Kerala High Court
Reji C Kuriakose vs The District Collector on 9 February, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR
TUESDAY, THE 09TH DAY OF FEBRUARY 2021 / 20TH MAGHA,1942
WP(C).No.8548 OF 2019(P)
PETITIONER/S:
REJI C KURIAKOSE,
AGED 51 YEARS,
SON OF KURIAKOSE,
38/539, CHEMALAYIL HOUSE,
S.A.ROAD, KOCHI-682016.
BY ADVS.
SRI.P.B.SAHASRANAMAN
SRI.T.S.HARIKUMAR
RESPONDENT/S:
1 THE DISTRICT COLLECTOR,
COLLECTORATE,
KAKKANAD, KOCHI-682030.
2 THE DEPUTY COLLECTOR (LR),
COLLECTORATE,
KAKKANAD, KOCHI-682 030
3 THE TAHSILDAR,
KANAYANNUR TALUK,
OLD COLLECTORATE BUILDING,
ERNAKULAM, KOCHI-682 011.
R1-R3 BY SRI.RENJITH THAMPAN, ADDL.ADVOCATE
GENERAL
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
09-02-2021, ALONG WITH WP(C)NO.19750/2020(P), THE COURT ON
THE SAME DAY DELIVERED THE FOLLOWING:
W.P.(C) Nos.8548 of 2019 &
19750 of 2020
2
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR
TUESDAY, THE 09TH DAY OF FEBRUARY 2021 / 20TH MAGHA,1942
WP(C).No.19750 OF 2020(P)
PETITIONER/S:
REJI C KURIAKOSE,
AGED 51 YEARS,
SON OF KURIAKOSE,
38/539, CHEMALAYIL HOUSE,
S.A.ROAD, KOCHI-682 016.
BY ADVS.
SRI.P.B.SAHASRANAMAN
SRI.T.S.HARIKUMAR
RESPONDENT/S:
1 THE DISTRICT COLLECTOR,
COLLECTORATE,
KAKKANAD, KOCHI-682 030.
2 THE DEPUTY COLLECTOR (LR),
COLLECTORATE,
KAKKANAD, KOCHI-682 030.
3 THE TAHASILDAR
KANAYANNUR TALUK,
ERNAKULAM, KOCHI-682 011.
R1-R3 BY SRI.RENJITH THAMPAN, ADDL.ADVOCATE GENERAL
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
09-02-2021, ALONG WITH WP(C).8548/2019(P), THE COURT ON THE SAME
DAY DELIVERED THE FOLLOWING:
W.P.(C) Nos.8548 of 2019 &
19750 of 2020
3
W.P.(C) Nos.8548 of 2019
&
19750 of 2020
-----------------------------------------------
JUDGMENT
The reliefs claimed in these writ petitions being closely
interlinked, they are disposed of by this common judgment. The
parties and documents are referred to in this judgment, as they appear
in W.P.(C)No.8548 of 2019.
2. The petitioner owns lands in Vazhakkala Village as
also in Kakkanad Village. The said lands which are lying contiguously
are shown in the revenue records as 'Nilam'. As the lands were
reclaimed long prior to the coming into force of the Kerala
Conservation of Paddy Land and Wet land Act, 2008 (the Act), they
were not included in the data bank prepared under the Act. On
23.10.2013, the petitioner preferred an application before the District
Collector for changing the classification of the land as dry land. The
said application was rejected by the District Collector, and the order
rejecting the application was affirmed by this court as per Ext.P2
judgment. In terms of Ext.P2 judgment, the petitioner was permitted
to approach the competent authority under the Kerala Land Utilisation
Order, 1967 for permission to utilise the reclaimed land and directed
W.P.(C) Nos.8548 of 2019 &
19750 of 2020
the competent authority under the Kerala Land Utilisation Order to
grant permission to the petitioner for the said purpose, if it is found
that the land is one converted prior to the Act. The petitioner was also
permitted in terms of Ext.P2 judgment to approach the competent
authority under the Kerala Land Tax Act thereafter, for reassessment of
the land. Pursuant to Ext.P2 judgment, the petitioner preferred an
application before the District Collector on 10.06.2015 for permission
to utilise the land under the Kerala Land Utilisation Order. The said
application has been allowed by the District Collector on 07.01.2016 as
per Ext.P3 order on condition that the petitioner shall file an affidavit
undertaking to pay the regularization fees as provided for in G.O.
(P)No.611/2015 dated 17.11.2015. The regularization fees provided for
in the said Government Order is the fees prescribed for regularization
of conversion of paddy land made before commencement of the Act
under Section 3A of the Act. Though the petitioner filed an affidavit
expressing his willingness to pay the fees specified pursuant to Ext.P3
order, he did not pay the fees. Nevertheless, the petitioner preferred
an application on the strength of Ext.P3 order before the District
Collector seeking directions for changing the classification of the lands
in the revenue records. Ext.P4 is the application preferred by the
petitioner in this regard. It appears that after preferring Ext.P4
application, the petitioner represented to the Deputy Collector(LR) in
the office of the District Collector that he seeks only orders under
Section 27A of the Act. The said officer, in the circumstances, made an
W.P.(C) Nos.8548 of 2019 &
19750 of 2020
endorsement to that effect in Ext.P4 application and forwarded the
application to the competent authority to pass orders, treating the
application as one preferred under Section 27A of the Act. The
endorsement aforesaid in Ext.P4 application is under challenge in the
writ petition on the ground that since the petitioner has been accorded
permission under Clause 6(2) of the Land Utilization Order prior to the
introduction of Section 27A in the Act, the said provision cannot be
pressed into service against the petitioner. After the institution of W.P.
(C)No.8548 of 2019, the petitioner preferred another application before
the competent authority under the Kerala Land Tax Act, 1961 for re-
assessment of the land on the basis of Ext.P3 order. Ext.P5 is the
application preferred by the petitioner in this regard. The said
application has been rejected by the competent authority under the
Land Tax Act holding that Ext.P5 is not in the prescribed form and that
the petitioner has not paid the regularisation fees in terms of Ext.P3
order.
3. W.P.(C)No.19750 of 2020 was instituted by the
petitioner thereupon seeking a declaration that the condition in Ext.P3
order that the petitioner shall file an affidavit undertaking to pay the
regularization fees provided for in G.O.(P)No.611/15 dated 17.11.2015
is illegal and arbitrary. In the said writ petition, the petitioner has also
challenged the order passed on Ext.P5 application. Ext.P5 in W.P.
(C)No.19750 of 2020 is the order passed on Ext.P5 application.
4. Counter affidavits have been filed on behalf of the
W.P.(C) Nos.8548 of 2019 &
19750 of 2020
respondents in both the writ petitions.
5. Heard the learned counsel for the petitioner as also
the learned Additional Advocate General for the respondents.
6. As noted, Ext.P3 is the order passed by the
competent authority under the Kerala Land Utilization Order on
07.01.2016 on the application preferred by the petitioner on
10.06.2015. The condition in Ext.P3 order which is impugned in W.P.
(C)No.19750 of 2020 reads thus :
"4) 17/11/15 ല ജ.ഒ.(പ) 611 /15
പക രമള ല ഗ റ സ ഷൻ ഫ ഒടക ലക ളല ന അഫഡവറ
ർപസകണത ണ."
The case of the petitioner is that he is not bound to pay the
regularisation fees as he has not made any application for
regularisation of the lands under Section 3A of the Act; that no order
under Section 3A of the Act has been passed in his favour and that
such a condition cannot be imposed while passing the order on an
application under the Kerala Land Utilization Order. The stand taken by
the official respondents in the counter affidavits in essence is that after
the introduction of Section 3A of the Act providing for regularization of
the lands converted prior to the Act, an application under Clause 6(2)
of the Kerala Land Utilization Order was not maintainable and since the
application of the petitioner under the Kerala Land Utilization Order
was preferred after the introduction of Section 3A of the Act, the
competent authority under the Kerala Land Utilization Order had no
W.P.(C) Nos.8548 of 2019 &
19750 of 2020
option but to treat the application as one under Section 3A of the Act
and it is on that premises that Ext.P3 order has been passed. In other
words, according to the official respondents, the petitioner ought to
have remitted the regularization fees made mention of in Ext.P3 order
for the purpose of availing the benefits of the same.
7. In Somarajan and Another v. District Collector,
Kollam and Others, 2016 (1) KHC 162, this Court held that after the
commencement of Section 3A of the Act, the competent authority
under the Kerala Land Utilization Order had no power to consider
applications under Clause 6(2) in respect of converted paddy lands and
all pending applications have to be rejected with liberty to the
applicants to apply for regularisation under Section 3A of the Act. In
the light of the decision of this Court in Somarajan, the competent
authority under the Kerala Land Utilization Order could have only
dismissed the application preferred by the petitioner. Instead, the
competent authority chose to treat the application preferred by the
petitioner as one under Section 3A of the Act and passed Ext.P3 order
regularizing the reclamation of the lands of the petitioner. As rightly
pointed out by the petitioner, he has not made an application under
Section 3A of the Act in the format prescribed for the same. The issue
therefore is as to whether there was any justification for the competent
authority under the Kerala Land Utilization Order to treat the
application preferred by the petitioner under the Kerala Land Utilization
Order as an application under Section 3A of the Act without the
W.P.(C) Nos.8548 of 2019 &
19750 of 2020
concurrence of the petitioner. There cannot be any doubt that the
application preferred by the petitioner could not have been treated as
an application under Section 3A of the Act without the concurrence of
the petitioner, especially when Section 3A of the Act provides for
payment of fees for seeking regularization. The petitioner admits that
pursuant to Ext.P3 order, he filed an affidavit expressing his willingness
to deposit the fees as ordered in G.O.(P)No.611/15. The said affidavit is
part of the records as Ext.R1(a) in W.P.(C) No.19750 of 2020. The
conduct on the part of the petitioner in filing the affidavit pursuant to
Ext.P3 order is sufficient to infer that the application preferred by the
petitioner on 10.06.2015 was treated as an application under Section
3A of the Act with the concurrence of the petitioner. If that be so,
according to me, Ext.P3 order is valid and binding on the petitioner.
True, Section 3A has been repealed subsequently with effect from
23.11.2016 as per the Kerala Conservation of Paddy land and Wetland
(Amendment) Act, 2016. It is however, seen that by virtue of Section 3
of the Amendment Act referred to above, orders already passed under
the provision are saved. In short, if the petitioner wants to avail the
benefit of Ext.P3 order, he is bound to pay the fees prescribed in terms
of G.O.(P)611/15 as undertook by him in Ext.R1(a) affidavit.
8. Placing reliance on the decision of the Division Bench
in Aishabeevi v. Superintendent of Police, 2014(3) KLT 1078, the
learned counsel for the petitioner strenuously argued that Section 3A
of the Act applies only to cases of conversion or reclamation of paddy
W.P.(C) Nos.8548 of 2019 &
19750 of 2020
land otherwise than in accordance with law and that the said power
cannot be invoked in the case of natural conversion of the land on
account of long non user and that such cases could have certainly
been considered by the competent authority under the Kerala Land
Utilization Order even when Section 3A of the Act was in force. I find it
difficult to accept this contention in the light of the decision of this
Court in Somarajan.
9. True, persons similarly placed like the petitioner who
could secure permission from the competent authority under the
Kerala Land Utilization Order without paying any fees before
01.04.2015 are entitled to seek change of classification of their lands
on the basis of the permission so obtained. Likewise, persons similarly
placed like the petitioner who could secure permission from the
competent authority under the Kerala Land Utilization Order without
paying any fee after 23.11.2016 and before Act 29 of 2018, are also
entitled to seek change of classification of their land on the basis of the
permission so obtained. Unfortunately, the petitioner is fastened with
the said liability as he happened to prefer the application for
permission to utilise the lands under the Kerala Land Utilisation Order
after 01.04.2015 and agreed to treat the application as one under
Section 3A of the Act, and the order thereon happened to be passed
before 23.11.2016.
In the aforesaid circumstances, I deem it appropriate to
dispose of the writ petitions directing that if the petitioner remits the
W.P.(C) Nos.8548 of 2019 &
19750 of 2020
fees in terms of G.O.(P)No.611/15 dated 17.11.2015 payable as on the
date of Ext.P3 order within three months from today, the petitioner
shall be extended the benefit of Ext.P3 order. Ordered accordingly. It
is also directed that in the event of the petitioner remitting the fees in
terms of the said Government Order, Ext.P5 order in W.P.(C)No.19750
of 2020 will stand set aside and the third respondent will re-consider
the application of the petitioner referred to in the said order and
reassess the lands covered by Ext.P3 order as provided for under the
Kerala Land Tax Act as dry lands and issue appropriate directions for
making appropriate additional entries in the Basic Tax Register and
other revenue records pertaining to the present classification of the
lands. This shall be done within one month after the remittance of the
fees. It is made clear that if the petitioner does not remit the fees in
terms of G.O.(P)No.611/15 dated 17.11.2015 as directed above, this
judgment will not preclude the petitioner from seeking permission of
the competent authority under Section 27A of the Act for utilisation of
the lands for residential, commercial or other purposes and seeking
change of classification of the lands in the revenue records in
accordance with Section 27C of the Act.
Sd/-
P.B.SURESH KUMAR, JUDGE
rkj
W.P.(C) Nos.8548 of 2019 &
19750 of 2020
APPENDIX OF WP(C) 8548/2019
PETITIONER'S/S EXHIBITS:
EXHIBIT P1 TRUE PHOTOCOPY OF THE JUDGMENT OF THIS
HON'BLE HIGH COURT IN WP(C)NO.27741 OF
2013, DATED 12.11.2013.
EXHIBIT P2 TRUE PHOTOSTAT COPY OF THE JUDGMENT IN
WP(C)NO.28594 OF 2014, DATED 28.05.2015.
EXHIBIT P3 TRUE PHOTOSTAT COPY OF THE ORDER OF THE
FIRST RESPONDENT, DATED 7.1.2016.
EXHIBIT P4 TRUE PHOTOSTAT COPY OF THE APPLICATION
MADE BY THIS PETITIONER DATED NIL ALONG
WITH THE ORDER OF THE 2ND RESPONDENT,
DATED 08.03.2019.
EXHIBIT P5 TRUE PHOTOSTAT COPY OF THE APPLICATION
MADE BY THIS PETITIONER TO THE 3RD
RESPONDENT, DATED 30.08.2019 ALONG WITH
THE RECEIPT ISSUED BY THE 3RD
RESPONDENT, DATED 30.08.2019
W.P.(C) Nos.8548 of 2019 &
19750 of 2020
APPENDIX OF WP(C) 19750/2020
PETITIONER'S/S EXHIBITS:
EXHIBIT P1 TRUE PHOTOSTAT COPY OF THE ORDER NO.10-
82230/13, DATED 7.1.2016 ISSUED BY THE 1ST
RESPONDENT.
EXHIBIT P2 TRUE PHOTOSTAT COY OF THE G.O.(P)
NO.611/2015/RD, DATED 17.11.2015, KERALA
CONSERVATION OF PADDY LAND AND WETLAND
(REGULARISATION OF UNAUTHORISED
RECLAMATION) RULES, 2015 PUBLISHED IN THE
KERALA GAZETTE, EXTRAORDINARY, VOL.4, DATE
28.11.2015.
EXHIBIT P3 TRUE PHOTOSTAT COPY OF ACT 12 OF 2015, THE
KERALA FINANCE (NO.2) ACT, 2015, PUBLISHED
IN THE KERALA GAZETTE, VOL 5, DATED
23.11.2016.
EXHIBIT P4 TRUE PHOTOSTAT COPY OF THE JUDGMENT IN
WP(C)NO.8548 OF 2019, DATED 11.10.2019 OF
THIS HON'BLE HIGH COURT.
EXHIBIT P5 TRUE PHOTOSTAT COPY OF THE ORDER NO.H3-
16859/19, DATED 31.1.2020 OF THE 3RD
RESPONDENT.
EXHIBIT P6 TRUE PHOTOSTAT COPY OF THE COUNTER-
AFFIDAVIT FILED IN WP(C)NO.8548/2019, DATED
12.8-2019.
EXHIBIT P7 TRUE PHOTOSTAT COPY OF THE SAID JUDGMENT IN
WP(C)NO.27741/2013, DATED 12.11.2013.
EXHIBIT P8 TRUE PHOTOSTAT COPY OF THE JUDGMENT IN
WP(C)NO.28594/2014, DATED 28.5.2015 OF THIS
HON'BLE HIGH COURT.
EXHIBIT P9 TRUE PHOTOSTAT COPY OF THE KERALA
CONSERVATION OF PADDY LAND AND
WETLAND(AMENDMENT) BILL,2016, BILL NO.28,
KERALA LEGISLATURE SECRETARIAT, 2016.
W.P.(C) Nos.8548 of 2019 &
19750 of 2020
RESPONDENT'S/S EXHIBITS:
EXHIBIT R1(a) TRUE COPY OF THE AFFIDAVIT FILED BY THE
PETITIONER DATED 30.01.2016.
EXHIBIT R1(b) TRUE COPY OF THE JUDGMENT REPORTED IN
SOMARAJAN AND ANOTHER VS.DISTRICT COLLECTOR,
KOLLAM AND OTHERS.
EXHIBIT R1(c) TRUE COPY OF THE JUDGMENT IN STATE OF TAMIL
NADU VS.HINDI STONES.
EXHIBIT R1(d) TRUE COPY OF THE RELEVANT PAGES OF KERALA
GAZETTE DATED 23.11.2016.
EXHIBIT R1(e) TRUE COPY OF ORDER IN RP NO.602/20 IN
W.P.(C)NO.8548/19 DT.16.09.20.
