Archana Varghese v. The Tahsildar (LR), Taluk Office, Adoor, Revenue Tower, Adoor, Pathanamthitta and The Village Officer, Peringanad Village, Pathanamthitta

## **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 9[th] day of April, 2021** ## **J U D G M E N T** 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** 3 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** 4 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 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** 6 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** 7 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** 8 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** 9 ## **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.**