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IN THE HIGH COURT OF KERALA AT ERNAKULAM
Alexander Thomas, J.
Iype Varghese – Petitioner
Versus
The Revenue Divisional Officer and Ors. – Respondents
WP(C).No.11519 OF 2020 (L)
Decided On : 29-07-2020
Kerala Land Utilisation of Order- Rule 6(2);; The Kerala Conservation of Paddy Land and Wet Land - Section 27A(3) -Where the party has secured orders from the notified collector in application filed under Rule 6(2) of the KLR Order, that since the paddy land has been converted as garden land even prior to coming into force of the KLU Order, no permission thereunder is required.
Statement of facts:
The subject property, to be classified as Nilam /Paddy land in the Basic Tax Register, has been converted as “garden land/purayidom” -The petitioner's predecessors earlier filed application dated 07.06.1999-For permission for change of user of the land in terms of Rule 6(2) of the KLU order. That the 1st respondent RDO after conducting due enquiry could find, as a matter of fact that, the subject property was converted as “garden land /purayidom” even prior to coming into the force of the KLU Order 1967-The conversion is prior to even the enforcement of the KLU order, no formal permission under Rule 6(2) of KLU order is required, thereby clearly holding that the petitioner can use the land in the way, he deems fit and proper
Finding of the court:
The party has converted the paddy land as garden land, even prior to 04.07.1967, such conversion was not in contravention of any statutory restriction and so such conversion is lawful and so the party is entitled to get fresh assessment in terms of Sec. 6A, but subject to procedural requirements of either getting clarificatory orders from the notified collector in terms of Rule 6 of the KLU Order or in a case where the said benefit was not claimed by filing application before 30.12.2017 then the party will have to necessarily seek the procedure as envisaged in Sec. 27A(3) proviso read with Rule 12(13) & (14) of the Rules, but without having to pay the fee as explicitly permitted therein.
Result: Writ Petition (Civil) disposed of.
JUDGMENT :
The case set up in this Writ Petition (Civil) is as follows:
That the petitioner is the co-owner of 6.07 Ares of land in Sy. Nos. 151/3-1-1, 151/6-1-1-2 and 151/6-2-1-2 of Thodupuzha village. The other co-owners of the property are petitioners children, Joseph Varghese and George Varghese. The above property is a dry land. The petitioner's predecessor had sought permission from the 1st respondent for constructing a building after filling the land under the Kerala Land Utilization Order. On the basis of the above application, the Revenue Divisional Officer conducted enquiry and on the basis of the reports submitted by the Tahsildar, Thodupuzha and the Village Officer, Thodupuzha, the 1st respondent issued Ext.P1 Order stating that since there was no paddy cultivation in the land in question from 1961-1962 onwards, there is no need for permission under the Kerala Land Utilisation of Order. In this connection it is urged that as per the proviso to Section 27A(3) of the Kerala Conservation of Paddy Land and Wet Land where the application is allowed, is filled up or naturally filled up before the 4th day of July, 1967, the date of commencement of the Kerala Land Utilisation Order 1967. The petitioner along with his sons became the absolute owner of the above property by virtue of Ext.P2 Registered Sale Deed. Subsequently, the petitioner has remitted land tax in respect of the above property for the period 2019-2020 as can be seen from Ext.P3 receipt. In Ext.P3, Land Tax Receipt the nature of land is shown as ‘Nilam’, as in the Revenue records the above property is shown as ‘Nilam’. But it can be seen from Ext.P1 that the property is a pucca dry land and that there was no paddy cultivation in the above property since 1961-1962. The above property is not included in the data bank prepared under the Kerala Conservation of Paddy Land and Wetland Act, 2008 also. The petitioner has applied for permission from the Thodupuzha Municipality for constructing a commercial building in the above property. But the Municipality has now rejected the application on the ground that necessary correction has to be carried out in the revenue records after remitting 25% fees by issuing Ext.P5. In Ext.P5, certain other corrections are also directed as per the Kerala Municipal Building Rules, which can be rectified by the petitioner. Hence the petitioner is not challenging that part of Ext.P5. The petitioner is aggrieved by the first part of the direction in Ext.P5 directing to remit 25% fees for making necessary corrections in the revenue records so as to get a building permit for constructing a commercial building in the property. It can be seen from the proviso to Section 27 A(3) of the Kerala Conservation of Paddy Land and Wetland Act, 2008, no fee shall be collected if the applicant proves that the land where the application is allowed, is filed up or naturally filled up before 04.07.1967. In view of Ext.P1, respondents 1 and 2 are bound to make necessary corrections regarding the nature of petitioner’s property in the revenue records taking into account proviso to Section 27A(3). Ext.P5 order, in so far as it is against the petitioner, is per se illegal, highly arbitrary and unreasonable.
It is in the light of the above averments and contentions, that the petitioner has filed the instant Writ Petition (Civil) with the following prayers :
“(i) Call for the records of the case leading upto Ext.P5, in so far as it is against the petitioner, and to quash the same by the issuance of a writ of certiorari or any other appropriate writ, order or direction.
(ii) Issue a writ of mandamus or any other appropriate writ, order or direction directing the respondents 3 and 4 to forthwith issue necessary building permit to the petitioner as the land in question is not a paddy land or nilam a evident from Ext.P1.
(iii) Issue a writ of mandamus or any other appropriate writ, order or direction directing the respondents 1 and 2 to make necessary corrections in the
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