Kerala High Court

Devaprasad vs The State Of Kerala on 23 March, 2023

              IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                  PRESENT
             THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN
     THURSDAY, THE 23RD DAY OF MARCH 2023 / 2ND CHAITHRA, 1945
                         WP(C) NO.34121 OF 2022
PETITIONER :-

             DEVAPRASAD, AGED 65 YEARS
             S/O.VASAVAN, 'THARAYIL HOUSE', VYTTILA P.O,
             POONITHURA VILLAGE, KANAYANNUR TALUK,
             ERNAKULAM DISTRICT - 682 312.

             BY ADVS.
             S.SHANAVAS KHAN
             S.INDU


RESPONDENTS :-

      1      THE STATE OF KERALA
             REPRESENTED BY PRINCIPAL SECRETARY TO GOVERNMENT
             REVENUE DEPARTMENT, GOVERNMENT SECRETARIAT,
             THIRUVANANTHAPURAM-695 001.

      2      THE DISTRICT COLLECTOR
             CIVIL STATION, KAKKANAD, ERNAKULAM-682 030.

      3      THE REVENUE DIVISIONAL OFFICER
             REVENUE DIVISIONAL OFFICE, FORT KOCHI,
             ERNAKULAM - 682 001.

      4      THE TAHSILDAR
             KANAYANNUR TALUK OFFICE, ERNAKULAM - 682 308.

      5      THE VILLAGE OFFICER
             POONITHURA VILLAGE, ERNAKULAM - 682 301.

             SRI.APPU.P.S, GP


       THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION
ON   23.03.2023,   THE    COURT   ON   THE   SAME   DAY   DELIVERED   THE
FOLLOWING:
 WP(C) NO.34121 OF 2022

                                   -: 2 :-


                                JUDGMENT

Dated this the 23rd day of March, 2023

This writ petition is filed seeking the following reliefs :-

"(i) Call for the records leading to Ext.P10 and quash the same by issuing a writ of certiorari.

(ii) Issue a writ of mandamus or any other writ, order or direction directing the 3rd respondent to reconsider Ext.P6 application taking into account Ext.P11 series P12 and P13.

(iii) Declare that petitioner is entitled to get permission as per sub Rule 13 of Rule 12 of Kerala Conservation of Paddy Land and Wetland Rules, 2018 as the property acquired the characteristics of dry land prior to 04/07/1967."

2. Heard the learned counsel for the petitioner and the

learned Government Pleader.

3. It is submitted by the learned counsel for the petitioner

that the petitioner is the owner of 61.44 Ares of land in Poonithura

Village in Kanayannur Taluk. Out of which, 43.64 Ares is in Survey

No.1442/1 and 17.80 Ares in Survey No.660/4. The property

devolved on the petitioner by virtue of a partition deed dated

21.1.1974. It is submitted that in both items of the property, there

are buildings which are more than 75 years old. The petitioner had

submitted an application in Form 9 for use of the property for other WP(C) NO.34121 OF 2022

purposes on the specific ground that the property had been

converted prior to 4.7.1967. It is submitted that the petitioner had

obtained a KSRSEC report, which he had produced before the

respondents. The petitioner had also produced tax receipts to show

that there was a revision effected to the property tax on 24.3.1969,

pursuant to which, property tax was accepted from the petitioner

for the buildings standing in the property. It is submitted by the

learned counsel for the petitioner that since the tax receipts

specifically provided that the tax has been accepted on account of a

revision in property tax, it has to be assumed that the buildings in

the property were originally assessed to tax before five years from

the date on which the said receipts are issued. It is, therefore,

contended that the application should have been considered and the

respondents ought to have found that the property was actually

converted and put to other use before 4.7.1967.

4. However, Ext.P10 order has been passed rejecting the

application submitted by the petitioner on the ground that the

petitioner could not prove that the property had been converted

before 4.7.1967. The learned counsel for the petitioner would

contend that even in Ext.P10 order of rejection, it is specifically

stated that the document with regard to the properties which was

executed in the year 1967 refers to trees and constructions in the WP(C) NO.34121 OF 2022

property. It is submitted that all these aspects were lost sight of in

the passing of Ext.P10 order.

5. The learned Government Pleader submits that the means

of consideration of a Form 9 application is provided for at Rule

12(13) of the Kerala Conservation of Paddy Land and Wetland

Rules, 2008 (for short, 'the 2008 Rule'). It is submitted that sub

Rule 13 provides the specific documents that can be relied on to see

whether the property is converted before 4.7.1967. It is stated that

the requirements are as follows :-

"(i) Copy of the title deeds which contains the recital that the aforesaid lands have been converted prior to 04/07/1967 or have been used for purposes other than agriculture or

(ii) Agreements in stamp papers certifying that the aforesaid lands were converted prior to 4th July, 1967 or were used for purposes other than agriculture (inclusive of usufructuary mortgages, mortgage etc.)

(iii) Building Tax Receipt issued by Local Self Government Institutions in respect of buildings that stood in the aforesaid property.

(iv) Licence or other documents issued by Government officials or Government Agencies which prove that the aforesaid property was converted prior to 4th July, 1967 or was used for purposes other than agriculture.

(v) Where application, pertaining to conversion of unnotified lands, contains details of trees standing in the property, residential buildings, dense wood were God is worshipped (Kavu), high structures, its age, antiqueness and statement of fitness pertaining to the same."

WP(C) NO.34121 OF 2022

It is submitted by the learned Government Pleader that since the

reliance of a report by the KSRSEC is specifically referred to in

Rule 4(2)(b) with regard to the consideration of Form 5 application,

but it is absent from sub Rule (13) of Rule 12, the said report cannot

be considered as a relevant document for the consideration of a

Form 9 application.

6. Having considered the contentions advanced and having

perused Ext.P10 and the documents produced by the petitioner, I

am of the opinion that the specific contention raised by the

petitioner that the documents produced by him have not been

looked into and considered in a proper perspective appears to be

justified. Though it is contended by the learned Government

Pleader that the documents which are to be relied on for the

consideration of Form 9 application are specifically enumerated in

sub Rule (13), I am of the opinion that there can be no embargo as

to consideration of a report by the KSRSEC to ascertain whether

the property was actually converted before 4.7.1967. This is more

so, in view of the fact that the order itself refers to the existence of

'thara chira' in the property in 1967.

In the above view of the matter, I am of the opinion that

the issue requires a reconsideration at the hands of the

respondents. Ext.P10 order is, therefore, set aside. There will be a WP(C) NO.34121 OF 2022

direction to the 3rd respondent to take up the application submitted

by the petitioner and to consider and pass orders on the same, after

considering all relevant aspects of the matter including the report

submitted by the KSRSEC, which is made available by the

petitioner. Appropriate orders shall be passed, after hearing the

petitioner as well, within a period of two months from the date of

receipt of a copy of this judgment, taking note of the KSRSEC

report as well as Ext.P11 series.

This writ petition is ordered accordingly.

Sd/-

ANU SIVARAMAN JUDGE

Jvt/28.3.2023 WP(C) NO.34121 OF 2022

APPENDIX OF WP(C) 34121/2022

PETITIONER EXHIBITS

Exhibit P1 TRUE COPY OF THE PROPERTY TAX RECEIPT DATED 25/08/1998 ISSUED IN THE NAME OF PETITIONER'S FATHER.

Exhibit P2 TRUE COPY OF THE MEMO DATED 01/12/1998 ISSUED BY THE REVENUE -OFFICER, CORPORATION OF KOCHI.

Exhibit P3 TRUE COPY OF THE JUDGMENT DATED 12/04/2018 IN W.P. (C) NO. 13086/2018 OF THIS HON'BLE COURT.

Exhibit P4 TRUE COPY OF THE RELEVANT PAGE, OF THE MINUTES OF THE MEETING DATED 06/09/2019 OF THE LOCAL LEVEL MONITORING COMMITTEE, KOCHI CORPORATION.

Exhibit P5 TRUE COPY OF THE FORM 9 APPLICATION DATED 24/09/2020 SUBMITTED BY PETITIONER AND HIS SON BEFORE THE 3RD RESPONDENT.

Exhibit P6 TRUE COPY OF APPLICATION DATED 07/07/2021 SUBMITTED BY PETITIONER BEFORE THE 3RD RESPONDENT.

Exhibit P7 TRUE COPY OF JUDGMENT DATED 16/07/2021 IN W.P.

Exhibit P8 TRUE COPY OF THE LETTER DATED 29/06/2022 SUBMITTED BEFORE THE 3RD RESPONDENT EVIDENCING THE SUBMISSION OF AFORESAID DOCUMENT.

Exhibit P9 TRUE COPY OF THE RECEIPT DATED 29/06/2022 EVIDENCING THE SUBMISSION OF EXT. P8.

Exhibit P10 TRUE COPY OF THE ORDER NO. RDO CHN/3577/2021K5 DATED 31/08/2022 OF THE 3RD RESPONDENT.

Exhibit P11 TRUE COPY OF THE NOTICES DATED 24/03/1969 IN RESPECT OF BUILDING NOS. 1969 TO 1974 IN WARD NO. 25 OF COCHIN CORPORATION ISSUED BY THE COMMISSIONER.

WP(C) NO.34121 OF 2022

Exhibit P11(a) TRUE COPY OF THE NOTICES DATED 24/03/1969 IN RESPECT OF BUILDING NOS. 1969 TO 1974 IN WARD NO. 25 OF COCHIN CORPORATION ISSUED BY THE COMMISSIONER.

Exhibit P11(b) TRUE COPY OF THE NOTICES DATED 24/03/1969 IN RESPECT OF BUILDING NOS. 1969 TO 1974 IN WARD NO. 25 OF COCHIN CORPORATION ISSUED BY THE COMMISSIONER.

Exhibit P11(c) TRUE COPY OF THE NOTICES DATED 24/03/1969 IN RESPECT OF BUILDING NOS. 1969 TO 1974 IN WARD NO. 25 OF COCHIN CORPORATION ISSUED BY THE COMMISSIONER.

Exhibit P11(d) RUE COPY OF THE NOTICES DATED 24/03/1969 IN RESPECT OF BUILDING NOS. 1969 TO 1974 IN WARD NO. 25 OF COCHIN CORPORATION ISSUED BY THE COMMISSIONER.

Exhibit P11(e) TRUE COPY OF THE NOTICES DATED 24/03/1969 IN RESPECT OF BUILDING NOS. 1969 TO 1974 IN WARD NO. 25 OF COCHIN CORPORATION ISSUED BY THE COMMISSIONER.

Exhibit P12 TRUE COPY OF THE KSREC REPORT DATED 26/11/2021 BY THE DIRECTOR, KSREC.

Exhibit P13 TRUE COPY OF THE REPORT DATED 29/07/2021 OF THE 5TH RESPONDENT OBTAINED UNDER RIGHT TO INFORMATION ACT.

Exhibit P14 TRUE COPY OF THE REPORT DATED 19/03/2021 OF THE 5TH RESPONDENT.