Yesudas v. State of Kerala and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR** # **WEDNESDAY, THE 04TH DAY OF NOVEMBER 2020 / 13TH KARTHIKA, 1942** ## **WP(C).No.21328 OF 2020(M)** ## **PETITIONER:** **YESUDAS, AGED 68 YEARS S/O. LATE MAMMEN, RESIDING AT PADINJAREPARAMBIL BINCE BHAVAN, PERESSERRY P.O., CHENGANNUR, ALAPPUZHA DISTRICT-689126.** **BY ADV. SRI.K.N.RADHAKRISHNAN(THIRUVALLA)** ## **RESPONDENTS:** - **1 STATE OF KERALA, REPRESENTED BY SECRETARY TO THE REVENUE DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM695001.** - **2 REVENUE DIVISIONAL OFFICER, CHENGANNUR P.O., CHENGANNUR-689121.** - **3 TAHASILDAR, CHENGANNUR TALUK, TALUK OFFICE, CHENGANNUR689121.** - **4 VILLAGE OFFICER, PULIYOOR, PULIYOOR P.O., CHENGANNUR, ALAPPUZHA DISTRICT-688007.** ## **SRI. PAUL ABRAHAM VAKKANAL GP.** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 04.11.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** W.P.(C) No.21328 of 2020 ..2.. ## **P.B.SURESH KUMAR, J.** ## **-------------------------------------** ## **W.P.(C) No.21328 of 2020** **-------------------------------------Dated this the 4th day of November, 2020** ## **JUDGMENT** The son and daughter-in-law of the petitioner were holding an item of land measuring 12.65 Ares in Puliyoor Village. The son of the petitioner is no more. The daughter-in-law of the petitioner is working abroad. The land held by the son of the petitioner was though a paddy land, the same was converted as a dry land long prior to the commencement of the Kerala Conservation of Paddy Land and Wetland Act, 2008(the Act). During 2015, the son of the petitioner preferred an application under the Kerala Land Utilization Order for permission to make use of the land for putting up a residential building and the said application was allowed by the competent authority on 17.08.2015. Ext.P1 is the order issued to the son of the petitioner in this regard. Without taking note of Ext.P1 order, the son of the petitioner preferred another application W.P.(C) No.21328 of 2020 ..3.. under the Land Utilization Order for permission to make use of the land for the very same purpose and the said application was also allowed on 9.2.2016. Ext.P2 is the order issued to the son of the petitioner in this regard. In the meanwhile, it was noticed that the land is included in the Data Bank prepared under the Act. The son of the petitioner, therefore, preferred an application for removal of the land from the Data Bank. Since there was no action forthcoming on the said application, the son of the petitioner filed W.P.(C) No.1094 of 2018, and this Court disposed of the said writ petition directing the Local Level Monitoring Committee under the Act to consider the application for removal of the land from the Data Bank. Ext.P3 is the judgment in the said case. In terms of Ext.P3 judgment, without taking note of Exts.P1 and P2 orders, this Court has also directed that in the event of the Local Level Monitoring Committee excluding the land from the Data Bank, the competent authority shall consider whether the son of the petitioner could be permitted to make use of the land for other purposes under the Land Utilization Order. Pursuant to Ext.P3 judgment, the Local Level Monitoring Committee has removed the land from the Data Bank. Since the land of the petitioner was removed from the Data Bank as W.P.(C) No.21328 of 2020 ..4.. directed in Ext.P3 judgment, without taking note of Exts.P1 and P2 orders, the competent authority under the Land Utilization Order passed yet another order granting permission to the son of the petitioner to make use of the land for other purposes. Ext.P5 is the order passed by the competent authority in this regard. It was, however, stated in the order that for the purpose of making constructions in the land, the son of the petitioner has to obtain permission under the Act. The petitioner, thereupon, preferred an application before the third respondent seeking orders correcting the classification of the land in the revenue records. In the light of Ext.P5 order, the third respondent disposed of the said application stating that the request of the petitioner can be considered only if orders are obtained under Section 27A of the Act. Ext.P7(a) is the order issued by the third respondent in this regard. The daughter-inlaw of the petitioner thereupon preferred an application under Section 27A of the Act and the said application was dismissed by the second respondent in terms of Ext.P8 order. Exts.P7(a) and Ext.P8 orders are under challenge in the writ petition. 2. Heard the learned counsel for the petitioner as also the learned Government Pleader. W.P.(C) No.21328 of 2020 ..5.. 3. The fact that in terms of Ext.P1 order, the competent authority under the Kerala Land Utilisation Order has granted permission to the son of the petitioner to make use of the land for other purposes is not in dispute. If that be so, it was unnecessary for the son of the petitioner to apply for permission under the Land Utilisation Order again for the very same purpose, and in the absence of any power to vary or recall the order already issued, the competent authority under the Land Utilisation Order was precluded from passing orders in the nature of Exts.P2 and P5. The said orders are therefore, void and liable to be ignored. In other words, the surviving owners of the land are entitled to all the rights that are flowing from Ext.P1 order. ## 4. In **Iype Varghese v. Revenue Divisional** **Officer,** 2020 (5) KLT 403, this Court held that where a statutory permission for change of user of land has been obtained for conversion of a paddy land to a garden land in terms of the provisions contained in the Kerala Land Utilisation Order, then it is the obligation of the competent authority under the Land Tax Act to make a fresh assessment of the land so as to collect the higher land tax for such converted land and to issue appropriate directions to W.P.(C) No.21328 of 2020 ..6.. the officers concerned to make additional entries in the Basic Tax Register so as to reflect the nature of the land as garden land/Purayidam in the said Register. As noted, the application preferred by the petitioner in this regard has been rejected by the third respondent on the ground that the petitioner has to obtain permission under Section 27A of the Act. In **Renji K Paul v. Revenue Divisional Officer** , 2019 (2) KLT 262, this court held that if the holder of a land which is not liable to be included in the Data Bank prepared under the Act prefers an application for permission to make use of the land for other purposes under the Land Utilization Order before the introduction of Section 27A, then the provision cannot be pressed into service in relation to the said land. Ext.P8 order indicates that the Local Level Monitoring Committee under the Act has decided to exclude the land in question from the Data Bank prepared under the Act. If Section 27A has no application to the land in question, the third respondent was not justified in declining the request made by the petitioner for correction in the revenue records pertaining to the land. Ext.P7 (a) is therefore, liable to be set aside. It is seen that it was in the light of Ext.P7 (a) order that the daughter-in-law of the petitioner has referred the application ..7.. W.P.(C) No.21328 of 2020 under Section 27A of the Act. If such an application was unnecessary, Ext.P8 order passed on that application is also liable to be ignored. In the circumstances, the writ petition is allowed. Ext.P7 (a) and Ext.P8 orders are set aside. The third respondent is directed to re-assess the land referred to in the writ petition treating the same as dry land/purayidam and issue appropriate orders directing the officers concerned to change the classification of the land in the Basic Tax Register and other revenue records as dry land/purayidam. This shall be done within two months from the date of production of a copy of this judgment. The surviving owners of the land shall, in the meanwhile, prefer an application in the prescribed form under the Kerala Land Tax Act also for the said purpose. **Sd/P.B.SURESH KUMAR JUDGE** **ds 06.11.2020** ..8.. W.P.(C) No.21328 of 2020 ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 THE COPY OF ORDER PASSED BY THE SECOND RESPONDENT REVENUE DIVISIONAL OFFICER, CHENGANNUR DATED 17/08/2015.** **EXHIBIT P2 THE COPY OF ORDER OF THE SECOND RESPONDENT RDO, CHENGANNUR DATED 09/02/2016.** **EXHIBIT P3 THE COPY OF JUDGMENT DATED 29/05/2019 IN WPC 1094/2018.** - **EXHIBIT P4 THE COPY OF ORDER OF THE AGRICULTURAL OFFICER, PULIYOOR, DATED 05/12/2018.** - **EXHIBIT P5 THE COPY OF ORDER OF THE SECOND RESPONDENT DATED 27/02/2019.** **EXHIBIT P6 THE COPY OF JUDGMENT DATED 20/12/2019 IN WRIT PETITION NO.35487/2019.** - **EXHIBIT P7 THE COPY OF MEMO DATED 10/08/2020 FILED BY THE THIRD RESPONDENT IN COC NO.883/2020 THROUGH THE GOVERNMENT PLEADER.** **EXHIBIT P7 (A) THE COPY OF PROCEEDINGS OF THIRD RESPONDENT DATED 28/07/2020 IN EXHIBIT P7.** **EXHIBIT P8 THE COPY OF ORDER DATED 11/08/2020 PASSED BY THE SECOND RESPONDENT.** **EXHIBIT P9 THE TRUE COPY OF PETITION FILED BY THE PETITIONER BEFORE THE TAHSILDAR DATED 22.11.2019(EXHIBIT P4 IN WRIT PETITION NO.34487/2019)**