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2021 DIGILAW 1158 (KER)

Philomina Joseph v. Revenue Divisional Officer

2021-12-17

T.R.RAVI

body2021
JUDGMENT : The petitioner is the present owner of 23.30 Ares of land comprised in Sy.Nos.486/4 A1 and 486/4 B1 of Edathua Village. The properties are classified as 'Nilam' in the revenue records and in the Basic Tax Register (BTR). The properties were settled in favour of the petitioner by her husband as per settlement deed No.990/2006 dated 4.5.2006. The properties had devolved on the petitioner's husband as per gift deed No.2117/1957 dated 12.10.1957 executed by her husband's grandfather. The gift deed describes the property as a 'purayidam' as early as in 1957 and also shows that there is a building in the land. 2. The wrong entry in the BTR as 'Nilam' also continued in the notified data bank prepared by the Local Level Monitoring Committee of Edathua Grama Panchayat. According to the petitioner, the properties had been converted irreversibly even before 100 years. In order to correct the wrong entry, the petitioner submitted an application in Form No.5 before the 1st respondent on 2.3.2020. The application in Form No.9 was also submitted since lands had been converted before 1967. When action was not forthcoming, the petitioner approached this Court by filing W.P.(C)No.3618/2021, which was disposed of by Ext.P2 judgment directing the authorities to consider and pass orders on the applications in Form Nos.5 and 9 submitted by the petitioner. When action was not being taken even after the directions issued by this Court, the petitioner preferred Contempt Case No.1088/2021. By Ext.P3 order dated 3.8.2021, the 1st respondent allowed Form No.5 application and deleted 22.475 Ares of land from the data bank of Edathua Grama Panchayat. Thereafter, the 1st respondent allowed Form No.9 application as per Ext.P4 order dated 10.9.2021, imposing certain conditions. The Contempt Case was closed as per Ext.P5 judgment with liberty to the petitioner to challenge the conditions imposed in Ext.P4 order. This writ petition is filed challenging the conditions thus imposed. 3. The contention of the petitioner is that the direction contained in Ext.P4 to correct the revenue records classifying the property as is against Rule 13(3) of the Kerala Conservation of Paddyland and Wetland Rules, 2008 (the Rules for short). It is also contended that the condition in Ext.P4 that if a building more than 3000 sq.ft. area is constructed, the petitioner has to pay Rs.100/-per sq.ft. It is also contended that the condition in Ext.P4 that if a building more than 3000 sq.ft. area is constructed, the petitioner has to pay Rs.100/-per sq.ft. is also not warranted in the light of the proviso to Section 27A of the Kerala Conservation of Paddy Land and Wetland Act, 2008 (the Act for short). 4. The 1st respondent has filed a counter affidavit justifying Ext.P4 order on the basis of Ext.R1(a) circular dated 23.5.2019 which says that in order to identify properties, the classification of which has been changed on the basis of applications, the words should be added before the word 'purayidam' while recording the fact in the supplementary BTR. It is also contended that since application had been filed after the coming into force of Section 27A, necessarily, the petitioner has to comply with the conditions laid down in Section 27A. It is also contended that the rule making authority, i.e., the State of Kerala is also a necessary party in the writ petition. 5. Heard the learned counsel for the petitioner and the learned Government Pleader for respondents. 6. Having noticed in Ext.P4 that the properties had been converted prior to 1967, the 1st respondent should have considered the application submitted by the petitioner in accordance with the proviso to Section 27A(3) of the Act. As per the proviso, in cases where the land involved had been filled up or naturally filled up before 4.7.1967, the date of commencement of the Kerala Land Utilisation Order, 1967, no fee as stated in Section 27A(3) shall be collected. Section 27A(3) says that in cases where the application for change of nature of unnotified land is allowed, the applicants shall be liable to pay a fee at such rate as may be prescribed (emphasis applied). Rule 12(3) of the Rules deals with applications relating to properties which had been converted prior to 1967. The application shall be in Form 9. The Rule does not say anything about payment of any amount for effecting the change in the nature of land. In the schedule attached to the Rules, fee has been prescribed under Rule 12(9). Rule 12(3) of the Rules deals with applications relating to properties which had been converted prior to 1967. The application shall be in Form 9. The Rule does not say anything about payment of any amount for effecting the change in the nature of land. In the schedule attached to the Rules, fee has been prescribed under Rule 12(9). In the Note to the said Schedule, it is stated that an amount of Rs.100/-per sq.ft is to be paid in cases where a construction of more than 3000 sq.ft is to be effected in the property regarding which a change of nature had been effected. The said prescription can only be the prescription which has been stipulated in Section 27A(3) of the Act. As such the prescription cannot apply to properties which had been lying as a 'purayidam' even before 1967. The contention of the petitioner that the condition regarding payment of fee stated in Ext.P4 is fully justified. With regard to the other conditions, regarding the manner in which the entry is to be made, it can be seen from Ext.P6 judgment of this Court in Cont.Case.No.287/2021 that this Court had specifically found that description of the property as is patently illegal and ultra vires the statutory provisions contained in Rule 13(3) of the Rules. This Court had specifically referred to the Circular dated 23.5.2019. A reading of Rule 13(3) would clearly show that the rule making authority had prescribed the manner in which the entry is to be made. In the light of Rule 13(3) and Ext.P6 judgment, the condition in Ext.P4 regarding the description of the property cannot also be sustained. Since the petitioner is not challenging the Rule and is only seeking for a relief in accordance with the Rules, I do not think it is necessary to make the State of Kerala as a party in this writ petition. In the result, the writ petition is allowed. Ext.P4 insofar as it directs to make the entries in the BTR and revenue records as is set aside. So also, the condition in Ext.P4 directing the petitioner to pay Rs.100/-per sq.ft. for construction of building more than 3000 sq.ft as per Note 1 appended to the schedule under Rule 12(9) is set aside. The respondents are directed to correct the entries in the BTR and revenue records as ordered in Ext.P4 by showing the property as 'purayidam'. So also, the condition in Ext.P4 directing the petitioner to pay Rs.100/-per sq.ft. for construction of building more than 3000 sq.ft as per Note 1 appended to the schedule under Rule 12(9) is set aside. The respondents are directed to correct the entries in the BTR and revenue records as ordered in Ext.P4 by showing the property as 'purayidam'. Necessary orders shall be issued within one month from the date of receipt of a certified copy of this judgment.