AI Structured Summary
Not yet generated for this judgment
Judgment
Issues arising for consideration in these matters are closely interlinked and they are, therefore, disposed of by this common judgment. Parties and
documents are referred to in this judgment, as they appear in W.P.(C) No.3381 of 2021.
The facts relevant for adjudication of the issues are the following : Petitioners are real estate developers. They own lands in Vazhakkala Village
within the limits of Thrikkakkara Municipality (the Municipality). A portion of the lands owned by the petitioners is shown in the revenue records as
'Nilam' and the rest as 'Purayidom'. The lands were purchased by the petitioners for the purpose of promoting jointly a residential/commercial project
prior to the implementation of the Kerala Municipality Building Rules, 1999 within the limits of the Thrikkakkara Panchayat, which was later upgraded
as Thrikkakkara Municipality. As such, after acquiring the lands, the first petitioner applied to the Panchayat for a No Objection Certificate for the
project proposed by the petitioners and on the said application, Ext.P2 certificate was issued by the then Thrikkakkara Panchayat on 23.8.2006 stating
that since the Kerala Municipality Building Rules, 1999(wrongly shown as Kerala Building Rules, 1984) have not been enforced within the limits of the
Panchayat, permission of the Panchayat is not necessary for the construction proposed by the petitioners. It was, however, stated in the certificate
that there shall not be any construction within three meters from the boundaries of the adjoining public roads and that there shall be adequate drainage
facilities for the building. It is stated by the petitioners that on the strength of Ext.P2 certificate, they have commenced construction of the building and
completed the piling works and a portion of the columns of the building. While so, on 1.9.2008, the Village Officer issued Ext.P6 stop memo to the
petitioners stating that the construction undertaken by the petitioners is contrary to the provisions of the Kerala Land Utilization Order, 1967 (KLU
order) and therefore, they shall not proceed with the construction without obtaining orders from the competent authority under the KLU order.
According to the petitioners, the lands owned by them fall under residential zone in terms of the structural plan of Central Cochin City sanctioned by
the Government under the Town Planning Act, 1108 M.E. and therefore, permission under the KLU order is not necessary for utilizing the same for
constructing a building for residential purpose. The petitioners, therefore, challenged Ext.P6 stop memo before this court in W.P.(C) No.9156 of 2010
and the said writ petition was allowed and Ext.P6 stop memo was quashed holding that KLU order is inapplicable to the area to which the Town
Planning Scheme has been implemented. Ext.P11 is the judgment in the said case. It was however, made clear by this court in Ext.P11 judgment that
the petitioners shall obtain building permit in terms of the Kerala Municipality Building Rules for resuming the work as the Kerala Municipality Building
Rules, 1999 have been implemented within the limits of the erstwhile Thrikkakkara Grama Panchayat with effect from 6.11.2006.
It is stated by the petitioners that though there was no impediment for the petitioners to proceed with the construction proposed by them in the light
of Ext.P11 judgment after obtaining building permit from the Panchayat, with a view to avoid further legal issues in the course of construction, they
have preferred an application before the District Collector requesting orders for construction of the building in the lands which are classified in the
revenue records as 'Nilam'. The said application was disposed of by the District Collector holding that if the lands owned by the petitioners are not
included in the data bank prepared under the Kerala Conservation of Paddy Land and Wetland Act, 2008 (the Act), they are at liberty to carry on the
construction subject to other statutory requirements. Ext.P12 is the communication issued by the District Collector to the petitioners in this regard on
18.6.2011. It is stated by the petitioners that thereafter, they have preferred an application before the concerned Tahsildar, viz, the eighth respondent
for changing the classification of the lands referred to in Ext.P12 communication. Ext.P14 is the application preferred by the petitioners in this regard.
Ext.P14 application has been rejected by the eighth respondent stating that there is no provision of law enabling him to change the classification of the
lands requested for by the petitioners.
It is stated by the petitioners that due to unfavourable market conditions, the petitioners were unable to pursue the project for quite some time.
Later, during 2018, when they decided to proceed with the project, they preferred an application under Section 6A of the Kerala Land Tax Act, 1961
seeking orders for re-assessment of the lands. Ext.P21 is the application preferred by the petitioners in this regard. According to the petitioners, since
the lands owned by them as referred to in Ext.P17 notice are not included in the data bank prepared under the Act either as paddy land or wetland
and since the provisions of the KLU order do not apply to such lands, in the light of the decision of this court 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 that when the classification of the lands are changed, there has to be a fresh assessment of the lands under the Kerala Land Tax
Act and appropriate additional entries need to be made in the Basic Tax Register relating to the lands, there cannot be any impediment in reclassifying
the lands in the revenue records. It is also the case of the petitioners that if the project is implemented without changing the classification of the lands,
there would be future legal issues which would adversely affect the smooth implementation of the project. W.P.(C) No.3381 of 2021 is instituted
alleging that Ext.P21 application is not being considered by the competent authority under the Kerala Land Tax Act. The prayer in the writ petition is
for a declaration that the petitioners are entitled under Section 6A of the Kerala Land Tax Act, 1961 to get an appropriate additional entry made in the
Basic Tax Register showing the present tenure of the land and pay tax accordingly.
In the meanwhile, the petitioners preferred an application before the Municipality for building permit to resume the construction as directed in
Ext.P11 judgment. On the said application, the petitioners have been issued Ext.P17 notice by the Municipality stating that the application preferred by
the petitioners for building permit can be considered only if they produce either permission for utilization of the lands under the KLU order or under
Section 27A of the Act. W.P.(C) No.6495 of 2021 is instituted by the petitioners later seeking a direction to the Municipality to process the application
preferred by them for building permit on which Ext.P17 communication has been issued to them, without insisting compliance of Section 27A of the
Act.
Heard the learned counsel for the petitioners as also the learned Additional Advocate General.
The learned counsel for the petitioners pointed out, placing reliance on Ext.P7 communication issued by the Senior Town Planner, that the lands
owned by the petitioners are falling under residential zone in terms of the structural plan of Central Cochin City sanctioned by the Government under
the Town Planning Act, 1108 M.E. According to the learned counsel, the KLU order, or for that matter Section 27A of the Act does not, therefore,
apply to the lands of the petitioners. The learned counsel has relied on the decisions of this Court in Reliance Industries Ltd. v. Commissioner of Land
Revenue, 2007 (2) KLT 850, Antony Jayan v. State of Kerala, 2015 (4) KLT 370 and Shaji Chacko v. State of Kerala, 2020 (6) KLT 606, in support
of the said contention. It was also argued by the learned counsel that at any rate, in the light of Ext.P11 judgment of this court, the Municipality or for
that matter, the revenue officials cannot insist the petitioners to obtain permission under the KLU order or under Section 27A of the Act for obtaining
building permit or for seeking change of classification of the lands in the revenue records. It was also submitted by the learned counsel that the
petitioners have in fact preferred an application before the District Collector seeking permission to put up the building proposed by them in the lands
even after securing Ext.P11 judgment and the said application was disposed of by the District Collector as per Ext.P12 order granting liberty to the
petitioners to put up the building proposed by them in the lands if the same are not included in the data bank either as paddy land or wetland, after
obtaining building permit for the same from the local authority. It was pointed out by the learned counsel that the lands of the petitioners which are
classified as 'Nilam' in the revenue records are not included either as paddy land or wetland in the data bank prepared under the Act. It was also
pointed out by the learned counsel that it was long thereafter that Section 27A was introduced in the Act. According to the learned counsel, in the
aforesaid circumstances, the Municipality is not justified in insisting compliance of Section 27A of the Act for the purpose of processing the application
for building permit submitted by the petitioners. Similarly, it was also argued by the learned counsel that in the light of Ext.P12 order of the District
Collector issued as early as on 18.06.2011, granting liberty to the petitioners to utilise their lands for construction of the building proposed by them, the
competent authority under the Land Tax Act is bound to reassess the land and make appropriate additional entries in the revenue records as to the
present nature of the land.
Per contra, the learned Additional Advocate General has taken strong exception to the contention raised by the learned counsel for the petitioners
that KLU order does not apply to an area which is categorised as residential zone as per the structural plan of the city. Similarly, the learned
Additional Advocate General has also taken strong exception to the contention raised by the learned counsel for the petitioners that Section 27A of the
Act does not apply to an area which is categorised as residential zone as per the structural plan of a city. I am not adverting to the various reasons
stated by the learned Additional Advocate General to justify the aforesaid stand as I find it unnecessary to go into the said questions for redressing the
grievance of the petitioners.
As noted, the building project of the petitioners is one proposed by them within the limits of the erstwhile Thrikkakkara Grama Panchayat at a point
of time when the Kerala Municipality Building Rules, 1999 have not been enforced in the Panchayat. It is not disputed that the practice prevailing at
the relevant time for construction of buildings in the Panchayat was to obtain Certificates in the nature of Ext.P2 from the Panchayat. As noted, the
petitioners have obtained Ext.P2 Certificate from the Panchayat for the building proposed by them. The materials on record indicate that the
petitioners have obtained other necessary permissions and licences required for construction of the building also from the authorities concerned.
Ext.P6 stop memo dated 01.09.2008 would show that on the strength of Ext.P2 Certificate, the petitioners have constructed a compound wall around
the lands and commenced the construction of the building proposed by them. Ext.P3 series photographs and Ext.P15 report of the Village Officer
would show that the petitioners have completed the piling works of the building and also started erecting the columns of the building. Ext.P15 report of
the Village Officer would also indicate that the lands where the petitioners propose the building which are shown as 'Nilam' in the revenue records
have been converted long back and the same are not shown as paddy land or wetland in the data bank prepared under the Act. The case of the
petitioners needs to be considered in the light of the aforesaid facts.
As noted, insofar as the lands of the petitioners which are shown in the revenue records as 'Nilam' were converted long prior to the
commencement of the Act, construction of a building therein prior to the Act with the permission of the local authority and other statutory bodies
cannot be said to be an unlawful act [See Aishabeevi v. Superintendent of Police, 2014 (3) KLT 1078]. The construction activity undertaken by the
petitioners was though interrupted by the Village Officer as per Ext.P6 stop memo, the same was quashed by this Court as per Ext.P11 judgment. Of
course, the said decision of this Court was on the premise that the KLU order does not apply to an area shown as residential zone in the structural
plan of the city sanctioned under the Town Planning Act. Ext.P11 judgment has become final and binding inter parties. As noted, in terms of Ext.P11
judgment, this Court directed the petitioners to obtain building permit for the construction proposed by them, as by the time the Kerala Municipality
Building Rules, 1999 came to be implemented in the Panchayat. As such, in the light of Ext.P11 judgment, the Municipality which is the successor of
the then Thrikakara Panchayat cannot insist the petitioners to obtain permission of the competent authority under the KLU order, even if the same
applies to the land owned by the petitioners.
The next question is as to whether the Municipality is justified in insisting compliance of the provision contained in Section 27A of the Act for the
purpose of processing the application submitted by the petitioners for building permit. Sub-section (1) of Section 27A of the Act which makes it
obligatory for obtaining permission to utilise the lands which are shown in the revenue records as paddy land or wetland, but not shown as paddy land
or wetland in the data bank prepared under the Act, reads thus:
27A. Change of nature of unnotified land. - (1) If any owner of an unnotified land desires to utilise such land for residential or commercial or for other
purpose, he shall apply to the Revenue Divisional Officer for permission in such manner as may be prescribed. As evident from the extracted
provision, the permission provided for therein needs to be obtained only by an owner of such a land who desires to utilise the same for residential or
commercial or other purposes. Section 27A of the Act which is introduced with effect from 30.12.2017 cannot have any retrospective operation and
the same cannot be applied to a land which has already been utilised for other purposes. It is so held by this Court in Global Educational Trust v. State
of Kerala, 2020 (6) KLT 738. The construction proposed by the petitioners in the land which was commenced about a decade prior to the introduction
of Section 27A is not over cannot be a reason at all for insisting compliance of the said provision. In other words, Ext.P17 notice issued by the
Municipality to the petitioners stating that the petitioners have to obtain permission of the competent authority under Section 27A of the Act is
unsustainable in law.
The remaining issue is as to the right of the petitioners to claim change of classification of the lands in the revenue records. In Revenue Divisional
Officer v. Jalaja Dileep, 2015(1) KLT 984(SC), 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 that the nature of the 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 Mariumma, it was however clarified by a Division Bench
of this court subsequently that if on the commencement of the Act, a land to which KLU order applies 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 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, 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 a 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 of the Act.
Reverting to the facts, as noted, it is seen that though there was no impediment at all for the petitioners to resume the construction of the building
proposed by them on the strength of Ext.P11 judgment of this Court after obtaining building permit from the local authority as directed in the said
judgment, by way of abundant caution, they preferred an application before the District Collector who is the competent authority under the KLU order
to utilise their lands which are shown in the revenue records as 'Nilam' for the purpose of putting up the construction proposed by them. The said
application has been allowed by the District Collector as per Ext.P12 communication and the petitioners were granted permission to utilise the lands
owned by them for construction of the building proposed by them, if the said lands are not shown as paddy land or wetland in the data bank prepared
under the Act. Admittedly, the lands of the petitioners are not shown as paddy land or wetland in the data bank prepared under the Act. If as a matter
of fact, KLU order applies to the lands of the petitioners, according to me, Ext.P12 communication can certainly be regarded as a permission granted
by the competent authority under the KLU order to utilise the lands owned by the petitioners for other purposes, though the same is not styled as one
issued under the KLU order. I take this view also for the reason that insofar as the lands owned by the petitioners which are shown in the revenue
records as 'Nilam' have been converted long prior to the coming into force of the Act, had the petitioners preferred an application for permission under
the KLU order to utilise the lands for other purposes, instead of preferring the application before the competent authority seeking a declaration that the
KLU order does not apply to them on which Ext.P12 communication was issued, they would have certainly been granted permission under the KLU
order, for large number of similarly placed persons could secure permission under the KLU order, especially after the decision of the Apex Court in
Jalaja Dileep and all of them could also obtain classification of their lands in the revenue records on that basis. The petitioners alone, in the
circumstances, cannot be deprived of the said benefit especially in the light of Ext.P12 communication issued by the competent authority under the
KLU order.
The writ petitions, in the circumstances, are allowed. Ext.P17 notice of the fifth respondent Municipality is quashed and the Municipality is directed
to consider the application of the petitioners for building permit without insisting on orders under the KLU order or under Section 27A of the Act.
Similarly, the eighth respondent is directed to reassess the lands of the petitioners covered by Ext.P21 application, treating Ext.P12 communication of
the District Collector as permission under the KLU order to utilise the lands of the petitioners which are shown in the revenue records as ""Nilam"" 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 lands in the revenue records as dry lands. The directions aforesaid shall be complied with, within two months from the date of
receipt of a copy of this judgment.