P.H.Babu Ansari vs State Of Kerala
2021 Latest Caselaw 485 Ker

             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 07TH DAY OF JANUARY 2021 / 17TH POUSHA, 1942

                           WA.No.1759 OF 2020

AGAINST THE ORDER/JUDGMENT IN WP(C) 19491/2020(J) OF HIGH COURT OF
                              KERALA

APPELLANT/PETITIONER:

             P.H.BABU ANSARI
             AGED 57 YEARS
             S/O. A.M.HAMEED (LATE),PARAYIL HOUSE, ADICHIRAM,
             THELLAKOM P.O., PEROOR, KOTTAYAM DIST.PIN-686 630

             BY ADVS.
             SRI.AVANEESH KOYIKKARA
             SRI.LINDONS C.DAVIS

RESPONDENTS/RESPONDENTS:

      1      STATE OF KERALA
             REPRESENTED BY ITS SECRETARY, REVENUE DEPARTMENT,
             GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM DIST.,
             PIN-695 001

      2      THE LAND REVENUE COMMISSIONER,
             COMMISSIONERATE OF LAND REVENUE, PUBLIC OFFICE
             BUILDING, MUSEUM JN, THIRUVANANTHAPURAM-695 033

      3      DISTRICT COLLECTOR,
             1ST FLOOR, CIVIL STATION, COLLECTORATE POST,
             KOTTAYAM DIST., PIN-686 002

      4      REVENUE DIVISIONAL OFFICER,
             KOTTAYAM, 2ND FLOOR, MINI CIVIL STATION, NEAR JAWAHAR
             BALA BHAVAN, KOTTAYAM POST, KOTTAYAM DIST.,
             PIN-686 001

      5      TAHSILDAR,KOTTAYAM,
             KOTTAYAM TALUK OFFICE, 1ST FLOOR , MINI CIVIL
             STATION, NEAR JAWAHAR BALA BHAVAN, KOTTAYAM POST,
             KOTTAYAM DIST., PIN-686 001
 WA.No.1759 OF 2020                2



      6      VILLAGE OFFICER, MUTTAMBALAM,
             MUTTAMBALAM VILLAGE OFFICE, COLLECTORATE POST,
             KOTTAYAM DIST, PIN-686 002



             SRI.TEK CHAND, SENIOR GOVERNMENT PLEADER FOR
             RESPONDENTS

     THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON
07.01.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 WA.No.1759 OF 2020                           3




                                  JUDGMENT

SHAJI P.CHALY,J

Writ appeal is directed against the judgement of a learned Single Judge

dated 23.11.2020 in W.P.(C) No.19491/2020 by the petitioner in the writ

petition. The subject issue relates to an order passed by the Revenue

Divisional Officer applying section 27A of the Kerala Conservation of Paddy

land and Wetland Act, 2008, hereinafter called, 'Act, 2008', whereas the

application was filed by the writ petitioner under clause 6 of the Kerala Land

Utilization Order, 1967. The material portion of the judgment of the learned

Single Judge reads thus:

" 2. Admittedly, the land is not included in the data bank. Pursuant

to the direction of this Court in W.P.(C) No.18764/2017 dated 6.6.2017, the

Revenue Divisional Officer considered the matter and passed Ext.P2 order.

The said order is dated 26.7.2018. The Revenue Divisional Officer allowed

the claim of the petitioner to utilise the land for other purposes. However,

invoking Section 27A of the Kerala Conservation of Paddy Land and

Wetland Act, 2008 (for short, the Act 28 of 2008), the petitioner was

directed to set apart 10% of the land for the purpose of water

conservation. This condition is under challenge.

3. As seen from the impugned order, the Revenue Divisional Officer

stipulated the condition as above with reference to Section 27A of the Act

28 of 2008 as well as with reference to Clause 6 of the KLU Order. Section

27A was incorporated to statute with effect from 30.12.2017. The

petitioner's application under the KLU Order is prior to incorporation of

Section 27A. Therefore, Section 27A cannot be made applicable to the land

belonging to the petitioner. However, nothing bars the Collector under the

KLU Order imposing terms and conditions while granting written

permission. Clause 6(2) clearly empowers the Collector to impose the terms

while granting permission. However, it is seen that no reason has been

assigned by the Collector for stipulating the condition as above.

4. It is appropriate that the 'Collector' revisits the order in regard to

the stipulation as above after hearing the petitioner. It is only for a cogent

reason and that to protect other land, the Collector can impose such

conditions. Therefore, the impugned order to the extent stipulating that

10% of the land shall be earmarked for water conservation is set aside.

The Sub collector who passed order as Collector under KLU is directed to

reconsider the conditions as above after hearing the petitioner and

obtaining a report within a period of three months.

The writ petition is disposed of as above. "

2. On a reading of the judgment of the learned Single Judge it is clear

that substantially the relief sought for by the appellant was granted by the

learned Single Judge by setting aside the conditions imposed to set apart 10%

of the land for water conservation and further, the Revenue Divisional Officer

was directed to re-consider the conditions incorporated in the impugned order.

In fact the following were the reliefs sought for by the writ petitioner in the

writ petition:

i) To issue a Writ of certiorari or any other appropriate writ or order or direction, quashing Exhibit P2 to the extent to which direct the petitioner to comply with the conditions of Section 27A of the Kerala Conservation of Paddy Land and Wet land Act, 2008 incorporated by the Amendment Act, 2018 for changing the description of land in Revenue Records or for getting Building Permit;

ii. To issue a Writ of mandamus or any other appropriate writ or order or direction commanding the 5th respondent to consider and pass orders on Exhibit P3, the application filed U/s 6A of The Kerala Land Tax Act 1961, by reassessment/ fresh assessment against the classification of Garden land/ Residential Plot, within a time frame without insisting for the compliance of Section 27A of the Kerala Conservation of Paddy Land and Wetland Act, 2008 incorporated by the Amendment Act, 2018, after giving a reasonable opportunity of being heard to the petitioner personally or through authorized representative/ counsel;

iii) To issue a Writ of mandamus or any other appropriate writ or order or direction commanding the 6th respondent to effect the order of 5th respondent in the Revenue Records by making the additions in BTR and changing the description of land in Thandapper Account within a time frame;

iv. To issue a writ of mandamus or any other appropriate writ, order or direction, commanding the respondents to communicate the order, steps taken to dispose of Ext. P3, and issue copy of the documents leading to the order without any delay;

V. And to pass such other appropriate orders or directions as this Hon'ble Court deems fit and proper in the facts and circumstances of the case.

3. The writ appeal is filed by the writ petitioner basically contending

that the 2nd and 3rd reliefs sought for by the appellant were overlooked by

the learned Single Judge and therefore,it will cause serious prejudice to

the appellant.

4. We have heard learned counsel for the appellant

Sri.Lindons C. Davis and learned Senior Government Pleader Sri.Tek Chand

and perused the pleadings and materials on record.

5. It is an admitted fact that the appellant, owner of an extent of

102.76 Ares of land comprised in Block No.18, Re-Sy Nos.86 and 87 of

Muttambalam Village in Kottayam District, has submitted an application for

utilization of land for other purposes other than paddy cultivation as early

as on 30.11.2015. When the application was not disposed of, W.P.(C)

No.18764/2017 was filed and a learned Single Judge of this Court as per a

judgment dated 6.6.2017 directed the Revenue Divisional Officer,

Kottayam to dispose of the said application. It was accordingly that the

impugned order dated 26.7.2018 was passed by the Revenue Divisional

Officer, however, invoking the powers conferred under section 27A of Act,

2008. It is relevant to note that section 27A was brought into the statute

only w.e.f. 30.12.2017 and till such time the utilization of the paddy field

for other purposes was guided by clause 6 of the the Kerala Land

Utilization Order, 1967.

6. It is a well settled position in law that, if an application was filed

prior to the introduction of section 27A on and w.e.f.30.12.2017, as per

the provisions of the Kerala Land Utilization Order, 1967, the application

has to be considered under the provisions of the Land Utilization Order.

However, quite contrary to the said settled law, the Revenue Divisional

Officer has passed Ext.P2 impugned order invoking the powers conferred

under section 27A. It was accordingly that the learned Single Judge

interfered with the same and issued necessary directions for incorporating

appropriate conditions in accordance with the Kerala Land Utilization

Order. Therefore, we do not propose to interfere with the said finding

rendered by the learned Single Judge since it is absolutely in favour of the

appellant.

7. However, as pointed out above, appellant has a case that the 2 nd

and 3rd reliefs sought for by the appellant in the writ petition as to re-

assess the tax under section 6A of the Kerala Land Tax Act, 1961 and to

make necessary additions in the Basic Tax Register were overlooked by

the learned Single Judge. We find force in the said contention.

8. In that view of the matter, having evaluated the situation, we are

of the considered opinion that, since the Revenue Divisional Officer has

permitted utilization of the land for other purposes other than paddy

cultivation and agricultural operations, appellant is entitled to get

necessary additional entries in the Basic Tax Register in view of the

judgment of the Division Bench of this Court in LLMC Kizhakkambalam

v. Mariyumma [2015(2) KLT 516]. Therefore, on the appellant producing

necessary orders from the Revenue Divisional Officer, incorporating

necessary conditions as directed by the learned Single Judge, along with

an application for making additional entry in the revenue records before

the Revenue Authority with respect to the changed tenure of the land, it

shall be considered and appropriate entries shall be made in the BTR and

all other relevant records within two weeks from the date of production of

the order.

9. Needless to say, if and when an application is submitted after

utilising the land in accordance with the orders passed by the Revenue

Divisional Officer and making necessary additional entries in the Basic Tax

Register for assessment of the tax in accordance with the changed tenure,

it shall be considered by the Authorities under the Kerala Land Tax Act,

1961 and pass appropriate orders fixing the tax, in accordance with law,

within one month from the date of receipt of the application.

In view of the above finding the writ appeal is allowed partly and

there will be a direction to the respective statutory authorities to comply

with the directions contained above.

Sd/-

S.MANIKUMAR

CHIEF JUSTICE

Sd/-

                                                 SHAJI P.CHALY

smv                                                 JUDGE