Kerala High Court
Musthafa vs State Of Kerala on 27 April, 2023
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE VIJU ABRAHAM
THURSDAY, THE 27TH DAY OF APRIL 2023 / 7TH VAISAKHA, 1945
WP(C) NO. 42363 OF 2022
PETITIONER:
MUSTHAFA, AGED 50 YEARS
S/O IBRAHIM,CHITTETHUKUDY HOUSE, THANDEKKAD,
MUDIKKAL P.O. VENGOLA VILLAGE, KUNNATHUNADU TALUK,
ERNAKULAM DISTRICT - 683547
BY ADVS.
ANISH PAUL
K.V.SURESH KUMAR
SHIBU THOMAS (NILAMBUR)
RESPONDENTS:
1 STATE OF KERALA REP. BY IT'S SECRETARY TO
GOVERNMENT, REVENUE DEPARTMENT,
SECRETARIAT, THIRUVANANTHAPURAM,
THIRUVANANTHAPURAM DISTRICT, PIN - 695001
2 THE REVENUE DIVISIONAL OFFICER
REVENUE DIVISIONAL OFFICE, MINI CIVIL
STATION,MUDAVOOR P.O, MUVATTUPUZHA,
ERNAKULAM DISTRICT - 686669
3 THE TAHSILDAR (LAND RECORDS)
KUNNATHUNADU TALUK, TALUK OFFICE,PERUMBAVOOR,
PERMBAVOOR P.O, ERNAKULAM DISTRICT - 683542
4 THE VILLAGE OFFICER
VENGOLA VILLAGE OFFICE, VENGOLA P.O,
ERNAKULAM DISTRICT - 683556
OTHER PRESENT:
GP - SYAMANTHAK B.S.
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
27.04.2023, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
WP(C) No.42363 of 2022 2
VIJU ABRAHAM, J.
.................................................................
W.P.(C) No.42363 of 2022
.................................................................
Dated this the 27th day of April, 2023
JUDGMENT
Petitioner has approached this court aggrieved by Ext.P4
order to the extent it directs to correct Revenue Records concerning
the petitioner's land as converted dry land/"swabhava vyathiyanam
nadathiya purayidom" and also to quash the conditions therein that the
order is subject to the judgment in SLP No.9524 of 2020 and Ext.P5
circular.
2. Petitioner's case is that the land in question having an
extent of 8.29 Ares was converted in the year 1995. Therefore, an
application under Clause 6(2) of the KLU Order, 1967 was filed and by
Ext.P2, the said application was allowed granting permission to the
petitioner to use his property for any other purpose after finding that the
land is lying as a "purayidom". Thereafter, Ext.P3 application was
submitted in Form A before the 3rd respondent for re-assessment of
land and for effecting changes in the nature of the land in the BTR and
relevant revenue records as purayidom instead of nilam. Pursuant to
the direction issued by this court in W.P(C) No.25965 of 2022, Form A
application submitted by the petitioner was allowed as per Ext.P4 order
directing to correct Revenue Records concerning the petitioner's land
as converted dry land/"swabhava vyathiyanam nadathiya purayidom"
and the said order shall be subject to the judgment in SLP No.9524 of
2020 and Ext.P5 circular. It is these endorsements in Ext.P4 order
which is assailed in this writ petition. Petitioner relying on the judgment
in LLMC Kizhakambalam Grama Panchayat v. Mariumma and
Another, 2015 (3) KHC 19, Iype Varghese v. RDO, 2020 (5) KLT 403
and Joseph C.J . v. RDO/Sub Collector, Fort Kochi, 2021 (5) KHC
298 submitted that when permission for change of user of land has
been obtained, then the Revenue Authorities are obliged to make
necessary changes in the BTR. Petitioner relying on the judgment in
District Collector, Ernakulam and others v. Fr. Jose Uppani, 2020
(4) KHC 394 submitted that as the permission under the KLU order
was obtained prior to 30.12.2007, then the amended provisions of the
Paddy and Wetland Act cannot have any application.
3. The 3rd respondent has filed a detailed counter affidavit
mainly contending that as per Ext.P4, the classification of the land of
the petitioner has been changed as "swabhava vyathiyanam nadathiya
purayidom" and that as per Ext.R3(a) amendment to Rule 13(3) of the
Kerala Paddyland and Wetland Rules, 2008, the word "swabhava
vyathiyanam nadathiya purayidom" is inserted before the word
purayidom and by Ext.R3(b) circular, it was directed to include a
condition in the order that it will be subject to the judgment in SLP No.
9524 of 2020. In view of the same, it is contended that the conditions
in Ext.P4 order are legal and valid.
4. I have considered the rival contentions. Admittedly, the
property is covered by KLU order which was issued on 10.12.2014 and
Ext.P3 application for the reassessment of land and effecting changes
in the nature of land in the BTR and relevant revenue records was
allowed as per Ext.P4 but with certain riders which is challenged in this
writ petition. In Jose Uppani's case supra it is held by this Court that if
a KLU order is obtained prior to the cut off date, i.e., 30.12.2017, the
amended provisions of the Act 2008 will have no application. A perusal
of Ext.P5, (which is also produced along with the counter affidavit as
Ext.R3(b)) would reveal that the said circular will apply to cases where
change of nature of the land has been ordered as per the provisions of
Paddy and Wetland Act and Rules, which is not the scenario in the
present case. The amendment to Rule 13(3) of the Rules 2008 came
into force as per Ext.R3(a) gazette publication and it speaks about land
for which change of nature of the land has been granted as per the
provisions of Rule 13(3) of the Rules 2008 and therefore, the same will
have no application to the property of the petitioner wherein KLU
permission was granted as per Ext.P2 order after finding that the land
has been converted years back and the same is not suitable for paddy
cultivation and is lying as purayidom, and based on the same, Ext.P3
application has been submitted for reassessment of change of nature
of the land as per the provisions of the Kerala Land Tax Act and Rules.
Therefore, I am of the opinion that the petitioner is entitled
to succeed and Ext.P4 order is quashed to the extent it directs to
correct Revenue Records concerning the petitioner's land as converted
dry land/"swabhava vyathiyanam nadathiya purayidom" and also the
conditions therein that the order will subject to the judgment in SLP No.
9524 of 2020 and Ext.P5 circular. There will be a consequential
direction to the 3rd respondent to reassess and reclassify the
petitioner's land as purayidom/dry land with a further direction to the 4 th
respondent to carry out necessary corrections in the thandaper, basic
tax register and relevant revenue records as purayidom/dry land.
Necessary orders/changes in this regard shall be done within a period
of one month from the date of receipt of a copy of this judgment.
Writ petition is disposed of as above.
Sd/-
VIJU ABRAHAM
JUDGE
cks
APPENDIX OF WP(C) 42363/2022
PETITIONER EXHIBITS
Exhibit P1 TRUE COPY OF THE LAND TAX RECEIPT
DATED 01.07.2022 ISSUED BY THE 4TH
RESPONDENT
Exhibit P2 TRUE COPY OF THE ORDER DATED
10.12.2014 OF 2ND RESPONDENT UNDER
CLAUSE 6(2) OF KLU ORDER, 1967
Exhibit P3 TRUE COPY OF THE APPLICATION DATED
03.08.2022 SUBMITTED BY THE PETITIONER
BEFORE THE 3RD RESPONDENT
Exhibit P4 TRUE COPY OF THE ORDER DATED
11.10.2022 ISSUED BY THE 3RD
RESPONDENT IN THE FORM A APPLICATION
SUBMITTED BY THE PETITIONER
Exhibit P5 TRUE COPY OF THE CIRCULAR NO.
REV.P1/26/21 DATED 23.01.21 ISSUED BY
REVENUE(P) DEPARTMENT
Exhibit P6 TRUE COPY OF THE JUDGEMENT DATED
02.12.2020 IN W.P.C NO. 26769/2020 OF
THIS HON'BLE COURT
RESPONDENT EXHIBITS
EXHIBIT R3(a) A TRUE COPY OF THE GOVERNMENT ORDER,AS
PER SRO NO.1184/2022 DATED 02.12.2022
PUBLISHED IN THE KERALA GAZETTE
EXTRAORDINARY NO.416 DATED 07-12-2022
EXHIBIT R3(b) A TRUE COPY OF THE CIRCULAR
NO.P1/26/2021 - REV DATED 23-01-2021
