Kerala High Court
Joy Mathew vs The Revenue Divisional Officer on 22 July, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE N.NAGARESH
THURSDAY, THE 22ND DAY OF JULY 2021 / 31ST ASHADHA, 1943
WP(C) NO. 5097 OF 2021
PETITIONER:
JOY MATHEW,
AGED 67 YEARS
S/O. E.V MATHAI, ERUMALA,
ERUMALAPPADY, ERAMALLOOR P.O.,
KOTHAMANGALAM 686 691.
BY ADVS.
SRI.RINNY STEPHEN CHAMAPARAMPIL
SMT.ASHA ELIZABETH MATHEW
RESPONDENTS:
1 THE REVENUE DIVISIONAL OFFICER,
R.D.O. OFFICE, GROUND FLOOR,
PATTIMATTOM, MUVATTUPUZHA ROAD,
MUVATTUPUZHA (P.O.), 686 673.
2 THE TAHASILDAR (LAND RECORDS),
TALUK OFFICE, KOTHAMANGALAM 686 691.
3 THE VILLAGE OFFICER,
THE VILLAGE OFFICE,
ERAMALLOOR 686 671.
BY ADV GOVERNMENT PLEADER SRI MANU RAJ
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
22.07.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C).No.5097/2021h
2
JUDGMENT
Dated this the 22th day of July, 2021
The petitioner is aggrieved by the inaction of the 2 nd
respondent in reassessment/reclassifying his land as
'Dryland/Purayidam' based on an Order/Communication dated
02.07.2012 issued by the 1 st respondent-Revenue Divisional
Officer.
2. The petitioner would state that he is title holder of
60.280 cents of land in Survey No.270/3 of Eramalloor Village
in Kothamangalam Taluk. The petitioner long ago submitted
an application to the 1st respondent-RDO invoking the
provisions of the Kerala Land Utilisation Order, 1967
requesting the 1st respondent to permit him to construct a
building on the land in question. The petitioner would submit
that the 1st respondent allowed the said application as per
WP(C).No.5097/2021h
Ext.P2 order dated 02.07.2012. Now, when the petitioner filed
an application for refixation/reassessment of rate of basic tax
in respect of land in question, invoking Section 6(3) of the
Kerala Land Tax Act, 1961, the 2nd respondent-Tahsildar
(Land Records) has refused to entertain the Ext.P3 application
stating that the Ext.P2 order by the 1 st respondent-RDO is not
an order under the Kerala Land Utilisation Order, 1967, but it is
only a communication.
3. The petitioner argues that the said stand taken by
the 2nd respondent-Tahsildar is illegal and not sustainable.
According to the petitioner, his application was under the
Kerala Land Utilisation Order and was for permission for using
the land for non-agricultural purpose. That was enquired into,
reports obtained and found to be genuine, as is evident from
Ext.P2 order. If Ext.P2 order suffers any technical lacuna, the
petitioner cannot be made to suffer as any omission on the
part of the respondents cannot be a reason to make the
petitioner to suffer. The petitioner relies on judgment of this
WP(C).No.5097/2021h
Court in Kunchu Vella v.Kesavan and Others (1981 KLT 82)
to contend that wrong acts of the Authorities cannot harm the
citizens. In that view of the matter, the petitioner seeks to
declare that Ext.P2 is an order issued granting permission by
invoking Clause 6(2) of the Kerala Land Utilization Order, 1967
for construction of a commercial building in the petitioner's
property and all Statutory Authorities are bound to treat Ext.P2
as a valuable order issued under Clause 6(2) of the Kerala
Land Utilization Order, 1967.
4. The learned Government Pleader entered
appearance and filed a statement on behalf of the
respondents. The learned Government Pleader argued that a
plain reading of Ext.P2 would show that it is not an
adjudicatory order as warranted under the Kerala Land
Utilization Order, 1967. Ext.P2 at the most will be a
communication of certain facts recorded therein. Such a
communication cannot take the place of a Statutory Order.
The 2nd respondent-Tahsildar cannot act on Ext.P3 application
WP(C).No.5097/2021h
based on a communication of the 1 st respondent-RDO
addressed to the Secretary of the Grama Panchayat. Ext.P2
cannot be a substitute for a valid Statutory Order under the
Kerala Land Utilization Order, 1967. The learned Government
Pleader further submitted that due to the passage of time the
office of the 1st respondent now does not possess the original
or a copy of the application submitted by the petitioner
pursuant to which Ext.P2 communication has been issued. In
the facts of the case, the writ petition is not maintainable and is
liable to be rejected, contended the Government Pleader.
5. I have heard the learned counsel for the petitioner
and the learned Government Pleader appearing for
respondents 1 to 3.
6. Ext.P2 Communication of the 1 st respondent-RDO
would show that it has been issued on the basis of an
application submitted by the petitioner, which is obviously prior
to 02.07.2012, the date of Ext.P2 order, requesting the 1 st
respondent to permit him to use the land in question for non-
WP(C).No.5097/2021h
agricultural purpose, and more specifically for building
construction. Ext.P2 would show that on receipt of such an
application under the Kerala Land Utilization Order, the 1 st
respondent requested for a report from the Village Officer. The
Village Officer reported that the land is in possession of the
petitioner and there are arecanut and other trees aged around
15 years. The Village Officer further found that from the year
2006 to 2011, the said land was used as a cattle market and a
office building is still situated in the land with electric
connection, which was used for a long time as office of the
cattle market. The land was also elevated up to the height of
the road, about 15 years ago. The Village Officer further noted
that the said land cannot be used for paddy cultivation.
7. Though such findings are there in Ext.P15 and the
findings were accepted by the 1st respondent as true, this
Court feels that Ext.P2 still cannot be treated as a order
passed under the Kerala Land Utilization Order, 1967.
However, with the enactment of the amended Kerala
WP(C).No.5097/2021h
Conservation of Paddy Land and Wetland Act, the legal
position has changed and if the petitioner is making an
application now under the Kerala Land Utilization Order, it will
not have the desired result since the Amendment Act 29 of
2018 (to the Kerala Conservation of Paddy Land and Wetland
Act, 2018), has come into force. This Court is of the
considered opinion that the petitioner should not be put to
such a course of action because of the fact that admittedly the
petitioner had made an application under the Kerala Land
Utilization Order before 02.07.2012, much before the amended
provisions of Kerala Conservation of Paddy land and Wetland
Act came into force.
8. As the petitioner had admittedly submitted an
application under the Kerala Land Utilization Order, 1967
seeking permission to use the land for non-agricultural
purpose and since the 1st respondent has not passed a
statutory/adjudicatory order on such application so far, the
petitioner is entitled to get his application considered in
WP(C).No.5097/2021h
accordance with the law that was in force at the time of filing of
the application. In the circumstances, the 1 st respondent is
compellable to pass appropriate orders on the application of
the petitioner as contemplated by the Kerala Land Utilization
Order. However, fact remains that due to passage of time, the
office of the 1st respondent does not have a copy of the
application submitted by the petitioner, which resulted in
Ext.P2 communication.
9. In such circumstances, the writ petition is disposed
of permitting the petitioner to make an application for change
of user of the land for non agricultural purpose under Clause 6
of the Kerala Land Utilization Order, 1967. If the petitioner
make such an application within a period of two weeks from
today, such application should be considered as one received
prior to 02.07.2012 and such application should be considered
on the basis of the legal position obtaining prior to 02.07.2012.
The 1st respondent shall pass orders on such application, also
taking into account Ext.P2 communication which discloses the
WP(C).No.5097/2021h
report submitted by the Village Officer concerned and the fact
of inspection of the land made by the RDO. It is needless to
say that the amended provisions of the Kerala Conservation of
Paddy Land and Wetland Act shall not be taken consideration
in this matter, since an application under the Kerala Land
Utilization Order, 1967 was admittedly filed by the petitioner
prior to 02.07.2012. The 1st respondent shall pass orders as
directed above within a period of four weeks from the date of
receipt of the application to be submitted by the petitioner.
If the 1st respondent-Revenue Divisional Officer
passes an order permitting the user of land for non-agricultural
purposes, needless to say the 2nd respondent shall consider
Ext.P3 application in accordance with law and pass orders
thereon, as expeditiously as possible without further delay.
The writ petition is disposed of as above.
Sd/-
N. NAGARESH
JUDGE
SR
WP(C).No.5097/2021h
APPENDIX OF WP(C) 5097/2021
PETITIONER'S EXHIBITS:
EXHIBIT P1 A TRUE COPY OF THE POSSESSION
CERTIFICATE DATED 11/11/2020 ISSUED
FROM ERAMALLOOR VILLAGE OFFICE.
EXHIBIT P2 A TRUE COPY OF THE ORDER/COMMUNICATION
DATED 02/07/2012 ISSUED BY THE RDO,
MUVATTUPUZHA O THE PETITIONERS
APPLICATION SEEKING PERMISSION FOR
CONSTRUCTION OF BUILDING IN HIS LAND.
EXHIBIT P3 A TRUE COPY OF THE APPLICATION DATED
07/01/2021 SUBMITTED BY THE PETITIONER
BEFORE THE 2ND RESPONDENT UNDER SECTION
6A OF THE KERALA LAND TAX ACT.
