Zubair R.K.M. and others v. Revenue Divisional Officer, Thrissur; Local Level Monitoring Committee; Kandanassery Grama Panchayath

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT** **THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN WEDNESDAY, THE 3[RD] DAY OF NOVEMBER 2021 / 12TH KARTHIKA, 1943 WP(C) NO. 33964 OF 2019** ## **PETITIONERS:** 1 ZUBAIR R.K.M., AGED 66 YEARS S/O KUNHIMON HAJI, RESIDING AT RAYAM MARAKKAR VEETTIL, CHOVVALLUR, P.O. KANDANASSERY, THRISSUR. [EXPIRED] 2 SUHARA SUBAIR, AGED 53 YEARS W/O ZUBAIR R.K.M., RESIDING AT RAYAM MARAKKAR VEETTIL, CHOVVALLUR, P.O. KANDANASSERY, THRISSUR. 3 ADDL.P3.ZAHIRA ZUBAIR D/O.LATE ZUBAIR, AGED 32 YEARS, RESIDING AT RAYAM MARAKKAR VEETTIL, CHOVVALLUR, P.O KANDANASSERY, THRISSUR - 680 102. 4 ADDL.P4. ZAYANA ZUBAIR D/O.LATE ZUBAIR, AGED 30 YEARS, RESIDING AT RAYAM MARAKKAR VEETTIL, CHOVVALLUR, P.O KANDANASSERY, THRISSUR - 680 102. 5 ADDL.P5. ZAKKIYA ZUBAIR D/O.LATE ZUBAIR, AGED 26 YEARS, RESIDING AT RAYAM MARAKKAR VEETTIL, CHOVVALLUR, P.O KANDANASSERY, THRISSUR - 680 102. 6 ADDL.P6. NOORA ZUBAIR D/O.LATE ZUBAIR, AGED 23 YEARS, RESIDING AT RAYAM MARAKKAR VEETTIL, CHOVVALLUR, P.O KANDANASSERY, THRISSUR - 680 102. [ARE IMPLEADED AS PER ORDER DATED 16.09.2021 IN I.A.1/2021 IN WP(C)33964/2019.] BY ADVS. T.C.SURESH MENON P.S.APPU A.R.NIMOD **WP(C) NO. 33964 OF 2019** **2** ## **RESPONDENTS:** 1 THE REVENUE DIVISIONAL OFFICER, REVENUE DIVISIONAL OFFICE, 1ST FLOOR, CIVIL STATION, CIVIL LINES ROAD, AYYANTHOLE, THRISSUR - 680 003. 2 LOCAL LEVEL MONITORING COMMITTEE, REPRESENTED BY ITS CONVENOR, KRISHI OFFICE, KANDANASSERY, P.O. MATTOM, THRISSUR - 680 602. 3 KANDANASSERY GRAMA PANCHAYATH, REPRESENTED BY ITS SECRETARY, PANCHAYATH OFFICE, KANDANASSERY, P.O. MATTOM, THRISSUR - 680 602. BY ADVS. GOVERNMENT PLEADER SHRI.SANTHOSH P.PODUVAL, SC, KANDANASSERY GRAMA PANCHAYAT RIYAL DEVASSY-GP THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 03.11.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **WP(C) NO. 33964 OF 2019** **3** ## **JUDGMENT** ## This writ petition is filed seeking the following reliefs: _“(i) call for the records leading to the passing of Ext.P4 order passed by the 1[st] respondent and quash the same by the issue of a writ of certiorari or other appropriate writ, order or direction in so far as it directs the petitioners to pay the requisite fee as mandated under the amended provisions of the Kerala Conservation of Paddy Land & Wetland Act;_ _(ii) issue a writ in the nature of mandamus directing the 1[st] respondent to issue fresh orders on Ext.P2 application under Clause 6 of the KLU submitted by the petitioners without incorporating the conditions enumerated therein in so far as it directs the petitioners to pay the requisite fee as mandated under the amended provisions of the Kerala Conservation of Paddy Land & Wetland Act;”_ ## 2. Heard the learned counsel for the petitioners and the learned Government Pleader. 3. It is submitted by the learned counsel for the petitioners that the petitioners are owners in possession of 84.2 cents of land in Survey Nos.841/1 and 839/P in Kandanassery Village, Kunnamkulam Taluk, Thrissur District. It is submitted that the petitioners had purchased the property in the year 1992. The property had been included in the data bank as reclaimed land. It is submitted that the constructions carried out in the property were not regularised by the Panchayath on the **WP(C) NO. 33964 OF 2019** **4** ground that the property is described as Nilam in the revenue records. It is submitted that the petitioners had thereupon submitted applications for removal of the property from the data bank as also under Clause 6(2) of the Kerala Land Utilisation Order for the use of the property for other purposes. By Ext.P1 judgment dated 08.03.2018, the applications submitted by the petitioners were directed to be considered. The directions specifically were are follows: _(i) The additional 4[th] respondent shall consider and pass orders on the application, as evidenced by Ext.P15 receipt, preferred by the petitioners within a period of three months from the date of receipt of a copy of this judgment, if need be, after hearing the petitioners._ _(ii) In the event of the additional 4[th] respondent passing an order excluding the land belonging to the petitioners from the Land Data Bank, then the additional 5[th] respondent shall consider Ext.P16 application preferred by the petitioners 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 additional 4[th] respondent, before him._ _(iii) The petitioners shall, in the event of obtaining order from the additional 4[th] respondent, and the order from the additional 5[th] respondent permitting conversion under the KLU Order, produce the same before the respondent Panchayat, and the respondent Panchayat shall consider the application for regularisation, afresh, in the light of the orders produced by the petitioners. To enable the respondent Panchayat to do so, I quash Ext.P13 order._ _(iv) The petitioners shall also, in the event of receipt of the order from the additional 4[th] respondent, and the order from the additional 5[th] 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 classification of the land in the Basic Tax Register._ ## 4. It is submitted that Ext.P2 application has been submitted by the petitioners on 23.12.2017. After Ext.P1 judgment, it is submitted **WP(C) NO. 33964 OF 2019** **5** that Ext.P3 proceedings had been issued removing the property from the data bank. Thereafter, the application submitted by the petitioners under Clause 6(2) of the Kerala Land Utilisation Order was taken up for consideration by the RDO. Ext.P4 order was passed permitting the use of the property for other purposes. However, on the ground that the amendment to the Kerala Conservation of Paddy Land and Wetland Act, 2008 had come into effect in the _interregnum,_ the petitioners were required to pay the fees as provided under Section 27A which is inserted by the amendment. 5. The learned counsel for the petitioners submits that the issue stands squarely covered by the decisions of this Court in _**District Collector, Ernakulam and others v. Fr.Jose Uppani and others [2020 (4) KLT 612]**_ as also several other decisions of this Court where it has been held that where an application has been submitted for conversion of the property or the use of the property for other purposes under Clause 6(2) of the Kerala Land Utilisation Order, before the coming into force of the amended provisions of the Kerala Conservation of Paddy Land and Wetland Act, 2008, that is with effect from 30.12.2017, the applications have to be considered in accordance with the provisions of **WP(C) NO. 33964 OF 2019** **6** the Kerala Land Utilisation Order and the direction for payment of fees under Section 27A which was incorporated only after the submission of the application would be unwarranted. The learned counsel for the petitioners would further submit that in the instant case, since there was a specific direction for a consideration of the application submitted by the petitioners before the introduction of the amendment in the 2008 Act under the provisions of the Kerala Utilisation Order, the respondents cannot rely on the amended provisions and demand the fees from the petitioners. 6. A counter affidavit has been placed on record by the 1[st] respondent. It is stated therein as follows: _3. Petitioner also preferred an application under Clause 6 of the KLU order. simultaneously dated 23-12-2017. On 08-04-2018 in Exhibit P1 judgment this Honourable Court directed the Agricultural Officer, Mattom to consider and pass orders on the petitioners’ application to delete the entry in relation to the property from the data bank. In the event of such an order being passed, this respondent was directed to consider the petitioners application dated 23-12-2017 for conversion of use of land. The panchayath was then directed to consider the application for regularization in the event that an order permitting change of use is passed. Fresh assessment under the Land Tax Act was also directed to be carried down if petitioners’ application for change of user is permitted._ _4. Petitioner presently impugns Exhipit P4 order of this respondent to the extent that the petitioner has been directed to remit the fee prescribed under Rules and amended provisions of the Kerala Conservation of Paddy Land and Wet Land Act that came into effect with effect from 30-12-2017. It is evident from Exhibit P1 judgment that petitioners application for change of user of land was meant to be considered only in the event that the entry relating to the property is_ **WP(C) NO. 33964 OF 2019** **7** _removed from the data bank._ _5. This respondent has taken into accout Exhibit P3 report of the Agricultural Officer, Mattom dated 01-11-2018. Noting that the property was in a converted state with buildings numbered by the Grama Panchayath and grown trees, this respondent has passed the impugned order. The petitioner impugns the said order on the ground that the stipulations in the Kerala Conservation of Paddy Land and Wet Land Act had been invoked in the processing of this application. However, since the petitioners property was deleted from the data bank only after 30-12-2017, his application for change of user could have been considered only in accordance with law as it existed after such deletion was carried out. Therefore, the impugned order is passed in accordance with law and no linterference is warranted._ The learned Government Pleader also places reliance on a decision of this Court in _**Thomas v State of Kerala [2020 6 KLT 405]**_ in support of the contention that since the properties stood included in the data bank and had been removed only by Ext.P3 order in 2018, Ext.P2 application submitted by the petitioners could have been considered only in accordance with the law prevailing at the time when it was taken up for consideration and that therefore the imposing of the fees under Section 27A is completely justified. 7. I have considered the contentions advanced and have perused the decisions and the statutory provisions. Section 27A of the Kerala Conservation of Paddy Land and Wetland Act, 2008 with regard to change of nature of unnotified land has been inserted by amendment **WP(C) NO. 33964 OF 2019** **8** with effect from 30.12.2017. This Court in judgments relied on has specifically held that where applications have been submitted for conversion of the land in question under the provisions of the Kerala Land Utilisation Order prior to the cut of date of 30.12.2017 when the amended provisions of the 2008 Act came into force, the said applications have to be considered specifically in accordance with the provisions of Clause 6(2) of the Kerala Land Utilisation Order and not under Section 27A which was not in the statute book as on the said date. The Division Bench in _**Thomas v. State of Kerala [2020 6 KLT 405]**_ was considering a situation where the application submitted for change of usage of the land under Clause 6(2) of the Kerala Land Utilisation Order was one submitted on 11.04.2018, that is on a date subsequent to the amendment of the 2008 Act by the incorporation of Section 27A and the allied provisions. It is in that context that it was held that where the application is subsequent to 30.12.2017, the same can be considered only under the amended provisions of the 2008 Act specifically under Section 27A and not in accordance with Clause 6(2) of the Kerala Land Utilisation Order. **WP(C) NO. 33964 OF 2019** **9** In the instant case, I notice that the application submitted by the petitioners were prior to the date of the notification. The property was also entered in the data bank as converted land. Therefore, all that is required to be done was the correction of the error in the inclusion of the property in the data bank. This has been carried out by Ext.P3 order which according to the Government Pleader is dated 11.03.2018. This Court in Ext.P1 judgment had also specifically directed the consideration of the application submitted by the petitioner on 23.12.2017 under the provisions of the Kerala Land Utilisation Order after the application for removal of the property from the data bank is favorably considered. This is what has been done by Ext.P4 order. If that be so, in the light of the judgments of this Court specifically in the light of the judgment of the Division Bench in _**Fr.Jose Uppani and others (Supra)**_ , I am of the clear opinion that the application submitted by the petitioners could have been considered only under the provisions of the Kerala Land Utilisation Order and the payment of the fees under Section 27A could not have been insisted upon. Therefore Ext.P4 to the extend it directs the payment of the fees under Section 27A is unsustainable. The said direction is therefore set aside. The respondent **WP(C) NO. 33964 OF 2019** **10** Panchayath as well as the revenue authorities shall take further follow up action as directed in Ext.P1 without further delay. This writ petition is ordered accordingly. **Sd/-** **ANU SIVARAMAN JUDGE** SVP **WP(C) NO. 33964 OF 2019** **11** ## **APPENDIX OF WP(C) 33964/2019** PETITIONER EXHIBITS EXHIBIT P1 TRUE COPY OF THE JUDGMENT IN WPC NO. 16827/2014 ON THE FILE OF THIS HON'BLE COURT DATED 08-03-2018. EXHIBIT P2 TRUE COPY OF THE APPLICATION UNDER CLAUSE 6 OF THE KERALA LAND UTILIZATION ORDER BEFORE THE 1ST RESPONDENT DATED 23-122017. EXHIBIT P3 TRUE COPY OF THE COMMUNICATION ISSUED BY THE 2ND RESPONDENT TO THE 1ST PETITIONER DATED NIL. EXHIBIT P4 TRUE COPY OF THE ORDER NO. C2-5631/2018 PASSED BY THE 1ST RESPONDENT DATED 27-022019.