MOHAMMED ASHRAF Vs. STATE OF KERALA

JUDGEMENT

(1.) The case set up in this Writ Petition (Civil) is as follows: Petitioner is the owner in possession of 98.64 ares of property in Re-Sy.Block No.13, Re-Sy, 238/2 of Maradu Village. Petitioner submitted Ext-P1 application under the Kerala Land Utilisation Order, 1967 for permitting him to use this property for other purpose other than for cultivation. As per Ext-P4 judgment dated 23.10.2017, this Court directed to consider petitioner's application under the Kerala Land Utilisation Order within one month from the date of judgment. Surprisingly, as per Ext-P5 notice petitioner was asked to deposit an amount of Rs.1,29,41,896/- for permitting the petitioner to use his property for other purposes. Thereafter, issued Ext-P6 notice and thereby demanded the petitioner to pay an amount of Rs.2,36,83,792/- instead of Rs.1,29,41,896/- demanded in Ext-P5. Challenging the demand in Ext-P5 and P6 petitioner filed W.P.(C) 5446/2020 before this Court and as Ext-P7 judgment this Court set aside the demand in Exts-P5 and P6 notices and directed to consider petitioner's application under Clause 6 (2) of Kerala Land Utilisation Order, 1967 since petitioner's applications are pending consideration from 2015 onwards that is much before 31.12.2017. In pursuant to Ext-P7 judgment when the petitioner appeared before the 3rd respondent for hearing on 19.05.2020, it is informed that the 2nd respondent has passed Ext-P8 order just before filing the writ petition. Immediately petitioner submitted application under Right to Information Act to get the copy of the order allegedly passed by the 2nd respondent. The copy obtained by the petitioner under Right to Information Act from 2nd respondent on 21.05.2020 is produced in the writ petition as Ext- P8. The petitioner was never served Ext-P8 order allegedly passed by the 2nd respondent other than Ext-P8 obtained under Right to Information Act. In Ext-P8 the 2 nd respondent has duly admitted that the petitioner's property having 98.64 ares in which he sought permission under Clause 6 is lying as converted land and the same is converted much before 2008 and there was no cultivation in this property for last more than 25 years and this property is not suitable for cultivation. The 2 nd respondent rejected the petitioner's application under Clause 6 by saying that out of 1.3974 hecters of property in Sy.No. 382/2 of Maradu Village, 43 ares of property is lying as marshy land and hence the permission cannot be granted for the petitioner's property having 98.64 ares lying as converted land. The said reasoning is unsustainable in law and against the spirit of Kerala Conservation of Paddy Land and Wet Land Act, 2008. The reason for rejecting the Ext-P8 order is illegal and the same is passed showing a prior date just to get over Ext-P7 judgment passed by this Court and the reasoning stated in his Ext- P8 order passed by the 2nd respondent is per se illegal and unsustainable in law. It is in the light of the above factual averments and contentions that the petitioner has filed instant Writ Petition (Civil) with the following prayers:-

(2.) Heard Sri. Peeyus A. Kottam, learned Counsel appearing for the petitioner and Sri. Saigi Jacob Palatty learned Senior Government Pleader appearing for the respondents.

(3.) The factual issues in this case have already been dealt with by this Court and a judgment in this matter has already been rendered by this Court as per Ext.P7 dated 25.02.2020 in WP(C) No. 5446 of 2020. This Court has conclusively held that as the subject property of the petitioner which has been classified as paddy land/nilam in BTR records, had been converted as garden land or purayidom much prior to coming into force of the Kerala Conservation of Paddy Land and Wetland Act , 2008 and that he has filed the requisite application under Rule 6(2) of the Kerala Land Utilisation Order, 1967 for formal orders for change of use of the land much prior to the cut off date of 30.12.2017 [date of coming into force of the amended provisions of the abovestated Act which has introduced Sec.27(A)]. As a matter of fact, Ext.P2 is the application filed by the petitioner under Rule 6(2) of KLU order as early as 24.01.2015. Since no action was taken thereon petitioner has again filed yet another application as per Ext.P3 on 17.08.2017. This Court as per Ext.P4 judgment rendered as early as on 23.10.2017 had directed the statutory authority concerned to consider the said application in terms of the provisions contained in the Kerala Land Utilisation order, 1967. Thereafter 3rd respondent RDO has issued Ext.P5 directing the petitioner to pay the amounts mentioned therein as the fee payable as per Section 27A(1) of the amended provisions of the abovestated Act. Later Ext.P6 order has also been passed by the 3rd respondent RDO on 19.02.2020 stating that the amount of fee mentioned in Ext.P5 is of the lower side and that a higher amount mentioned therein should be paid. This Court as per Ext.P7 judgment rendered on 25.02.2020 has quashed the impugned Exts.P5 and P6 orders to the limited extent it has directed the petitioner is liable to pay the higher amounts in terms of the provisions contained in Section 27A of the Act as well as the amended provisions of the Rules framed thereunder. This was so ordered by this Court as it is now well settled by a series of rulings of this Court that where the subject property has been converted prior to 12.08.2008 and there the requisite Rule 6(2) of the application under the KLU order has been filed before the cut off date of 30.12.2017, then the application of such a party has to be considered strictly in terms of the provisions contained in Rule 6(2) of the KLU order and in such a case he cannot be mulcted to pay the higher amounts conceived as per the amended provisions of the Act which has introduced Section 27(A) as well as the amended Rules framed thereunder. [Refer Renji K. Paul and another v. Revenue Divisional Officer [2019 (2) KLT 262], Geo Peter v. Revenue Divisional Officer [2019 (3) KLT 838], LLMC, Kizhakkambalam Grama Panchayat others v. Mariumma and another [2015 (2) KLT 516 (DB)] and Tahsildar, Thodupuzha Taluk and another v. Renjith George [2020 (1) KHC 865] etc. In this Court has also held therein that after obtaining necessary orders under Rule 6(2) of the KLU order, the party is also entitled to maintain the application under Section 6A of the Kerala Land Tax Act before the Tahsildar concerned for fresh reassessment of the subject property for securing additional entries in the BTR to show the change of nature of the land as garden land or purayidom instead of the earlier BTR entries as paddy land or nilam. [Refer to Renji K. Paul's case (supra) and Mariumma's Case (supra)].