Jayalakshmi v. State of Kerala and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** ## **THE HONOURABLE MR.JUSTICE T.R.RAMACHANDRAN NAIR** **TUESDAY, THE 11TH DAY OF DECEMBER 2012/20TH AGRAHAYANA 1934** ## **WP(C).No. 24873 of 2012 (H)** ## **---------------------------** ## **PETITIONER(S):** **------------------------** **JAYALAKSHMI, D/O. LAKSHMIKUTTY AMMA, PULIKKOTTU, MANJERI, ERNAD TALUK.** ## **BY ADVS.SRI.M.K.CHANDRA MOHANDAS** **SMT.K.K.RAZIA** **SRI.SHAKTHI PRAKASH SMT.SOBBY THOMAS SMT.PRABHA JOSE SRI.PRATHEEK VISWANATHAN** ## **RESPONDENT(S):** **----------------------------** **1. STATE OF KERALA, REPRESENTED BY SECRETARY, DEPARTMENT OF REVENUE, THIRUVANANTHAPURAM 695 001.** **2. THE DISTRICT COLLECTOR, COLLECTORATE, MALAPPURAM 676 001.** **3. THE TAHSILDAR,** **TALUK OFFICE, ERNAD 676 121.** **4. THE VILLAGE OFFICER, VILLAGE OFFICE, MANJERI 676 121.** **5. AGRICULTURAL FIELD OFFICER, KRISHI BHAVAN, MANJERI 676 121.** **R1 TO R5 BY GOVERNMENT PLEADER SRI.P.A.MUHAMMED SHAH** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 11-12-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **Kss** ## **WPC.NO.24873/2012 H** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** - **P1: COPY OF THE REPORT SUBMITTED BY THE 5TH RESPONDENT TO THE 2ND RESPONDENT.** - **P2: COPY OF THE SALE DEED NO.1246/06 THE PROPERTY OF THE PETITIONER.** - **P3: COPY OF THE APPLICATION DTD. 20/09/2012 SUBMITTED BY THE PETITIONER BEFORE THE 3RD RESPONDENT.** - **P4: COPY OF THE PHOTOGRAPHS OF THE PROPERTY.** ## **RESPONDENT'S EXHIBITS: N I L** **/TRUE COPY/** **P.A.TO JUDGE** **Kss** ## **T.R.RAMACHANDRAN NAIR, J.** **-------------------------------------------------W.P.(C)No.24873 Of 2012** **-------------------------------------------------DATED THIS THE 11[th] DAY OF DECEMBER, 2012** ## **JUDGMENT** This Writ Petition is filed by the petitioner seeking for a direction to the 3[rd] respondent to make appropriate inspection and to consider Exhibit P3 representation and enter corrections in the basic tax register by correcting the category of the petitioner's plot as dry land (purayidom) instead of 'nilam'. The petitioner owns 20 cents of land in Sy.No.340/3 of Manjeri Village obtained as per sale deed No.1246/06. It is stated that the property is remaining as a dry land for the last more than 40 years. In the property lying adjacent to the petitioner's property a multi-storied building has been constructed in the same survey number and there is a public road, namely Manjeri-Pookkottoor PWD road passing through the other side. The other two sides are also dry land. 2. Exhibit P1 is the report submitted by the Agricultural Field Officer stating that the property is not included in the data bank. Exhibit P2 sale deed describes the property as a vacant W.P.(C)No.24873/12 -2- plot. The petitioner's application is produced as Exhibit P3. 3. As directed by this Court, the 3[rd] respondent has filed a statement. In paragraph No.1 it is mentioned that the petitioner's property situated in Sy.No.340/3 of Manjeri Village is shown as wet land as per revenue records and the land is not included in the data bank prepared as per the Kerala Conservation of Paddy Land and Wet Land Act, 2008. The Village Officer, Manjeri has reported that there are some coconut trees and other trees in the above land. The northern boundary of the land is a road. The petitioner's submission is to make appropriate correction in the basic tax register allotting sub division number. It is further contended that the Tahsildar is not authorised to make changes in the basic tax register. 4. The nature of the land shows that the property has been converted long back. The property is having coconut trees aged 40 years and other trees. The question therefore is whether the property is still to be retained in the basic tax register as 'nilam' or the entry requires correction. In the data bank, the property has not been noted either as paddy or wet land. 5. In the light of the above, the matter will have to be W.P.(C)No.24873/12 -3- considered in the light of the judgments of this Court in **Shahanaz Shukkoor** v. **Chelannur Grama Panchayat (2009(3) KLT 899), Praveen** v. **Land Revenue Commissioner (2010(2) KLT 617), Jafarkhan** v. **Kochumarakkar (2012 (1) KLT 491)** and **Mohamed Abdul Basheer** v. **State of Kerala (2012(3) KLT 86)** . As far as the issue is concerned, entry in the revenue records is not crucial and the situation as existed in the ground is the relevant aspect to be considered. 6. The issue whether mere description of the property as 'nilam' in the revenue records will be the crucial one, was considered by this Court in **Shahanaz Shukkoor's** case (2009 (3) KLT 899). The findings therein are significant as far as the facts of this case are concerned. Therein, in para. 3 this Court held as follows: “Not only that, the mere description of an item of property as 'Nilam'(paddy field) or wetland, in the revenue records, is insufficient to assume that the land cannot be used for any purpose other than those for which a paddy field or wetland can be used. This is because the Kerala Conservation of Paddy Land and Wetland Act, 2008, deals with the conversion of lands, which are wetland or paddy fields, on the basis of the W.P.(C)No.24873/12 -4- actual fact situation and not depending on the description of the property in the revenue records. The definition of the terms 'paddy field' and 'wetland' in the said Act is sufficient material to hold that the said statute operates on the basis of the facts as they exist on ground realities and not on any quality or type of land, depending on its description in the title document.” Therefore, the provisions of the said Act will have application on the basis of the actual fact situation and it is not depended on the description of the property in the revenue records. 7. In **Praveen's case** (2010 (2) KLT 617), the above dictum was considered. It was held that the application of the Act is confined to paddy land and wet land alone. 8. In a recent decision of a Division Bench of this Court in **Jafarkhan's case** (2012 (1) KLT 491), it was held that “whatever be the conversion of paddy land or wet land made prior to the coming into force of the Act, cannot be said to be a violation of the Act.” The relevant findings are contained in para 4 which are extracted below: “What is clear from the above is that prohibition is only in respect of conversion or reclamation of paddy land W.P.(C)No.24873/12 -5- after the commencement of the operation of the Act. The Act admittedly came into force only with effect from 12.8.2008 and so much so, whatever be the conversions of paddy land or wet land made prior to the coming into force of this Act, cannot be said to be a violation of the Act. S.13 of the Act authorises the District Collector to order reconversion of paddy land and wet land which is converted in violation of the provisions of the Act..” 9. All the above decisions were considered in **Mohammed** **Abdul Basheer's case** (2012 (3) KLT 86) and in para 4 the legal position was reiterated as follows: “If the land in question was converted prior to the enactment of the Kerala Conservation of Paddy Land and Wet Land Act, 2008, the property in question cannot be described as 'paddy field' or 'wet land' coming within the purview of the said Act. The question regarding grant of building permit need be decided taking into consideration of the ground reality existing.” 10. Therefore, it is clear that the description in the title deed or in the revenue records will not be crucial in such cases where the fact situation show that the property is reclaimed already, like the one herein. Hence, the provisions of the Conservation of Paddy W.P.(C)No.24873/12 -6- Land and Wet Land Act will not come in the way of reclassification of the same as dry land in the revenue records. In fact, in paragraph 20 of the decision in **Praveen's case** (2010 (2) KLT 617) the Division Bench considered a similar case where the property was shown as single crop land (even though all the authorities reported that it was remaining as a garden land for more than fifty years and trees of fifty years old are also seen there). The Bench was of the view that Act 28 of 2008 applies only to paddy land and wet land and in the nature of the materials placed on record and after perusing the same, the Bench was satisfied that the land in question is not a land where there is any food crop nor is it a paddy field as defined under Act 28 of 2008. Accordingly, a declaration was granted that the land is not covered either by the provisions of the Kerala Land Utilisation Order or Act 28/2008. 11. All these decisions have been considered by this Court in **Jalaja Dileep v. Revenue Divisional Officer (2012 (3) KLT** **333)** . Therein also it has been held that when there is a change in the classification of the land, the Tahsildar is the prescribed authority to effect correction in the Basic Tax Register. W.P.(C)No.24873/12 -7- 12. In the light of the above, there will be a declaration as sought for by the petitioner and the property will be treated as a dry land. Appropriate entries will be made in the basic tax register in terms of the declaration within a period of two months from the date of production of a certified copy of this judgment. The Writ Petition is disposed of as above. **Sd/-(T.R.RAMACHANDRAN NAIR) JUDGE** . dsn