Zubair R.K.M vs The Revenue Divisional Officer
2021 Latest Caselaw 21827 Ker

               IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                PRESENT
               THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN
   WEDNESDAY, THE 3RD DAY OF NOVEMBER 2021 / 12TH KARTHIKA, 1943
                        WP(C) NO. 33964 OF 2019
PETITIONERS:

    1     ZUBAIR R.K.M.,
          AGED 66 YEARS
          S/O KUNHIMON HAJI, RESIDING AT RAYAM MARAKKAR VEETTIL,
          CHOVVALLUR, P.O. KANDANASSERY, THRISSUR. [EXPIRED]

    2     SUHARA SUBAIR,
          AGED 53 YEARS
          W/O ZUBAIR R.K.M., RESIDING AT RAYAM MARAKKAR VEETTIL,
          CHOVVALLUR, P.O. KANDANASSERY, THRISSUR.

    3     ADDL.P3.ZAHIRA ZUBAIR
          D/O.LATE ZUBAIR, AGED 32 YEARS, RESIDING AT RAYAM
          MARAKKAR VEETTIL, CHOVVALLUR, P.O KANDANASSERY,
          THRISSUR - 680 102.

    4     ADDL.P4.   ZAYANA ZUBAIR
          D/O.LATE   ZUBAIR, AGED 30 YEARS, RESIDING AT RAYAM
          MARAKKAR   VEETTIL, CHOVVALLUR, P.O KANDANASSERY,
          THRISSUR   - 680 102.

    5     ADDL.P5.   ZAKKIYA ZUBAIR
          D/O.LATE   ZUBAIR, AGED 26 YEARS, RESIDING AT RAYAM
          MARAKKAR   VEETTIL, CHOVVALLUR, P.O KANDANASSERY,
          THRISSUR   - 680 102.

    6     ADDL.P6.   NOORA ZUBAIR
          D/O.LATE   ZUBAIR, AGED 23 YEARS, RESIDING AT RAYAM
          MARAKKAR   VEETTIL, CHOVVALLUR, P.O KANDANASSERY,
          THRISSUR   - 680 102.

          [ARE IMPLEADED AS PER ORDER DATED 16.09.2021 IN
          I.A.1/2021 IN WP(C)33964/2019.]

          BY ADVS.
          T.C.SURESH MENON
          P.S.APPU
          A.R.NIMOD
 WP(C) NO. 33964 OF 2019

                                       2


RESPONDENTS:

     1       THE REVENUE DIVISIONAL OFFICER,
             REVENUE DIVISIONAL OFFICE, 1ST FLOOR, CIVIL STATION,
             CIVIL LINES ROAD, AYYANTHOLE, THRISSUR - 680 003.

     2       LOCAL LEVEL MONITORING COMMITTEE,
             REPRESENTED BY ITS CONVENOR, KRISHI OFFICE,
             KANDANASSERY, P.O. MATTOM, THRISSUR - 680 602.

     3       KANDANASSERY GRAMA PANCHAYATH,
             REPRESENTED BY ITS SECRETARY, PANCHAYATH OFFICE,
             KANDANASSERY, P.O. MATTOM, THRISSUR - 680 602.

             BY ADVS.
             GOVERNMENT PLEADER
             SHRI.SANTHOSH P.PODUVAL, SC, KANDANASSERY GRAMA
             PANCHAYAT



             RIYAL DEVASSY-GP




      THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION
ON   03.11.2021,    THE   COURT   ON       THE   SAME   DAY   DELIVERED   THE
FOLLOWING:
 WP(C) NO. 33964 OF 2019

                                            3


                                   JUDGMENT

This writ petition is filed seeking the following reliefs:

"(i) call for the records leading to the passing of Ext.P4 order passed by the 1st respondent and quash the same by the issue of a writ of certiorari or other appropriate writ, order or direction in so far as it directs the petitioners to pay the requisite fee as mandated under the amended provisions of the Kerala Conservation of Paddy Land & Wetland Act;

(ii) issue a writ in the nature of mandamus directing the 1 st respondent to issue fresh orders on Ext.P2 application under Clause 6 of the KLU submitted by the petitioners without incorporating the conditions enumerated therein in so far as it directs the petitioners to pay the requisite fee as mandated under the amended provisions of the Kerala Conservation of Paddy Land & Wetland Act;"

2. Heard the learned counsel for the petitioners and the learned

Government Pleader.

3. It is submitted by the learned counsel for the petitioners that

the petitioners are owners in possession of 84.2 cents of land in Survey

Nos.841/1 and 839/P in Kandanassery Village, Kunnamkulam Taluk,

Thrissur District. It is submitted that the petitioners had purchased the

property in the year 1992. The property had been included in the data

bank as reclaimed land. It is submitted that the constructions carried

out in the property were not regularised by the Panchayath on the WP(C) NO. 33964 OF 2019

ground that the property is described as Nilam in the revenue records.

It is submitted that the petitioners had thereupon submitted

applications for removal of the property from the data bank as also

under Clause 6(2) of the Kerala Land Utilisation Order for the use of the

property for other purposes. By Ext.P1 judgment dated 08.03.2018, the

applications submitted by the petitioners were directed to be

considered. The directions specifically were are follows:

(i) The additional 4th respondent shall consider and pass orders on the application, as evidenced by Ext.P15 receipt, preferred by the petitioners within a period of three months from the date of receipt of a copy of this judgment, if need be, after hearing the petitioners.

(ii) In the event of the additional 4 th respondent passing an order excluding the land belonging to the petitioners from the Land Data Bank, then the additional 5th respondent shall consider Ext.P16 application preferred by the petitioners for conversion of user of the said land, and pass orders thereon within a period of one month from the date of production of the order of the additional 4 th respondent, before him.

(iii) The petitioners shall, in the event of obtaining order from the additional 4th respondent, and the order from the additional 5 th respondent permitting conversion under the KLU Order, produce the same before the respondent Panchayat, and the respondent Panchayat shall consider the application for regularisation, afresh, in the light of the orders produced by the petitioners. To enable the respondent Panchayat to do so, I quash Ext.P13 order.

(iv) The petitioners shall also, in the event of receipt of the order from the additional 4th respondent, and the order from the additional 5 th respondent permitting conversion under the KLU Order, produce copies of the same before the Land Tax Authorities, for causing a fresh assessment and consequential change in classification of the land in the Basic Tax Register.

4. It is submitted that Ext.P2 application has been submitted by

the petitioners on 23.12.2017. After Ext.P1 judgment, it is submitted WP(C) NO. 33964 OF 2019

that Ext.P3 proceedings had been issued removing the property from

the data bank. Thereafter, the application submitted by the petitioners

under Clause 6(2) of the Kerala Land Utilisation Order was taken up for

consideration by the RDO. Ext.P4 order was passed permitting the use

of the property for other purposes. However, on the ground that the

amendment to the Kerala Conservation of Paddy Land and Wetland Act,

2008 had come into effect in the interregnum, the petitioners were

required to pay the fees as provided under Section 27A which is

inserted by the amendment.

5. The learned counsel for the petitioners submits that the issue

stands squarely covered by the decisions of this Court in District

Collector, Ernakulam and others v. Fr.Jose Uppani and others [2020 (4)

KLT 612] as also several other decisions of this Court where it has been

held that where an application has been submitted for conversion of

the property or the use of the property for other purposes under Clause

6(2) of the Kerala Land Utilisation Order, before the coming into force

of the amended provisions of the Kerala Conservation of Paddy Land

and Wetland Act, 2008, that is with effect from 30.12.2017, the

applications have to be considered in accordance with the provisions of WP(C) NO. 33964 OF 2019

the Kerala Land Utilisation Order and the direction for payment of fees

under Section 27A which was incorporated only after the submission of

the application would be unwarranted. The learned counsel for the

petitioners would further submit that in the instant case, since there

was a specific direction for a consideration of the application submitted

by the petitioners before the introduction of the amendment in the

2008 Act under the provisions of the Kerala Utilisation Order, the

respondents cannot rely on the amended provisions and demand the

fees from the petitioners.

6. A counter affidavit has been placed on record by the 1 st

respondent. It is stated therein as follows:

3. Petitioner also preferred an application under Clause 6 of the KLU order. simultaneously dated 23-12-2017. On 08-04-2018 in Exhibit P1 judgment this Honourable Court directed the Agricultural Officer, Mattom to consider and pass orders on the petitioners' application to delete the entry in relation to the property from the data bank. In the event of such an order being passed, this respondent was directed to consider the petitioners application dated 23-12-2017 for conversion of use of land. The panchayath was then directed to consider the application for regularization in the event that an order permitting change of use is passed. Fresh assessment under the Land Tax Act was also directed to be carried down if petitioners' application for change of user is permitted.

4. Petitioner presently impugns Exhipit P4 order of this respondent to the extent that the petitioner has been directed to remit the fee prescribed under Rules and amended provisions of the Kerala Conservation of Paddy Land and Wet Land Act that came into effect with effect from 30-12-2017. It is evident from Exhibit P1 judgment that petitioners application for change of user of land was meant to be considered only in the event that the entry relating to the property is WP(C) NO. 33964 OF 2019

removed from the data bank.

5. This respondent has taken into accout Exhibit P3 report of the Agricultural Officer, Mattom dated 01-11-2018. Noting that the property was in a converted state with buildings numbered by the Grama Panchayath and grown trees, this respondent has passed the impugned order. The petitioner impugns the said order on the ground that the stipulations in the Kerala Conservation of Paddy Land and Wet Land Act had been invoked in the processing of this application. However, since the petitioners property was deleted from the data bank only after 30-12-2017, his application for change of user could have been considered only in accordance with law as it existed after such deletion was carried out. Therefore, the impugned order is passed in accordance with law and no linterference is warranted.

The learned Government Pleader also places reliance on a decision of

this Court in Thomas v State of Kerala [2020 6 KLT 405] in support of the

contention that since the properties stood included in the data bank

and had been removed only by Ext.P3 order in 2018, Ext.P2 application

submitted by the petitioners could have been considered only in

accordance with the law prevailing at the time when it was taken up for

consideration and that therefore the imposing of the fees under Section

27A is completely justified.

7. I have considered the contentions advanced and have perused

the decisions and the statutory provisions. Section 27A of the Kerala

Conservation of Paddy Land and Wetland Act, 2008 with regard to

change of nature of unnotified land has been inserted by amendment WP(C) NO. 33964 OF 2019

with effect from 30.12.2017. This Court in judgments relied on has

specifically held that where applications have been submitted for

conversion of the land in question under the provisions of the Kerala

Land Utilisation Order prior to the cut of date of 30.12.2017 when the

amended provisions of the 2008 Act came into force, the said

applications have to be considered specifically in accordance with the

provisions of Clause 6(2) of the Kerala Land Utilisation Order and not

under Section 27A which was not in the statute book as on the said

date. The Division Bench in Thomas v. State of Kerala [2020 6 KLT 405]

was considering a situation where the application submitted for change

of usage of the land under Clause 6(2) of the Kerala Land Utilisation

Order was one submitted on 11.04.2018, that is on a date subsequent to

the amendment of the 2008 Act by the incorporation of Section 27A and

the allied provisions. It is in that context that it was held that where the

application is subsequent to 30.12.2017, the same can be considered

only under the amended provisions of the 2008 Act specifically under

Section 27A and not in accordance with Clause 6(2) of the Kerala Land

Utilisation Order.

WP(C) NO. 33964 OF 2019

In the instant case, I notice that the application submitted by the

petitioners were prior to the date of the notification. The property was

also entered in the data bank as converted land. Therefore, all that is

required to be done was the correction of the error in the inclusion of

the property in the data bank. This has been carried out by Ext.P3 order

which according to the Government Pleader is dated 11.03.2018. This

Court in Ext.P1 judgment had also specifically directed the

consideration of the application submitted by the petitioner on

23.12.2017 under the provisions of the Kerala Land Utilisation Order

after the application for removal of the property from the data bank is

favorably considered. This is what has been done by Ext.P4 order. If

that be so, in the light of the judgments of this Court specifically in the

light of the judgment of the Division Bench in Fr.Jose Uppani and others

(Supra), I am of the clear opinion that the application submitted by the

petitioners could have been considered only under the provisions of the

Kerala Land Utilisation Order and the payment of the fees under

Section 27A could not have been insisted upon. Therefore Ext.P4 to the

extend it directs the payment of the fees under Section 27A is

unsustainable. The said direction is therefore set aside. The respondent WP(C) NO. 33964 OF 2019

Panchayath as well as the revenue authorities shall take further follow

up action as directed in Ext.P1 without further delay.

This writ petition is ordered accordingly.

Sd/-

ANU SIVARAMAN JUDGE SVP WP(C) NO. 33964 OF 2019

APPENDIX OF WP(C) 33964/2019

PETITIONER EXHIBITS

EXHIBIT P1 TRUE COPY OF THE JUDGMENT IN WPC NO.

16827/2014 ON THE FILE OF THIS HON'BLE COURT DATED 08-03-2018.

EXHIBIT P2 TRUE COPY OF THE APPLICATION UNDER CLAUSE 6 OF THE KERALA LAND UTILIZATION ORDER BEFORE THE 1ST RESPONDENT DATED 23-12-

2017.

EXHIBIT P3 TRUE COPY OF THE COMMUNICATION ISSUED BY THE 2ND RESPONDENT TO THE 1ST PETITIONER DATED NIL.

EXHIBIT P4 TRUE COPY OF THE ORDER NO. C2-5631/2018 PASSED BY THE 1ST RESPONDENT DATED 27-02-

2019.