dated 01.12.2019 requesting for an early action in the matter. 4. Now, it is beyond any dispute that pursuant to the directions of this Court in Ext.P2 judgment, the 3[rd] respondent Local Level Monitoring Committee has examined the plea of the petitioners and has decided as per Ext.P4 proceedings to delete the subject properties of the petitioners from the Data Bank. The complaint of the petitioners is that though Ext.P1 application dated 06.03.2017, has been submitted before the 2[nd] respondent District Collector under Clause 6(2) of the KLU Order, 1967, and though the said application has been filed much before 30.12.2017 (the date of coming into force of Kerala Conservation of Paddy Land and Wetland Act, 2008), the same has not been considered. However, it is also to be noted that part of the subject property owned by the 1[st] petitioner in W.P.(C) No.6658/2020 has been transferred by him to the 2[nd] and 3[rd] petitioners who are the two daughters of the 1[st] petitioner. 5. It is by now well settled by a series of ruling of this WP(C).No.6658 OF 2020(F) & WP(C).No.6727 OF 2020(M) 7 Court as in _**Geo Peter v. Revenue Divisional Officer**_ [2019 (3) KLT 838], _**Renjith 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 _**Tahsildar, 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 WP(C).No.6658 OF 2020(F) & WP(C).No.6727 OF 2020(M) 8 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)]. 6. In the instant case, there cannot be any doubt that Ext.P1 application dated 06.03.2017 has been filed under Clause 6(2) of the KLU Order, 1967, much before the cut off date of 30.12.2017 (date of coming into force of the Kerala Conservation of Paddy Land and Wetland Act, 2008), has filed Ext.P1 WP(C).No.6658 OF 2020(F) & WP(C).No.6727 OF 2020(M) 9 application dated 06.03.2017, which is also evident from a reading of appendix of Ext.P2 judgment wherein the said application has been marked as Ext.P1 dated 06.03.2017. 7. Therefore, the competent authority among the respondents is legally obliged to consider Ext.P1 application filed under Clause 6(2) of the KLU Order, 1967, strictly in terms of the said Clause and none of the adverse provisions contained in the amended provisions of 2008 Act can be pressed into service as against the petitioner herein for consideration of such plea under Clause 6(2). It is brought to the notice of this Court that Additional 5[th] respondent Revenue Divisional Officer has concurrently conferred the powers and functions of the Collector as per the provisions of the KLU Order, 1967, and ordinarily the application under Clause 6(2) is assigned to be considered by the Additional 5[th] respondent Revenue Divisional Officer, as the 2[nd] respondent District Collector being the head of the district administration and also the head of the district revenue adjudication, may not get much time for considering such pleas. Accordingly, in order to save further time, it is ordered that Ext.P1 application will stand remitted to the Additional 5[th] respondent Revenue Divisional Officer for consideration and taking decision. WP(C).No.6658 OF 2020(F) & WP(C).No.6727 OF 2020(M) 10 To save further time, it is ordered that the learned Government Pleader will ensure that a copy of Ext.P1 application along with a certified copy of this judgment shall be forwarded to the Additional 5[th] respondent Revenue Divisional Officer. Thereupon, Additional 5[th] respondent Revenue Divisional Officer will treat the said Ext.P1 application dated 06.03.2017 as an application filed under Clause 6(2) of the KLU Order, 1967, and as if the said application has been filed before the cut off date of 30.12.2017 (date of coming into force of Kerala Conservation of Paddy Land and Wetland Act, 2008) Additional 5[th] respondent will, thereafter, follow the requisite procedure and may conduct appropriate inspection in the said property with due prior notice to the petitioners, and should also ensure that copy of such inspection report is obtained to the respondents in advance, and thereafter affording an opportunity of hearing to the petitioners in these two writ petitions through their authorised representative/counsel, if any, and then should pass appropriate orders on the plea under Clause 6(2) of the KLU Order, 1967, in the matter of grant of permission for conversion of the said property as garden land and purayidam and to use the same for any non-agricultural purposes, etc., without much delay and after taking due note of the findings WP(C).No.6658 OF 2020(F) & WP(C).No.6727 OF 2020(M) 11 already made by the 3[rd] respondent Local Level Monitoring Committee, in Ext.P4 proceedings without much delay, preferably within a period of three months from the date of production of a certified copy of this judgment. It is also ordered that since the 3[rd] respondent Local Level Monitoring Committee has already passed an order in favour of the petitioners as per Ext.P4, necessary steps should be taken by the Tripunithura Municipality to ensure that necessary steps are taken to actually delete the subject property from the land Data Bank, without any further delay, at any rate within a period of two months from the date of receipt of a certified copy of this judgment. Petitioners will produce a certified copy of this judgment before the Secretary of the Tripunithura Municipality for necessary information and further action in this regard. As already ordered in Ext.P2 judgment, it is again reiterated that after orders are obtained by the petitioner on Ext.P1 application under Clause 6(2) KLU Order, 1967, from Additional 5[th] respondent Revenue Divisional Officer, petitioners may file requisite applications before the 4[th] respondent Tahsildar, seeking fresh assessment of subject property under Rule 6A of the Kerala Land Tax Act, so as to make additional entries in the Basic Tax WP(C).No.6658 OF 2020(F) & WP(C).No.6727 OF 2020(M) 12 Register (BTR) to show the subject properties as garden land or purayidam, as it has been entered as 'Nilam' or 'paddy land', in the earlier entries, the application shall be considered and orders passed in the light of the dictum laid down in **Kizhakkambalam Grama Panchayat v. Mariumma [2015(2) KLT 516],** _**Renjith K.Paul v. Revenue Divisional Officer**_ [2019 (2) KLT 262], etc. **,** within one month from the date of submission of the application in that regard along with a copy of the proceedings issued by the Additional 5[th] respondent under Clause 6(2) of the KLU Order, 1967. With these observations and directions, the above Writ Petition (Civil) will stand finally disposed of. ## **Sd/-** **ALEXANDER THOMAS, JUDGE** Skk//06032020 WP(C).No.6658 OF 2020(F) & WP(C).No.6727 OF 2020(M) 13 ## **APPENDIX OF WP(C) 6658/2020** ## **PETITIONERS' 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 WP(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 16.02.2018 WITH ENGLISH TRANSLATION OF THE 4TH RESPONDENT EXHIBIT P5 TRUE COPY OF THE REPRESENTATION DATED 1.12.2018 SUBMITTED TO 2ND RESPONDENT** **RESPONDENTS' EXHIBITS: NIL** WP(C).No.6658 OF 2020(F) & WP(C).No.6727 OF 2020(M) 14 ## **APPENDIX OF WP(C) 6727/2020** **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.10100 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 WITH ENGLISH TRANSLATION OF THE 4TH RESPONDENT.** **EXHIBIT P5 TRUE COPY OF THE REPRESENTATION DATED 1.12.2019 SUBMITTED TO 2ND RESPONDENT.** **RESPONDENTS' EXHIBITS: NIL**