Allowed

Reji C Kuriakose v. the District Collector

Kerala HC9 Feb 2021WP(C)/19750/2020

Case brief

AI extract

What is this about?

In two linked writ petitions, the High Court of Kerala addressed whether a petitioner could avoid paying regularization fees for reclaimed land. The court held that since the authority treated the application under Section 3A of the Conservation of Paddy Land and Wetland Act, 2008 (prior to its repeal) and the petitioner filed an affidavit undertaking to pay fees, the fee payment is mandatory to a

What did the court decide?

Petitioner directed to remit regularization fees under G.O.(P)No.611/15 within three months; impugned order set aside if fees paid and land reassess exercise re-initiated.

Reji C Kuriakose Vs the District Collector — Land Acquisition | Kerala HC (2021)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR

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TUESDAY, THE 09TH DAY OF FEBRUARY 2021 / 20TH MAGHA,1942

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WP(C).No.8548 OF 2019(P)

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PETITIONER/S:

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REJI C KURIAKOSE, AGED 51 YEARS, SON OF KURIAKOSE, 38/539, CHEMALAYIL HOUSE, S.A.ROAD, KOCHI-682016.

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BY ADVS.

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SRI.P.B.SAHASRANAMAN SRI.T.S.HARIKUMAR

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RESPONDENT/S:

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1 THE DISTRICT COLLECTOR, COLLECTORATE, KAKKANAD, KOCHI-682030.

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2 THE DEPUTY COLLECTOR (LR), COLLECTORATE, KAKKANAD, KOCHI-682 030

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3 THE TAHSILDAR, KANAYANNUR TALUK, OLD COLLECTORATE BUILDING, ERNAKULAM, KOCHI-682 011.

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R1-R3 BY SRI.RENJITH THAMPAN, ADDL.ADVOCATE GENERAL

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THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 09-02-2021, ALONG WITH WP(C)NO.19750/2020(P), THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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W.P.(C) Nos.8548 of 2019 & 19750 of 2020

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR

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TUESDAY, THE 09TH DAY OF FEBRUARY 2021 / 20TH MAGHA,1942

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WP(C).No.19750 OF 2020(P)

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PETITIONER/S:

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REJI C KURIAKOSE, AGED 51 YEARS, SON OF KURIAKOSE, 38/539, CHEMALAYIL HOUSE, S.A.ROAD, KOCHI-682 016.

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BY ADVS. SRI.P.B.SAHASRANAMAN SRI.T.S.HARIKUMAR

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RESPONDENT/S:

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1 THE DISTRICT COLLECTOR, COLLECTORATE, KAKKANAD, KOCHI-682 030.

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2 THE DEPUTY COLLECTOR (LR), COLLECTORATE, KAKKANAD, KOCHI-682 030.

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3 THE TAHASILDAR

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KANAYANNUR TALUK, ERNAKULAM, KOCHI-682 011.

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R1-R3 BY SRI.RENJITH THAMPAN, ADDL.ADVOCATE GENERAL

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THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 09-02-2021, ALONG WITH WP(C).8548/2019(P), THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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W.P.(C) Nos.8548 of 2019 & 19750 of 2020

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W.P.(C) Nos.8548 of 2019

19750 of 2020

J U D G M E N T

The reliefs claimed in these writ petitions being closely interlinked, they are disposed of by this common judgment. The parties and documents are referred to in this judgment, as they appear in W.P.(C)No.8548 of 2019.

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The petitioner owns lands in Vazhakkala Village as also in Kakkanad Village. The said lands which are lying contiguously are shown in the revenue records as 'Nilam'. As the lands were reclaimed long prior to the coming into force of the Kerala Conservation of Paddy Land and Wet land Act, 2008 (the Act), they were not included in the data bank prepared under the Act. On 23.10.2013, the p etitioner preferred an application before the District Collector for changing the classification of the land as dry land. The said application was rejected by the District Collector, and the order rejecting the application was affirmed by this court as per Ext.P2 judgment. In terms of Ext.P2 judgment, the petitioner was permitted to approach the competent authority under the Kerala Land Utilisation Order, 1967 for permission to utilise the reclaimed land and directed

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W.P.(C) Nos.8548 of 2019 &

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19750 of 2020

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the competent authority under the Kerala Land Utilisation Order to grant permission to the petitioner for the said purpose, if it is found that the land is one converted prior to the Act. The petitioner was also permitted in terms of Ext.P2 judgment to approach the competent authority under the Kerala Land Tax Act thereafter, for reassessment of the land. Pursuant to Ext.P2 judgment, the petitioner preferred an application before the District Collector on 10.06.2015 for permission to utilise the land under the Kerala Land Utilisation Order. The said application has been allowed by the District Collector on 07.01.2016 as per Ext.P3 order on condition that the petitioner shall file an affidavit undertaking to pay the regularization fees as provided for in G.O. (P)No.611/2015 dated 17.11.2015. The regularization fees provided for in the said Government Order is the fees prescribed for regularization of conversion of paddy land made before commencement of the Act under Section 3A of the Act. Though the petitioner filed an affidavit expressing his willingness to pay the fees specified pursuant to Ext.P3 order, he did not pay the fees. Nevertheless, the petitioner preferred an application on the strength of Ext.P3 order before the District Collector seekin g directions for changing the classification of the lands in the revenue records . Ext.P4 is the application preferred by the petitioner in this regard. It appears that after preferring Ext.P4 application, the petitioner represented to the Deputy Collector(LR) in the office of the District Collector that he seeks only orders under Section 27A of the Act. The said officer, in the circumstances, made an

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W.P.(C) Nos.8548 of 2019 &

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19750 of 2020

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endorsement to that effect in Ext.P4 application and forwarded the application to the competent authority to pass orders, treating the application as one preferred under Section 27A of the Act. The endorsement aforesaid in Ext.P4 application is under challenge in the writ petition on the ground that since the petitioner has been accorded permission under Clause 6(2) of the Land Utilization Order prior to the introduction of Section 27A in the Act, the said provision cannot be pressed into service against the petitioner. After the institution of W.P. (C)No.8548 of 2019, the petitioner preferred another application before the competent authority under the Kerala Land Tax Act, 1961 for reassessment of the land on the basis of Ext.P3 order. Ext.P5 is the application preferred by the petitioner in this regard. The said application has been rejected by the competent authority under the Land Tax Act holding that Ext.P5 is not in the prescribed form and that the petitioner has not paid the regularisation fees in terms of Ext.P3 order.

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W.P.(C)No.19750 of 2020 was instituted by the petitioner thereupon seeking a declaration that the condition in Ext.P3 order that the petitioner shall file an affidavit undertaking to pay the regularization fees provided for in G.O.(P)No.611/15 dated 17.11.2015 is illegal and arbitrary. In the said writ petition, the petitioner has also challenged the order passed on Ext.P5 application. Ext.P5 in W.P. (C)No.19750 of 2020 is the order passed on Ext.P5 application.

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Counter affidavits have been filed on behalf of the

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W.P.(C) Nos.8548 of 2019 & 19750 of 2020

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respondents in both the writ petitions.

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Heard the learned counsel for the petitioner as also the learned Additional Advocate General for the respondents.

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As noted, Ext.P3 is the order passed by the competent authority under the Kerala Land Utilization Order on 07.01.2016 on the application preferred by the petitioner on 10.06.2015. The condition in Ext.P3 order which is impugned in W.P. (C)No.19750 of 2020 reads thus :

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“4) 17/11/15 ല� ജ�.ഒ.(പ�) 611 /15 പക�രമള ല�ഗ�റ�സ�ഷൻ ഫ�� ഒടക� ലക�ള�ല�ന അഫ�ഡവ�റ� ��ർപ�സകണത�ണ� .”

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The case of the petitioner is that he is not bound to pay the regularisation fees as he has not made any application for regularisation of the lands under Section 3A of the Act; that no order under Section 3A of the Act has been passed in his favour and that such a condition cannot be imposed while passing the order on an application under the Kerala Land Utilization Order. The stand taken by the official respondents in the counter affidavits in essence is that after the introduction of Section 3A of the Act providing for regularization of the lands converted prior to the Act, an application under Clause 6(2) of the Kerala Land Utilization Order was not maintainable and since the application of the petitioner under the Kerala Land Utilization Order was preferred after the introduction of Section 3A of the Act, the competent authority under the Kerala Land Utilization Order had no

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W.P.(C) Nos.8548 of 2019 &

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19750 of 2020

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option but to treat the application as one under Section 3A of the Act and it is on that premises that Ext.P3 order has been passed. In other words, according to the official respondents, the petitioner ought to have remitted the regularization fees made mention of in Ext.P3 order for the purpose of availing the benefits of the same.

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In Somarajan and Another v. District Collector,

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Kollam and Others, 2016 (1) KHC 162, this Court held that after the commencement of Section 3A of the Act, the competent authority under the Kerala Land Utilization Order had no power to consider applications under Clause 6(2) in respect of converted paddy lands and all pending applications have to be rejected with liberty to the applicants to apply for regularisation under Section 3A of the Act. In the light of the decision of this Court in Somarajan , the competent authority under the Kerala Land Utilization Order could have only dismissed the application preferred by the petitioner. Instead, the competent authority chose to treat the application preferred by the petitioner as one under Section 3A of the Act and passed Ext.P3 order regularizing the reclamation of the lands of the petitioner. As rightly pointed out by the petitioner, he has not made an application under Section 3A of the Act in the format prescribed for the same . The issue therefore is as to whether there was any justification for the competent authority under the Kerala Land Utilization Order to treat the application preferred by the petitioner under the Kerala Land Utilization Order as an application under Section 3A of the Act without the

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W.P.(C) Nos.8548 of 2019 &

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19750 of 2020

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concurrence of the petitioner. There cannot be any doubt that the application preferred by the petitioner could not have been treated as an application under Section 3A of the Act without the concurrence of the petitioner, especially when Section 3A of the Act provides for payment of fees for seeking regularization. The petitioner admits that pursuant to Ext.P3 order, he filed an affidavit expressing his willingness to de posit the fees as ordered in G.O.(P)No.611/15. The said affidavit is part of the records as Ext.R1(a) in W.P.(C) No.19750 of 2020. The conduct on the part of the petitioner in filing the affidavit pursuant to Ext.P3 order is sufficient to infer that the application preferred by the petitioner on 10.06.2015 was treated as an application under Section 3A of the Act with the concurrence of the petitioner. If that be so, according t o me, Ext.P3 order is valid and binding on the petitioner. True, Section 3A has been repealed subsequently with effect from 23.11.2016 as per the Kerala Conservation of Paddy land and Wetland (Amendment) Act, 2016. It is however, seen that by virtue of Section 3 of the Amendment Act referred to above, orders already passed under the provision are saved. In short, if the petitioner wants to avail the benefit of Ext.P3 order, he is bound to pay the fees prescribed in terms of G.O.(P)611/15 as undertook by him in Ext.R1(a) affidavit.

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Placing reliance on the decision of the Division Bench in Aishabeevi v. Superintendent of Police, 2014(3) KLT 1078, the learned counsel for the petitioner strenuously argued that Section 3A of the Act applies only to cases of conversion or reclamation of paddy

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W.P.(C) Nos.8548 of 2019 &

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19750 of 2020

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land otherwise than in accordance with law and that the said power cannot be invoked in the case of natural conversion of the land on account of long non user and that such cases could have certainly been considered by the competent authority under the Kerala Land Utilization Order even when Section 3A of the Act was in force. I find it difficult to accept this contention in the light of the decision of this Court in Somarajan .

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True, persons similarly placed like the petitioner who could secure permission from the competent authority under the Kerala Land Utilization Orde r without paying any fees before 01.04.2015 are entitled to seek change of classification of their lands on the basis of the permission so obtained. Likewise, persons similarly placed like the petitioner who could secure permission from the competent authority under the Kerala Land Utilization Order without paying any fee after 23.11.2016 and before Act 29 of 2018, are also entitled to seek change of classification of their land on the basis of the permission so obtained. Unfortunately, the petitioner is fastened with the said liability as he happened to prefer the application for permission to utilise the lands under the Kerala Land Utilisation Order after 01.04.2015 and agreed to treat the application as one under Section 3A of the Act, and the order thereon happened to be passed before 23.11.2016.

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In the aforesaid circumstances, I deem it appropriate to dispose of the writ petitions directing that if the petitioner remits the

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W.P.(C) Nos.8548 of 2019 & 19750 of 2020

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fees in terms of G.O.(P)No.611/15 dated 17.11.2015 payable as on the date of Ext.P3 order within three months from today, the petitioner shall be extended the benefit of Ext.P3 or der. Ordered accordingly. It is also directed that in the event of the petitioner remitting the fees in terms of the said Government Order, Ext.P5 order in W.P.(C)No.19750 of 2020 will stand set aside and the third respondent will re-consider the application of the petitioner referred to in the said order and reassess the lands covered by Ext.P3 order as provided for under the Kerala Land Tax Act as dry lands and issue appropriate directions for making appropriate additional entries in the Basic Tax Regist er and other revenue records pertaining to the present classification of the lands. This shall be done within one month after the remittance of the fees. It is made clear that if the petitioner does not remit the fees in terms of G.O.(P)No.611/15 dated 17.11.2015 as directed above, this judgment will not preclude the petitioner from seeking permission of the competent authority under Section 27A of the Act for utilisation of the lands for residential, commercial or other purposes and seeking change of classification of the lands in the revenue records in accordance with Section 27C of the Act.

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Sd/- P.B.SURESH KUMAR, JUDGE

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rkj

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W.P.(C) Nos.8548 of 2019 & 19750 of 2020

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APPENDIX OF WP(C) 8548/2019

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PETITIONER'S/S EXHIBITS:

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EXHIBIT P1 TRUE PHOTOCOPY OF THE JUDGMENT OF THIS HON'BLE HIGH COURT IN WP(C)NO.27741 OF 2013, DATED 12.11.2013.

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EXHIBIT P2 TRUE PHOTOSTAT COPY OF THE JUDGMENT IN WP(C)NO.28594 OF 2014, DATED 28.05.2015.

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EXHIBIT P3 TRUE PHOTOSTAT COPY OF THE ORDER OF THE FIRST RESPONDENT, DATED 7.1.2016.

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EXHIBIT P4 TRUE PHOTOSTAT COPY OF THE APPLICATION MADE BY THIS PETITIONER DATED NIL ALONG WITH THE ORDER OF THE 2ND RESPONDENT, DATED 08.03.2019.

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EXHIBIT P5

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TRUE PHOTOSTAT COPY OF THE APPLICATION MADE BY THIS PETITIONER TO THE 3RD RESPONDENT, DATED 30.08.2019 ALONG WITH THE RECEIPT ISSUED BY THE 3RD RESPONDENT, DATED 30.08.2019

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W.P.(C) Nos.8548 of 2019 &

19750 of 2020

PETITIONER'S/S EXHIBITS:

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EXHIBIT P1	TRUE PHOTOSTAT COPY OF THE ORDER NO.10- 82230/13, DATED 7.1.2016 ISSUED BY THE 1ST RESPONDENT.
EXHIBIT P2	TRUE PHOTOSTAT COY OF THE G.O.(P) NO.611/2015/RD, DATED 17.11.2015, KERALA CONSERVATION OF PADDY LAND AND WETLAND (REGULARISATION OF UNAUTHORISED RECLAMATION) RULES, 2015 PUBLISHED IN THE KERALA GAZETTE, EXTRAORDINARY, VOL.4, DATE 28.11.2015.
EXHIBIT P3	TRUE PHOTOSTAT COPY OF ACT 12 OF 2015, THE KERALA FINANCE (NO.2) ACT, 2015, PUBLISHED IN THE KERALA GAZETTE, VOL 5, DATED 23.11.2016.
EXHIBIT P4	TRUE PHOTOSTAT COPY OF THE JUDGMENT IN WP(C)NO.8548 OF 2019, DATED 11.10.2019 OF THIS HON'BLE HIGH COURT.
EXHIBIT P5	TRUE PHOTOSTAT COPY OF THE ORDER NO.H3- 16859/19, DATED 31.1.2020 OF THE 3RD RESPONDENT.
EXHIBIT P6	TRUE PHOTOSTAT COPY OF THE COUNTER- AFFIDAVIT FILED IN WP(C)NO.8548/2019, DATED 12.8-2019.
EXHIBIT P7	TRUE PHOTOSTAT COPY OF THE SAID JUDGMENT IN WP(C)NO.27741/2013, DATED 12.11.2013.
EXHIBIT P8	TRUE PHOTOSTAT COPY OF THE JUDGMENT IN WP(C)NO.28594/2014, DATED 28.5.2015 OF THIS HON'BLE HIGH COURT.
EXHIBIT P9	TRUE PHOTOSTAT COPY OF THE KERALA CONSERVATION OF PADDY LAND AND
	WETLAND(AMENDMENT) BILL,2016, BILL NO.28,
	KERALA LEGISLATURE SECRETARIAT, 2016.