Gangadharan v. Tahsildar, Taluk Office, Chittur, Palakkad District and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE N.NAGARESH** **THURSDAY, THE 30[TH] DAY OF SEPTEMBER 2021 / 8TH ASWINA, 1943** **WP(C) NO. 10264 OF 2021** ## **PETITIONER:** **GANGADHARAN, AGED 49 YEARS, S/O. GOPALAKRISHNA MENON, BHADRALAYAM, PALACE ROAD, PADINJARETHARA, KOLLENGODE, PALAKKAD DISTRICT, PIN-678506.** **BY ADVS. SRI.JACOB SEBASTIAN SRI.K.V.WINSTON SMT.ANU JACOB** ## **RESPONDENTS:** - **1 THE TAHSILDAR, TALUK OFFICE, CHITTUR, PALAKKAD DISTRICT, PIN-678001.** - **2 THE TALUK SURVEYOR, CHITTUR TALUK, OFFICE OF THE TALUK SURVEYOR, CHITTUR TALUK, PALAKKAD DISTRICT, PIN-678101.** - **3 THE VILLAGE OFFICER, KOLLENGODE-II VILLAGE, KOLLENGODE-II VILLAGE OFFICE, KOLLENGODE, PALAKKAD DISTRICT, PIN-678506.** - **4 THE LOCAL LEVEL MONITORING COMMITTEE FOR THE KOLLENGODE PANCHAYAT CONSTITUTED UNDER THE CONSERVATION OF PADDY LAND AND WETLAND ACT, 2008, REPRESENTED BY ITS CONVENER, THE AGRICULTURAL OFFICER, KOLLENGODE PANCHAYAT, PALAKKAD DISTRICT, PIN-678506.** **BY ADV SRI.VIPIN NARAYANAN SR. GOVERNMENT PLEADER** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 30.09.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** WP(C) No.10264/2021 : 2 : ## **J U D G M E N T** ## ~ ~ ~ ~ ~ ~ ~ ~ ~ ## _**Dated this the 30[th] day of September, 2021**_ The petitioner, who owns 0.1780 Hectares of property comprised in Re-Survey Block No.14, Re-Survey No.73/14 in Kollengode-II Village of Chittur Taluk in Palakkad District, seeks to quash Ext.P5 and to declare that the current entry in the BTR concerning the petitioner’s plot is a mistake requiring correction. 2. The petitioner states that the aforesaid plot has all the physical features of garden land and is surrounded by houses and road. It was once upon a time a private pond but was filled up more than 50 years ago. The plot is unassessed and described as ‘Kulam’ in BTR and “Nee Key Chira” in Adangal Register. Paddy is not cultivated anywhere around but the plots in the area but were wrongly included in the Land Data Bank. On the basis of an application of the petitioner, WP(C) No.10264/2021 : 3 : the 4[th] respondent-Local Level Monitoring Committee (LLMC) inspected the plot and found the same as dry land. Consequently, the entry was deleted from Data Bank. 3. The land is not a notified land and is an unassessed land. The petitioner submitted an application to the 1[st] respondent-Tahsildar under Section 6A of the Kerala land Tax Act to correct the mistake in classification and to assess the land for taxation. The matter was referred to the 3[rd] respondent Village Officer. The Village Officer reported that though the plot is unassessed and is recorded as ‘Kulam’ in revenue records, on physical inspection, it was found to be dry land. The 1[st] respondent however, refused to correct the mistake as per Ext.P5, for the reason that the mistake cannot be attributable to survey or re-survey. Ext.P5 is illegal and unsustainable, contends the petitioner. 4. The 1[st] respondent filed a statement dated 24.06.2021 and contested the writ petition. The 1[st] respondent stated that the petitioner is in possession of 0.1780 Hectares of land in Re-Survey No.73/14 (73/6) in WP(C) No.10264/2021 : 4 : Block-14 of Kollengode 2 Village in Chittur Taluk. The status of land is 'Kulam'. The land is described in the Adangal Register as “Nee Key Chira”. After Re-Survey, it was recorded as 'Kulam' in all revenue records. Conversion of wetland is prohibited under the Kerala Conservation of Paddy Land and Wetland Act, 2008. The water bodies like Pond (Kulam), Thodu, Kayal and Rivulet are included in the Act, 2008. 5. Water bodies may be situated either in dry land or wetland. Conversion of water bodies will affect water level in the underground and thereby affect the ecological system of the region. The petitioner’s land is included in the Data Bank in Kerala Gazette No.KGP/B4/5003/2021 dated 15.02.2021. It is included in the Data Bank on the basis of site inspection by the Agricultural Officer. It is quiet natural that ponds were filled up with mud and sand. It is the duty of land holder to remove the mud and sand from the 'Kulam' and maintain the status under the Kerala Conservation of Paddy Land and Wetland Act, 2008, contended the 1[st] respondent. WP(C) No.10264/2021 : 5 : 6. The petitioner's land is described in the Adangal Register as “Nee Key Chira” and in the BTR as 'Kulam'. The land is described in all revenue records as 'Kulam'. It becomes taxable under the Kerala Land Tax Act, 1961. All lands are taxable except Government lands. The petitioner had remitted land tax for the land as per receipt No.8200835 of book No.82009 dated 24.11.2017 of Kollengode 2 Village. The petitioner has been remitting land tax for his land. The Kerala Land Tax Act, 1961, is meant for assessment of basic tax and not for correction of mistake in classification of the land. On the basis of revenue records, the petitioner remitted land tax. In these circumstances, further assessment of basic tax is not necessary. 7. The 1[st] respondent further stated that the Taluk Surveyor was deputed to inspect the site and verify the documents and records. The Taluk Surveyor has reported that petitioner's land is described in all revenue records as 'Kulam'. In the Adangal Register, the land is described as “Nee Key Chira”. It shows that the land is used for storage of WP(C) No.10264/2021 : 6 : water. The status of land is 'Kulam'. There is no Re-Survey mistake. On the basis of the report, application for change of classification was rejected. 'Kulam' is the status of the petitioner's land. As per the Kerala Conservation of Paddy Land and Wetland Act, 2008, status of the land like 'Kulam' cannot be changed. 'Kulam' may be situated in either dry land or wetland. But, its status has to be conserved. 8. Section 11 of the Kerala Conservation of Paddy Land and Wetland Act, 2008 prohibits reclamation of wetland from the beginning of the Act, contended the 1[st] respondent. It is the duty of the revenue officials to maintain the status of land like 'Kulam' (Pond), Kayal, Thodu and Rivulet. In Kollengode, most of the ponds are rain fed. They have water only during rainy season. During the rainy season, ponds are filled with water and thereby water level is increased. 9. I have heard the learned counsel for the petitioner and the learned Government Pleader representing the respondents. WP(C) No.10264/2021 : 7 : 10. The land of the petitioner is recorded as 'Kulam' in the BTR and as “Nee Key Chira” in Adangal Register. The petitioner submits that the land is where there was a private pond once and was filled up at least 50 years ago. It is not a part of any paddy land. The land has been deleted from Data Bank and is an unnotified land. According to the petitioner, the land being classified as a pond, it is an unassessed land. Therefore, the provisions of the Kerala Conservation of Paddy Land and Wetland Act, 2008 will not apply to the land. As the land is no more a pond and since it is filled up, the current entry in the BTR (as 'Kulam') is not correct and necessary additional entry has to be made in the BTR. The petitioner’s application under Section 6A of the Kerala Land Tax Act, 1961 stands rejected as per Ext.P5. Ext.P5 is illegal and is liable to be set aside. 11. The learned counsel for the petitioner relied on the Division Bench judgment of this Court in _**Tahsildar, Thodupuzha Taluk and another v. Renjith George** [2020 (2) KLT 13]_ wherein, it was held that even though the WP(C) No.10264/2021 : 8 : classification of the land in the BTR cannot be corrected, additions can be made taking into account the changed condition of the paddy field and then assess tax in accordance with Section 6A of the Kerala Land Tax Act, 1961. The learned counsel also relied on the judgment in _**Mary John v. District Collector, Idukki and others** [2020 (6) KLT 35]._ The argument is that the land was once “Kulam” and a “Kulam” cannot be treated as Paddy Land. The word 'Paddy Land' as defined in Section 2(xii) of the Act, 2008 would take in allied constructions like bunds (Chira) and ponds (Kulam). The Report dated 29.06.2021 submitted by the Agricultural Officer would reveal that the pond (now filled up) is situated near paddy field and will create drought due to lowering of water table in that area. It will also cause flood during the rainy season. It will affect paddy cultivation in the area. 12. The statement filed by the 1[st] respondent discloses that the land in question is included in the Data Bank. The Hon’ble Apex Court has held in _**Revenue Divisional Officer, Fort Kochi and others v. Jalaja Dileep and another** [2015_ WP(C) No.10264/2021 : 9 : _(1) KLT 984]_ that if a property is included in the Data Bank prepared under the Act, 2008 as a Paddy Land or Wetland and the classification of the land is noted as 'Nilam' in revenue records, the provisions of the Act, 2008 would apply. In the case of the petitioner, though the property is described as 'Kulam' in BTR and 'Nee Key Chira' in the Adangal Register, in view of the finding of the Agricultural Officer that there are paddy lands in the area and that conversion of the property would affect paddy cultivation in the area, the petitioner will have to resort to the provisions of the Act, 2008 to effect any change in the nature of the land. 13. The judgment of this Court in _**Mary John v. District Collector, Idukki and others** [2020 (6) KLT 35]_ will not be of any assistance to the petitioner as the issue was decided in the said case under the Kerala Land Utilisation Order. In the writ petition, the petitioner has no case that he has submitted any application under the Kerala Land Utilisation Order, 1967 before 30.12.2017 when Section 27A was incorporated in the Act, 2008. The Division Bench of this WP(C) No.10264/2021 : 10 : Court in _**Tahsildar, Thodupuzha Taluk**_ (supra) has held that any application received for the change of nature of unnotified land from the date of commencement of the Amendment Act, 2018 shall be considered and disposed of only in accordance with the provisions of the Act, 2008. For all the afore reasons, the writ petition filed by the petitioner is found devoid of any merit. The writ petition is therefore dismissed. Sd/- **N. NAGARESH, JUDGE** aks/28.09.2021 WP(C) No.10264/2021 : 11 : ## **APPENDIX OF WP(C) 10264/2021** **PETITIONER'S EXHIBITS:** **EXHIBIT P1 A TRUE COPY OF THE POSSESSION CERTIFICATE RELATING TO THE PLOT DATED FEBRUARY 8, 2021 ISSUED BY THE THIRD RESPONDENT.** **EXHIBIT P2 A TRUE PHOTOGRAPHS OF THE PLOT. EXHIBIT P3 A TRUE COPY OF THE PROCEEDINGS ISSUED BY THE FOURTH RESPONDENT DATED NOVEMBER 16, 2018.** **EXHIBIT P4 A TRUE COPY OF THE REPORT NO.82/2018 DATED MARCH 17, 2018 SUBMITTED BY THE THIRD RESPONDENT BEFORE THE FIRST RESPONDENT.** **EXHIBIT P5 A TRUE COPY OF THE ORDER DATED AUGUST 10, 2019 ISSUED BY THE FIRST RESPONDENT.** **SR**