Kerala High Court
Archana Varghese vs The Tahsildar (Lr) on 9 April, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR
FRIDAY, THE 09TH DAY OF APRIL 2021 / 19TH CHAITHRA, 1943
WP(C).No.5996 OF 2021(Y)
PETITIONER/S:
ARCHANA VARGHESE,
W/O.VARGHESE M.GEORGE,
MELETHIL VILLA, ADOOR,
PATHANAMTHITTA.
BY ADVS.
SHRI.PHILIP J.VETTICKATTU
SMT.SAJITHA GEORGE
RESPONDENT/S:
1 THE TAHSILDAR (LR)
TALUK OFFICE, ADOOR,
REVENUE TOWER, ADOOR,
PATHANAMTHITTA-691523.
2 THE VILLAGE OFFICER,
PERINGANAD VILLAGE,
PATHANAMTHITTA-691551.
BY SMT.RENJITHA.G, GOVERNMENT PLEADER
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
09.04.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C).No.5996 OF 2021
2
P.B.SURESH KUMAR, J.
-----------------------------------------------
Writ Petition (C) No.5996 of 2021
-----------------------------------------------
Dated this the 9th day of April, 2021
JUDGMENT
Petitioner owns an item of land measuring 39.37 cents in
resurvey Nos.136/1, 136/2, 136/8-1 and 136/13 of Peringanad
Village. Though the said land is classified in the revenue records as
'Nilam', the same has not been included as paddy land in the data
bank under the Kerala Conservation of Paddy Land and Wetland
Act, 2008 (the Act). Nevertheless, the application preferred by the
petitioner for building permit to construct a building in the land has
been turned down by the local authority on the ground that
building cannot be constructed on a land which is shown in the
revenue records as 'Nilam'. Though the petitioner applied to the
competent authority under the Kerala Land Utilization Order, 1967
[the KLU order] thereafter for permission to make use of the land
for other purposes, the said request was turned down by the
competent authority on the ground that permission cannot be
granted in respect of a land which has already been converted. The
WP(C).No.5996 OF 2021
petitioner challenged the decision of the competent authority under
the KLU order before this court in W.P.(C) No.29182 of 2014, and
the said writ petition was disposed of holding that permission of
the competent authority under the KLU order is not necessary to
make use of a land which has been converted prior to the Act.
Ext.P1 is the judgment in the said case. In the light of Ext.P1
judgment, the petitioner obtained building permit and put up
buildings as proposed by her in the land. It is alleged by the
petitioner that though she could make use of the land for other
purposes in the light of Ext.P1 judgment, the land is not being
accepted as security by her bank for the financial facility sought by
her since its classification in the revenue records continues to be
'Nilam'. The petitioner, therefore, preferred an application before
the first respondent, the competent authority under the Kerala
Land Tax Act for reassessment of the land as dry land and for
directions to the revenue officials to change the classification of the
land as dry land. Ext.P5 is the application preferred by the
petitioner in this regard. On Ext.P5 application, the petitioner has
been issued Ext.P6 communication by the first respondent
informing her that in order to change the classification of the land,
the petitioner has to obtain permission of the competent authority
under Section 27A of the Act. Ext.P6 communication is under
challenge in the writ petition.
WP(C).No.5996 OF 2021
2. Heard the learned counsel for the petitioner as also
the learned Government Pleader.
3. The learned counsel for the petitioner contended that
insofar as the land of the petitioner was lying as a dry land when
the Act came into force and in so far as it was declared by this
court in Ext.P1 judgment that permission of the competent
authority under the KLU order is not necessary for the petitioner to
make use of the land for other purposes, the competent authority
under the Kerala Land Tax Act is duty bound to re-assess the land
as dry land and issue necessary directions to the revenue officials
to reclassify the land as dry land.
4. Per contra, the learned Government Pleader
submitted that in the light of the decision of the Apex Court in
Revenue Division Officer v. Jalaja Dileep, 2015(1) KLT 984(SC),
lands which are classified as 'Nilam' in the revenue records, but not
included as paddy lands in the data bank prepared under the Act,
were still governed by the KLU order and since the petitioner could
not secure permission of the competent authority under the KLU
order to make use of the land for other purposes, she could seek
reassessment of the land under the Land Tax Act or reclassification
of the land only based on the permission of the competent
authority under Section 27A of the Act. Ext.P6 communication is
therefore in order, submits the learned Government Pleader.
WP(C).No.5996 OF 2021
5. I have given my thoughtful consideration to the
submissions made by the learned counsel for the parties on either
side.
6. In Jalaja Dileep, the Apex Court has held that if a
land which is classified in the revenue records as 'Nilam' is not
included in the data bank prepared under the Act as paddy land,
permission of the competent authority under the KLU Order is
required for making use of the same for other purposes. It was also
held by the Apex court in the said case that the nature of land
cannot be changed or converted by directing changes in Basic Tax
Register which is maintained only for the purpose of the land tax. In
Local Level Monitoring Committee Constituted under
Section 5 of the Kerala Conservation of Paddy Land and
Wetland Act 2008 in Kizhakkambalam Grama Panchayat v.
Mariumma, 2015 (2) KLT 516, it was held subsequently by a
Division Bench of this court that if on the commencement of the
Act, a land to which KLU order applied was not included in the data
bank, conversion of its status can be made only based on an order
passed by the competent authority under the KLU order; that if an
order is passed by the competent authority under the KLU order
changing the user of the land, such a change in the user of the land
would render the assessments already made under Section 6A of
the Kerala Land Tax Act redundant and that therefore, what is
WP(C).No.5996 OF 2021
called for in a situation of this nature is a fresh assessment in
accordance with the Kerala Land Tax Act and that once a fresh
assessment is made, it would be open to the authorities to make
appropriate additions in the Basic Tax Register. Of late, the Act was
amended in terms of Act 29 of 2018 with effect from 30.12.2017
and specific provisions have been incorporated therein conferring
power on the competent authorities to grant permission to make
use of the lands which are not included as paddy land in the data
bank prepared under the Act, but nevertheless continues to be
classified in the revenue records as 'Nilam', and also for changing
its classification in the revenue records. In terms of the amendment
referred to above, such lands are defined in the Act as 'unnotified
land'. Section 27A is a provision in Act 29 of 2018 conferring power
on the competent authority to grant permission to make use of
unnotified lands for other purposes and Section 27C is the provision
in the said Act conferring power on the competent authority to
change its classification. Sub-section(5) of Section 27C provides
that no attempt shall be made to alter or change or modify the
revenue records relating to the paddy land or wetland or unnotified
land otherwise than in accordance with the provisions therein. In
other words, after the amendment to the Act in terms of Act 29 of
2018, change of classification of a land can be sought only based
on an order passed by the competent authority under Section 27A
WP(C).No.5996 OF 2021
of the Act. Reverting to the facts, it is seen that it is a case where
the petitioner had applied for permission of the competent
authority under the KLU order for making use of the land for other
purposes. Insofar as the land has already been converted as dry
land prior to the Act, according to me, in the light of the decision of
the Apex Court in Jalaja Dileep, the application submitted by the
petitioner ought to have been allowed by the competent authority
under the KLU order. As noted, though the petitioner challenged
the decision of the competent authority under the KLU order
declining permission to make use of the land for other purposes,
this Court chose to dispose of the writ petition permitting the
petitioner to make use of the land for other purposes without
permission of the competent authority under the KLU order. In the
light of the decision of the Apex Court in Jalaja Dileep, the view
taken by this court in Ext.P1 judgment that permission of the
competent authority under the KLU order is not necessary to make
use of the land which is converted prior to the Act for other
purposes may not be correct. But nevertheless, since the petitioner
has been granted the relief which she sought from the competent
authority under the KLU order, I am of the view that Ext.P1
judgment has to be construed as a permission under the KLU order
to make use of the land for other purposes. I take this view also for
the reason that large number of similarly placed persons could
WP(C).No.5996 OF 2021
secure permission under the KLU order later in the light of the
decision of the Apex Court in Jalaja Dileep and all of them could
also obtain reassessment of the lands under the Kerala Land Tax
Act and reclassification of the lands and the petitioner alone cannot
be deprived of the said benefits in the light of Ext.P1 judgment, for
it is trite that act of court shall prejudice none.
The writ petition, in the circumstances, is allowed, Ext.P6
communication is quashed and the first respondent is directed to
re-assess the land of the petitioner treating Ext.P1 judgment as a
permission granted under the KLU order to make use of the land for
other purposes. Needless to say that on reassessment, the
competent authority shall issue appropriate directions to the
revenue officials to change the classification of the land in the
revenue records as dry land. This shall be done within two months
from the date of receipt of a copy of this judgment.
Sd/-
P.B.SURESH KUMAR, JUDGE
tgs
WP(C).No.5996 OF 2021
APPENDIX
PETITIONER'S/S EXHIBITS:
EXHIBIT P1 TRUE COPY OF JUDGMENT DATED 24.2.2015
PASSED BY THIS HON'BLE COURT IN W.P.
(C)NO.29182/2014
EXHIBIT P2 TRUE COPY OF BUILDING PERMITS DT.9.4.2015
& 20.8.2015 ISSUED BY THE PALLICKAL GRAMA
PANCHAYAT
EXHIBIT P3 TRUE COPY OF LICENSE DT.25.1.2016 ISSUED
BY THE PALLICKAL GRAMA PANCHAYAT
EXHIBIT P4 TRUE COPY OF TAX RECEIPT DATED 16.11.2019
SHOWING REMITTANCE OF LAND TAX IN THE
THANDAPER A/C.NO.11669
EXHIBIT P5 TRUE COPY OF APPLICATION SEEKING TO
EFFECT APPROPRIATE CORRECTIONS/ADDITIONS
IN THE BTR AND OTHER VILLAGE RECORDS
SUBMITTED ON 5.10.2020 SANS THE
ENCLOSURES
EXHIBIT P6 TRUE COPY OF ORDER DT.2.3.2021 ISSUED BY
THE 1ST RESPONDENT REJECTING EXT.P5.
