3. THE VILLAGE OFFICER
ELAMKULAM, ERNAKULAM-682 020.
4. THE
CORPORATION OF COCHIN REPRESENTED BY ITS SECRETARY OFFICE OF THE COCHIN
CORPORATION ERNAKULAM-682 018.
BY ADV. SRI.RAJESH S.SUBRAHMANIAN,SC,COCHIN CO
R1 TO R3 BY GOVERNMENT PLEADER SRI.K.C.VINCENT. BY SRI.P.K.SOYUZ,SC,COCHIN
CORPORATION
JUDGMENT
The writ petition is filed by
the petitioner mainly seeking for a direction to respondents 1 to 3 to effect
necessary correction in the basic tax register based on Exts.P5 to P7
certificates showing the property covered by Ext.P1 title deed, by deleting the
words
'Wet Land'.
The circumstances under which the writ petition is filed, are
the following:
2. The petitioner is the joint owner of an extent of 12.286
cents of land comprised in Survey No.330/3 of Elamkulam Village in Ernakulam
District. The petitioner's mother-in-law, late Smt. Meera Ben purchased the
said property as per Ext.P1 sale deed of the year 1972. She died on 12.3.1994
leaving behind her husband Shri Ramakrishnan, son Shri K.R. Dileep and daughter
Smt. Devika. Both Shri Ramakrishnan and Shri Dileep are no more. The petitioner
is the legally wedded wife of Shri K.R. Dileep. The property has been mutated
in the name of the legal heirs of late Meera Ben including the petitioner and
Ext.P2 is the true copy of the tax receipt showing payment of property tax.
Ext.P3 is the copy of the possession certificate issued by the Village Officer.
3. The petitioner points out that the property is a dry land situated in a
thickly populated residential area. But it is described wrongly as wet land
(nilam) in Ext.P1 title deed. It was never used for any agricultural purposes
during the lifetime of late Meera Ben and actually she wanted to construct a
house in the property. Ext.P4 is the relevant page of Basic Tax Register issued
by the Village Officer wherein also the property is shown as 'nilam'. On the
basis of the application submitted by the petitioner a certificate was issued
by the Village Officer as per Ext.P5 showing the true nature of the property
wherein it is reported that it is actually a dry land. Ext.P6 is the
certificate issued by the Agricultural Officer after conducting a local enquiry
which also confirmed the same and Ext.P7 is the further certificate issued by
the Village Officer showing that the property is a dry land.
4. In the light
of the urgent need to sell the property to meet the demands of the two minor
children, the petitioner filed O.P.(Guardian) No.1083/2011 before the District
Court, Ernakulam and by Ext.P8 order, the petitioner is permitted to sell the
property on behalf of the minors. Thereafter, Ext.P9 agreement for sale has
been executed wherein the value has been fixed treating the property as dry
land. The proposed buyer is insisting for an order converting the entry in the
BTR as dry land before registering the sale deed.
5. Heard learned Senior
Counsel for the petitioner and learned Government Pleader.
6. The third
respondent has filed a statement as directed by this Court. It is stated
therein that the entries in the BTR shows that the property is a paddy land. It
is stated that the third respondent has personally inspected the property and
seen that the land is presently filled and not fit for paddy cultivation.
Though the nearby lands are kept vacant, no paddy cultivation is done there.
While inspecting for the preparation of data bank for
Conservation of Paddy and
Wet Land Act, 2008
it is recorded as filled land but data bank is not yet
finally published. It is further stated that since in the BTR it is shown as
nilam, the third respondent cannot reclassify it as purayidam or dry land.
7. Learned Senior
Counsel for the petitioner submitted that the property was not remaining as a
paddy land even at the time of purchase of the same. It is situated within the
Corporation area. There is no paddy cultivation in the nearby plots. The
provisions of the Conservation of Paddy Land and Wet Land Act will not be
applicable as it was converted long prior to the coming into force of the said
Act. My attention was invited to the certificates produced and it is submitted
that necessary entries in the BTR will have to be corrected.
8. Various
provisions of the Land Tax Act as well as the Kerala Village Manual have been
referred to.
Reliance is also placed on the following decisions of this Court,
viz.
Shahanaz Shukkoor v. Chelannur Grama Panchayat (2009 (3) KLT 899)
Praveen
v. Land Revenue Commissioner (2010 (2) KLT 617)
Jafarkhan v. Kochumarakkar
(2012 (1) KLT 491)
and
Mohammed Abdul Bahsheer v. State of Kerala (2012 (3) KLT
86)
9. A reading of
the certificates produced in the writ petition will show the true nature of the
property and evidently it is a dry land itself. In Ext.P5 certificate issued by
the Village Officer, it is shown that the property is classified as 'nilam' in
the BTR, but it now remains as a reclaimed purayidam. In Ext.P6 it is certified
that the land is recorded as converted land in the paddy - wet land survey
records in Elamkulam Village, given to the Secretary of the concerned
Corporation for gazette notification. The conversion was prior to 2008. Further
details are clear from Ext.P7 certificate of the Village Officer. It is
recorded therein that the property remained as reclaimed purayidam prior to the
coming into force of the Kerala Conservation of Paddy and Wet Land Act and
remains as such even now. The said certificate is issued in terms of Section 12
of the said Act.
10. Therefore, as
regards the true nature of the land there cannot be any dispute. The question
therefore is whether merely because in the title deed and in the BTR the
property is described as 'nilam', it will deprive the petitioner, of the
reliefs sought for in the writ petition.
11. The issue
whether mere description of the property as 'nilam' in the revenue records will
be the crucial one, was considered by this Court in Shananaz Shukkoor's case
(2009 (3) KLT 899). The findings therein are significant as far as the facts of
this case are concerned. Therein, in para 3 this Court held as follows:
"Not only that, the mere description of an item of property as
'Nilam'(paddy field) 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 field or wetland can be used. This is because the Kerala Conservation
of Paddy Land and Wetland Act, 2008, deals with the conversion of lands, which
are wetland or paddy fields, on the basis of the actual fact situation and not
depending on the description of the property in the revenue records. The
definition of the terms 'paddy field' and 'wetland' in the said Act is
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 its description in the title document."
Therefore, the
provisions of the said Act will have application on the basis of the actual
fact situation and it is not depended on the description of the property in the
revenue records.
12. In Praveen's
case (2010 (2) KLT 617), the above dictum was considered. It was held that
The
application of the Act is confined to paddy land and wet land alone.
13. In a recent
decision of a Division Bench of this Court in Jafarkhan's case (2012 (1) KLT
491), it was held that
"whatever be the conversion of paddy land or wet
land made prior to the coming into force of the Act, cannot be said to be a
violation of the Act."
The relevant findings are contained in para 4 which
are extracted below:
"What is clear from the above is that prohibition is
only in respect of conversion or reclamation of paddy land after the
commencement of the operation of the Act. The Act admittedly came into force
only with effect from 12.8.2008 and so much so, whatever be the conversions of
paddy land or wet land made prior to the coming into force of this Act, cannot
be said to be a violation of the Act. S.13 of the Act authorises the District
Collector to order reconversion of paddy land and wet land which is converted
in violation of the provisions of the Act.."
14. All the above decisions
were considered in Mohammed Abdul Basheer's case (2012 (3) KLT 86) and in para
4 the legal position was reiterated as follows:
"If the land in question
was converted prior to the enactment of the Kerala Conservation of Paddy Land
and Wet Land Act, 2008, the property in question cannot be described as 'paddy
field' or 'wet land' coming within the purview of the said Act. The question
regarding grant of building permit need be decided taking into consideration of
the ground reality existing."
15. Therefore, it is clear that
The
description in the title deed or in the revenue records will not be crucial in
such cases where the fact situation show that the property is reclaimed
already, like the one herein. Hence, the provisions of the Conservation of
Paddy Land and Wet Land Act will not come in the way of reclassification of the
same as dry land in the revenue records.
In fact, in paragraph 20 of the
decision in Praveen's case (2010 (2) KLT 617) the Division Bench considered a
similar case where the property was shown as single crop land (even though all
the authorities reported that it was remaining as a garden land for more than
fifty years and trees of fifty years old are also seen there). The Bench was of
the view that Act 28 of 2008 applies only to paddy land and wet land and in the
nature of the materials placed on record and after perusing the same, the Bench
was satisfied that the land in question is not a land where there is any food
crop nor is it a paddy field as defined under Act 28 of 2008. Accordingly, a
declaration was granted that the land is not covered either by the provisions
of the Kerala Land Utilisation Order or Act 28/2008.
16. Similar is
the position here.
The various certificates mentioned already will show that
the land is remaining as purayidam for a long period. Therefore, it is not a
paddy field coming within the purview of Act 28/2008 and it is declared so.
There is no other food crop also. Therefore, the Kerala Land Utilisation Order
also will not apply.
17. What remains
is the plea of the petitioner to direct the authorities to correct the BTR and
issue appropriate proceedings to the petitioner. The relevant provisions of the
Kerala Land Tax Act will have application here. Section 3(7) of the Act defines
the "prescribed authority" which means "the authority appointed
by the Government by notification in the Gazette to perform the functions of
the prescribed authority under this Act." Rule 2 (iv) also provides that
"prescribed authority" means the authority appointed under section
3(7) of the Act.
18. Section 6(2)
confers power on the Prescribed Authority to fix the liability to pay basic tax
in respect of the circumstances pointed out therein.
Section 18 is under the
heading "Rectification of mistakes" and the said provision reads as
follows:
"18. Rectification of mistakes.-- At any time within four years
from the date of any order passed by it the prescribed authority or the
appellate authority or the revisional authority may, on its own motion, rectify
any mistake apparent from the record and shall, within a like period, rectify
any such mistake which has been brought to the notice of the prescribed
authority or the appellate authority or the revisional authority, as the case
may be, by a land- holder or other person liable to pay tax."
Therefore,
the power is conferred on the prescribed authority, the appellate authority or
the revisional authority to rectify any mistake on the records.
Rules 5(i) and
(ii) of the rules are relevant in this context to understand the scheme which
are extracted below:
"(i) The application for fixation of the rate of
basic tax under sub-section (2) of section 6 shall be presented by the land
holder or any other person liable to pay basic tax to the prescribed authority
having jurisdiction over the Taluk in which the land is situate. If the rate of
basic tax is to be fixed for lands in more than one taluk held by the same
person separate applications shall be presented to the prescribed authorities
concerned.
(ii) Application for fixation of the rate of basic tax under section
6(2) shall be in Form A. The application therefore will have to be submitted in
Form 'A' and a reference to Form 'A' clearly shows that the nature of the land
will have to be shown as "wet, dry, garden or parambu". Therefore,
such details regarding the classification will have to be incorporated therein.
Under Rule 6(i), on receipt of an application under rule 5, the prescribed
authority shall cause the application to be verified by the Village Officer.
Sub-rules (ii) and
(iii) of Rule 6 provides as follows:
"(ii) The Village
Officer shall verify the details in the application with reference to the
revenue records and by local inspection and enquiry and shall submit his report
within 30 days of the receipt of the application in the Village Office.
(iii)
The prescribed authority shall thereupon cause the verification report
submitted by the Village Officer on the application under rule 5 to be checked
by the Firka Revenue Inspector, the Deputy Tahsildar or by himself."
Therefore, the nature of the land plays a crucial role in fixing the basic tax.
Therefore, classification of the same, is to be incorporated.
19. The next
important Form is Form B, viz. Provisional Notice of Demand. Therein, details
of land will have to be entered and item 6 to be shown is "classification
of land". Form C relates to "Notice of Final Assessment and Demand
under Section 6A(4) of the Act and therein also item 6 is "classification
of land".
20. As per
notifications Nos.29080/B3/68/RD dated 28.8.1968 published under SRO No.65/73
dated 5.1.1973 and 22381/B3/69/RD dated 16.3.1970 published as SRO No.119/70,
the Government has appointed the Taluk Tahsildars as the authority for
performing the functions of the Prescribed Authority under the said Act in his
Taluk. These notifications are issued under Section 7(3) of the Act.
21. Therefore,
going by Section 6 of the Act read with Rule 5((i) of the Rules and the
notifications, it can be seen that the prescribed authority in this case is the
Tahsildar who is having jurisdiction of the taluk in which the land is
situated. These provisions were heavily relied upon by the learned Senior
Counsel for the petitioner to submit that the entry in the BTR with regard to
the classification, can be directed to be corrected by the Tahsildar concerned.
22. My attention
was also invited to Chapter 13 of the Kerala Village Manual to show that BTR
will contain the classification of the land itself. Chapter 13 provides for
maintenance of various Village Registers and Accounts and item 277(2) is Basic
Tax Register. The same is extracted below:
"[Malayalam]"
Therefore, it is clear that the details to be recorded in the
BTR include classification of the land, extent and other details.
23. As already
noticed, the petitioner has obtained the relevant page of the BTR, Ext.P4,
wherein column 5 shows the classification of the land as 'nilam'. But in the
light of the factual situation the property remains as 'reclaimed purayidam'
and therefore the classification will have to be accordingly corrected.
24. It
is therefore declared that the property of the petitioner will have to be
classified as 'reclaimed purayidam' (dry land) in the Basic Tax Register. There
will be a direction to respondents 2 and 3 to effect appropriate correction in
the Basic Tax Register in terms of the above declaration, within a period of
two weeks from the date of production of a copy of this judgment by the
petitioner and the petitioner will be issued, on application, a corrected copy
of the relevant page of the Basic Tax Register. The relevant and corresponding
entries in the revenue records will also be accordingly corrected. The
petitioner will produce a certified copy of this judgment for compliance.
