Revenue Divisional Officer, Fort Kochi; Tahsildar, Kanayannur; Village Officer, Elamkulam v. Jalaja Dileep and The Corporation of Cochin

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR.JUSTICE THOTTATHIL B.RADHAKRISHNAN & THE HONOURABLE MR. JUSTICE BABU MATHEW P.JOSEPH** **THURSDAY, THE 2ND DAY OF JANUARY 2014/12TH POUSHA, 1935** ## **WA.No. 412 of 2013** **-----------------------------AGAINST THE JUDGMENT IN WP(C)NO. 11784/2012 OF HIGH COURT OF KERALA DATED 13-07-2012** **...** ## **APPELLANT(S)/RESPONDENTS 1 TO 3 IN WP(C):** **-----------------------------------------------------------------------** **1. THE REVENUE DIVISIONAL OFFICER, FORT KOCHI-682 002.** ## **2. THE TAHSILDAR,** - **TALUK OFFICE, KANAYANNUR, ERNAKULAM-682 016.** ## **3. THE VILLAGE OFFICER,** - **ELAMKULAM, ERNAKULAM-682 020.** **BY SR.GOVERNMENT PLEADER SRI.C.S.MANILAL** ## **RESPONDENT(S)/PETITIONER 4TH RESPONDENT IN WP(C):** **-----------------------------------------------------------------------------------------** ## **1. JALAJA DILEEP,** - **W/O.LATE K.R.DILEEP, KATTIPARAMBIL HOUSE, MUPPATHADOM, KADUNGALLUR VILLAGE, PARAVUR TALUK, ERNAKULAM-683 110.** **2. THE CORPORATION OF COCHIN, REPRESENTED BY ITS SECRETARY, OFFICE OF THE COCHIN CORPORATION, ERNAKULAM-682 018.** **R1 BY ADVS. SRI.M.R.ANISON SMT.K.P.GEETHA MANI R2 BY ADV. SRI.P.K.SOYUZ,SC,COCHIN CORPN. SRI.RAJESH S.SUBRAHMANIAN,SC,COCHIN CORPN.** **THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 04/-07/2013, THE COURT ON 02/01/2014 DELIVERED THE FOLLOWING:** **Kss** ## “CR” ## THOTTATHIL B.RADHAKRISHNAN & BABU MATHEW P. JOSEPH, JJ. = = = = = = = = = = = = = = = = = = = W.A.No.412 of 2013 = = = = = = = = = = = = = = = = = = = Dated this the 2[nd ] day of January, 2014 Judgment ## Thottathil B.Radhakrishnan, J. 1.This appeal by the Revenue Divisional Officer, Fort Kochi, Tahsildar, Kanayannur and Village Officer, Elamkulam is against the judgment of the learned single Judge declaring that the property of the writ petitioner will have to be classified as 'reclaimed purayidam' (dry land) in the Basic Tax Register and the direction issued to the Tahsildar and the Village Officer to effect appropriate correction in the Basic Tax Register in terms of that declaration. The Tahsildar and the Village Officer were further directed to issue to the writ petitioner, on application, a WA412/13 -: 2 :- corrected copy of the relevant page of the Basic Tax Register. It was also directed that the relevant and corresponding entries in the revenue records will also be corrected. The writ appeal is fundamentally on the plea that the scope of Section 18 of the Kerala Land Tax Act, 1961, for short, 'Land Tax Act', is limited to rectification of mistakes and therefore, when the nature of the land and its user changes with passage of time, such changes cannot be recorded as if rectification of mistake is being done under Section 18 of that Act and that the rectification directed to be done is contrary to the settled position of law in terms of the earlier pronouncements of the Division Bench in Praveen v. Land Revenue Commissioner [2010 (2) KLT 617] and of a single Judge in Hajee Abubacker v. R.D.O., Palakkad [2009(4) KLT 49]. - 2.Heard the learned Senior Government Pleader and the learned counsel for the first respondent writ petitioner. WA412/13 -: 3 :- 3.At the outset, we may refer to the decision in Praveen (supra) which was decided by the Division Bench following an order of reference made by a learned single Judge on the premise that there is some conflict of opinion in the decisions rendered in Jayakrishnan v. District Collector [2009 (1) KLT 123], Shahanaz Shukkoor v. Chelannur Grama Panchayat [2009 (3) KLT 899] and Hajee Abubacker (supra). Dilating on the legal issues with reference to the scope and continued application of the provisions of the Kerala Land Utilization Order, 1967, for short, 'KLU Order', after the Kerala Conservation of Paddy Land and Wetland Act, 2008, for short, 'Wetland Act', came into force, the Division Bench held that as regards paddy land or wetland, the provisions in the KLU Order have no application with effect from 12.8.2008, the date on which the Wetland Act came into force. The Bench concurred with Shahanaz Shukkoor (supra) wherein it was held that mere description of an item of property as WA412/13 -: 4 :- 'nilam' 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 land or wetland can be used and that the definitions of the terms 'paddy land' and 'wetland' in the Wetland Act are 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 the description in the title document. The Bench also concurred with Hajee Abubacker (supra) in which it was held that after coming into force of the Wetland Act, no order can be passed on an application under the KLU Order. It was held that there was no conflict between Shahanaz Shukkoor (supra) and Jayakrishnan (supra) in which it was held that it is for the competent authority to enquire as to whether a particular parcel of land is paddy land or wetland and proceed accordingly. In Praveen (supra), the Division Bench clarified the legal position in paragraph 15 of that judgment as WA412/13 -: 5 :- reported in KLT, which reads as follows: “15. It is true that if it is a paddy land or wetland, the provisions contained in the Land Utilization Order has no application after the coming into force of the Kerala Conservation of Paddy Land and Wet Land Act, 2008, namely, with effect from 12.8.2008. But still it is open to dispute as to whether a particular land is a paddy land or wet land or whether it is a land cultivated with other food crops. Therefore, if an application is made under the Land Utilization Order on the plea that the land in question is not a paddy land or wet land, but cultivated with other food crops, necessarily before non suiting the applicant, a finding has to be entered as to whether the application is sustainable under the Land Utilization Order and it will be depending upon that finding as to whether the land in question in respect of which an application has been made for permission is a land cultivated with food crops other than paddy, or it is a wet land. If the authority before whom the application made is satisfied on due WA412/13 -: 6 :- enquiry and based on materials on record that the land is one cultivated with food crops other than paddy or a wet land, such application has to be processed in terms of the provisions contained in the Land Utilization Order. On the other hand, if the authority finds that it is a paddy land or wet land, the application has to be rejected whereupon it is for the party aggrieved to challenge the same in appropriate proceedings. Or, on the other hand, if he accepts the finding, then it is still open to him to submit an application under the Kerala Conservation of Paddy Land and Wet Land Act, 2008 for necessary permission before appropriate authority in which event, the said application will be processed in terms of othe provisions contained therein. The question as to whether it is a paddy land or wet land is to be adjudged based on materials on record including the revenue record, if any. It is true that mere description of the property on the revenue record by itself may not be conclusive and may not estopp a party from producing materials to show otherwise. This being an assessment of the factual position regarding the WA412/13 -: 7 :- nature of the land, necessarily, it involves adjudication by the concerned authority on the given set of facts and materials produced and one or other factor by itself may not be conclusive; but a decision has to be rendered taking into consideration the materials available on record. Therefore, if an application is made under the Kerala Land Utilization Order, the same is not liable to be dismissed before an enquiry is held by the concerned authority under the Act and a finding is entered that the land in respect of which the application is made is a paddy land or a wet land. What ousts the jurisdiction of the authority under the Land Utilization Order is based on the finding as to whether it is a paddy land or wet land. If it is a paddy land or wet land, necessarily, it stands outside the jurisdiction of that authority in processing the application further or in granting any permission sought for. On the other hand, if it is held that it is not a paddy land or wet land, but cultivated with crops other than paddy, necessarily, the authority under the Land Utilization Order will have to process the application in terms of the WA412/13 -: 8 :- provisions contained therein and dispose of the same.” 4.On to the facts of the writ petition from which this writ appeal arises, it can be seen that 12.286 cents of land in Survey No.330/3 of Elamkulam village in Ernakulam district was purchased in 1972 in the name of the writ petitioner's mother-in-law Smt.Meera Ben. She died on 12.3.1994 leaving behind her husband, son Dileep and daughter Devika. Later, Meera Ben's husband and son also died. Writ petitioner is Dileep's widow, with two minor children. Thus, Devika and the writ petitioner and her children became the heirs of Meera Ben. The competent authority effected mutation by including the name of the writ petitioner also and issued tax receipt on payment of property tax. Exhibit P3 is the possession certificate issued by the Village Officer. Exhibit P4 relevant page of the Basic Tax Register issued by the Village Officer shows the description of the property as 'nilam'. Exhibit P5 certificate was issued by the Village WA412/13 -: 9 :- Officer showing that property is actually dry land. Exhibit P6 certificate issued by the Agricultural Officer after conducting a local enquiry also confirmed the same fact situation. Exhibit P7 is a further certificate issued by the Village Officer showing that the property is dry land. Having regard to the urgent need to meet the requirement of the minor children, writ petitioner instituted an original petition before the District Court for sanction to sell the property of the minors. On that basis, she also has a contract for sale from a third party. She filed the writ petition because of the incongruity in the entry in the Basic Tax Register showing the property as 'nilam' and the ground reality that the property is dry land. Before the learned single Judge, the third respondent in the writ petition, namely, the Village Officer, filed a statement following the direction of this Court. He stated that the entries in the BTR show that the property is paddy land and that the Village Officer has WA412/13 -: 10 :- personally inspected the property and has seen that the land is presently filled and not fit for paddy cultivation. He reported that though the nearby lands are kept vacant, no paddy cultivation is done there. He said that while inspecting for the preparation of Data Bank under the Wet Land Act, it is recorded as filled land, but the Data Bank is not yet finally published. On this fact situation, the learned single Judge applied the principles stated in Shahanaz Shukkoor (supra), Praveen (supra), Jafarkhan v. Kochumarakkar [2012 (1) KLT 491] and Mohammed Abdul Basheer v. State of Kerala [2012 (3) KLT 86]. Assimilating the facts, as reflected in paragraph 9 of the impugned judgment, the learned single Judge concluded on facts, that the materials clearly show that the land of the writ petitioner is reclaimed purayidam (dry land). It was therefore that the learned single Judge granted the declaration to that effect. With the materials on record, we do not find any legal infirmity in the appreciation of the materials by WA412/13 -: 11 :- the learned single Judge and in having decided the matter on the basis of the report of the Village Officer, as well. Under such circumstances, we do not find that there is any infirmity in the findings of the learned single Judge in that regard. More particularly and importantly, we specifically note that there is no plea or ground in this appeal that the findings of facts in the impugned judgment are wrong. 5.The reference made by the learned single Judge to Section 18 of the Land Tax Act is in the course of discussions surveying the provisions of that Act and the Kerala Village Manual to note the different procedures ordained on the executive machinery. It does not mean that the learned single Judge was ordering rectification of the Basic Tax Register as if it was a rectification due under Section 18 of the Land Tax Act. Once we accept the plea of the appellants as to the content and the limited scope of Section 18 of WA412/13 **==> picture [34 x 10] intentionally omitted <==** the Land Tax Act, that by itself would be the death kneel of their appeal. We say so because, if Section 18 is no source of relief in such a situation, and if there is no statute law providing a forum to seek remedy in such a context, where has the citizen to go? Once a citizen moves the writ court in an extraordinary situation, including by stating that there is no real remedy available in terms of the statutory provisions, the writ court is not only entitled, but is obliged to adjudicate and decide upon the crucial issues and grant such declaration as would be in accordance with law, unless of course, it dissuades itself from doing so on legitimate grounds, including that the factual issues need determination by adjudication on contesting evidence, documentary or oral. In the case in hand, the statement of the Village Officer and other materials clinched the issue. The learned single Judge was therefore obliged in terms of the Constitution to decide on that issue since no efficacious alternative remedy was WA412/13 **==> picture [34 x 10] intentionally omitted <==** available to the writ petitioner. This is what the learned single Judge has done. The limits of jurisdiction under Article 226 cannot be circumscribed by the scope of the power of rectification under Section 18 of the Land Tax Act. The plea in this regard on behalf of the appellants is palpably misplaced. This appeal has necessarily to fail. 6.In the light of the facts noted from the report of the third respondent in the writ petition, this appeal with that Village Officer as an appellant is an exceptionally poor reflection of the executive governance and management to effectuate the avowed litigation policy in public domain. This appeal reflects an unceremonious homage by the under-advised executive limb of governance of this State to the much trumpeted National and State Litigation Policies, if there are any! In the result, this writ appeal is dismissed. We WA412/13 **==> picture [34 x 10] intentionally omitted <==** dissuade ourselves from imposing any order of costs on the appellants personally, though such an order would not out of place in this appeal since the appellants have chosen to prefer this appeal in spite of the contents of the third appellant-Village Officer's report placed before the learned single Judge. The directions of the learned single Judge shall be complied without fail within three weeks from today and reported to the Registrar General of this Court by an affidavit by the first appellant herein after serving copy on the learned counsel for the first respondent on or before 31.1.2014, without fail. If such affidavit is not so filed, list on 4.2.2014 for further orders in relation to such disobedience. Sd/- THOTTATHIL B.RADHAKRISHNAN JUDGE **==> picture [167 x 37] intentionally omitted <==** Sha/ -true copy- PS to Judge