IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE THE AG.CHIEF JUSTICE MR.ASHOK BHUSHAN & THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE THURSDAY, THE4H DAY OF DECEMBER201413TH AGRAHAYANA, 1936 WA.No. 1093 of 2013 () --------------------------------- AGAINST THE JUDGMENT
IN WP(C) 11227/2012 OF THIS HONOURABLE COURT DATED0808-2012 ---------------------- APPELLANTS/RESPONDENTS1 3 & 4 IN WP(C) : ---------------------------------------------------------------------- 1. THE DISTRICT COLLECTOR MALAPPURAM DISTRICT, MALAPPURAM - 676 505.
2. THE VILLAGE OFFICER, NARUKARA VILLAGE, ERNAD TALUK MALAPPRURAM DISTRICT - 676 122.
3. TAHSILDAR, ERNAD TALUK, MANJERI. BY SPL. GOVT. PLEADER SRI. C.S. MANILAL RESPONDENTS/PETITIONERS & 2ND RESPONDENT IN WP(C) : ------------------------------------------------------------------------------------------- 1. ALIKOYA S/O.BEERAN, 'MUNDOLI', MANJERI ERNAD, NARUKARA P.O.- 676 122.
2. HASNATH, W/O.ALIKOYA, 'MUNDOLI', MANJERI ERNAD, NARUKARA P.O.- 676 122.
3. MANJERI MUNICIPALITY, REPRESENTED BY ITS SECRETARY, MUNICIPAL OFFICE, MANJERI - 676 121. R1 & R2 BY ADV. SRI.M.K.CHANDRA MOHANDAS R3 BY ADV. SRI.K.SHIBILI NAHA, SC THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON0411-2014, ALONG WITH WA NO. 1149/2013 & WA NO. 1150/2013, THE COURT ON0412/2014 DELIVERED THE FOLLOWING: Mn ASHOK BHUSHAN, Ag.CJ & A.M.SHAFFIQUE, J.
* * * * * * * * * * * * * W.A.Nos.1093 of 2013, 1149 of 2013 & 1150 of 2013 ---------------------------------------- Dated this the 4th day of December 2014
JUDGMENT
Shaffique,J These Writ Appeals are filed by the State and its authorities challenging the judgment of the learned Single Judge by which directions were issued to the revenue authorities to conduct a verification of the property involved in the cases and to change the classification of the property in the Basic Tax Register. Since common questions arise for consideration in these appeals and similar orders have been passed by the learned Single Judge, these appeals are considered and decided together.
2. For convenience, the pleadings in W.A.No.1150 of 2013 arising from W.P.C.No.27932 of 2011 is stated for a clear understanding of the relevant factual situation. W.A.No.1093,1149, 1150 of 2013 2 3. The petitioners entered into an agreement to purchase certain item of land having an extent of 4.12 acres. The property was declared to be dry land as evident from Ext.P1 report dated 03/02/2001 of the Village Officer. They purchased the property on the basis of Ext.P1 report and Ext.P2 is the sale deed. Mutation was effected and the property is in their possession. Ext.P3 dated 06/05/2011 is the possession certificate and Ext.P4 is the tax receipt dated 06/05/2011. It is inter alia contended that the property is a rubber estate and it is not paddy land as contemplated under the Conservation of Paddy Land and Wet land Act, 2008 (hereinafter referred as the '2008 Act'). When the petitioner applied for a possession certificate showing the property as garden land, the same was not granted and accordingly, he filed W.P.C.No.24979 of 2011 which was disposed of by judgment dated 20/09/2011 directing the Village Officer to pass appropriate orders and if necessary after conducting inspection. After considering the same, the village officer issued Ext.P11 dated 10/10/2011 observing W.A.No.1093,1149, 1150 of 2013 3 that though the property, on inspection was found to be cultivated with rubber trees, plants and coconut trees, as per village records the property having an extent of 76.55 ares in Re.Sy.No.2/2 is shown as Nilam or paddy field and therfore possession certificate could be issued only showing the entry in the Village records. Accordingly Ext.P8 was issued showing the property as nilam (paddy field) and wet land. The petitioners challenged the aforesaid action and seeks for a declaration that the property is dry land. It is in the said background that the learned Single Judge directed the revenue authorities to consider the application of the petitioner after getting the reports and to classify the property by changing from nilam to garden/converted land. While issuing such directions, the learned Single Judge also found that conversion was made prior to the coming into force of the 2008 Act.
4. Reference was also made to the judgments of this Court in Shahanas Shukkoor v. Chelannur Grama Panchayath (2009 (3) KLT899, Praveen v. Land W.A.No.1093,1149, 1150 of 2013 4 Revenue Commissioner (2010 (2) KLT617, Jalaja Dileep v. Revenue Divisional Officer (2012 (3) KLT333 and Jaferkhan v. Kochumarakkar (2012 (1) KLT491. In fact, in the counter affidavit filed by the first respondent it was mentioned that the Village officer has no power to change the category of land and that the petitioner has illegally converted the property for the purpose of planting rubber trees without permission for conversion.
5. In W.A.No.1093/2013, the property involved is having an extent of 6.2 acres in Re.Sy.No.279/2 of Narukkara village. In this case also, by Ext.P3, the Village officer certified that the property is paddy field (Nanja) as available in the revenue records. Whereas the petitioner's request is for issuing a possession certificate showing the nature of property as garden land inter alia contending that the property has been converted long back.
6. In W.P.(C) No.1149/2013 petitioner's claim is in respect of 80 cents in Re-Sy.No.132/2, 149 cents in Re.Sy.No.130/2A and 84 cents in re-sy.No.133/2 and 132/4 of W.A.No.1093,1149, 1150 of 2013 5 Narukara village. Here also, the issue is with reference to the nature of land mentioned by the Village Officer in the possession certificate Ext.P4. Petitioners contended that though the properties were converted long back, still the same is only described as nanja or paddy field which requires correction. Though representations were submitted for effecting correction, the authorities did not take any further action.
7. In all the above cases, the learned Single Judge had issued similar directions. While impugning the judgments, the Learned Government Pleader produced data bank entries prepared by the Local Level Monitoring Committee (for short LLMC), prepared under the provisions of 2008 Act. In respect of the lands covered in all these cases, according to the Learned Government Pleader, it is shown as paddy land. It is, therefore, argued that in so far as the entries in the data bank particulars clearly indicates that the property is paddy land, the Village officer cannot issue any certificate indicating that the property is a garden W.A.No.1093,1149, 1150 of 2013 6 land. These documents were apparently not produced at the time when the matter was heard by the learned Single Judge.
8. Before proceeding further, let us consider the judgments relied upon in the light of the statutory provisions. Section 2(xii) of the 2008 Act defines paddy land as under:
2. xii) "paddy land" means all types of land situated in the State where paddy is cultivated at least once in a year or suitable for paddy, cultivation but uncultivated and left fallow, and includes its allied constructions like bunds, drainage channels, ponds and canals." 9. Section 3 of the 2008 Act indicates that after the commencement of the Act, no person in possession of paddy land shall undertake any activity for the conversion or reclamation of the paddy land except in accordance with the provisions of the Act.
10. The provisions of the Act has to be implemented by LLMC to be constituted in accordance with Section 5 of W.A.No.1093,1149, 1150 of 2013 7 the Act. The Committee shall consist of the President or Chair Person/Mayor of the Grama Panchayath or Municipality or Corporation as the case may be, the Agricultural Officer, Village Officer or three representatives of farmers from the respective areas. Agricultural Officer shall be the Convener of the Committee. The powers of the Committee is also prescribed under Section 5(3) of the Act. Section 5(4) further indicates that the Committee shall prepare a data bank with the details of cultivable paddy land and wet land within the area of jurisdiction of the Committee and for other matters relating to the same. Sub Section 4(i) of Section 5 of 2008 Act reads as under: "5(4)(i): The Committee shall perform the following functions, namely:- (i) to prepare the data-bank with the details of the cultivable paddy land and wetland, within the area of jurisdiction of the Committee, with the help of the map prepared or to be prepared by the State Land Use Board or Centre- State Science and Technology Institutions on the basis of satellite pictures by incorporating the W.A.No.1093,1149, 1150 of 2013 8 survey numbers and extent in the data-bank and get it notified by the concerned Panchayat/Municipality/Corporation, in such manner as may be prescribed, and exhibit the same for the information of the public, in the respective Panchayat/Municipality/Corporation Office and in the Village Office/Offices;" 11. Section 10 gives power to the Government to grant exemption from the provisions of the Act for conversion or reclamation of paddy land, if it is essential for public purpose but such exemption shall not be given unless the LLMC recommends such conversion or reclamation on the basis of the report submitted by the State level Committee on such terms as provided under the said provisions. Section 13 gives power to the District Collector to restore the land to the original position, if any paddy land is reclaimed violating the provisions of the Act, and realise the cost incurred from the owner/occupier.
12. Therefore, Statute itself creates a prohibition for conversion of paddy land with effect from the date on which the Act has come into force. LLMC has to prepare a data W.A.No.1093,1149, 1150 of 2013 9 bank and if it is only at the drafting stage, the persons who are aggrieved by the same can approach the LLMC for rectifying such entries. However, such corrections can be made only if it is at the draft stage and if it is notified in terms with Section 5(4)(i), there is no provision for rectifying such entries as well.
13. In Shahanas Shukkoor (supra), the learned Single Judge of this Court only held that description of an item of property as nilam (paddy field) or wet land in revenue records is insufficient for the purpose of the 2008 Act and it has to be verified whether the land is actually paddy field or wet land. The statute operates on the basis of facts as they exist on ground realities and not on any quality or type of land depending on its description in the title document. In Praveen (supra), a Division Bench of this Court held that after the 2008 Act coming into force, one cannot reclaim or convert a paddy land without permission being obtained under the said Act. In regard to the properties other than paddy land and wet land, provisions of W.A.No.1093,1149, 1150 of 2013 10 Kerala Land Utilisation Order (hereinafter referred to as the 'KLU Order') survives and will continue to be governed by the KLU Order. The enquiry will be to find out whether the land in question is cultivated with food crops other than paddy and could be converted for any other purpose. It is further held that description of property in the revenue record by itself may not be conclusive to prove that the property is covered by the provisions of the 2008 Act.
14. In Jafferkhan's case (supra), another Division Bench of this Court held that if any conversion is made prior to the 2008 Act coming into force it cannot be said to be a violation of the provisions of the 2008 Act. District Collector has power to order reconversion of land under Section 13 only in instances if reclamation or conversion was made after the commencement of the 2008 Act. In Jalaja Dileep's case (supra), the learned Single Judge held that nature of land in the title deed or in the revenue records will not be crucial if the property is reclaimed prior to the provisions of 2008 Act coming into force. In such event, re- W.A.No.1093,1149, 1150 of 2013 11 classification of the property as dry land in the revenue records can be made.
15. Having regard to the aforesaid statutory provisions and rules, the crucial fact available in the present case is the data bank entries prepared by the LLMC. If LLMC had treated the property involved in these cases as paddy field or wet land, prima facie, one has to proceed on the basis that the property comes within the purview of the 2008 Act.
16. If the property involved is a paddy land or wet land as per the data bank entries in the LLMC, 2008 Act applies and the Village authorities will have no jurisdiction to pass any orders for change of entries in the Basic Tax Register, unless the entries in data bank are corrected by LLMC. The Village authorities cannot take any steps overlooking such data bank entries. After the 2008 Act coming into force, they can only act in conformity with the data bank particulars prepared by the LLMC.
17. In the light of the additional documents produced in these cases, which apparently was not available at the W.A.No.1093,1149, 1150 of 2013 12 time when the matter was decided by the learned Single Judge, we are of the view that the directions issued by the learned Single Judge has to be set aside. The definition of paddy land in the 2008 Act, means land where paddy is cultivated and paddy land left fallow and suitable for paddy cultivation. Therefore the land suitable for paddy cultivation can also be declared as paddy land and included in the data bank. Petitioners have a case that the properties were reclaimed long prior to the 2008 Act coming into force and the property is planted with rubber trees, arecanuts and coconut trees. This apparently, is a factual dispute, which has to be considered only by the appropriate authorities under the 2008 Act. After the 2008 Act coming into force, revenue authorities while considering a request to change the category of land, in the revenue records, will have to ascertain the actual position as per the data bank entries as well, before effecting such changes in the basic tax register.
18. Having regard to the fact that the data bank entries now available indicates that the property of the W.A.No.1093,1149, 1150 of 2013 13 petitioners in these cases are classified as paddy land, it is open for them to approach the authorities under the 2008 Act, to effect necessary corrections. Without effecting such changes, it is not open for them to seek change of category of their lands in the revenue records. In the result, these appeals are allowed setting aside the judgment of the learned Single Judge, reserving liberty to the petitioners to approach the authorities under the 2008 Act for appropriate orders. (sd/-) (ASHOK BHUSHAN, ACTING CHIEF JUSTICE) (sd/-) (A.M.SHAFFIQUE, JUDGE) jsr W.A.No.1093,1149, 1150 of 2013 14 W.A.No.1093,1149, 1150 of 2013 15