Kerala High Court
Jomy Cheruvil Savier vs State Of Kerala on 28 February, 2020
Author: Alexander Thomas
Bench: Alexander Thomas
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS
FRIDAY, THE 28TH DAY OF FEBRUARY 2020 / 9TH PHALGUNA, 1941
WP(C).No.6047 OF 2020(E)
PETITIONER/S:
JOMY CHERUVIL SAVIER
AGED 40 YEARS
W/O.JIBU JOSE, KOTIPARAMBIL HOUSE, VAIKOM-686 141,
KOTTAYAM DISTRICT, REPRESENTED BY HER POWER OF
ATTORNEY HOLDER JIBU JOSE.
BY ADVS.
SRI.M.A.FAYAZ
SMT.M.VISHNUPRIYA
SMT.C.B.ABHINAVA
RESPONDENT/S:
1 STATE OF KERALA
REPRESENTED BY THE SECRETARY TO GOVERNMENT, REVENUE
DEPARTMENT, GOVERNMENT SECRETARIAT,
THIRUVANANTHAPURAM-695 001.
2 DISTRICT COLLECTOR,
COLLECTORATE, ERNAKULAM-682 011.
3 REVENUE DIVISIONAL OFFICER/SUB COLLECTOR,
REVENUE DIVISIONAL OFFICE, FORT KOCHI, ERNAKULAM
DISTRICT-682 001.
4 MARADU MUNICIPALITY,
REPRESENTED BY ITS SECRETARY, MARADU MUNICIPALITY,
ERNAKULAM DISTRICT-682 304.
OTHER PRESENT:
SRI.K.J.MANU RAJ, GOVT.PLEADER
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
28.02.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C).No.6047 OF 2020(E) 2
ALEXANDER THOMAS, J.
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W.P.(C.) No. 6047 of 2020
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Dated this the 28th day of February, 2020
JUDGMENT
Heard Sri. M.A. Fayaz, learned counsel appearing for the petitioner and Sri.K.J.Manuraj, learned Government Pleader appearing for the respondents 1 to 3. In the nature of the orders which is proposed to be passed in this petition, notice to R4 will stand dispensed with.
2. The specific case of the petitioner is that the subject property covered by Ext.P1 registered Sale Deed No.2949/2013 of Maradu SRO has never been a paddy land or wetland at the time of coming into force of the Kerala Conservation of Paddy Land and Wetland Act, 2008 and that the said property was converted decades ago and long prior to the commencement of the said 2008 Act. The petitioner had submitted an application for grant of building permit for construction of a residential building in the said subject property before the 4 th respondent-Maradu Municipality, which has refused sanction on the ground that the land covered by Ext.P1 is classified as 'nilam' as per the Basic Tax Register in respect of the subject property and hence, no permission can be given by WP(C).No.6047 OF 2020(E) 3 the said local body.
3. That the petitioner had submitted Ext.P7 application dated 08.05.2017 before the Local Level Monitoring Committee pointing out that the said subject property was wrongly included in the data bank prepared as per the provisions of the 2008 Act and that action should immediately be taken to ensure that the subject property is deleted from the said data bank. So also the petitioner had submitted Ext.P8 application dated 15.05.2017 under Rule 6(2) of the Kerala Land Utilization Order (KLU) 1967 praying that necessary permission may be granted for the formal conversion of the land as garden land/purayidom as the subject property was so converted, decades before the coming into force of the 2008 Act. When no action has been taken by the Local Level Monitoring Committee and by the 3rd respondent, RDO on Exts. P7 and P8 applications respectively, the petitioner was constrained to approach this Court by filing Exts.P9/P10 W.P.(C.) No.19942/2017, in which this Court initially passed an interim order dated as per Ext.P9 dated 15.06.2017 directing the Local Level Monitoring Committee to conduct an inspection and ascertain whether the subject property was converted as garden land /purayidom much prior to coming into force of the 2008 Act and submit a report before this Court in that regard.
WP(C).No.6047 OF 2020(E) 4
4. Thereafter, this Court had finally disposed of the said W.P.(C.) No.19942/2017 as per Ext.P10 judgment dated 10.10.2017 with a specific direction that the 4th respondent-Local Level Monitoring Committee should consider and dispose of the abovesaid application filed by the petitioner on 08.05.2017 (produced as Ext.P7 therein /Ext.P7 herein) without much delay, and to pass orders on the request of the petitioner for deletion of the subject property from the data bank. This Court further directed after passing orders on the said application for deletion of the subject property from the land data bank by the Local Level Monitoring Committee, the respondent Revenue Divisional Officer will take up the plea made by the petitioner as per application filed under Rule 6(2) of the KLU order (produced as Ext.P8 therein) without much delay and pass orders thereon, after ascertaining as to whether the subject property was so converted prior to coming into force of the 2008 Act.
5. In compliance with the directions in Ext.P10 judgment dated 10.10.2017, the Local Level Monitoring Committee of the 4th respondent Maradu Municipality has submitted Ext.P11 report dated 27.07.2019 categorically finding that the subject property was converted as garden land /purayidom much prior to coming into force of the 2008 Act and that the subject property should be deleted from the land data bank prepared as WP(C).No.6047 OF 2020(E) 5 per the provisions of the 2008 Act.
6. However, that is not the end of the story of the woes suffered by the petitioner for the last 3 years. According to the petitioner, for reasons not known to the petitioner, the officials of the 3 rd respondent RDO refused to consider Ext.P8 application dated 15.5.2017 submitted by the petitioner under Rule 6(2) of the KLU order even in spite of the specific directions issued by this Court in that regard as per Ext.P10 judgment. That the officials of the 3rd respondent, RDO informed the petitioner in very adamant terms that unless the petitioner files an application under Rule 12 of the amended Rules to seek conversion of the land under Sec. 27A of the subsequently amended provisions of the Act, the 3 rd respondent will not consider and pass orders on Ext.P8 application.
7. Thereupon, the petitioner out of his miseries and out of fear of the bureaucracy and the official machinery, was constrained to submit Ext.P13 application in Form 6 under Rule 12(1) Kerala Conservation of Paddy Land and Wetland Act and Rules framed thereunder before the 3 rd respondent, RDO as evidenced by Ext.P14 chalan receipt and Ext.P15 acknowledgment receipt.
8. The complaint of the petitioner is that it is now well settled by a series of rulings of this Court that where the subject property has been WP(C).No.6047 OF 2020(E) 6 converted prior to coming into force of the 2008 Act and in a case, where the property holder has filed the requisite application under Rule 6(2) of the KLU order before 30.12.2017 (date of coming into force of the amended provisions of the 2008 Act introducing Sec.27A thereof), the 3 rd respondent-RDO is obliged to consider the said application strictly in terms of the provisions contained in Rule 6(2) of the KLU order and in such a case, none of the adverse and detrimental provisions flowing out from the amended provisions of the 2008 Act introducing Sec.27A thereof and the amended provisions made thereunder, cannot in any manner affect such a property holder. According to the petitioner, the officials of the 3 rd respondent has committed illegality in compelling the petitioner to submit Ext.P13 application, so that the petitioner is coerced to give the higher amounts as required under the provisions of Sec. 27A for the formal conversion of the land. In the light of these averments and contentions, the petitioner has filed the instant W.P.(C.) with the following prayers :
(i) "issue a writ of mandamus or any other appropriate writ order or direction commanding the 3rd respondent to consider and pass orders on Ext.P13 application filed under Clause 6 of the KLU order as expeditiously as possible and to permit the petitioner to construct a residential house in her property covered by Ext.P1.
(ii) Issue a declaration that incorporation of clause (XVIIA) in Sec.2 insertion of unnotified land in Sec.14 and incorporation of Sec.27A and consequential provisions in the 2008 Act and the amendment brought in the 2008 Rules framed there under are beyond the powers of the legislature and ultravires the Constitution of India and to struck down the same as unconstitutional.
(iii) Issue a declaration that the petitioners need not obtain any permission under the provisions of the 2008 Act for the construction of her residential WP(C).No.6047 OF 2020(E) 7 building
(iv) issue a declaration that the application for building permit in respect of the petitioner's land in resurvey No.419/2 and 419/3 in block no 3 of Maradu Village in Kanayannoor Taluk measuring 3.778 Ares (9.36 cents) is liable to be granted by the 4th respondent Municipality untrammeled by the prohibition imposed by Sec. 14 and the restriction as to the area of the building in Sec. 27A(6) of 2008 Act.
(v) Issue such other writ, order or direction as this Hon'ble Court deems fit and proper to grant in the facts and circumstances of the case."
9. It is by now well settled by a series of rulings 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 2008 Act and whe ther the property holder has submitted application under Rule 6(2) of the Kerala Land Utilization Order before 30.12.2017 (date of coming into force of the amended provisions of the 200 Act introducing Sec.27A thereof), then in such a case, the respondent RDO is legally obliged to consider the case of such a property holder, strictly in terms of the provisions contained in Rule 6(2) of the KLU Order and in such a case, none of the detrimental and adverse conditions flowing out from the amended provisions of the 2008 Act introducing Sec.27A thereof can in any manner affect such an applicant.
10. This has also been recently reiterated by a judgment of the Division Bench of this Court in Tahsildar, Thodupuzha Taluk v. Renjith [2020 (1) KHC 865], wherein the Division Bench has held WP(C).No.6047 OF 2020(E) 8 categorically that such an applicant is legally entitled to be treated for formal conversion of the land in terms of Rule 6(2) of the KLU order, 1967 and none of the detrimental provisions flowing out from the amended provisions of the 2008 Act can affect such an applicant. Moreover, the Division Bench in Renjith's case (supra) has again reiterated the earlier dictum laid down by another Division Bench of this Court in LLMC, Kizhakkambalam Grama Panchayat v. Mariumma [2015 (2) KLT 516 (DB)], wherein it has been held that in such a case, where the applicant secures the necessary permission under Rule 6(2) of the Kerala Utilization Order, 1967, then such an applicant is legally entitled to maintain a request under Sec.6A of the Kerala Land Tax Act, 1961 before the competent Revenue Divisional Officer concerned like Tahsildar to demand for a re-assessment of such property, so that additional entries are made in the BTR concerned to show that the land is garden land/purayidom instead of the earlier BTR entries as nilam/paddy land' as the case may be.
11. Hence, in this case, it is beyond any dispute that the subject property was converted as garden land/ purayidom, much prior to the coming into force of the 2008 Act, as can be seen from Ext.P11 report dated 27.7.2019 submitted by the Convener of the Local Level Monitoring Committee appointed as per the 2008 Act. So also as can be seen from WP(C).No.6047 OF 2020(E) 9 Ext.P10 judgment, the petitioner has filed Ext.P8 application under Rule 6(2) of the KLU order before the 3rd respondent RDO as early as on 15.05.2017. This Court has categorically directed the 3 rd respondent RDO to consider and pass orders on Ext.P8 application as can be seen from Ext.P10 judgment. Therefore, it is crystal clear that the petitioner herein has filed the requisite application under Rule 6(2) of the KLU order as per Ext.P8 on 15.05.2017, which is before the cut off date of 30.12.2017 (date of coming into force of the amended provisions of the 2008 Act introducing Sec.27A thereof). Therefore, it passes the understanding of this Court as to why the 3rd respondent RDO has refused to consider and pass orders on Ext.P8 application dated 15.5.2017, filed under Rule 6(2) of the KLU order in spite of the binding judgment inter parties between the petitioner and the respondents including the respondent RDO as can be seen from a mere reading of Ext. P10 judgment dated 10.10.2017 in W.P.(C.)No. 19942/2017.
12. On the other hand, it appears that the petitioner has been made to file Ext.P13 application under Rule 12(1) Form 6 as per the provisions of the amended Act, presumably, to ensure that the petitioner is forced to pay the huge amounts as required as per the provisions of the amended Act. At the outset, this Court has to say in clear terms that the said action on the part of the 3rd respondent and the officials under him is illegal, improper WP(C).No.6047 OF 2020(E) 10 and unreasonable. In a case like this, refusal on the part of the 3 rd respondent to comply with the directions in Ext.P10 judgment, the 3 rd respondent should be viewed very seriously and necessary reliefs could be granted to the petitioner by way of mandamus, without remitting the matter to the 3rd respondent.
13. However, Sri.K.J.Manuraj, learned Government Pleader appearing for the respondents 1 to 3 would submit that it shall be ensured that the 3rd respondent RDO will immediately take up for consideration the plea made by the petitioner in Ext.P8 application under Rule 6(2) of the KLU order, 1967 and after affording reasonable opportunity of being heard to the petitioner and pass orders thereon in the light of the dictum laid down by this Court in the aforecited judgments and that Court may give opportunity in that regard to the 3rd respondent to comply with the directions issued by this Court in Ext.P10 judgment in letter and spirit.
14. In view of the abovesaid fair assurances given by Sri.K.J.Manuraj, learned Government Pleader appearing for the official respondents, this Court would leave it to the better senses and wisdom of the 3rd respondent in rising up to the occasion and so as to enable him to discharge his duties and functions, which is expected of such a high revenue official, who is the head of the sub-division of the Revenue district WP(C).No.6047 OF 2020(E) 11 concerned. Such a high official is expected to show due respect and deference to the binding judgments of this Court as in Ext.P10 judgment and to ensure that the rule of law is adhered to. Accordingly, it is ordered that the 3rd respondent, RDO will immediately take up the plea made by the petitioner as per Ext.P8 application under Rule 6(2) of the KLU order filed on 15.5.2017, after following the requisite procedure and after affording reasonable opportunity of being heard to the petitioner, will take a considered decision thereon, in accordance with the dictum laid down by this Court in the aforestated judgments. The orders in this regard should be duly passed by the 3rd respondent on Ext.P8 application under Rule 6(2) of the KLU order within 2 months from the date of production of a certified copy of this judgment and without invoking any of the adverse conditions flowing out from the amended provisions of the 2008 Act, including Sec. 27A thereof.
15. In view of this direction, it is ordered that no action is required on Ext.P13 application. After obtaining orders under Rule 6(2) of the KLU order, the petitioner will be at liberty to take a course to the procedure ordered by the Division Bench of this Court as referred to in judgments as in Mariumma's case (supra) [2015 (2) KLT 516 (DB)], Renjith's case (supra) [2020 (1) KHC 865], so as to maintain an application/request WP(C).No.6047 OF 2020(E) 12 under Sec.6A of the Kerala Land Tax Act, 1961 before the competent Revenue official like the Tahsildar concerned seeking for fresh assessment of the subject property, so as to secure additional entries in the BTR as aforestated. It is hoped and expected that the 3 rd respondent will take a considered decision on Ext.P8 application under Rule 6(2) of the KLU order, 1967 strictly in terms of the legal principles laid down by this Court in the aforementioned judgment, so that the petitioner is not unnecessary again driven to litigate before this Court.
With these observations and directions, the above W.P.(C.) will stand disposed of.
Sd/-
ALEXANDER THOMAS, JUDGE SKS WP(C).No.6047 OF 2020(E) 13 APPENDIX PETITIONER'S/S EXHIBITS:
EXHIBIT P1 PHOTOCOPY OF THE SALE DEED NO.2949/2013 OF MARADU SUB REGISTRY OFFICE DATED 19.10.2013.
EXHIBIT P2 THE RELEVANT EXTRACT OF THE PRIOR DOCUMENT BY WHICH EXT.P1 PROPERTY WAS PURCHASED BY SRI.ROY GOERGE DATED 20.10.2007.
EXHIBIT P3 PHOTOCOPY OF THE LOCATION SKETCH IN RESPECT OF THE PROPERTY COVERED BY EXT.P1 DATED 14.12.2016.
EXHIBIT P4 PHOTOCOPY OF THE LAND TX RECEIPT DATED
30.07.2016.
EXHIBIT P5 PHOTOCOPY OF THE RECEIPT ISSUED BY THE 4TH
RESPONDENT ON THE APPLICATION FOR BUILDING
PERMIT SUBMITTED BY THE PETITIONER DATED
22.03.2017.
EXHIBIT P6 THE RELEVANT EXTRACT OF THE DATA BANK IN
RESPECT OF PETITIONER'S PROPERTY.
EXHIBIT P7 PHOTOCOPY OF THE REPRESENTATION DATED
08.05.2017 SUBMITTED BEFORE THE 4TH
RESPONDENT.
EXHIBIT P8 PHOTOCOPY OF THE REPRESENTATION SUBMITTED
BEFORE THE 3RD RESPONDENT DATED 15.05.2017.
EXHIBIT P9 PHOTOCOPY OF THE INTERIM ORDER IN WPC
NO.19942/2017 DATED 15.06.2017.
EXHIBIT P10 PHOTOCOPY OF THE JUDGMENT IN WPC
NO.19942/2017 DATED 10.01.2017.
EXHIBIT P11 PHOTOCOPY OF THE REPORTS SUBMITTED BY THE
AGRICULTURAL OFFICER DATED 27.07.2019.
EXHIBIT P12 PHOTOCOPY OF THE REPORT SUBMITTED BY THE
VILLAGE OFFICER, MARADU DATED NIL.
WP(C).No.6047 OF 2020(E) 14
EXHIBIT P13 PHOTOCOPY OF THE APPLICATION SUBMITTED IN
FORM 6 BEFORE THE 3RD RESPONDENT.
EXHIBIT P14 PHOTOCOPY OF THE CHALAN RECEIPT DATED
19.09.2019.
EXHIBIT P15 PHOTOCOPY OF THE ACKNOWLEDGMENT RECEIPT
ISSUED BY THE 3RD RESPONDENTS OFFICE DATED
19.11.2019.