Full Judgment
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS TUESDAY, THE 30TH DAY OF JUNE 2020 / 9TH ASHADHA, 1942 WP(C).No.12813 OF 2020(B) PETITIONER/S: UMMER,AGED 38 YEARS S/O MOHAMMED, RESIDING AT MELETHIL HOUSE, KARAKKUNNU AMSOM, AMAYOOR DESOM, AMAYOOR (PO) ERNAD TALUK, MALAPPURAM DISTRICT BY ADV. SRI.R.BINDU (SASTHAMANGALAM) RESPONDENT/S:
1 THE SECRETARY, THRIKKALANGODE GRAMA PANCHAYATH, THRIKKALANGODE (PO), MALAPPURAM DISTRICT, PIN-676 123. 2 THE VILLAGE OFFICER,KARAKKUNNU VILLAGE, KARAKKUNNU (PO), MALAPPURAM DISTRICT, PIN-676 123. 3 THE AGRICULTURAL OFFICER, KRISHI BHAVAN, THRIKKALANGODE, THRIKKALANGODE (PO), MALAPPURAM DISTRICT, PIN-676 123 4 LOCAL LEVEL MONITORING COMMITTEE, CONSTITUTED UNDER THE KERALA PADDY LAND AND WET LAND ACT, 2008, REPRESENTED BY ITS CONVENER, KARAKKUNNU VILLAGE, MALAPPURAM DISTRICT, PIN-676 123. 5 THE REVENUE DIVISIONAL OFFICER, PERINTHALMANNA, PIN-679 322. 6 THE DISTRICT COLLECTOR,MALAPPURAM, PIN-676 505. 7 STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, MINISTRY OF AGRICULTURE, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM, PIN-695 001.
SRI.K.J.MANU RAJ, GOVT.PLEADER THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 30.06.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No.12813 OF 2020 2 ALEXANDER THOMAS., J, ---------------------------- W.P.(C). No.12813 of 2020 ----------------------------------------- Dated this the 30th day of June, 2020. ….............................................
JUDGMENT
The case set up in this writ petition is as follows:- That the petitioner is the absolute owner in possession of .486 Hectares of land comprised in Block No.66, Re-survey No.166/6-1 of Karakkunnu Village, Ernad Taluk, Malappuram District. The above property was converted into a garden land years before the coming into force of the Kerala Paddy Land and Wet Land Act, 2008 (hereinafter referred to as 'the Act') and the same was not included in the data bank prepared by the Local Level Monitoring Committee also.
2. Since the application filed by the petitioner before the 5 th
respondent for conversion of the nature of the land was not considered, the petitioner filed WP(C) No.35417/2017 before this Court. This Court, as per Ext.P1 judgment, has directed the competent authority to pass orders on the applications preferred by the petitioners for permission
to use their properties for other purposes in the light of the judgment
passed by this Court in Puthenpurackal Joseph v. Sub Collector reported in 2015 (3) KLT 182 and Sivadasan v. Revenue Divisional Officer reported in 2017 (3) KLT 822. WP(C).No.12813 OF 2020 3
3. On receipt of Ext.P1 judgment, the petitioner has again
approached the 5th respondent and filed Ext.P2 application seeking permission to develop the land for the construction of the building. Ext.P2 application was rejected by the 5th respondent on the ground that there was paddy cultivation in the property prior to 2008 and that if the property is converted, the same would adversely affect the free flow of water vide Ext.P3 order, which was confirmed by the 6 th respondent as per Ext.P4 order.
4. In the meantime, Ext.P8 has been issued to the petitioner by the
1st respondent alleging that the petitioner has effected construction in the above property in violation of the provisions of the Panchayat Raj Act and therefore the petitioner should furnish show cause as to why the construction should not be removed as illegal. The petitioner has given Ext.P9 explanation to the 1 st respondent pointing out the fact that the property in question is not a paddy field as alleged and that the petitioner has already taken steps to challenge the orders passed by the respondents 4 and 5 before this Court. Hence this writ petition (civil) is filed
5. It is in the light of these averments and contentions, the
petitioner has filed the instant writ petition with following prayers:- i) Issue a writ of certiorari calling for the records leading to Exhibits P3 and P4 and may quash the same as highly unjust, illegal and arbitrary. ii) Issue a writ of mandamus or any other appropriate writ, direction or orders, directing the 5 th respondent to
WP(C).No.12813 OF 2020 4
consider and pass orders on Exhibit P2 application submitted by the petitioner afresh in the light of the observations made in Exhibit p1 judgment within a time frame to be fixed by this Court iii) Issue a writ of mandamus or any other appropriate writ, direction or orders, directing the 1 st respondent not to proceed with Exhibit P8 till Exhibit P2 application is considered by the respondents 4 and 5 afresh.
6. Heard Sri. R.Bindu Sasthamangalam, learned counsel
appearing for the petitioner and Sri.K. J. Manu Raj, learned Government Pleader appearing for respondent Nos.2 to 7. In the nature of the order proposed to be passed, notice to respondent No.1 (Thrikkalangode Grama Panchayat) will stand dispensed with.
7. According to the petitioner, the subject property though
continues to be described as nilam/paddy land in the Basic Tax Register, has been converted as garden land/purayidam much prior to 12.08.2008 (date of coming into force of Kerala Conservation of Paddy Land and Wetland Act, 2008). Further that the subject property has not been included in the Land data Bank as can be seen from Ext.P5. Petitioner has initially submitted application dated 04.11.2017 (referred to as Ext.P2 in Ext.P1 judgment) as well as Ext.P2 application dated 03.12.2017 under Clause 6(2) of the KLU Order before the 5 th respondent, Revenue Divisional Officer, seeking for permission for change of user of the land for any non-agricultural purposes in terms of the said
WP(C).No.12813 OF 2020 5
provision. Since the said application has not been acted upon, he approached this court by filing W.P.(C). NO.35417 of 2017, which has disposed of by this Court by judgment dated 07.11.2017 , directing the respondent, Revenue Divisional Officer to ascertain from the Local Level Monitoring Committee as to the ground realities in relation to the subject property after obtaining satellite pictures and expert opinion of the Kerala State Remote Sensing and Environment Centre, Thiruvananthapuram (hereinafter referred to as 'the KSREC') and then to pass orders on the said application filed by the petitioner under Clause 6(2) of the KLU
Order.
8. It appears that after rendering of Ext.P1 judgment dated
07.11.2017, petitioner has also filed the abovesaid Ext.P2 application dated 03.12.2017, which has been duly received by the 5th respondent, Revenue Divisional Officer, on 04.12.2017. The fact that petitioner has filed such application as Ext.P2 on 04.12.2017 is also admitted by the 5th respondent as can be seen from reference No.1 of Ext.P3. Hence it is beyond any dispute that the petitioner has, in fact, filed the requisite application under Clause 6(2) of the KLU order much before the cut of date of 30.12.2017 (date of coming into force of the amended provisions of the 2008 Act),
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which has included Section 27A thereof. Now the request of the petitioner has been rejected by the 5th respondent, Revenue Divisional Officer as per Ext.P3 order dated 28.07.2018, as confirmed by Ext.P4 order dated 02.06.2020, issued by the 6 th respondent, District Collector. From a reading of Ext.P3, it is seen that the 5th respondent, Revenue Divisional Officer has placed reliance on the inspection report dated 22.06.2018 submitted by the Agricultural Officer concerned, who is the ex-officio convenor of the LLMC concerned, as can be seen from reference No.2 of Ext.P3. On the basis of the said report of the LLMC, the 5 th respondent, Revenue Divisional Officer has held in Ext.P3 that if the conversion request is allowed in terms of Clause 6(2) of the KLU Order, then it might detrimentally affect the neighbouring paddy lands and that it may also lead to water logging in the nearby area. It is beyond any dispute that the abovesaid inspection said to have been carried out by the Convenor of the LLMC, as referred to as reference No.2 of Ext.P3, has been conducted behind the back of the petitioner and without affording prior notice to the petitioner and and even a copy of the said inspection report dated 22.06.2018, has not been given to the petitioner before the impugned decision in Ext.P3 has been rendered. Therefore, since the said inspection process and copy of
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the inspection report has not been notified to the petitioner before an adverse order in the nature of Ext.P3 is rendered after placing reliance on the said adverse materials, it is only to be held that the decision making process which culminated in Ext.P3 is stated by illegality and impropriety and is vitiated solely on the account of patent violation of elementary principles of natural justice and fairness and accordingly, the impugned orders are only to be interfered with and the matter is to be remitted. Further, a reading of Exts.p3 and p4 would show that there is no reference whatsoever to the contents of Ext.P7 report which is the report of the KSREC, which has also produced the satellite pictures pursuant to the directions issued by this Court in Ext.P1 judgment.
9. The entire extent of the subject property involved in this
case is hardly to the extent of 3 cents. For all these reasons, it is only to be held that the matter would require serious reconsideration at the hands of the 5 th respondent. Further, it is also to be ordered and declared that in view of the well settled legal position in that regard, since the petitioner has admittedly filed the requisite application under Clause 6(2) of the KLU Order on 04.11.2017 as per Ext.P2 herein (referred to as item No.1 in Ext.P3), before the cut of date of 30.12.2017, it is only to be held that the
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request of the petitioner is to be considered only in terms of the provisions contained in Clause 6(2) of the KLU order and the petitioner is not liable to pay any amounts as conceived as per the amended provisions of the 2008 Act including Section 27A of the Act thereof and the amended provisions of the Rules including Rule 12(17) thereof. [See 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)] and Tahsildar, Thodupuzha Taluk and another v. Renjith George [2020 (1) KHC 865 (DB)].
10. Accordingly, it is ordered that the impugned Exts.P3
and P4 orders will stand set aside and Ext.P2 application submitted by the petitioner (referred to as No.1 in Ext.P3) will stand remitted to the 5th respondent for consideration and decision afresh. The 5 th respondent will ensure that the inspection is being conducted by the Village Officer concerned, with due prior notice to the petitioner, copy of the inspection report will also be given to the petitioner in advance, and thereafter should afford a reasonably opportunity of being heard to the petitioner and pass orders on the request of petitioner in Ext.p2 application dated 03.12.2017 in
WP(C).No.12813 OF 2020 9 terms of Clause 6(2) of the KLU order and also duly taking note of the contents of Ext.P7 report of the KSREC, based on the satellite pictures without much delay, preferably within a period of two months from the date of production of a certified copy of this
judgment and strictly in terms of the observations and findings
made by this Court hereinabove.
11. After petitioner secures orders from the 5 th respondent
under Clause 6(2) of the KLU Order, he will be thereafter legally entitled to maintain an application under Section 6A of the Kerala Land Tax Act before the Tahsidar concerned, seeking for reassessment of the subject property in terms of that statutory provision so as to secure additional entries in the Basic Tax Register to correctly show the change in nature of the land as garden land/purayidam instead of the earlier entries as paddy land/nilam etc. Petitioner shall file such application along with a copy of the orders that may be passed by the 5 th respondent, on the matters in Ext.P2 application and upon receipt of such application, the Tahsildar concerned should also pass consequential orders in terms of Section 6A of the Kerala Land Tax Act, in respect of the subject property, strictly in terms of the dictum laid down by the Division Bench of this Court in the decisions as in Mariumma's case
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(supra) and Renjith George's case (supra), within one month from the date of receipt of such application along with a copy of the proceedings so issued by the 5 th respondent on Ext.P2 application etc. Petitioner will produce a certified copy of this judgment, along with a copy of the memorandum of the writ petition with all the exhibits before the 5th respondent, Revenue Divisional Officer, for necessary information and further action. With these observations and directions, the above W.P.(Civil) will stand disposed of.
Sd/- ALEXANDER THOMAS ajt JUDGE WP(C).No.12813 OF 2020 11 APPENDIX PETITIONER'S/S EXHIBITS: EXHIBIT P1 TRUE COPY OF THE JUDGMENT PASSED BY THIS HON'BLE COURT IN WPC NO 35417/2017 DATED 7.11.2017 EXHIBIT P2 TRUE COPY OF THE APPLICATION FILED BY THE PETITIONER BEFORE THE 5TH RESPONDENT DATED 3.12.2017 EXHIBIT P3 TRUE COPY OF THE ORDER PASSED BY THE 5TH RESPONDENT DATED 28.7.2018 EXHIBIT P4 TRUE COPY OF THE ORDER PASSED BY THE 6TH RESPONDENT DATED 2.6.2020 EXHIBIT P5 TRUE COPY OF THE LETTER ISSUED BY THE 2ND RESPONDENT DATED 31.10.2017 EXHIBIT P6 TRUE COPY OF THE RELEVANT EXTRACT OF THE DATA BANK EXHIBIT P7 TRUE COPY OF THE REPORT OF THE LAND USE CHANGE ISSUED BY THE DIRECTOR, KERALA STATE REMOVING SENSING AND ENVIRONMENTAL CENTRE EXHIBIT P8 TRUE COPY OF THE NOTICE ISSUED BY THE 1ST RESPONDENT DATED 1.6.2020 ALONG WITH THE
CONDITIONAL ORDER
EXHIBIT P9 TRUE COPY OF THE EXPLANATION GIVEN BY THE PETITIONER BEFORE THE 1ST RESPONDENT DATED 3.6.2020