Saji Joseph v. Deputy Tahsildar Vaikom Taluk and Others

## IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: ## THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN WEDNESDAY, THE 30TH DAY OF JULY 2014/8TH SRAVANA, 1936 WP(C).No.26304 of 2013 (K) --------------------------- ## PETITIONER : ----------- SAJI JOSEPH S/O. JOSEPH, CHEMMANPALLIL, KURUPPANTHARA MANJOOR P.O., KOTTAYAM. BY ADVS.SRI.G.HARIHARAN SRI.PRAVEEN HARIHARAN ## RESPONDENTS : -------------- ## 1. DEPUTY TAHSILDAR TALUK OFFICE, VAIKOM, KOTTAYAM DISTRICT PIN-686141. ## 2. VILLAGE OFFICER MANJOOR, KOTTAYAM DISTRICT-686603. 3. ASSISTANT DIRECTOR (SURVEY DEPARTMENT) OFFICE OF THE SURVEY AND LAND RECORDS OFFICE CHALAKKUNNU, KOTTAYAM-686141. 4. DISTRICT COLLECTOR KOTTAYAM-686001. 5. DIRECTOR OF VIGILANCE AND ANTI-CORRUPTION BUREAU THIRUVANANTHAPURAM-695001. R1-R5 BY GOVERNMENT PLEADER SRI.A.J.JOSE AEDAIODI THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 30-07-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 26304 of 2013 (K) ------------------------- ## APPENDIX PETITIONER'S EXHIBITS :- ---------------------- - EXHIBIT P1- TRUE COPY OF THE SETTLEMENT DEED NO.1436/2008 OF SRO, KADUTHURUTHY EXECUTED IN FAVOUR OF THE PETITIONER BY HIS FATHER SRI.JOSEPH. - EXHIBIT P2- TRUE COPY OF THE POSSESSIOIN CERTIFICATE NO.169/2010 DATED 27-01-2010 ISSUED BY THE VILLAGE OFFICER, MANJOOR. - EXHIBIT P3- TRUE COPY OF THE REPRESENTATION DATED 15-06-2011 MADE BY THE PETITIONER BEFORE THE 1ST RESPONDENT. - EXHIBIT P4- TRUE COPY OF THE REPORT DATED 16-06-2011 BY THE 2ND RESPONDENT TO THE 1ST RESPONDENT. - EXHIBIT P5- TRUE COPY OF THE COMMUNICATION DATED 29-07-2011 SENT BY THE 1ST RESPONDENT IN RESPONSE TO AN APPICATION MADE BY THE PETITIONER ON 29-07-2011. - EXHIBIT P6- TRUE COPY OF THE JUDGMENT MADE IN WP(C).27225/2011 DATED 14-10-2011. - EXHIBIT P7- TRUE COPY OF THE JUDGMENT MADE IN WP(C)No.35202/2011 DATED 19-09-2012. - EXHIBIT P8- TRUE COPY OF THE ORDER MADE IN RP.No.142/2013 IN WP(C) No.35202/2011 DATED 07-03-2013. - EXHIBIT P9- TRUE COPY OF THE ORDER DATED 12-08-2013 ISSUED BY THE DISTRICT COLLECTOR, KOTTAYAM. - EXHIBIT P10- TRUE COPY OF THE THANDAPER EXTRACT ISSUED FROM THE VILLAGE OFFICER ON 28-01-2008. - EXHIBIT P11- TRUE COPY OF THE COMPLAINT DATED 29-01-2013 SENT BY THE PETITIONER TO THE 5TH RESPONDENT. ## RESPONDENTS' EXHIBITS :- ----------------------- - EXT.R4(a): A TRUE COPY OF THE ORIGINAL BTR IN SUB-REGISTRAR OFFICE, KADUTHURUTHY. - EXT.R4(b): A TRUE COPY OF THE BTR, WHICH IS FORGED IN TALUK OFFICE. - EXT.R4(c): A TRUE COPY OF THE BTR WHICH IS FORGED IN VILLAGE OFFICE, MANJOOR. ## **ANIL K.NARENDRAN, J. --------------------------------------W.P.(C).No.26304 of 2013 ---------------------------------------Dated this the 30[th] day of July, 2014** ## **JUDGMENT** The petitioner is having 21.24 Ares of land in Re-Survey No.709/2 of Manjoor Village, Vaikom Taluk, covered by Ext.P1 settlement deed dated 30/05/2008. He has approached this Court in this Writ Petition seeking a writ of certiorari to quash Ext.P9 order passed by the District Collector, Kottayam, the 4[th] respondent herein, by which his request to change classification of the land covered by Ext.P1 as ‘purayidam’ (dry land) was turned down for the reason that as per the survey records and other documents the said land is classified as ‘nilam’ (paddy land). 2. According to the petitioner, pursuant to Ext.P1 settlement deed executed by his father Shri.Joseph, he has effected mutation and was paying basic tax for the property covered by the said settlement deed in his name. The petitioner has also obtained Ext.P2 possession certificate from W.P.(C)No.26304/2013 2 the Village Office, Manjoor. In Ext.P1 and P2 the land is classified as ‘purayidam’ and according to the petitioner the said land was planted with rubber trees. However, without the knowledge of the petitioner the classification of the land was fraudulently altered as ‘nilam’ in the Village records. On knowing this, the petitioner approached the Village Officer, Manjoor, the 2[nd] respondent herein, for getting details. On verification of records the petitioner found that, the land which was originally classified as ‘purayidam’ in the Basic Tax Register (BTR) was later re-classified as ‘nilam’ after striking off the entry ‘purayidam’ in the BTR. In such circumstances, the petitioner submitted Ext.P3 application before the Deputy Tahsildar, Vaikom, the 1[st] respondent herein, pointing out the above mischief committed by the Village Office and the 1[st] respondent was requested to conduct an enquiry and take necessary action in the matter. 3. Based on Ext. P3 application, the 1[st] respondent called for a report from the 2[nd] respondent, who submitted W.P.(C)No.26304/2013 3 Ext.P4 report. Due to the inaction on the part of the 1[st] respondent in taking a decision in the matter, the petitioner has approached this Court in W.P.(C)No.27225/2011 and the said Writ Petition was disposed of by Ext.P6 judgment, directing the 1[st] respondent to consider Ext.P3 in the light of Ext.P4 report and other relevant records and pass orders thereon, within four weeks of production of a certified copy of the judgment. The 1[st] respondent considered the matter and thereafter forwarded the files to the 4[th] respondent for his concurrence and further orders. Due to the inaction on the part of the 4[th] respondent, the petitioner again approached this Court in W.P.(C)No.35202/2011 and the said Writ Petition was disposed of by Ext.P7 judgment (as modified by Ext.P8 judgment in R.P.No.142/2013), directing the 4[th] respondent to take a decision in the matter after hearing the petitioner, within a period of three months from the date of receipt of a copy of the judgment. Thereafter, the 4[th] respondent issued Ext.P9 order holding that, going by the report of the Principal W.P.(C)No.26304/2013 4 Agricultural Officer referred to in Ext.P9 and also the survey records and prior documents of the property in question, the classification of the said land is ‘nilam’ and hence, the request made by the petitioner in Ext.P3 to reclassify it as ‘purayidam’ cannot be granted. The document produced as Ext.P10 is the extract of the Thandaperu Account issued by the 2[nd] respondent, in relation to the land covered by Ext.A1, as per which the said land is classified as ‘purayidam’. Ext.P11 is a copy of the complaint submitted by the petitioner before the Director of Vigilance and Anti-corruption Bureau, the 5[th] respondent herein, seeking an enquiry against the Revenue officials regarding their misdeeds in making corrections in the BTR. It is aggrieved by Ext.P9 order and seeking reconsideration of Ext.P3 application and for other reliefs, the petitioner has approached this Court in this Writ Petition. 4. A counter affidavit has been filed on behalf of the 4[th] respondent contending, inter alia, that in the enquiry conducted by the Tahsildar, Vaikom, it was found that a lot of W.P.(C)No.26304/2013 5 illegal corrections were made in the BTR and Thandaperu Account regarding classification of the lands in Re-Survey Nos.709/1 to 709/8 and 710/1 to 710/9 in Block No.33 of Manjoor Village, Vaikom Taluk. The classification of the lands in the original records was ‘nilam’, which was corruptly inscribed as ‘purayidam’ (dry land). Then the corrupt inscriptions were again striked out and the original classification ‘nilam’ has been ticked as correct. But the Tahsildar could not find out who is responsible for it. 5. According to the 4[th] respondent, the petitioner converted his 21.24 Ares of wet land in Re-survey No.709/2 in Block No.33 of Manjoor Village, Vaikom Taluk, as rubber plantation, several years back, without obtaining permission of the 4[th] respondent under Clause 6(1) of the Kerala Land Utilisation Order. In the high level enquiry conducted by the Deputy Collector (Land Revenue) it was found that in the original revenue records kept in the Sub Registrar Office, Kaduthuruthy, with no interference of the miscreants, the land W.P.(C)No.26304/2013 6 held by the petitioner is classified as ‘nilam’ and Ext.R4(a) is an extract of the BTR kept in that office. It was also found that, the concerned revenue records in the Village Office, Manjoor, and in the Taluk Office, Vaikom, were mischievously forged and the classification of the land is shown as ‘purayidam’. Ext.R4(b) and Ext.R4(c) are the extracts of the BTRs kept in the Village Office and in the Taluk Office, respectively. 6. The 4[th] respondent further contended that, as per the report of the Assistant Director (Re-survey), Kottayam, the resurvey in Manjoor Village was completed on 31.10.2006 and after re-survey, the classification of the land in question was described as wet land in the Basic Tax records prepared by the Survey Department. But, the classification of the land in the Thandaperu Account No.3543 was changed as ‘purayidam’ instead of ‘nilam’. Therefore, the classification of land in Ext.P2 possession certificate cannot be relied upon. Regarding the fraudulent acts, a detailed report was sent to the Commissioner of Land Revenue and also to the Vigilance and W.P.(C)No.26304/2013 7 Anti-corruption Bureau, Kottayam. Hence the request made by the petitioner to change classification of his land was rejected vide Exhibit P9. 7. Heard the arguments of the learned counsel for the petitioner and the learned Government Pleader appearing for the respondents. 8. The learned counsel for the petitioner contended that, in the matter of re-classification of land, one has to go by the actual nature of land and not by the nature of classification of land mentioned in the revenue records and therefore, the 4[th] respondent went wrong in rejecting the request made by the petitioner in Ext.P3 application. The learned counsel pointed out further that, in the Final Fair Value Notification published by the Government, the land covered by Ext.P1 settlement deed has been classified as residential plot with private road access. Per contra, the learned Government Pleader, mainly relying on Ext.R4(a), contended that, as the land held by the petitioner is classified as ‘nilam’, his request to classify the W.P.(C)No.26304/2013 8 same as ‘purayidam’ was rightly rejected by the 4[th] respondent in Ext.P9 and therefore, no interference of this Court is warranted. I have considered the rival submissions made at the Bar. 9. The petitioner is holding 21.24 Ares of land in Resurvey No.709/2 of Manjoor Village in Vaikom Taluk, on the strength of Ext.P1 settlement deed dated 30/5/2008. In Ext.P1 settlement deed and in Ext.P2 possession certificate dated 27/1/2010, the classification of the land is shown as ‘purayidam’. According to the petitioner, the land covered by Exhibit P1, which was originally classified as ‘purayidam’ in the BTR was later re-classified as ‘nilam’ after striking off the entry ‘purayidam’ in the BTR. It was in such circumstances, he has submitted Ext.P3 application before the 1[st] respondent to conduct an enquiry and to take necessary action in the matter. Based on Ext. P3 application, the 1[st] respondent called for a report from the 2[nd] respondent, who submitted Ext.P4 report. Pursuant to the direction contained in Ext.P6 judgment, the 1[st] W.P.(C)No.26304/2013 9 respondent considered the matter and forwarded the files to the 4[th] respondent for his concurrence and further orders. Later, pursuant to the direction contained in Ext.P7 judgment, the 4[th] respondent issued Ext.P9 order holding that, as the classification of the land owned by the petitioner is ‘nilam’, his request in Ext.P3 application cannot be considered. Going by the report of the Principal Agricultural Officer and also the survey records and prior documents of the property in question, the classification of the said land is ‘nilam’ and hence, the request made by the petitioner in Ext.P3 to reclassify it as ‘purayidam’ cannot be granted. 10. According to the 4[th] respondent, in the enquiry conducted by the Tahsildar, Vaikom, it was found that a lot of illegal corrections were made in the BTR and Thandaperu Account regarding classification of the land. In Ext.R4(a) BTR kept in the Sub Registrar Office, Kaduthuruthy, the land held by the petitioner is classified as ‘nilam’. But, in Ext.R4(b) BTR kept in the Village Office, Manjoor, and Ext.R4(c) BTR kept in W.P.(C)No.26304/2013 10 the Taluk Office, Vaikom, the classification of the land shown as ‘nilam’ was inscribed as ‘purayidam’. Regarding the fraudulent acts, a detailed report was sent to the Commissioner of Land Revenue and also to the Vigilance and Anti-corruption Bureau, Kottayam. The 4[th] respondent further contended that, the petitioner converted his 21.24 Ares of wet land in Re-survey No.709/2 in Block No.33 of Manjoor Village, Vaikom Taluk, as rubber plantation, several years back, without obtaining permission of the 4[th] respondent under Clause 6(1) of the Kerala Land Utilisation Order. 11. In **Praveen K. v. Land Revenue Commissioner, Thiruvananthapuram and others (2010 (2) KLT 617)** , a Division Bench of this Court held that, mere description of the property on the revenue record by itself may not be conclusive and may not estop a party from producing materials to show otherwise. In **Jalaja Dileep v. Revenue Divisional Officer (2012 (3) KLT 333)** , this Court held that, the description in title deed or in revenue records will not be crucial, in case the W.P.(C)No.26304/2013 11 factual situation shows that the property is a reclaimed land. In **Biju M. A. v. Sub-Registrar, Kunnathunadu Taluk (2013 (2) KHC 34)** , this Court held that, as it is always open to apply before the Revenue Authorities to cause necessary corrections in the Revenue records as to the actual classification of the land, the description of the property in the Revenue records cannot be the basis to ascertain the physical nature, in view of the law declared by this Court in **Shahanaz Shukoor v. Chelannoor Grama Panchayat (2009 (3) KLT 899)** and **Praveen K. v. Land Revenue Commissioner, Thiruvananthapuram and others (2010 (2) KLT 617)** . Therefore the settled position of law is that, in the matter of reclassification of land in the BTR, one has to go by the actual nature of land and not by the nature of classification of land mentioned in the revenue records. 12. Ext.P4 report submitted by the 2[nd] respondent and also the report of the Principal Agricultural Officer dated 2/1/2013 referred to in Ext.P9 order indicate that the land W.P.(C)No.26304/2013 12 covered by Ext.P1 settlement deed is not lying as ‘nilam’ as classified in the revenue records, but as reclaimed land cultivated with rubber and crops other than paddy. But, the 4[th] respondent, on a total non-application of mind, concluded in Ext.P9 that going by the report of the Principal Agricultural Officer and also the survey records and prior documents of the property in question, the classification of the said land is ‘nilam’ and hence, the request made by the petitioner in Ext.P3 to reclassify it as ‘purayidam’ cannot be granted. While issuing Ext.P9, the 4[th] respondent has completely ignored the settled position of law that, in the matter of re-classification of land in the BTR, one has to go by the actual nature of land and not by the nature of classification of land mentioned in the revenue records. Ext.P9 order of the 4[th] respondent is vitiated by total non-application of mind. In such circumstance, Ext.P9 order cannot be sustained in law and the same is quashed and the 4[th] respondent is directed to re-consider the request made by the petitioner in Ext.P3 to reclassify the land covered by Ext.P1 W.P.(C)No.26304/2013 13 settlement deed as ‘purayidam’, strictly in accordance with law, keeping in mind the law laid down by this Court in the judgments referred to above, and pass appropriate orders thereon, as expeditiously as possible, at any rate, within a period of three months from the date of receipt of a certified copy of this judgment. It will be open to the 4[th] respondent to call for any further reports from the concerned Revenue officials or the Principal Agricultural Officer regarding the land in question. Needless to say that before passing any fresh orders, as directed above, the 4[th] respondent shall give a reasonable opportunity of being heard to the petitioner and also to the concerned Revenue officials and the Principal Agricultural Officer. 13. All the contentions raised in the writ petition as well as that in the counter affidavit regarding the alleged tampering of BTR and the violation of the Kerala Land Utilisation order are left open and both sides are free to raise all available contentions before the 4[th] respondent at the time W.P.(C)No.26304/2013 14 of re-consideration of Ext.P3 application. The Writ Petition is disposed of as above. No order as to costs. ## **ANIL K.NARENDRAN, JUDGE** skj