Kerala High Court
Satheesh Kumar B vs The Revenue Divisional Officer on 10 June, 2020
Author: Alexander Thomas
Bench: Alexander Thomas
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS
WEDNESDAY, THE 10TH DAY OF JUNE 2020 / 20TH JYAISHTA, 1942
WP(C).No.11276 OF 2020(H)
PETITIONER/S:
SATHEESH KUMAR B.,AGED 52 YEARS,S/O. M. BALAKRISHNAN,
RESIDING AT LAKSHMI EASWAR GARDENS,
CALICUT BYE-PASS ROAD, PUTHUR, PALAKKAD-678003.
BY ADV. SRI.T.C.SURESH MENON
RESPONDENT/S:
1 THE REVENUE DIVISIONAL OFFICER,
OFFICE OF THE REVENUE DIVISIONAL OFFICER,
PALAKKAD-678001.
2 LOCAL LEVEL MONITORING COMMITTEE,
REPRESENTED BY ITS CONVENER,
(AGRICULTURAL FIELD OFFICER), KRISHI BHAVAN,
PALAKKAD MUNICIPALITY, PALAKKAD-678001.
SRI.K.J.MANU RAJ, GOVT.PLEADER
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
10.06.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C).No.11276 OF 2020 2
ALEXANDER THOMAS., J,
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W.P.(C).No.11276 of 2020
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Dated this the 10th day of June, 2020.
JUDGMENT
The case set up in this writ petition is as follows:-
The petitioner holds a parcel of land comprising of 0.0610 hectares (approximately 15 cents) in Sy.Nos.29 & 34 of Palakkad II Village in Palakad Taluk, within the jurisdiction of the Palakkad Municipality. The petitioner had approached the 2 nd respondent to get the erroneous entries in the data bank corrected and he had also approached the 1st respondent RDO with an application under Clause 6 of the Kerala Land Utilization Order. This honourable court by Ext.P4 judgment directed the 2 nd respondent to consider the application submitted for correction of the erroneous entries in the data bank. This Court simultaneously held that if the petitioner was successful in getting favorable orders from the 2 nd respondent, his application under Clause 6 of the KLU has to be considered by the 1st respondent.
2. The 2nd respondent after getting relevant inputs from the Kerala State Remote Sensing and Environment Centre allowed WP(C).No.11276 OF 2020 3 the application and issued a notification deleting the petitioner's property from the data bank. The 1 st respondent, instead of considering Ext.P3 application under the KLU, insisted that the petitioner submit yet another application under Rule 4(d) of the Kerala Conservation of Paddy Land & Wet Land Rules and thereafter rejected the same, instead of considering the application under Clause 6 of the KLU as directed by this Court. The property in question is surrounded by buildings and denying the petitioner the benefit of using his land for other purposes as contemplated under the KLU causes very serious prejudice to him. Hence this writ petition under Article 226 of the Constitution of India.
3. In the light of these averments and contentions, the petitioner has filed the instant writ petition with following prayers:-
(i) call for the records leading to the passing of Ext.P7 and quash the same by the issue of a writ of certiorari or other appropriate writ, order or direction;
(ii) issue a writ in the nature of mandamus directing the 1 st respondent to consider on merits Ext.P3 application submitted under Clause 6 of the KLU after taking into account Exts.P5 and P6 issued by the 2nd respondent;
(iii) issue a writ in the nature of mandamus directing the 1 st respondent to grant permission to the petitioner to WP(C).No.11276 OF 2020 4 utilize his property comprised in Sy.Nos.29 & 34 of Palakkad II Village in Palakkad Taluk to use the same for other purposes as contemplated under the KLU Order.
4. Heard Sri.T.C. Suresh Menon, learned counsel for the petitioner and Sri.K.J. Manu Raj, learned Government Pleader.
5. According to the petitioner, the subject property though classified as paddy land/nilam as per the Basic Tax Register, has been converted as garden land/purayidam long prior to 12.08.2008 (date of coming into force of the Kerala Conservation of Paddy Land and Wetland Act, 2008). Further that, the subject property has been wrongly classified as paddy land in the Land Data Bank in spite of the fact that the subject property does not satisfy the definition of 'paddy land' as per Section 2(xii) of the Kerala Conservation of Paddy Land and Wetland Act, 2008 (hereinafter referred to as 'the Act') as on 12.08.2008 (date of coming into force of the Act). Aggrieved thereby, the petitioner had filed Ext.P2 application dated 16.03.2018 before the 2nd respondent, Local Level Monitoring Committee for exclusion of subject property from the Land Data Bank. It is pointed out that as per the then prevailing norms, application for exclusion of such a property from the Land Data Bank was to be considered and decided by the WP(C).No.11276 OF 2020 5 Local Level Monitoring Committee of the area concerned. It was only after coming into force of the amended Rules made effective from 15.12.2018, it has been prescribed that such application is submitted in Form NO.5 before the Revenue Divisional Officer concerned. That Ext.P2 application dated 16.03.2018 was submitted on the basis of the then prevailing norms, the same has to be considered by the 2nd respondent, Local Level Monitoring Committee. Further that the petitioner had also submitted Ext.P3 application dated 04.12.2017 before the 1st respondent, Revenue Divisional Officer, seeking for orders of permission to change the use of the land in terms Clause 6(2) of the Land Utilization Order (hereinafter referred to as 'the KLU Order), 1967. Since the petitioner had filed Ext.P3 application dated 04.12.2017 under Clause 6(2) of the KLU order, before the cut of date of 30.12.2017 (date of coming into force of the amended provisions of the 2008 Act which has introduced Section 27A thereof), such application has to be considered strictly in terms of the provisions contained in Clause 6(2) and not with reference to the amended provisions of the 2008 Act made effective from 30.12.2017. Since the above said applications were not being considered by the authorities concerned, petitioner was constrained to approach this Court by WP(C).No.11276 OF 2020 6 filing writ petition No.30846 of 2017 which has been disposed by this this court vide Ext.P4 judgment dated 12.07.2018, thereby specific directions have been issued, directing the Local Level Monitoring Committee to take a considered decision on the matters stated in Ext.P2 herein (Ext.P6 in Ext.P4 writ petition) and further that depending on the orders so passed, the respondent Revenue Divisional Officer will have to pass orders on Ext.P3 herein (Ext. P7 in Ext.P4 writ petition) within the time limit mentioned in the judgment.
6. Pursuant to to the judgment of this Court dated 12.07.2018, the 2nd respondent, Local Level Monitoring Committee has conducted inspection and after following the requisite procedural formalities has taken a considered decision that the subject property is a converted land and has to be excluded from the Land Data Bank and the decision in this regard of the 2 nd respondent, Local Level Monitoring Committee is as per Ext.P5 proceedings and Ext.P6 communication. It is pointed out that thereafter when the petitioner had approached the 1 st respondent, Revenue Divisional Officer for disposal of the application under Ext.P3 under Clause 6(2) of the KLU order, the petitioner was compelled by the officials attached to the office of the Revenue WP(C).No.11276 OF 2020 7 Divisional Office that in view of the amended provisions made effective from 30.12.2017, he is not in a position to consider the application, Ext.P3 herein, and that the petitioner will have to file fresh application in Form No.5, for exclusion of the property from the Land Data Bank and that the petitioner, by ignorance, had succumbed to the said coercion and had submitted application in Form No.5 which has now been rejected by the 1 st respondent, Revenue Divisional Officer as per Ext.P7. It is pointed out that till date, the 1st respondent-RDO has not been complied with the directions issued by this Court in Ext.P4 judgment for passing orders on Ext.P3 application herein, filed under Clause 6(2) of the KLU order.
7. After hearing both sides, it is seen that the action of the 1st respondent, Revenue Divisional Officer in passing an order in Ext.P7 dated 18.12.2019 ordering that the subject property cannot be excluded from the Land Data Bank is absolutely illegal and ultra vires. It is beyond any factual controversy that petitioner had indeed filed Ext.P2 application dated 06.03.2018, on the basis of the then prevailing norms which implies that the application has to be considered by the 2nd respondent Local Level Monitoring Committee. The formality of filing the application in Form No.5 WP(C).No.11276 OF 2020 8 has been prescribed only from 15.12.2018 and therefore there is no question of the 1st respondent, RDO encroaching into the domain of the 2nd respondent, Local Level Monitoring Committee which was already passed orders in favour of the petitioner as per Exts.P5 and P6. A reading of Exts.P5 and P6 would make it clear like the day light that the same has been rendered in compliance with the directions issued by this Court in Ext.P4 judgment and after taking into consideration all relevant aspects in this matter. As a matter of fact, even the final step of gazette publication in favour of the petitioner has also been duly effected as Ext.P5. If that be the position, it is not understandable to this Court as to why the 1 st respondent , Revenue Divisional Officer has gone to the extreme extent of passing such a highly illegal order in the nature of Ext.P7. It is orders and declares that Ext.P7 order is a nullity, and such orders are not necessary as orders are already been passed by the competent authority as far as the petitioner is concerned as per Exts.P5 and P6. Accordingly, the fact of the matter is that the 1 st respondent, Revenue Divisional Officer has not cared to comply with the directions issued by this Court in Ext.P4 judgment rendered as early as on 12.07.2018, and has not not cared to pass orders on the application submitted as Ext.P3 under Clause 6(2) of WP(C).No.11276 OF 2020 9 the KLU Order. As a matter of fact, prima facie this Court would only observe that this attitude of the 1st respondent, RDO would amount to contumacious conduct and even warrants appropriate proceedings in this regard.
8. It is now well settled by a series of rulings of this Court as in Geo Peter v. Revenue Divisional Officer [2019 (3) KLT 838], Renjith.K.Paul v.Revenue Divisional Officer [2019 (2) KLT 262), LLMC, Kizhakkambalam Grama Panchayath v. Mariumma [2015 (2) KLT 516 (DB)], Tahsildar, Thodupuzha Taluk and another v. Renjith George [2020 (1) KHC 865 (DB)] that where the subject property has been converted as garden land or purayidam much prior to 12-08-2008 ( the date of coming into force of the 2008 Act) and where the property holder has filed requisite application under Rule 6(2) of the Kerala Land Utilisation Order, 1967, before 30-12-2017 (which is the date of coming into force of the amended provisions of 2008 Act, which was introduced Sec.27 A thereof), then the property holder is entitled to get his request for conversion of the property strictly in terms of Rule 6(2) of the KLU order, 1967 and such a case the property holder cannot be mulcted to face the adverse and rigorous conditions prescribed as per the amended provisions of 2008 Act, including Sec.27A WP(C).No.11276 OF 2020 10 thereof as well as the rules framed thereunder.
9. Further, it has been also held that in those decisions more particularly in the aforestated Division Bench decisions in Mariumma's case (supra) [2015 (2)KLT 516] and Renjith's case (supra) [2020 (1) KHC 865 (DB)], etc., that where the property holder thus secures orders under Rule 6(2) of the KLU order, 1967 from the RDO, then the property holder is equally entitled to maintain an application under Sec.6A of the Kerala Land Tax Act, 1961 for fresh assessment of the property by the Tahsildar for getting additional entries in the BTR to show the subject property as garden land or purayidam, instead of the earlier BTR entries as nilam or paddy land.
10. In the instant case, it can be seen from Ext.P4 judgment that the application under clause 6(2) of the KLU Order as per Ext.P3 herein (Ext.P7 as per Ext.P4) has been filed on 04.12.2017 which is prior to 30.12.2017 (date of coming into force of the amended provisions of the 2008 Act which has introduced Section 27A of the act thereof). Hence, the 1st respondent, RDO is duty bound to consider and pass orders on Ext.P6 application strictly in terms of Clause 6(2) of the KLU Order and in that process petitioner cannot be compelled to pay any amounts as conceived as WP(C).No.11276 OF 2020 11 per the amended provisions of the 2008 Act including Section 27A thereof, and the amended provisions of the Rules, including Rule 12(17) thereof. It has been held by this Court in decisions as in the judgment dated 19.03.2020 in W.P.(C). No.8645/2020 that, in such cases, the property holder cannot be compelled by the revenue authorities to pay any of the amounts covered by the amended provisions of the Act and the amended Rules included Rule 12(17) thereof. The position in that regard is ordered and declared. Since the petitioner secures necessary permission under Clause 6(2) of the KLU order, he is further entitled to maintain separate application under Section 6A of the Kerala Land Tax Act before the Tahsildar concerned, for fresh assessment/re-assessment of the subject property so as to secure additional entries in the BTR to show the nature of the land as garden land/purayidam instead of the earlier BTR entries as paddy land/nilam and in the light of the judgments laid down by this Court in Mariumma's case (supra) [2015 (2)KLT 516] and Renjith's case (supra) [2020 (1) KHC 865 (DB) and in such cases, the Tahsildar will have to pass such orders of re-assessment for alteration of the entries in the BTR without making the party to pay any of the amounts as per the amended provisions of the Act and the amended provisions of the Rules as WP(C).No.11276 OF 2020 12 aforesaid. It is the position in this regard, it is so declared and ordered in this case as well. Thus, the Court is constrained to do so in view of the contumacious conduct of the 1 st respondent, RDO in passing an order in the nature of Ext.P7 and refusing to comply the directions issued by this Court as per Ext.P4 judgment rendered as early as on 12.07.2018. Accordingly, the following directions and orders are passed:-
1. The impugned Ext.P7 order is declared to be a nullity and is also declared to be illegal and ultra vires and accordingly Ext.P7 order will stand quashed and set aside.
2. It is further ordered that Exts.P5 and P6 proceedings issued in favour of the petitioner by the Local Level Monitoring Committee will regulate the field as far as exclusion of subject property from the Land Data Bank is concerned, with all force and finality.
3. The 1st respondent, RDO will take up for consideration the matters raised in Ext.P3 application dated 04.12.2017 and after conducting necessary inspection with due prior notice to the petitioner and after affording a reasonable opportunity of being heard to the petitioner, through his authorized representative, counsel, if any, and after taking due note of the factual aspects already ascertained in WP(C).No.11276 OF 2020 13 Exts.P5 and P6, should pass orders on the request of the petitioner for permission under Clause 6(2) of the KLU order, without delay, preferably within a period of two months from the date of production of a certified copy of this judgment. While doing so, 1 st respondent RDO shall not compel the petitioner to pay any amounts as per the amended provisions of the 2008 Act, including Section 27A thereof and the amended provisions of the Rules including Rule 12(17) thereof. It is hoped and expected that the 1st respondent, RDO will rise up to the occasion and will discharge his duties and functions under Clause 6(2) of the KLU order in a fair, just and pragmatic manner and also taking due note of the ground realities already ascertained by the statutory Local Level Monitoring Committee as per Exts.P5 & P6 proceedings, as regards the nature of land.
4. Thereafter, after orders are passed by the 1 st respondent on Ext.P3 application, granting permission under Clause 6(2) of the KLU order, the petitioner will be at liberty to file appropriate application before the Tahsildar concerned, under Section 6A of the Kerala Land Tax Act, in which case, constitutional orders of reassessment for alteration of entries in the BTR so as to show the change of nature of WP(C).No.11276 OF 2020 14 the property should be duly processed by the Tahsildar, without much delay, after affording reasonable opportunity of being heard by the petitioner and in the light of the dictum laid down by the Division Bench of this Court as in Mariumma's case (supra)[2015 (2)KLT 516] and Renjith.K.Paul 's case (supra) [2019 (2) KLT 262), within one month from the date of receipt of such application, along with a copy of the orders passed by the 1st respondent, RDO under Clause 6(2) of the KLU order.
5. Petitioner will produce certified copy of this judgment along with a copy of the memorandum of the writ petition before the 1st respondent, RDO, for necessary information and further action.
With these observations and directions, the above W.P.(C) stands disposed of.
Sd/-
ALEXANDER THOMAS
ajt JUDGE
WP(C).No.11276 OF 2020 15
APPENDIX
PETITIONER'S/S EXHIBITS:
EXHIBIT P1 TRUE COPY OF THE TAX RECEIPT ISSUED BY THE
VILLAGE OFFICER, PALAKKAD II DATED
26/08/2017.
EXHIBIT P2 TRUE COPY OF THE APPLICATION TO CORRECT THE
ERRONEOUS ENTRIES IN THE DATA BANK AND
DELETE THE PROPERTY FROM IT, DATED
16/03/2018.
EXHIBIT P3 TRUE COPY OF THE APPLICATION UNDER CLAUSE 6
OF THE KERALA LAND UTILIZATION ORDER BEFORE
THE 1ST RESPONDENT SEEKING PERMISSION TO
USE THE LAND FOR OTHER PURPOSES, DATED
04/12/2017.
EXHIBIT P4 TRUE COPY OF THE JUDGMENT IN WPC
NO.30846/2017 ON THE FILE OF THIS
HONOURABLE COURT DATED 12/07/2018.
EXHIBIT P5 TRUE COPY OF THE RELEVANT PAGES OF THE
GAZETTE PUBLICATION WHEREIN THE LAND
BELONGING TO THE PETITIONER HAS BEEN
INCLUDED AS SERIAL NO.259 DATED 31/08/2019.
EXHIBIT P6 TRUE COPY OF THE REPORT ALONG WITH THE
COVERING LETTER SUBMITTED BY THE 2ND
RESPONDENT, DATED 30/09/2019.
EXHIBIT P7 TRUE COPY OF THE ORDER PASSED BY THE 1ST
RESPONDENT DATED 18/12/2019.