## **IN THE HIGH COURT OF KERALA AT ERNAKULAM**
## **PRESENT**
## **THE HONOURABLE MR.JUSTICE N.NAGARESH**
**TUESDAY, THE 22[ND] DAY OF JUNE 2021 / 1ST ASHADHA, 1943 WP(C) NO. 1003 OF 2021**
## **PETITIONER:**
**USHAKUMARI AGED 47 YEARS W/O RAJESH, RAJI NIVAS, MITHRAKKARI P.O. MUTTAR VILLAGE, ALAPUZHA DISTRICT-689 598.**
**BY ADV. SRI. UNNI. K.K. (EZHUMATTOOR)**
## **RESPONDENTS:**
- **1 STATE OF KERALA REPRESENTED BY SECRETARY TO GOVERNMENT, REVENUE DEPARTMENT, GOVT. SECRETARIAT, VANCHIYOOR P.O., THIRUVANANTHAPURAM-695 035.**
- **2 DISTRICT COLLECTOR, CIVIL STATION, ALAPUZHA P.O.ALAPUZHA-688 001.**
- **3 REVENUE DIVISIONAL OFFICER, REVENUE DIVISIONAL OFFICE, CIVIL STATION, ALAPUZHA P.O., ALAPUZHA-688 001.**
- **4 TAHASILDAR, TALUK OFFICE, KUTTANADU, MANKOMBU, THEKKEKARA P.O., ALAPUZHA-688 502.**
- **5 TAHASILDAR (LAND RECORDS), TALUK OFFICE, KUTTANDU, MANKOMBU THEKKEKARA P.O., ALAPUZHA-688 502.**
- **6 VILLAGE OFFICER, VILLAGE OFFICE, MUTTAR, MUTTAR P.O., ALAPUZHA-689 574.**
## **BY GOVERNMENT PLEADER SRI. MANU RAJ**
**THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 22.06.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:**
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## **J U D G M E N T**
~ ~ ~ ~ ~ ~ ~ ~ ~
_**Dated this the 22[nd] day of June, 2021**_
The petitioner, who is owner of 8.09.4 Ares of residential land in Kuttanadu, has filed this writ petition seeking to set aside Ext.P7 order of the 3[rd] respondent and to declare that the 3[rd] respondent has no authority to pass Ext.P7 order under Section 13A of the Surveys and Boundaries Act as the power of revision lies only with the District Collector, in cases of dispute in fixing boundaries. The petitioner has also sought certain other consequential and incidental reliefs.
2. The petitioner states that she owns 8.09.4 Ares of land in Re-Survey No.52/6-3 in Block No.34 of Muttar Village in Kuttanadu Taluk. The petitioner got ownership of the property in the year 2012 pursuant to a settlement deed. The petitioner states that the property is a residential plot and has been recorded as such in the Basic Tax Register and
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Thandaper Register. The properties surrounding are also either residential properties or garden land. The property is not included in the Data Bank prepared under the Kerala Conservation of Paddy Land and Wetland Act, 2008.
3. The petitioner proposed to construct shop rooms in the property. When spade work was being carried out for the construction, the Village Officer issued stop memo alleging that the property is recorded as paddy land in the Settlement Register. The petitioner thereupon handed over the copies of relevant documents. The Village Officer reported the matter to the Tahsildar who, in turn, submitted a report to the 3[rd] respondent-Revenue Divisional Officer.
4. The 3[rd] respondent issued a notice to the petitioner and after hearing passed Ext.P7 order invoking the provisions of the Kerala Land Utilisation Order and directed the petitioner to restore the land to its original position. The petitioner argued that Ext.P7 order is totally illegal. According to the petitioner, after implementation of Re-survey records, the respondents cannot rely on the settlement register or old
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survey records after a period of 40 years to conclude that the land is paddy land. When the Basic Tax Register, Thandaper Register and Re-Survey Plan, all show that the land is a residential plot, the 3[rd] respondent cannot pass such an order relying on the settlement register. The petitioner would point out that this position was clarified by this Court in _**Indira v. Sub Collector** [2020 (4) KLT 635]._
5. The learned Government Pleader opposed the prayers in the writ petition and argued that since the land is shown in settlement register as paddy land, the 3[rd] respondent was justified in issuing Ext.P7 order. According to the learned Government Pleader, the settlement register will prevail on all other land records.
6. The learned Government Pleader, relying on the statement filed on behalf of the 3[rd] respondent, pointed out that when an inspection was conducted, the land of the petitioner was found to be a low lying land similar to wetland. The said land was filled with red sand and completely covered with bushes and shrubs. Therefore, it is necessary to restore
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the reclaimed portion of the land to its original nature. According to the learned Government Pleader, recording of land as 'purayidam' subsequently in the Revenue records like BTR, is a mistake done during the re-survey of the property. The learned Government Pleader distinguished the judgment in _**Indira v. Sub Collector**_ (supra) on the ground that in the judgment in _**Indira v. Sub Collector**_ (supra), in the re-survey, the land was found to be 'purayidam', whereas in the case of the petitioner, the plot was not found to be garden land.
7. I have heard the learned counsel for the petitioner and the learned Government Pleader for the respondents.
8. It is an admitted case that the land of the petitioner is described as residential plot/garden land in the Basic Tax Register and Thandaper Register. The land is not included in the Data Bank prepared under the provisions of the Kerala Conservation of Paddy Land and Wetland Act, 2008. The case of the 3[rd] respondent is that since the Settlement Register shows the land as 'Nilam', it has to be treated as such.
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9. This Court had occasion to consider a similar issue in the judgment in _**Indira v. Sub Collector**_ (supra). In the said judgment, it was held that the Basic Tax Register as envisaged in Rule 4 of the Kerala Land Tax Rules, 1972 is a vital statutory document and the entries in such a vital statutory document cannot be simply ignored by the competent revenue officials concerned so as to proceed adversely as against the parties like the petitioners merely on the ground that the old settlement register shows the description of the property otherwise. The said approach of the respondents is against the scheme of the statute as framed in the Kerala Land Tax Act, 1961 and the Kerala Land Tax Rules, 1972. The said precedent of this Court would apply to the petitioner's case also.
10. As regards the contention of the learned Government Pleader that there was no finding as to the nature of the petitioner's property in the re-survey proceedings, it has to be noted that the 3[rd] respondent here has conducted an inspection of the site and found that the petitioner's land is
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“seen as low lying land similar to wetland filled with red sand and completely covered with bushes and shrubs”. There is no specific finding that the land of the petitioner is wetland, based on any tangible material. Therefore, based on a finding that the land is “a low lying land similar to that of wetland, filled with red sand and completely covered with bushes and shrubs”, it cannot be concluded that the land is/was a wetland. Based on such fragile finding, an order in the nature of Ext.P7 cannot be passed.
For all the afore reasons, Ext.P7 order of the 3[rd] respondent is set aside, following the judgment of this Court in _**Indira v. Sub Collector**_ (supra). The writ petition is allowed as above.
Sd/- **N. NAGARESH, JUDGE**
aks/25.06.2021
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## **APPENDIX OF WP(C) 1003/2021**
**PETITIONER'S EXHIBITS:**
**EXHIBIT P1**
**EXHIBIT P2**
**EXHIBIT P3**
**TRUE COPY OF THE SETTLEMENT DEED NO 1554/2012 OF AMBALAPUZHA SRO.**
**TRUE COPY OF THE TAX RECEIPT IN THE NAME OF MOTHER AND SISTER DATED 29.6.2011**
**TRUE COPY OF THE TAX RECEIPT DATED 25.10.2016 IN THE NAME OF THE PETITIONER**
**EXHIBIT P4 TRUE COPY OF THE BTR IN THE NAME OF THE ORIGINAL OWNER.**
**EXHIBIT P5**
**EXHIBIT P6 EXHIBIT P7**
**EXHIBIT P8**
**TRUE COPY OF THE T.P REGISTER WITH REGARD TO THE TP NO.8114.**
**TRUE COPY OF THE FAIR VALUE REGISTER**
**A TRUE COPY OF THE ORDER DATED 21.10.2020 PASSED BY THE 3RD RESPONDENT TRUE COPY OF THE DETAILS OF RESURVEY CONDUCTED IN ALAPUZHA DISTRICT, WHICH WAS PUBLISHED IN THE WEBSITE OF DIRECTOR OR SURVEY**
