REVENUE DIVISIONAL OFFICER Vs. JALAJA DILEEP

JUDGEMENT

(1.) This appeal by the Revenue Divisional Officer, Fort Kochi, Tahsildar, Kanayannur and Village Officer, Elamkulam is against the Jalaja Dileep v. Revenue Divisional Officer, 2012 3 KerLT 333 judgment of the learned single Judge declaring that the property of the writ petitioner will have to be classified as 'reclaimed purayidam' (dry land) in the Basic Tax Register and the direction issued to the Tahsildar and the village officer to effect appropriate correction in the Basic Tax Register in terms of that declaration. The Tahsildar and the Village Officer were further directed to issue to the writ petitioner, on application, a corrected copy of the relevant page of the Basic Tax Register. It was also directed that the relevant and corresponding entries in the revenue records will also be corrected. The writ appeal is fundamentally on the plea that the scope of S. 18 of the Kerala Land Tax Act, 1961, for short, 'Land Tax Act', is limited to rectification of mistakes and therefore, when the nature of the land and its user changes with passage of time, such changes cannot be recorded as if rectification of mistake is being done under S. 18 of that Act and that the rectification directed to be done is contrary to the settled position of law in terms of the earlier pronouncements of the Division Bench in Praveen v. Land Revenue Commissioner, 2010 2 KerLT 617 and of a single Judge in Hajee Abubacker v. R.D.O. Palakkad,2009 4 KerLT 49 . Heard the learned Senior Government Pleader and the learned counsel for the first respondent writ petitioner.

(2.) At the outset, we may refer to the decision in Praveen which was decided by the Division Bench following an order of reference made by a learned single Judge on the premise that there is some conflict of opinion in the decisions rendered in Jayakrishnan v. District Collector,2009 1 KerLT 123, Shahanaz Shukkoor v. Chelannur Grama Panchayat,2009 3 KerLT 899and Hajee Abubacker . Dilating on the legal issues with reference to the scope and continued application of the provisions of the Kerala Land Utilization Order, 1967, for short, 'KLU Order', after the Kerala Conservation of Paddy Land and Wetland Act, 2008, for short, 'Wetland Act', came into force, the Division Bench held that as regards paddy land or wetland, the provisions in the KLU Order have no application with effect from 12.8.2008, the date on which the Wetland Act came into force. The Bench concurred with Shahanaz Shukkoor wherein it was held that mere description of an item of property as 'nilam' 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 land or wetland can be used and that the definitions of the terms 'paddy land' and 'wetland' in the Wetland Act are 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 the description in the title document. The Bench also concurred with Hajee Abubacker in which it was held that after coming into force of the Wetland Act, no order can be passed on an application under the KLU Order. It was held that there was no conflict between Shahanaz Shukkoor and Jayakrishnan in which it was held that it is for the competent authority to enquire as to whether a particular parcel of land is paddy land or wetland and proceed accordingly. In Praveen , the Division Bench clarified the legal position in paragraph 15 of that judgment as reported in KLT, which reads as follows:

(3.) On to the facts of the Writ Petition from which this writ appeal arises, it can be seen that 12.286 cents of land in survey No. 330/3 of Elamkulam Village in Elamkulam District was purchased in 1972 in the name of the writ petitioner's mother-in-law Smt. Meera Ben. She died on 12.3.1994 leaving behind her husband, son Dileep and daughter Devika. Later, Meera Ben's husband and son also died. Writ petitioner is Dileep's widow, with two minor children. Thus, Devika and the writ petitioner and her children became the heirs of Meera Ben. The competent authority effected mutation by including the name of the writ petitioner also and issued tax receipt on payment of property tax. Exhibit P3 is the possession certificate issued by the Village Officer. Exhibit P4 relevant page of the Basic Tax Register issued by the village Officer shows the description of the property as 'nilam'. Exhibit P5 certificate was issued by the Village Officer showing that property is actually dry land. Exhibit P6 certificate issued by the Agricultural Officer after conducting a local enquiry also confirmed the same fact situation. Exhibit P7 is a further certificate issued by the village officer showing that the property is dry land. Having regard to the urgent need to meet the requirement of the minor children, writ petitioner instituted an original petition before the District Court for sanction to sell the property of the minors. On that basis, she also has a contract for sale from a third party. She filed the Writ Petition because of the incongruity in the entry in the Basic Tax Register showing the property as 'nilam' and the ground reality that the property is dry land. Before the learned single Judge, the third respondent in the Writ Petition, namely, the Village Officer, filed a statement following the direction of this Court. He stated that the entries in the BTR show that the property is paddy land and that the village officer has personally inspected the property and has seen that the land is presently filled and not fit for paddy cultivation. He reported that though the nearby lands are kept vacant, no paddy cultivation is done there. He said that while inspecting for the preparation of Data Bank under the Wet Land Act, it is recorded as filled land, but the Data Bank is not yet finally published. On this fact situation, the learned single Judge applied the principles stated in Shahanaz Shukkoor , Praveen , Jafarkhan v. Kochumarakkar, 2012 1 KerLT 491 and Mohammed Abdul Basheer v. State of Kerala, 2012 3 KerLT 86 . Assimilating the facts, as reflected in paragraph 9 of the impugned judgment, the learned single Judge concluded on facts, that the materials clearly show that the land of the writ petitioner is reclaimed purayidam (dry land). It was therefore that the learned single Judge granted the declaration to that effect. With the materials on record, we do not find any legal infirmity in the appreciation of the materials by the learned single Judge and in having decided the matter on the basis of the report of the Village officer, as well. Under such circumstances, we do not find that there is any infirmity in the findings of the learned single Judge in that regard. More particularly and importantly, we specifically note that there is no plea or ground in this appeal that the findings of facts in the impugned judgment are wrong.