Kerala High Court
Gangadharan vs The Tahsildar on 30 September, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE N.NAGARESH
THURSDAY, THE 30TH DAY OF SEPTEMBER 2021 / 8TH ASWINA, 1943
WP(C) NO. 10264 OF 2021
PETITIONER:
GANGADHARAN,
AGED 49 YEARS,
S/O. GOPALAKRISHNA MENON, BHADRALAYAM, PALACE
ROAD, PADINJARETHARA, KOLLENGODE, PALAKKAD
DISTRICT, PIN-678506.
BY ADVS.
SRI.JACOB SEBASTIAN
SRI.K.V.WINSTON
SMT.ANU JACOB
RESPONDENTS:
1 THE TAHSILDAR,
TALUK OFFICE, CHITTUR, PALAKKAD DISTRICT,
PIN-678001.
2 THE TALUK SURVEYOR,
CHITTUR TALUK, OFFICE OF THE TALUK SURVEYOR,
CHITTUR TALUK, PALAKKAD DISTRICT, PIN-678101.
3 THE VILLAGE OFFICER,
KOLLENGODE-II VILLAGE, KOLLENGODE-II VILLAGE
OFFICE, KOLLENGODE, PALAKKAD DISTRICT,
PIN-678506.
4 THE LOCAL LEVEL MONITORING COMMITTEE FOR THE
KOLLENGODE PANCHAYAT CONSTITUTED UNDER THE
CONSERVATION OF PADDY LAND AND WETLAND ACT, 2008,
REPRESENTED BY ITS CONVENER, THE AGRICULTURAL
OFFICER, KOLLENGODE PANCHAYAT,
PALAKKAD DISTRICT, PIN-678506.
BY ADV SRI.VIPIN NARAYANAN SR. GOVERNMENT PLEADER
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR
ADMISSION ON 30.09.2021, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
WP(C) No.10264/2021
:2 :
JUDGMENT
~~~~~~~~~
Dated this the 30th day of September, 2021
The petitioner, who owns 0.1780 Hectares of
property comprised in Re-Survey Block No.14, Re-Survey
No.73/14 in Kollengode-II Village of Chittur Taluk in Palakkad
District, seeks to quash Ext.P5 and to declare that the current
entry in the BTR concerning the petitioner's plot is a mistake
requiring correction.
2. The petitioner states that the aforesaid plot has all
the physical features of garden land and is surrounded by
houses and road. It was once upon a time a private pond but
was filled up more than 50 years ago. The plot is unassessed
and described as 'Kulam' in BTR and "Nee Key Chira" in
Adangal Register. Paddy is not cultivated anywhere around
but the plots in the area but were wrongly included in the Land
Data Bank. On the basis of an application of the petitioner,
WP(C) No.10264/2021
the 4th respondent-Local Level Monitoring Committee (LLMC)
inspected the plot and found the same as dry land.
Consequently, the entry was deleted from Data Bank.
3. The land is not a notified land and is an
unassessed land. The petitioner submitted an application to
the 1st respondent-Tahsildar under Section 6A of the Kerala
land Tax Act to correct the mistake in classification and to
assess the land for taxation. The matter was referred to the
3rd respondent Village Officer. The Village Officer reported
that though the plot is unassessed and is recorded as 'Kulam'
in revenue records, on physical inspection, it was found to be
dry land. The 1st respondent however, refused to correct the
mistake as per Ext.P5, for the reason that the mistake cannot
be attributable to survey or re-survey. Ext.P5 is illegal and
unsustainable, contends the petitioner.
4. The 1st respondent filed a statement dated
24.06.2021 and contested the writ petition. The 1 st
respondent stated that the petitioner is in possession of
0.1780 Hectares of land in Re-Survey No.73/14 (73/6) in
WP(C) No.10264/2021
Block-14 of Kollengode 2 Village in Chittur Taluk. The status
of land is 'Kulam'. The land is described in the Adangal
Register as "Nee Key Chira". After Re-Survey, it was
recorded as 'Kulam' in all revenue records. Conversion of
wetland is prohibited under the Kerala Conservation of Paddy
Land and Wetland Act, 2008. The water bodies like Pond
(Kulam), Thodu, Kayal and Rivulet are included in the Act,
2008.
5. Water bodies may be situated either in dry land or
wetland. Conversion of water bodies will affect water level in
the underground and thereby affect the ecological system of
the region. The petitioner's land is included in the Data Bank
in Kerala Gazette No.KGP/B4/5003/2021 dated 15.02.2021. It
is included in the Data Bank on the basis of site inspection by
the Agricultural Officer. It is quiet natural that ponds were
filled up with mud and sand. It is the duty of land holder to
remove the mud and sand from the 'Kulam' and maintain the
status under the Kerala Conservation of Paddy Land and
Wetland Act, 2008, contended the 1 st respondent.
WP(C) No.10264/2021
6. The petitioner's land is described in the Adangal
Register as "Nee Key Chira" and in the BTR as 'Kulam'. The
land is described in all revenue records as 'Kulam'. It
becomes taxable under the Kerala Land Tax Act, 1961. All
lands are taxable except Government lands. The petitioner
had remitted land tax for the land as per receipt No.8200835
of book No.82009 dated 24.11.2017 of Kollengode 2 Village.
The petitioner has been remitting land tax for his land. The
Kerala Land Tax Act, 1961, is meant for assessment of basic
tax and not for correction of mistake in classification of the
land. On the basis of revenue records, the petitioner remitted
land tax. In these circumstances, further assessment of basic
tax is not necessary.
7. The 1st respondent further stated that the Taluk
Surveyor was deputed to inspect the site and verify the
documents and records. The Taluk Surveyor has reported
that petitioner's land is described in all revenue records as
'Kulam'. In the Adangal Register, the land is described as
"Nee Key Chira". It shows that the land is used for storage of
WP(C) No.10264/2021
water. The status of land is 'Kulam'. There is no Re-Survey
mistake. On the basis of the report, application for change of
classification was rejected. 'Kulam' is the status of the
petitioner's land. As per the Kerala Conservation of Paddy
Land and Wetland Act, 2008, status of the land like 'Kulam'
cannot be changed. 'Kulam' may be situated in either dry land
or wetland. But, its status has to be conserved.
8. Section 11 of the Kerala Conservation of Paddy
Land and Wetland Act, 2008 prohibits reclamation of wetland
from the beginning of the Act, contended the 1 st respondent. It
is the duty of the revenue officials to maintain the status of
land like 'Kulam' (Pond), Kayal, Thodu and Rivulet. In
Kollengode, most of the ponds are rain fed. They have water
only during rainy season. During the rainy season, ponds are
filled with water and thereby water level is increased.
9. I have heard the learned counsel for the petitioner
and the learned Government Pleader representing the
respondents.
WP(C) No.10264/2021
10. The land of the petitioner is recorded as 'Kulam' in
the BTR and as "Nee Key Chira" in Adangal Register. The
petitioner submits that the land is where there was a private
pond once and was filled up at least 50 years ago. It is not a
part of any paddy land. The land has been deleted from Data
Bank and is an unnotified land. According to the petitioner,
the land being classified as a pond, it is an unassessed land.
Therefore, the provisions of the Kerala Conservation of Paddy
Land and Wetland Act, 2008 will not apply to the land. As the
land is no more a pond and since it is filled up, the current
entry in the BTR (as 'Kulam') is not correct and necessary
additional entry has to be made in the BTR. The petitioner's
application under Section 6A of the Kerala Land Tax Act, 1961
stands rejected as per Ext.P5. Ext.P5 is illegal and is liable to
be set aside.
11. The learned counsel for the petitioner relied on the
Division Bench judgment of this Court in Tahsildar,
Thodupuzha Taluk and another v. Renjith George [2020 (2)
KLT 13] wherein, it was held that even though the
WP(C) No.10264/2021
classification of the land in the BTR cannot be corrected,
additions can be made taking into account the changed
condition of the paddy field and then assess tax in accordance
with Section 6A of the Kerala Land Tax Act, 1961. The
learned counsel also relied on the judgment in Mary John v.
District Collector, Idukki and others [2020 (6) KLT 35]. The
argument is that the land was once "Kulam" and a "Kulam"
cannot be treated as Paddy Land. The word 'Paddy Land' as
defined in Section 2(xii) of the Act, 2008 would take in allied
constructions like bunds (Chira) and ponds (Kulam). The
Report dated 29.06.2021 submitted by the Agricultural Officer
would reveal that the pond (now filled up) is situated near
paddy field and will create drought due to lowering of water
table in that area. It will also cause flood during the rainy
season. It will affect paddy cultivation in the area.
12. The statement filed by the 1 st respondent discloses
that the land in question is included in the Data Bank. The
Hon'ble Apex Court has held in Revenue Divisional Officer,
Fort Kochi and others v. Jalaja Dileep and another [2015
WP(C) No.10264/2021
(1) KLT 984] that if a property is included in the Data Bank
prepared under the Act, 2008 as a Paddy Land or Wetland
and the classification of the land is noted as 'Nilam' in revenue
records, the provisions of the Act, 2008 would apply. In the
case of the petitioner, though the property is described as
'Kulam' in BTR and 'Nee Key Chira' in the Adangal Register, in
view of the finding of the Agricultural Officer that there are
paddy lands in the area and that conversion of the property
would affect paddy cultivation in the area, the petitioner will
have to resort to the provisions of the Act, 2008 to effect any
change in the nature of the land.
13. The judgment of this Court in Mary John v.
District Collector, Idukki and others [2020 (6) KLT 35] will
not be of any assistance to the petitioner as the issue was
decided in the said case under the Kerala Land Utilisation
Order. In the writ petition, the petitioner has no case that he
has submitted any application under the Kerala Land
Utilisation Order, 1967 before 30.12.2017 when Section 27A
was incorporated in the Act, 2008. The Division Bench of this
WP(C) No.10264/2021
Court in Tahsildar, Thodupuzha Taluk (supra) has held that
any application received for the change of nature of unnotified
land from the date of commencement of the Amendment Act,
2018 shall be considered and disposed of only in accordance
with the provisions of the Act, 2008.
For all the afore reasons, the writ petition filed by
the petitioner is found devoid of any merit. The writ petition is
therefore dismissed.
Sd/-
N. NAGARESH, JUDGE
aks/28.09.2021
WP(C) No.10264/2021
APPENDIX OF WP(C) 10264/2021
PETITIONER'S EXHIBITS:
EXHIBIT P1 A TRUE COPY OF THE POSSESSION
CERTIFICATE RELATING TO THE PLOT DATED
FEBRUARY 8, 2021 ISSUED BY THE THIRD
RESPONDENT.
EXHIBIT P2 A TRUE PHOTOGRAPHS OF THE PLOT.
EXHIBIT P3 A TRUE COPY OF THE PROCEEDINGS ISSUED
BY THE FOURTH RESPONDENT DATED NOVEMBER
16, 2018.
EXHIBIT P4 A TRUE COPY OF THE REPORT NO.82/2018
DATED MARCH 17, 2018 SUBMITTED BY THE
THIRD RESPONDENT BEFORE THE FIRST
RESPONDENT.
EXHIBIT P5 A TRUE COPY OF THE ORDER DATED AUGUST
10, 2019 ISSUED BY THE FIRST
RESPONDENT.
SR
