High Court of KeralaSingle Judge2021-08-25Writ petition disposed of with directions as st...

N. H. Hamza v. State of Kerala and Others

Case / Petition Number:WP(C) No.16909/2017

Neutral Citation:/

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: N. Nagareesh
Judgment Date: 2021-08-25
Court Decision / Holding: The writ petition is disposed of permitting the petitioner to file suitable applications invoking the Kerala Conservation of Paddy Land and Wetland Act, 2008 to effect changes in Revenue records and in the Data Bank. If such applications are made, the Revenue Divisional Officer or other competent authority shall consider them expeditiously and pass orders within two months from receipt, taking into account the judgment in Mather Nagar Residents Association v. District Collector.
Final Disposition: Writ petition disposed of with directions as stated above to modify records under the Act within two months of receipt of applications.

Parties to the Case

Appellants / Petitioners

N. H. Hamza

Respondents

State of Kerala, represented by Secretary, Revenue Department, Thiruvananthapuram
The District Collector, Ernakulam District, Kakkanad, Cochin
The Revenue Divisional Officer, Fort Kochi, Cochin
The Deputy Collector (LR), Collectorate, Ernakulam, Kakkanad
Village Officer, Kunnukara, Aluva
Agricultural Officer, Kunnukara, Aluva
Local Self Monitoring Committee, represented by Chairman, Kunnukara Grama Panchayat, Aluva
Kunnukara Grama Panchayat, represented by its Secretary, Kunnukara, Aluva

Legal Representation & Advocates

Counsels for Petitioners

• Sri. T. M. Abdul Latheef

Counsels for Respondents

• Sri. Manura j (Government Pleader)
• Sri. Babu Cherukara

Case Synopsis & Summary

The petitioner, N. H. Hamza, filed WP(C) No.16909/2017 challenging a Data Bank entry for Survey No. 440/4 in Kunnukara Village and seeking relief under the Kerala Conservation of Paddy Land and Wetland Act, 2008. He contends that Exts. P1–P13 are not based on relevant documents or registers and that the Data Bank entry was not prepared in accordance with Rule 14 of the Act. The petitioner prays for deletion of the Data Bank entry for Survey No. 440/4 and for acceptance of land tax as garden land in line with the Thandaper Register, considering surrounding properties. He also seeks reassessment of land tax for portions described as Purayidam and for other portions described as dry/garden land, arguing non-inclusion in the Data Bank and reliance on title deeds and Thandaper entries. The respondents include the State, District Collector, Revenue Divisional Officer Fort Kochi, Deputy Collector (LR), Village Officer, Agricultural Officer, Local Self Monitoring Committee, and Kunnot kara Grama Panchayat. The KSREC report shows Survey No. 440/1 as mixed vegetation with fallow land; 440/1/B/1 is not in the Data Bank. The Court cites Mather Nagar Residents Association v. District Collector to state fallow land is not wetland under the Act. The petition is disposed of with directions to file suitable applications under the Act to modify records and Data Bank, to be decided within two months.

Provisions of Law Cited

Kerala Conservation of Paddy Land and Wetland Act, 2008Rule 14 of Kerala Conservation of Paddy Land and Wetland Act, 2008Kerala Land Utilisation Order, 1967

Legal Doctrines & Maxims

Fallow land is never treated as wetland under the Kerala Conservation of Paddy Land and Wetland Act, 2008.

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioner contends that the Data Bank entry for Survey No. 440/4 was prepared without essential documents and registers and without following Rule 14 of the Kerala Conservation of Paddy Land and Wetland Act, 2008. He seeks deletion of Ext.P11 and demands that land tax be assessed as garden land as per Ext.P3 Thandaper, considering extant surrounding properties and the nature of the land (Purayidam, Nilam vs. dry/garden). He argues misclassification in Tax Receipts and BTR, and highlights that part of the property is unsuitable for paddy cultivation due to a public road. He also relies on KSREC findings and the absence of Data Bank inclusion for a portion of his land to justify correction under the Act.

Contentions of Respondents

The respondents defend the Data Bank entry and tax classifications as per official records and KSREC findings. They contend that the Data Bank and revenue records are maintained under the Kerala Conservation of Paddy Land and Wetland Act, 2008 and related rules, with due procedures. They rely on statutory provisions and prior reports to justify the classification and to resist a unilateral deletion or reclassification, arguing that any modification should follow proper statutory process rather than ad hoc orders.

Cited Precedents (1)

Case Name	Citation	Treatment	Explanation
Mather Nagar Residents Association v. District Collector	2020 (2) KLT 192	Positive	The court relies on this Division Bench decision to hold that fallow land is not wetland under the Act, and uses this proposition to guide the present case and the relief to modify Data Bank and revenue records.

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Extracted Judgment Text

Exact text extracted from official judgment records.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE N.NAGARESH** **WEDNESDAY, THE 25[TH] DAY OF AUGUST 2021 / 3RD BHADRA, 1943** **WP(C) NO. 16909 OF 2017** ## **PETITIONER:** **N.H.HAMZA, AGED 65 YEARS, S/O HYDROSE, MALEKKAL PARAMBIL, DESABHIMANI ROAD, KALOOR, COCHIN-682017.** **BY ADV SRI.T.M.ABDUL LATHEEF** ## **RESPONDENTS:** - **1 STATE OF KERALA, REPRESENTED BY SECRETARY, REVENUE DEPARTMENT, THIRUVANANTHAPURAM 695001** - **2 THE DISTRICT COLLECTOR, ERNAKULAM DISTRICT, KAKKANAD, COCHIN-692030.** - **3 THE REVENUE DIVISIONAL OFFICER FORT KOCHI, COCHIN-682001.** - **4 THE DEPUTY COLLECTOR (LR), COLLECTORATE, ERNAKULAM, KAKKANAD-682030.** - **5 VILLAGE OFFICER, KUNNUKARA, ALUVA-683578** - **6 AGRICULTURAL OFFICER, KUNNUKARA, ALUVA-683578** - **7 LOCAL SELF MONITORING COMMITTEE, REPRESENTED BY CHAIRMAN, KUNNUKARA GRAMA PANCHAYAT, ALUVA-683578** - **8 KUNNUKARA GRAMA PANCHAYAT, REPRESENTED BY ITS SECRETARY, KUNNUKARA, ALUVA-683578** WP(C) No.16909/2017 : 2 : **BY ADVS. GOVERNMENT PLEADER SRI. MANURAJ SRI.BABU CHERUKARA** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 25.08.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** WP(C) No.16909/2017 : 3 : ## **J U D G M E N T** ~ ~ ~ ~ ~ ~ ~ ~ ~ ## _**Dated this the 25[th] day of August, 2021**_ ## The petitioner has approached this Court seeking the following reliefs: “(i) To call for the records relating to Exts.P1 to P13 and to issue any writ, order or direction declaring that the Data Bank entry prepared by the respondents in respect of survey No.440/4 of Kunnukara Village is not based upon any relevant documents and registers maintained by the revenue authorities and contrary to the Thandaper Account Register and also not following the procedure contemplated under the Rule 14 of Kerala Conservation of Paddy Land and Wetland Act, 2008 and hence to direct the respondents to delete the entry in respect of Survey No.440/4 from Ext.P11 Data Bank prepared by the respondents; (ii) To issue any writ, order or direction commanding the respondents to accept land tax, recording the nature of the petitioner's property in survey No.440/4 of Kunnukara Village as garden land as stated in the Thandaper Account Register produced as Ext.P3 and also taking into account the nature of the surrounding properties; (iii) To issue any writ, order or direction, directing the respondents to accept land tax in respect of the property in survey No.440/1B1 of Kunnumkara Village as dry/garden land taking WP(C) No.16909/2017 : 4 : into account the non-inclusion of the said properties in the Data Bank and also as per the recitals in the title deed and Thandaper Account Register.” 2. The petitioner purchased 52.75 cents of property. The said property was in Survey No.440/4 and 461/22. A portion of the petitioner’s property is described as Purayidam in Thandaper Register. The petitioner possesses 5.5 cents of land in Survey No.440/1/B/1 and another 13 cents in Survey No.440/1/B/1. Though in Ext.P1 sale deed the property is described as 'Nilam', all the three pieces of property purchased by the petitioner are not 'Nilam'. A public road passes through the side of the property and paddy cultivation is not feasible or possible in the land. It was for the said reason that a part of the property was rightly described as Purayidam in Thandaper Register. 3. When the petitioner started construction work in the property, the 2[nd] respondent issued Ext.P9 notice alleging that the petitioner has violated the provisions of the Kerala Conservation of Paddy Land and Wetland Act, 2008. The WP(C) No.16909/2017 : 5 : petitioner filed Ext.P10 objections _inter alia_ pointing out that the land is not included in the Data Bank. Thereafter, no proceeding was taken against the petitioner. In the circumstances, the petitioner seeks to direct the respondents to reassess the land tax on the property and levy tax as is applicable to dry land. 4. The learned Government Pleader made available a copy of the report of the KSREC which would indicate that Survey No.440/1 was observed as predominantly under mixed vegetation/plantation crops and buildings with small patches of fallow land and the LLMC has recommended that the property in Survey No.440/1/B/1, may be included as paddy land in Data Bank. 5. Heard the learned counsel for the petitioner, the learned Government Pleader representing respondents 1 to 7 and the learned Standing Counsel appearing for the 8[th] respondent. 6. The pleadings and arguments made during hearing reveal that the property in Survey No.440/4 is described as WP(C) No.16909/2017 : 6 : 'Nilam' in the BTR, as 'Purayidam' in Tax Receipt, and 'Nilam' in Data Bank. At the same time, in the KSREC Report, the land is found to be fallow land. As regards the property in Survey No.440/1/B/1, the property is not included in the Data Bank. In Tax Receipts, the property is described as Purayidam and in the BTR also, it is said to be described as Purayidam. In such circumstances, the petitioner has to move the competent authorities to make necessary changes in the Data Bank and Revenue Records invoking the provisions of the Kerala Conservation of Paddy Land and Wetland Act, 2008, since the petitioner has no case that any orders exist in respect of the land under the Kerala Land Utilisation Order, 1967. 7. As regards the findings of the KSREC, it has to be noted that a Division Bench of this Court has held in the judgment in _**Mather Nagar Residents Association v. District Collector** [2020 (2) KLT 192]_ that fallow land is never treated as wetland as per the Act, 2008 and that merely because the land is lying fallow and water gets logged during WP(C) No.16909/2017 : 7 : rainy season due to low lying nature of the property, it cannot be termed as wetland or paddy land. The claims of the petitioner need be considered in the context of this legal position. In the circumstances of the case, the writ petition is disposed of permitting the petitioner to make suitable application/s invoking the provisions of the Kerala Conservation of Paddy Land and Wetland Act, 2008 seeking to effect changes in Revenue records and in the Data Bank. If the petitioner makes such application/s, the Revenue Divisional Officer or such other competent authority shall consider such applications expeditiously and pass orders thereon within a period of two months from the date of receipt of such application/s, also taking into account the judgment of this Court in _**Mather Nagar Residents Association**_ (supra). Sd/- **N. NAGARESH, JUDGE** aks/24.08.2021 WP(C) No.16909/2017 : 8 : ## **APPENDIX OF WP(C) 16909/2017** **PETITIONER'S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF THE SALE DEED NO.3916/05 DATED 26.07.2005.** **EXHIBIT P2 TRUE COPY OF THE TAX RECEIPT NO.5439332 DATED 31.05.2016.** **EXHIBIT P3 TRUE COPY OF THE RELEVANT PAGES OF THE THANDAPPER ACCOUNT REGISTER. EXHIBIT P4 TRUE COPY OF THE DOCUMENT NO.2140/05 DATED 06.04.2005. EXHIBIT P5 TRUE COPY OF THE SKETCH OF THE PROPERTY. EXHIBIT P6 TRUE COPY OF THE DOCUMENT NO. 737/05 DATED 15-22005. EXHIBIT P7 TRUE COPY OF THE SKETCH OF THE PROPERTY. EXHIBIT P8 TRUE COPY OF THE TAX RECEIPT NO.4905416 DATED 14.03.2005. EXHIBIT P9 TRUE COPY OF THE NOTICE NO.L.1552015/2016 DATED 25.08.2016 OF THE 4TH RESPONDENT.** **EXHIBIT P10 TRUE COPY OF THE OBJECTION DATED 06.09.2016 SUBMITTED BY THE PETITIONER BEFORE THE 4TH RESPONDENT.** **EXHIBIT P11 TRUE COPY OF THE DATA BANK ENTRY. EXHIBIT P12 TRUE COPY OF THE APPLICATION** **TRUE COPY OF THE APPLICATION DATED 25.04.2017 SUBMITTED BY THE PETITIONER BEFORE THE 2ND RESPONDENT.** **EXHIBIT P13** **TRUE COPY OF THE INFORMATION OBTAINED BY THE PETITIONER DATED 15.11.2016.** SR