K. Kurian Koshy v State of Kerala and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE P.N.RAVINDRAN** **TUESDAY, THE 18TH DAY OF DECEMBER 2012/27TH AGRAHAYANA 1934** ## **WP(C).No. 18956 of 2012 (T)** ## **---------------------------** **PETITIONER(S): -------------** **K.KURIAN KOSHY, S/O.K.J.KOSHY, RESIDING AT 206 PRASANNA VIHAR MARINE DRIVE, COCHIN-682 031.** **BY ADVS.SRI.R.S.KALKURA SRI.M.S.KALESH SMT.A.V.PRIYA SRI.HARISH GOPINATH** ## **RESPONDENT(S):** **--------------** **1. STATE OF KERALA REPRESENTED BY ITS SECRETARY, REVENUE DEPARTMENT SECRETARIAT, TRIVANDRUM-695 001.** **2. THE DISTRICT COLLECTOR ALAPPUZHA-688 001.** **3. THE TAHSILDAR KARTHIKAPALLY TALUK, HARIPPAD, ALAPPUZHA-690 514.** **4. THE VILLAGE OFFICER VEEYAPURAM, ALAPPUZHA-690 514.** - **R2 BY GOVERNMENT PLEADER SRI.JOSEPH GEORGE** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 18-12-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **MNS** ## **APPENDIX** **PETITIONER(S) EXHIBITS:** **P1- TRUE COPY OF THE SALE DEED NO.2512 OF 1980 DATED 28.6.2980 OF KARTHIKAPALLY SUB REGISTRY OFFICE.** **P1(A)- TRUE COPY OF THE TAX RECEIPT NO.F3415972 IN RESPECT OF THE SAID PROPERTY DATED 8.6.2010 PAID IN THE NAME OF THE PETITIONER'S MOTHER.** **P2- THE TRUE COPY OF THE RELEASE DEED NO.3866 OF 2010 DATED 23.12.2010.** **P2(A)- TRUE COPY OF THE TAX RECEIPT NO.G.2517571 DATED 22.6.2011.** **P3- TRUE COPY OF THE REPRESENTATION SUBMITTED BY THE PETITIONER BEFORE THE RE-SURVEY SUPERINTENDENT ON 3.3.2010 AS S.A.NO.18 OF 2010.** **P4- TRUE COPY OF THE REPORT DATED 26.4.2010 SUBMITTED BY THE SURVEYOR, RE-SURVEY SUPERINTENDENT'S OFFICE.** **P5- TRUE COPY OF THE REPRESENTATION SUBMITTED BY THE PETITIONER BEFORE THE THIRD RESPONDENT ON 27.6.2011.** **P6- TRUE COPY OF THE REPRESENTATION SUBMITTED BY THE PETITIONER TO THE 2ND RESPONDENT ON 25.2.2012.** **P7- TRUE COPY OF THE REPORT SUBMITTED BY THE THIRD RESPONDENT ON 26.6.2012 TO THE 2ND RESPONDENT.** **P8- TRUE COPY OF THE ORDER DATED 20.7.2012 PASSED BY THE 2ND RESPONDENT REJECTING EXHIBIT P6.** **P9- TRUE COPY OF THE JUDGMENT IN W.P(C)NO.11784 OF 2012 DATED 13.7.2012.** **RESPONDENTS' EXHIBITS:NIL** **//TRUE COPY//** **P.A TO JUDGE** ## **P.N.RAVINDRAN, J.** ------------------------------- ## W.P.(C) No.18956 of 2012 ----------------------------------Dated this the 18[th] day of December, 2012 ## **JUDGMENT** A parcel of land, 97.32 ares in extent, situate in R.S.No.157/1 (old S.No.2539/2 and 2557/2 of Veeyapuram Village, Karthikappally Taluk, Alappuzha District belonged to the petitioner's mother. On her death, it devolved on her legal heirs including the petitioner. The other legal heirs executed Ext.P2 release deed dated 23.12.2010 releasing their rights over the property in favour of the petitioner. The petitioner thus became the absolute owner of the property. The petitioner's mother purchased the property as per Ext.P1 sale deed dated 28.6.1980. In the title deeds (Exts.P1 and P2) the property is described as "Nilam" (paddy land). After the petitioner became the absolute owner, he submitted Ext.P3 application before the survey authorities to change the classification of land in the basic tax register. The survey authorities thereupon submitted Ext.P4 report dated 26.4.2010 to the Village Officer, Veeyapuram Village, wherein it was stated that the land belongs to the petitioner absolutely, that though in the basic tax register and in the documents of title it is described as "Nilam", the land is presently garden land and that trees aged 40 W.P.(C) No.18956 of 2012 2 years are standing therein. The Village Officer in turn forwarded the report to the Tahsildar, Karthikappally Taluk. The petitioner had, in the meanwhile, submitted an application to the District Collector, Alappuzha for change of classification of the land. On the said application, the District Collector called for a report and the Additional Tahsildar, Karthikappally Taluk submitted Ext.P7 report dated 26.6.2012 wherein he stated that though in the basic tax register and in the documents of title, the land is described as "Nilam", nearly 71 coconut palms aged approximately 30 years are standing therein, that the land appears to have been converted about 30 years back and that in the data bank, the land is classified as "Nikath" (reclaimed purayidam). The District Collector thereafter considered the petitioner's application and rejected it. The said decision was communicated to the petitioner by Ext.P8 letter dated 20.7.2012. The District Collector took the stand that in the basic tax register and in the documents of title, the land is described as "Nilam" and therefore, it cannot be reclassified merely for the reason that the land was illegally converted into dry land. Ext.P8 letter is under challenge in this writ petition, wherein the petitioner seeks the following reliefs:- _"i. Issue a writ of certiorari or any other appropriate writs, directions or orders quashing Exhibit P8 as grossly illegal and wrong._ _ii. Issue a writ of mandamus or any other appropriate_ W.P.(C) No.18956 of 2012 3 _writs, directions or orders in the nature of mandamus directing the 4[th ] respondent to change the classification of the property of the petitioner covered by release deed No.3866 of 2010 dated 23.12.2010 namely Exhibit P2 in the basic tax register, thandaper register and all revenue records relevant for the said purpose within a time limit to be fixed by this Hon'ble Court."_ ## 2. The second respondent has filed a counter affidavit dated ## 14.9.2012. Paragraphs 2 to 6 thereof are extracted below for easy reference:- _“2. It is submitted that the petitioner filed exhibit P6 representation before this respondent office for effecting correction in the Revenue Records. The petitioner alleges that category of land included in resurvey 157/1 of Veeyapuram Village in Karthikappally Taluk is recorded as “Nilam” instead of recording the same as “Purayidom”. The petitioner stated that the property was reclaimed even before 40 years. It is also stated that the said property was originally belonged to the mother of the petitioner which was obtained by her as per Sale Deed No.2512 of 1980 dated 28.6.1980. The description of the property in the above document shows that the property was “Punchanilam” at the time of execution of Execution of Exhibit P1. The petitioner became the title holder of the entire property as per Exhibit P2 release deed No.3866 of 23.12.2010. The recitals in the above document shows that the adjacent property is paddy land._ _3. The total extent of property owned by the petitioner is extending to 97.32 acres and the same is recorded as “Nilam” in the BTR and Thandaper register. The petitioner claims that the property was “Purayidom” even during 1980 though in the document it is mentioned as “Nilam”. It is also stated that there are 71 yielding coconut trees in the above mentioned property. The contention raised by the petitioner is not correct, as petitioners own document shows that the property was “Nilam” during 1980._ _4. The reports prepared by the survey authorities during 2010 can only show the nature of the land at the date of preparation of the report. Even before the_ W.P.(C) No.18956 of 2012 4 _implementation of the conservation of Paddy and Wet Land Act, Land realization order was in existence. Clause 6 of the order restrains the land holders from utilising the land for any other purpose or for the cultivation of any other food crop except with the written permission from the Collector. The petitioner has approached this respondent office admitting that with the petitioner has violated the provisions of land utilization order. This respondent office cannot ratify the act of the petitioner which is in violation of the provision of the law applicable in the state. The petitioner has reclaimed a huge extent of land without obtaining any permission from the concerned authorities. Illegal act of the petitioner cannot be shielded by an application like Exhibit P6._ _5. This respondent office by order dated 20.7.2012 has disposed Exhibit P6 representation rejecting the reliefs sought for by the petitioner. Even by Exhibit P2 document it can be seen that the adjacent properties are paddy lands. If petitioners property is reclassified as “Purayidom” and further reclamation is permitted it may lead to difficulty for the neighboring paddy land owners for their cultivation. Moreover there is no provision enabling this respondent to permit change of classification of the property as required by the petitioner._ _6. The entry in the Revenue records relating to the category of the property as “Nilam” is not a mistake as contented by the petitioner. Actually the property was “Nilam” and the petitioner or his predecessors have reclaimed the same without any permission from the concerned authorities. The entries in the BTR can only be altered if there is any permission by the Collector under clause 6 of the land utilization order or if the concerned authorities under the Conservation of Paddy and Wet Land Act has permitted reclamation of such land. None of the above circumstances arises in the case of the petitioner, and it was in such circumstances Exhibit P8 order was issued by this respondent office."_ 3. It is contended that after the enactment and coming into force of the Kerala Conservation of Paddy Land and Wet Land Act, 2008, the Kerala Land Utilisation Order continues in existence, that W.P.(C) No.18956 of 2012 5 clause 6 thereof restrains land owners from utilising the land for any purpose other than for cultivation except with the written permission from the Collector, that the petitioner has violated the provisions of the Kerala Land Utilisation Order and reclaimed a large extent of land without the permission of the concerned authorities and therefore, the request made by the petitioner to change the classification of the land in the basic tax register cannot be acceded to. 4. I heard Sri.R.S.Kalkura, learned counsel appearing for the petitioner and Sri.Joseph George, learned Government Pleader appearing for the respondents. I have also gone through the pleadings and the materials on record. In Ext.P4 report submitted by the Superintendent of Survey to the Village Officer, Veeyapuram Village, it is stated as follows: _"_ ØíÅÜÕᢠùßAÞVÁáµ{ᢠÉøßçÖÞÇߺîÄßW ¿ß ØíÅÜ¢ ùßØVæÕî çÌïÞAíÈOV 7_W ØVæÕî ÈOV 157/1_W ©UÄÞÏß µÞÃáKá. ¿ß ØíÅÜ¢ ¥çÉfÞµfßÏáæ¿ ÉâVH ©¿ÎØíÅÄÏßÜáUÄÞÏß µÞÃáKá. ÈßÜ¢ ®Kí ¦ÇÞøJßW µÞÃáKá ®CßÜᢠ¿ß ØíÅÜ¢ ÉáøÏß¿ÎÞÏßGÞÃí µÞÃáKÄí. ¿ß ØíÅÜJí ÈÞWÉÄí ÕV×çJÞ{¢ ÉÝAÎáU æÄBáവ�fBZ ©UÄÞÏß µÞÃáKá, µâ¿ÞæÄ ¦EßW, ÎÞÕí ÎáÄÜÞÏ വ�fB{ᢠµÞÃáKá.å§KæJ µß¿Mí ¥ÈáØøߺîí ¿ß ØíÅÜ¢ ÉáøÏß¿ÎÞÏß µÞÃáKá.å¦ÏÄßÈÞW ¿ß ØíÅÜ¢ ÉøßçÖÞÇߺîí çÕI È¿É¿ß ØbàµøßÏíAÞÕáKÄÞæÃKí ùßçMÞVGí æºÏñáæµÞUáKá. _"_ 5. After the petitioner submitted an application to the District Collector for change of classification of the land in the basic tax W.P.(C) No.18956 of 2012 6 register, the District Collector called for a report from the Tahsildar. The Additional Tahsildar thereupon submitted Ext.P7 report. The relevant portion thereof is extracted below: _"_ ¿ß ¥çÉfÏßçzW çÈøßGí ØíÅÜÉøßçÖÞÇÈ È¿JßÏßGáUÄá¢, ÕàÏÉáø¢ ÕßçÜï¼ÞËàØßWÈßKᢠùßAÞVÁáµ{ᢠùßçMÞVGᢠÜÍcÎÞAß ÉøßçÖÞÇߺîßGáUÄáÎÞÃí.å¦ÏÄádɵÞø¢ ÕàÏÉáø¢ ÕßçÜï¼ßW çÌïÞAí ÈOV 7W ùßØVçÕî ÈOV 157/1 WæMG 97.32 ¦VØí ØíÅÜ¢ ÄIçMV ÈOV 4803 dɵÞø¢ ®ùÃÞµá{¢ ¼ßÜïÏßW µÃÏKâV ÄÞÜâAßW µÃÏKâV ÕßçÜï¼ßW dÉØKÕßÙÞùßW çµÞÖß ÎµX µáøcX çµÞÖß çÉøßÜᢠµø¢ ÄàøáÕÏßÜáÎÞÃí. ¿ß ØíÅÜ¢å _BTR TP A/c_ ø¼ßØíxV ®KßÕ dɵÞøÕᢠÈßÜÎÞÏß µÞÃáKá. ¿ß ØíÅÜJí 30 ÕV×çJÞ{¢ dÉÞÏÎÞÏ 71 ®HçJÞ{¢ æÄBáµZ ©Ií. µÞÝíºÏßW ¿ß ØíÅÜ¢ ¯ÄÞIí 30 ÕV×JßÈá ÎáXÉáÄæK ÈßµJßÏ æÄBßXçÄÞMí ¦ÏßøáKá ®Kí µÞÃáKá.ådÉØñáÄ ØíÅÜJßÈá ºáxᢠÎáUáçÕÜß §GßGáIí.åÕàÏÉáø¢ ÕßçÜï¼ßW çÌïÞAí ÈOV 7W ùàØVçÕî 157/1_WæMG ¿ß ØíÅÜ¢åçÁxÞÌÞCßW ÈßµJí ®Kí µÞÃáKáæICßÜᢠ¿ß Õß×ÏJßW ·Øxí çÈÞGßËßçA×X ¦ÏßGßÜïÞJÄáÎÞÃí ®K ÕßÕø¢ ÄIçMV, _BTR_ ɵVMí, æÜÞçA×X Øí浺îí, ÎÙTV ®KßÕ ØÙßÄ¢ ¥ÈLø È¿É¿ßµZAÞÏß ùßçMÞVGí æºÏñáæµÞUáKá. _"_ 6. By the impugned letter, the District Collector rejected the application submitted by the petitioner on two grounds. The first ground stated is that in the basic tax register and in the documents of title, the land is described as "Nilam" and therefore, it cannot be said to be a mistake in entry. The District Collector also took the stand that as the land was illegally reclaimed, an application for change of classification cannot be entertained. The issue raised by the petitioner W.P.(C) No.18956 of 2012 7 is squarely covered in his favour by the decision of a learned single Judge of this Court in **Jalaja Dileep v. Revenue Divisional Officer** (2012 (3) KLT 333). In that case it was held that if the land was not paddy land as on the date of commencement of the Kerala Conservation of Paddy Land and Wet Land Act, 2008, the Kerala Land Utilisation Order will not apply and therefore, the classification will have to be corrected in the basic tax register. The facts in the instant case are almost identical to the facts involved in **Jalaja Dileep v. Revenue Divisional Officer** (supra). In such circumstances, I am of the considered opinion that the stand taken by the District Collector in Ext.P8 letter and the reasons put forward by him to reject the petitioner's application for change of classification of the land cannot be sustained. In the said decision, this Court also held that the competent authority to correct the entry in the basic tax register is the Tahsildar concerned. In the light of the decision of this Court, it has to be necessarily held that it was for the Tahsildar concerned namely the Tahsildar, Karthikappally Taluk to consider the petitioner's application and dispose of the same. For the reasons stated above, I allow the writ petition, set aside Ext.P8 and direct the District Collector, Alappuzha to forward the petitioner's application for change of classification of the land to the W.P.(C) No.18956 of 2012 8 Tahsildar, Karthikappally Taluk, who shall upon receipt of the same, consider it and can pass orders thereon in the light of the directions issued by this Court in **Jalaja Dileep v. Revenue Divisional Officer** (supra). Needful in the matter shall be done and orders passed expeditiously and in any event within one month from the date on which the petitioner produces a certified copy of this judgment before the District Collector, Alappuzha. Sd/- **P.N.RAVINDRAN JUDGE** /True copy/ P.A. To Judge vpv