Kerala High Court
N.H.Hamza vs State Of Kerala on 25 August, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE N.NAGARESH
WEDNESDAY, THE 25TH 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 :
JUDGMENT
~~~~~~~~~
Dated this the 25th 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
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 2nd 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
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
'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
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
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.15-
52015/2016 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 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
