Suresh Babu K vs State Of Kerala
2021 Latest Caselaw 17453 Ker

         IN THE HIGH COURT OF KERALA AT ERNAKULAM
                            PRESENT
           THE HONOURABLE MR.JUSTICE N.NAGARESH
  THURSDAY, THE 26TH DAY OF AUGUST 2021/4TH BHADRA, 1943
                    W.P.(C)NO.19688 OF 2020
    PETITIONER:

         SURESH BABU K., AGED 41 YEARS,
         S/O. KUMARAN, KUTTATH HOUSE,
         P.O.EDAPPAL, THUYYAM, MALAPPURAM DISTRICT,
         PIN-679 576.
         BY ADVS.
         M.R.JAYALATHA
         K.VINAYA


    RESPONDENT/S:

   1     STATE OF KERALA,
         REPRESENTED BY ITS SECRETARY,
         DEPARTMENT OF REVENUE, GOVERNMENT SECRETARIAT,
         THIRUVANANTHAPURAM-695 001.
   2     REVENUE DIVISIONAL OFFICER,
         MINI CIVIL STATION, THRIKANDIYOOR ROAD,
         TIRUR, MALAPPURAM DISTRICT-676 101.
   3     THE TAHSILDAR, PONNANI TALUK,
         PONNANI P.O., MALAPPURAM DISTRICT-679 577.
   4     THE LOCAL LEVEL MONITORING COMMITTEE,
         REP. BY ITS CONVENER AND AGRICULTURE OFFICER,
         KRISHI BHAVAN EDAPPAL, EDAPPAL P.O.,
         MALAPPURAM DISTRICT-679 576.
   5     THE VILLAGE OFFICER, EDAPPAL VILLAGE,
         EDAPPAL P.O., MALAPPURAM DISTRICT-679 576.
         BY SMT.RANJITHA, GOVERNMENT PLEADER

     THIS WRIT PETITION      (CIVIL) HAVING COME UP       FOR
ADMISSION ON 26.08.2021,     THE COURT ON THE SAME        DAY
DELIVERED THE FOLLOWING:
 WP(C) No.19688/2020
                               :2 :




                        JUDGMENT

~~~~~~~~~

Dated this the 26th day of August, 2021

The petitioner seeks to quash Ext.P7 and to direct

the 2nd respondent to reconsider and pass fresh orders on

Ext.P5 application in Form-5 and Ext.P5(a) application in

Form-6 in the light of the judgment of this Court in Mather

Nagar Residents Association v. District Collector [2020 (2)

KLT 192]. The petitioner further seeks to direct the 3 rd

respondent to reassess the land tax under Section 6A of the

Kerala Land Tax Act.

2. The petitioner states that he is owner of 43 cents of

property in Survey No.187/1B-4, 5 and 6 of Edappal Village in

Ponnani Taluk. The land is a dry land with three buildings

thereon and 30 Acacia trees. However, the Panchayat

authorities declined to give the petitioner a Building Permit to

construct a commercial building on the ground that the land is WP(C) No.19688/2020

described as wetland in Revenue records.

3. The petitioner submitted Ext.P5 application in

Form-5 to remove the land from Data Bank, invoking the

provisions of the Kerala Conservation of Paddy Land and

Wetland Act, 2008. Ext.P5(a) application was submitted in

Form-6 to change the nature of the land in Revenue records.

In WP(C) No.4435/2020, filed by the petitioner, this Court as

per Ext.P6 judgment directed the Revenue Divisional Officer to

pass orders on Ext.P5 application within three months. On

refusal of the RDO to pass orders as directed by this Court,

the petitioner filed Contempt Case No.918/2020. Thereupon,

without giving an opportunity of hearing to the petitioner, the

RDO rejected the application as per Ext.P7 order.

4. The petitioner states that in Ext.P7, it has been

observed that an Advocate represented the petitioner in the

personal hearing. The petitioner has not engaged any lawyer

to represent him in the hearing. The RDO rejected the

applications for the reason that the property is not a converted

land prior to 2008. A Division Bench of this Court in the WP(C) No.19688/2020

judgment in Mather Nagar Residents Association (supra)

has held that a property which is lying fallow and which gets

waterlogged during rainy season due to the low lying nature

cannot be termed as paddy land or wetland. The 2 nd

respondent-RDO has not considered the application in the

light of the Division Bench judgment of this Court. Hence,

Ext.P7 order is liable to be set aside.

5. The 2nd respondent-RDO filed a counter affidavit.

The 2nd respondent stated that a hearing was conducted on

20.08.2020. As the 2nd respondent was quarantined on that

date, the Senior Superintendent heard the Advocate of the

petitioner. The site was inspected and it was revealed that the

land has been converted illegally subsequent to 12.08.2008.

KSREC report was also considered. The said report showed

that the land was fallow/waterlogged, as per 2008 data. The

land was observed as mix vegetation/plantation in the data for

the years 2013, 2015 and 2018. Ext.P7 order is therefore

perfectly legal, contended the 2nd respondent. WP(C) No.19688/2020

6. Heard the learned counsel for the petitioner and the

learned Government Pleader representing the respondents.

7. The petitioner would state that the land is dry land

even prior to 2008 and there are three buildings in the

property. The petitioner has produced Ext.P9 property tax

receipt issued by the Panchayat though the same is for the

year 2018-'19. The report of the LLMC is also to the effect

that there are buildings and 30 standing Acacia trees in the

property. Still, the 2nd respondent proceeded to hold that the

land has been converted recently only, based on KSREC

report.

8. When the petitioner has a case that there were

buildings in the property and LLMC also has reported that

there are buildings, it was incumbent upon the 2 nd respondent

to find out as to when those buildings were constructed.

Similarly, when admittedly there are standing trees in the land,

steps could have been taken to ascertain the age of the trees.

Without doing so, the 2 nd respondent proceeded to reject the

application submitted by the petitioner based on KSREC WP(C) No.19688/2020

report. The KSREC has found that the land was found

waterlogged in the year 2008.

9. A Division Bench of this Court has held in Ext.P8

judgment in Mather Nagar Residents Association (supra)

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 rainy season due to low lying nature

of the property, it cannot be termed as wetland or paddy land.

The 2nd respondent has not considered this legal position.

For the said reasons, Ext.P7 order is liable to be set

aside. Ext.P7 order of the 2 nd respondent is therefore set

aside. The 2nd respondent is directed to reconsider Ext.P5

application submitted by the petitioner in the light of Ext.P8

judgment, within a period of two months, after giving an

opportunity of hearing to the petitioner.

Sd/-

N. NAGARESH, JUDGE

aks/24.08.2021 WP(C) No.19688/2020

APPENDIX OF WP(C) 19688/2020 PETITIONER EXHIBITS:

EXHIBIT P1        A TRUE COPY OF THE PHOTOGRAPH OF THE
                  PROPERTY
EXHIBIT P1 (A)    A TRUE COPY OF THE CASH RECEIPT ISSUED
                  BY   EDAPPAL    GRAMA    PANCHAYAT    DATED
                  19.8.2020
EXHIBIT P2        A TRUE COPY OF THE BASIC TAX RECEIPT

ISSUED BY THE THIRD RESPONDENT DATED 17.5.2019 EXHIBIT P2 (A) A TRUE COPY OF THE BASIC TAX RECEIPT ISSUED BY THE THIRD RESPONDENT DATED 25.4.2019 EXHIBIT P3 A TRUE COPY OF THE POSSESSION CERTIFICATE ISSUED BY THE VILLAGE OFFICER DATED 8.2.2020 EXHIBIT P3 (A) A TRUE COPY OF THE POSSESSION CERTIFICATE ISSUED BY THE VILLAGE OFFICER DATED 6.2.2020 EXHIBIT P4 A TRUE COPY OF THE RELEVANT PAGES OF THE DATA BANK PUBLISHED IN KERALA GAZETTE DATED 24.3.2012 EXHIBIT P5 A TRUE COPY OF THE APPLICATION IN FORM 5 DATED 5.2.2020 SUBMITTED BY THE PETITIONER TO THE 2ND RESPONDENT EXHIBIT P5 (A) A TRUE COPY OF THE APPLICATION IN FROM 6 DATED 18.2.2020 EXHIBIT P6 A TRUE COPY OF THE JUDGMENT IN WPC NO 4435 OF 2020 DATED 19.2.2020 EXHIBIT P6 (A) A TRUE COPY OF THE NOTICE DATED 7.8.2020 ISSUED BY THE REVENUE DIVISIONAL OFFICER TIRUR.

EXHIBIT P7 A TRUE COPY OF THE ORDER PASSED BY THE REVENUE DIVISIONAL OFFICER THIRUR DATED 7.9.2020 EXHIBIT P8 A TRUE COPY OF THE JUDGMENT IN MATHER NAGAR RESIDENTS ASSOCIATION VS DISTRICT COLLECTOR (2020 (2) KLT 192) Exhibit P9 A TRUE COPY OF THE TAX RECEIPT ISSUED BY THE EDAPPAL GRAMA PANCHAYAT DATED 31.01.2019.

Exhibit P10 A TRUE COPY OF THE BUILDING PERMIT ISSUED EDAPPAL GRAMA PANCHAYAT DATED 29.09.2018.