IYPE VARGHESE Vs. REVENUE DIVISIONAL OFFICER IDUKKI

JUDGEMENT

(1.) 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 :

(2.) Heard Sri. R. Ramadas, learned counsel appearing for the petitioner, Sri. Saigi Jacob Palatty, learned Senior Government Pleader appearing for respondent Nos.1 and 2 and Sri.Unnikrishnan V. Alapatt, learned Standing Counsel for Thodupuzha Municipality appearing for respondents 3 and 4.

(3.) It is the specific case of the petitioner that the subject property, though continues to be classified as Nilam /Paddy land in the Basic Tax Register, has been converted as "garden land/purayidom" even much prior to 04.07.1967 (date of coming into the force of the Kerala Land Utilization Order, 1967). That by way of abundant caution, the petitioner's predecessors earlier filed application dated 07.06.1999, (referred to as paper No.1 in Ext. P1) seeking for formal orders of the 1st respondent RDO, 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. Therefore, the 1st respondent has taken the considered stand in Ext. P1 proceedings dated 13.07.1999 that, since 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. Exhibit P1 proceedings dated 13.07.1999 issued by the 1st respondent RDO reads as follows;