Kerala High Court
District Collector vs Ravi P.D on 3 December, 2020
Author: S. Manikumar
Bench: S.Manikumar, Shaji P.Chaly
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR
&
THE HONOURABLE MR. JUSTICE SHAJI P.CHALY
THURSDAY, THE 3RD DAY OF DECEMBER 2020/12TH AGRAHAYANA, 1942
WA.No.39 OF 2020
AGAINST THE JUDGMENT IN WP(C) 41634/2018(D) OF HIGH COURT
OF KERALA DATED 26.8.2019
APPELLANTS/RESPONDENTS 1-6 IN WPC:
1 DISTRICT COLLECTOR,
KOZHIKODE-673 020.
2 REVENUE DIVISIONAL OFFICER,
KOZHIKODE-673 020.
3 THE LOCAL LEVEL MONITORING COMMITTEE,
KOZHIKODE CORPORATION,
REPRESENTED BY ITS CONVENER,
(THE AGRICULTURAL FIELD OFFICER,)
KRISHI BHAVAN, PUTHIYARA P.O.,
CALICUT-673 004.
4 STATE OF KERALA,
REPRESENTED BY ITS SECRETARY,
REVENUE DEPARTMENT,
SECRETARIAT,
THIRUVANANTHAPURAM-695 001.
5 THE TAHSILDAR,
KOZHIKODE TALUK,
CIVIL STATION P.O.,
CALICUT-673 020.
6 THE VILLAGE OFFICER,
KASABA VILLAGE,
KOZHIKODE-673 004.
BY SR.GOVERNMENT PLEADER SRI. V. TEKCHAND
W.A.39/2020 2
RESPONDENTS/PETITIONER & 7TH RESPONDENT IN WPC:
1 RAVI P.D
S/O.DAMODHARAN, VYSRAVAM,
ERANHIPALAM P.O.,CALICUT-673 006.
2 SASIKALA RAVI,
W/O.RAVI P.D.,VYSRAVAM,
ERANHIPALAM P.O.,
CALICUT-673 006.
3 KOZHIKODE CORPORATION,
REPRESENTED BY ITS SECRETARY,
KOZHIKODE-673 032.
SRI.K.PRAVEEN KUMAR, FOR R1 AND R2,
R3 BY ADV. G.SANTHOSH KUMAR,STANDING COUNSEL
THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON
03.12.2020, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
W.A.39/2020 3
JUDGMENT
Dated this the 3rd day of December, 2020 S. Manikumar, CJ Instant writ appeal is filed against the judgment in W.P(C). No.41634 of 2018 dated 26.8.2019, whereby a learned Single Judge disposed of the writ petition by issuing certain directions.
2. Short facts leading to filing of appeal are that, writ petitioners/ respondents are the owners and in possession of 61 cents of land in R.S Nos.5-12-515/16, 5-12-515/1C and 516/1A of Kasaba Village of Kozhikode Taluk. Since the property is described as "Nanja" in BTR and for further developing the subject land, the writ petitioners filed Exhibit-P3 application under Clause 6(2) of the KLU Order before the Revenue Divisional Officer, Kozhikode, 2nd appellant, for regularizing the conversion and for change of use of the property.
3. When consideration of Exhibit-P3 was delayed, the writ petitioners moved this Court and as per Exhibit-P4 judgment dated 09.09.2016 in W.P. (C) No.30584 of 2016, direction was given to the 2nd appellant to dispose of Exhibt-P3. Thereafter, the 2nd appellant issued Exhibit-P5 order rejecting the application, on flimsy grounds, stating that order of regularization could be given in respect of only 5 cents in Municipal and Corporation and 10 cents in Panchayat area. Aggrieved by this, the writ petitioners filed W.P.(C) No. 20860/2017 and as per Exhibit-P8 judgment dated 23.10.2017, this Court W.A.39/2020 4 quashed Exhibit-P5 proceedings dated 29.12.2016 and directed to pass fresh orders on the application submitted by the petitioners within a period of one month.
4. Since no orders were passed within the prescribed time, the writ petitioners filed CCC. No.842/18 before this Court. While the contempt petition was pending, the 2nd appellant passed Exhibit-P9 proceedings dated 22.06.2018, which was not accepted by this Court. Finally, the 2 nd appellant passed Exhibit-P10 proceedings dated 25.10.2018, regularizing the conversion, but subject to certain conditions. Writ petitioners are aggrieved by the condition numbers 2 and 4, which prescribe that they should comply with Section 27A, as well as other provisions of the Kerala Conservation of Paddy Land and Wetland Amendment Act, 2018, which came into force with effect from 30-12-2017 and has no retrospective operation. Since the application Exhibit-P3 has been pending since 01-09-2016 and the issue was pending before this Court long before the commencement of the amended provisions of the Act, the provisions cannot be applied in the case of the petitioners.
5. Before the writ court, petitioners have sought for the following reliefs:
"I) Issue a writ of certiorari calling for the records leading to Ext.P10 and to quash the original of the same to the extent in incorporates conditions numbers 2 and 3;W.A.39/2020 5
II) To declare that the amended provisions of the Kerala Conservation of Paddy Land and Wetland Amendment Act, especially provisions under Sec.27A cannot be applied in the case of the petitioners since their application (Ext.P3) was pending long before the commencement of the amendment made with effect from 30-12-17;
III) Writ of mandamus to the 5th respondent to effect the change of nature of the subject land of the petitioners in Basic Tax Records and reassess the same without applying the provisions under the Kerala Conservation of Paddy Land and Wet Land Amendment Act, especially Sec.27A as the amended provisions of the Act has no retrospective application"
6. After adverting to the rival submissions and taking note of the provisions of Kerala Conservation of Paddy land and Wetland Act, 2008 inserted by Ordinance 41 of 2017, followed by Act 29 of 2018 and the decisions in Renji K.Paul and another v. Revenue Divisional Officer (RDO), Muvattupuzha and others reported in [2019 (2) KHC 241] and Shanmugam v. District Collector reported in [2019 (2) KLT 45], writ court disposed of W.P.(C) No.41634 of 2018 by setting aside Ext.P10 order. The operative portion of the impugned judgment reads thus:
"In such circumstances, this writ petition is disposed of by setting aside Exhibit-P10 order of the 2 nd respondent-Revenue Divisional Officer to the extent indicated above and by directing the 5th respondent Tahsildar to effect consequential addition in the basic tax register concerning the properties of the petitioners referred to in Exhibit-P10 order dated 25.10.2018 of the 2 nd respondent, taking note of the law laid down by the Division Bench of this Court in Local Level Monitoring Committee, Kizhakkambalam Grama W.A.39/2020 6 Panchayat and others v. Mariumma and another [2015 (3) KHC 19] without referring to the provisions of Sections 27A or 27C of the Kerala Conservation of Paddy Land and Wetland Act, 2008, as expeditiously as possible, at any rate, within a period of one month from the date of receipt of a certified copy of this judgment. Thereafter, it is for the petitioners to approach the 7 th respondent for necessary reliefs in respect of the application for building permit, referred to in this writ petition."
7. The grounds raised for reversal of the judgment in W.P(C). No.41634 of 2018 dated 26.8.2019 are as hereunder:
"A. Impugned judgment to the extent it set aside the conditions imposed in Exhibit-P10 under Section 27A of the Kerala Conservation of Paddy Land and Wetland Act, and the direction to the effect that consequential additions in the Basic Tax Register taking note of the law laid down by the Division Bench of this Court in Local Level Monitoring Committee, Kizhakkambalam Grama Panchayath & others Vs. Mariyumma and others [2015(3) KHC 19] without considering the provisions of amended Act and Rules, is illegal, irregular, improper and against the provisions of law.
B. The order of conversion was issued on condition that, if the conversion is allowed, 10% of the land will be utilized for conservation of water and that part of the land will be marked separately and included in the Data Bank as wet land. In Exhibit-P10 order, the 2nd respondent has incorporated a condition that the conversion of land and construction of building should be in compliance with the provisions of the amended act. Section 27A(2) says that "Notwithstanding anything contained in any judgment, decree or order of any Court of Tribunal or any other authority, the Revenue Divisional Officer may, after considering the reports of the W.A.39/2020 7 Village Officer concerned, pass such orders as deemed fit and proper, on such applications, ensuring that there is no disruption to the free flow of water to the neighboring paddy lands, if any, through such water conservancy measures as is deemed necessary"
"provided that, if the area of such parcel of land where the application is allowed is more than 20.2 Ares, ten percent of such land shall be set apart for water conservancy measures" and 27A(4) says that "If the application is allowed, the Revenue Divisional Officer shall ensure that the reclamation in the unnotified land shall not adversely affect the cultivation of paddy or any other crops, if any, in the adjoining land and shall specify such water conservancy measures as is necessary to ensure such cultivation". It is clear from Exhibit-P9 order that properties surrounding to the petitioner's property are marshy land. So any conversion without complying the conditions imposed in Sec.27(4) will adversely affect the ecological balance in that area. Learned Single Judge set aside the condition imposed in Exhibit-P10 following the decision in Renji K. Paul and another v. Revenue Divisional Officer (RDO) Muvattupuzha and others [2019 (2) KHC 241]. Learned Single Judge failed to consider the fact that Exhibit-P10 order was passed only on 25.10.2018 after coming into operation of the amended Paddy and Wetland Act in 2018 and Section 27 A(2) is a non obstante clause to protect the neighbouring Paddy Land, especially when in Exhibit P9 it is clearly mentioned that the subject property is surrounded by marshy land. Hence, the writ court ought not to have set aside the conditions in Exhibit- P10 order.
C. As per Rule 12(17) of the Kerala Conservation of Paddy Land and Wetland Rules, 2008, for conversion of types of the land in the revenue records of the property wherein any order under the Kerala Land Utilisation Order is received prior to the amendment of the Kerala Conservation of Paddy Land and Wet Land Act in 2018 an W.A.39/2020 8 amount of 25% of the fees prescribed in the schedule has to be paid. Learned Single Judge has not considered the above Rule before issuing a direction to the Tahsildar to effect consequential additions in the BTR concerning the property of the petitioners referred in Exhibit-P10 order dated 25.10.2018.
D. Before directing Tahsildar to effect consequential additions in the BTR taking note of the law laid down by the Division Bench of this Hon'ble High Court in the Local Level Monitoring Committee, Kizhakkambalam Grama Panchayath & others Vs. Mariumma and another [2015 (3) KHC 19] without referring to the provisions of Section 27A or 27C of the Kerala Conservation of Paddy Land and Wet Land Act, 2018, the Learned Single Judge ought to have considered the fact that the direction laid down in 2015 (3) KHC 19 has no application for the order passed after commencement of the amended Act by incorporating Section 27A and Rule 12(17) of the Kerala Conservation of Paddy Land and Wetland Act and the rules made thereunder respectively.
E. Before setting aside the conditions imposed in Exhibit-P10 order, learned Single Judge ought to have considered the fact that before the amendment of Kerala Paddy Land and Wetland Act and Rules, 2018, by incorporating Section 27C and Rule 12(17), there was no provision either in Kerala Land Utilisation Order or in Kerala Conservation of Paddy Land Wetland Act for converting the nature of land in the BTR. In LLMC & others v. Mariumma and another the Division Bench considered the question regarding correction of nature of land in the BTR wherein the permission is granted under Clause 6(2) of the Kerala Land Utilisation Order, as there is no provision in Kerala Land Utilisation Order for changing the nature of land in the BTR. So after the incorporation of Rule 12(17) in the Conversation of Paddy Land and Wetland Rules, the learned Single Judge ought not have issued a direction to correct the BTR in tune W.A.39/2020 9 with the judgment reported in 2015 (3) KHC 2019. In Shanmugam V. District Collector [2019 (2) KLT 45], the Hon'ble Division Bench has not considered Rule12(17) of the Kerala Conservation of Paddy Land and Wetland Rules, 2008, incorporated in 2018.
8. Though appeal has been filed on various grounds, Mr. V. Tek Chand, learned Senior Government Pleader, fairly submitted that the issues raised in this appeal are squarely covered by a decision of a Hon'ble Division Bench of this Court in W.A. No.876 of 2020 dated 21.7.2020. It is also submitted that the decision rendered in W.A. No. 876 of 2020 dated 21.7.2020 was challenged by the State of Kerala before the Hon'ble Supreme Court and that the same was confirmed.
9. After considering the rival submissions therein, at paragraphs 4 to 7, the Hon'ble Division Bench held thus:
"4. We have appreciated the rival submissions made across the Bar and perused the pleadings and documents on record.
5. As we have pointed out earlier, Section 27A was brought into force on and with effect from 30.12.2017,to deal with change of nature of unnotified land,thus requiring any owner of an unnotified land desiring to utilise any Paddy land for residential or commercial purpose or for other purpose,to apply to the Revenue Divisional officer for permission in such manner as may be prescribed. True a procedure is prescribed there under in the matter of consideration of such an application. Admittedly, the applications were filed by the writ petitioners under the Kerala Land Utilization Order, 1967, prior to the aforesaid cut off date. Therefore, the applications so submitted had to be considered by the statutory authority in accordance with the procedure, and terms and conditions contained under the Kerala Land Utilisation order 1967. It is also an admitted fact that the orders were passed by the statutory authority taking into account the provisions of the Kerala Land Utilization Order, 1967. Therefore in our view, none of the provisions contained W.A.39/2020 10 under Section 27A of Act 2008, which has come into force only with effect from 30.12.2017, has any manner of binding force so far as the facts and circumstances of the appeals are concerned. It is also an admitted fact that the orders passed by the authority under the Kerala Land Utilization Order have become final and conclusive. Now the sole question is whether Section 27C of Act 2008 can be construed as an independent provision detached from Section 27A of Act 2008. In order to understand the purport of Section 27C, it is extracted as under:
"27C. Change in records.- (1) Notwithstanding anything contained in any other law for the time being in force or in any judgment, decree or order of any Court, Tribunal or any other Authority, wherever a part of a survey number or subdivision is permitted to be converted under Sections 8,9,10 or 27A of this Act, a new subdivision shall be created for the extent for which such orders for conversion are issued.
(2) Where the paddy land or unnotified land is duly converted as per the provisions of this Act, the Tahsildar shall reassess the land tax under Section 6A of the Kerala Land Tax Act, 1961 (13 of 1961) and make necessary entries in revenue records relating to such lands.
(3) Where such changes are recorded in revenue records, the number and date of the order and the authority granting sanction, the survey number of the lands for which sanction has been accorded, extent of the land in each survey number for which sanction has been accorded and the revised land tax shall be clearly recorded ensuring that the old entries are legible.
(4) Tahsildar shall conduct periodical inspection to ensure that changes in revenue records are in accordance with subsection (3).
(5) No attempt shall be made to alter or change or modify the revenue records relating to the paddy land or wetland or unnotified land otherwise than in accordance with sub-section(3)."
6. On a reading of the said provision it is clear that, Section 27C applies, wherever a part of survey number of subdivision is permitted to be converted under Sections 8,9,10 or 27A of Act 2008, and in which case, a new subdivision shall be created for the extent for which such orders for conversion are issued. Therefore it is clear that, Section 27C deals with a situation where an order is passed to convert the land as per the provisions of the Kerala Conservation of Paddy Land and WetLand Act, 2008. The rest of the provisions there under are consequential to Section 27C(1) and therefore only under the W.A.39/2020 11 circumstances prescribed under Section 27C(1), the procedure can be followed by the Tahsildar.
7. However, it is an admitted fact that the application was submitted by the writ petitioners on the basis of the orders secured by them under the provisions of the Kerala Land Utilization Order, 1967. Therefore, the provisions of Section 27C have no application. The issue with respect to the alteration of the entries in the Basic Tax Register was considered by the Apex Court in Revenue Divisional Officer, Fort Kochi Vs. Jalaja Dileep [2014(1) KLT 161 = 2014 (1) KHC 96] and held that the entries contained in the Basic Tax Register cannot be changed. However, the Division Bench of this Court in Mariyumma (supra) has held that, without defacing the entry contained in the Basic Tax Register, necessary additional entries can be made on the basis of the orders passed by the statutory authority under the Kerala Land Utilization Order, 1967. It was accordingly that the applications were submitted by the writ petitioners before the Tahsildar. Therefore, the Tahsildar should have considered the applications submitted by the writ petitioners in terms of the proposition of law laid down by the Division Bench in Mariyumma (supra) and not on the basis of the amended provisions of Section 27C, which has come into force only with effect from 30.12.2017. It was exactly on the basis of the judgment of Mariyumma (supra), learned Single Judge has held that, the order passed by the Tahsildar directing the writ petitioners to pay the amounts at the rate of 25% of the converted land, after securing orders from the Revenue Divisional Officer cannot be legally sustained. In fact, the issue in question was considered by this court in Tahsildar Vs. Renjith George [2020(2) KLT 13] and held that, when the provisions of the statute are clear and unambiguous, there is no power vested with the statutory authority to expand the scope of the provisions of law by issuing directions against the mandate of law. The proposition of law laid down by this court in the judgment in Renjit George (Supra) squarely applies to the facts and circumstances of the appeals on hand also. Taking into account the law, facts and circumstances, we are of the considered opinion that the appellants have not made out any case for interference with the judgment of the learned Single Judge."
10. Inasmuch as the issues are covered by a decision of this Court and placing on record the submission of Mr. V. Tek Chand, learned Senior Government Pleader, there is no need to advert to the grounds raised. W.A.39/2020 12 Following the decision in W.A. No.876 of 2020 dated 21.7.2020, confirmed by the Hon'ble Supreme Court in SLP. No.11853/2020, instant Writ Appeal is dismissed.
Sd/-
S. Manikumar, Chief Justice Sd/-
Shaji P. Chaly, Judge sou.