A Supreme Court Bench comprising of Justice V. Gopala Gowda and Justice R. Banumathi has ruled that High Court has no power to direct the authorities to change entries in the Basic Tax Register with respect to conversion of land.
The Court was hearing appeals against an order passed by the Division Bench of the Kerala High Court, which had directed the Tahsildar to correct the nature of land from ‘Nilam’ (Wetland) to ‘Purayidam’ (Dry land) in the Basic Tax Register (BTR).
A certificate was issued by the Agricultural Officer to the respondents, to the effect that the land in question was recorded as a converted land in the Paddy Wetland. The possession certificate issued by the village officer however stated that the land in question was actually dry land.
When the heirs of the respondents tried to sell the land, the purchasers of the land insisted for production of an order showing nature of land as a dry land, as a condition precedent for registering sale deed, but the revenue authorities refused to correct the same.
The respondents then approached the High Court, contending that the disputed property is a dry land, but wrongly described as a wetland (Nilam) in their sale deed and that it was never used for any agricultural purposes.
The appellants contended before the Supreme Court that without making an application for conversion of nature of land before any statutory authority, writ proceedings were initiated by the respondent and the impugned order would circumvent the provisions of Kerala Conservation of Paddy and Wetland Act, 2008 and the Kerala Land Utilization Order, 1967.
The Respondents averred that since District Collector declined to make necessary changes in the BTR, in exercise of power under Article 226 of the Constitution, Tahsildar was rightly directed to make necessary changes in the BTR.
The Court ventured into the object and scheme of the two Acts, the Court observed that, “Statutory enquiry to ascertain whether the land is a “Paddy Land” or “Wetland” and conversion of the land for residential purpose or for any public purpose is governed by KLU Order or the Kerala Wetland Act, 2008 for conversion of the land from “Nilam” (Wetland) to ‘Purayidam’ (Dry Land). The concerned authorities constituted under KLU Order or Kerala Wetland Act 2008 are the competent authority. Nature of the land cannot be changed or converted by directing changes in the Basic Tax Register which is maintained only for the purpose of land tax.”
The respondents were hence directed to approach the competent authorities constituted under KLU Order 1967/ Kerala Conservation of Paddy Land and Wetland Act 2008 for conversion of the land.REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 2749 OF 2015
(Arising out of SLP (Civil) No.3172/2014)
THE REVENUE DIVISIONAL OFFICER
FORT, KOCHI & ORS.
Versus
JALAJA DILEEP & ANR.
Dated;March 10, 2015
This bunch of appeals raises question of substantial
importance, whether the order of conversion of land passed
by the Tahsildar under Kerala Land Tax Act would circumvent
the provisions of beneficial legislations such as Kerala
Conservation of Paddy and Wetland Act, 2008 and the Kerala
Land Utilization Order, 1967?
3.
These appeals arise out of the order passed by the
Division Bench of the Kerala High Court, which upheld the
order passed by the learned Single Judge and thereby
directing the Tahsildar to effect a change in the Basic Tax
Register (BTR) and correct the nature of land from ‘Nilam’
(Wetland) to ‘Purayidam’ (Dry land).
For convenience, facts
in civil appeal arising out of Special Leave Petition (C) No.3172
of 2014 is referred to and taken as the lead case.
4.
Briefly stated facts of the case are as under:-
Respondent No.1 herein is the joint owner of the land
comprised in Survey No.330/2 of Ernakulam Village in
Ernakulam District to an extent of 12.286 cents. The
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respondents approached the Agricultural Officer who gave a
certificate on 10.2.2012, to the effect that the land in question
was recorded as a converted land in the Paddy Wetland in the
survey records in Ernakulam Village and additionally, a
possession certificate was also issued by the Village Officer on
15.2.2012, wherein it was reported that the land in question is
actually a dry land. When the heirs of the respondents tried
to sell the land, the purchasers of the land insisted for
production of an order showing nature of land as a dry land,
as a condition precedent for registering sale deed, but the
revenue authorities refused to correct the same.
5.
The respondent No.1 filed a Writ Petition No.11784
of 2012, before the High Court seeking a writ of mandamus
to the authorities to effect necessary corrections in the Basic
Tax Register and change the nature of lands from ‘wetland’ to
‘dry land’.
Respondent No.1 averred that the disputed
property is a dry land, but wrongly described as a wetland
(Nilam) in their sale deed and that it was never used for any
agricultural purposes. The Single Judge of the High Court vide
Order dated 13.7.2012, allowed the writ petition directing that
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the property of the respondent No.1 will have to be classified
as ‘reclaimed purayidam’ (dry land) in the Basic Tax Register
(for short ‘BTR’) and further issued a direction to the Tahsildar
and the Village Officer to effect appropriate correction as per
the terms of the direction.
Aggrieved by the Order, State
preferred W.A. No.412 of 2013, wherein the Division Bench of
the High Court vide impugned judgment dated 2.1.2014,
upheld the order of the Single Judge and dismissed the
appeal. Aggrieved, the State of Kerala has filed this appeal by
way of special leave assailing the impugned judgment.
6.
Learned
senior
counsel
for
the
appellants
contended that without making an application for conversion
of nature of land before any statutory authority, writ
proceedings were initiated by respondent No.1 and the
impugned order would circumvent the provisions of Kerala
Conservation of Paddy and Wetland Act, 2008 and the Kerala
Land Utilization Order, 1967.
It was submitted that ‘Nilam’
(wetland) in due course had been changed or transformed
into reclaimed ‘purayidam’ dry land or any other state of
condition and the change so effected or made by itself will not
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amount to ‘a mistake’ as referred to in Section 18 of Kerala
Land Tax Act and the Tahsildar has absolutely no competence
to decide upon the reclassification application in respect of
the correction of BTR and the impugned order is liable to be
set aside as they are in contravention of provisions of KLU
Order, 1967 and Kerala Conservation of Paddy and Wetland
Act, 2008.
7.
Per
contra,
learned
counsel
for
respondents
contended that since District Collector declined to make
necessary changes in the BTR, in exercise of power under
Article 226 of the Constitution, Tahsildar was rightly directed
to make necessary changes in the BTR and the impugned
order does not contravene the provisions of the Acts.
8.
We have considered the rival contentions and
perused the impugned order and materials on record. Before
going into the merits of the contentions and the impugned
order, it is imperative to refer to the scheme of the relevant
Acts.
9.
Scheme and Object of Land Utilization Order, 1967:
The Kerala Land Utilization Order, 1967 (‘KLUO’ for brevity)
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was issued by the Government of Kerala under the Essential
Commodities Act 1955 (10 of 1955) at a time when India was
facing food grain deficit and there were also some restrictions
on inter-State movement of food grain. The object of KLUO
is:- (a) to bring occupied waste or arable lands likely to be left
fallow during a cultivation season under cultivation with
paddy or other food crops; (b) to prevent the conversion of
any land cultivated with food crops for other purpose, except
with the written permission of the District Collector or the
Revenue Divisional Officers in case the powers of District
Collectors have been delegated to them.
10.
Clause 3 of the Order provides that the State
Government may direct, every holder of land shall grow over
such portion of his land food crops such as paddy, fish,
sugarcane, vegetables, tapioca, yarn, tea, coffee, cardamom,
pepper, ground-nut cocoa and banana in addition to any crop
he may have grown over such land. Clauses 4 to 7 postulate
the role of Collector in implementing the object of the Act and
the sanctions he can impose in case of non-compliance by
holder of land. Clause 6 of the order provides that land
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cultivated with any food crop for a continuous period of three
years shall not be converted or utilized for cultivation of any
other food crop or for any other purpose except with the
written permission of the Collector.
Clause 7 of the Order
empowers the Collector to call upon any person who
contravenes the provisions of KLUO to cultivate the land with
such food crops and within such period as may be specified in
the notice. If the notice is not complied with within the time
specified, the Collector may, by order direct and arrange for
the sale by public auction.
Thus, the KLUO vests District
Collectors with powers to enforce cultivation of food crops.
11.
Further
157/2002/AD
vide
dated
Notification
5.2.2002,
No.
G.O.
Government
(Rt.)
of
No.
Kerala,
Agriculture (NCA) Department has issued instructions to follow
the modalities for implementation of the KLU Order, wherein
conversion for construction of houses for individuals are
permitted and it reads as under:
•
The direction issued to District Collectors vide reference
read as first paper (Government letter No. 47165/NCA-
3/97/AD dated 17.12.1997) will be withdrawn. This would
mean that applications for conversion can be considered
and disposed off by Revenue Divisional Officers/District
Collectors in accordance with the provisions of the KLU
Order and related standing instructions.
The Land
Revenue Commissioner will hear appeals and the
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•
•
•
•
•
12.
Government (in the Agriculture Department) will exercise
revisional powers as provided for in the KLU Orders.
District Collectors will ensure the conversions, which are
likely to render irrigation investments infructuous, are not
to be allowed.
Similarly large scale conversion for
Commercial purpose should be discouraged.
In
all
cases,
where
conversion
is
allowed,
Collectors/Revenue Divisional Officers must ensure that
drainage for neighbouring or nearby plots is not blocked
or rendered impossible.
Conversion of land for construction of houses for
individuals, upto 5 cents, should generally be allowed.
However, large-scale conversion of
land by artificial
partitioning into small plots of less than 5 cents should be
detected and disallowed.
The revenue machinery at the taluka and village-level
should be activated to ensure that in future, conversions
or attempted conversions without sanction are promptly
detected and proceeded against. Conversions should not
presented as a ‘fait accompli’ which have to be inevitably
regularized.
Government
will
examine
the
suggestions
of
Collectors/Principal Agricultural Officers for changes to the
KLU Order to make the penal provisions more effective
and also for levying as on conversion.
Scheme and Object of the Kerala Conservation of
Paddy Land and Wetland Act, 2008 (for short ‘Wetland Act’):-
Indiscriminate and uncontrolled reclamation and massive
conversion of paddy land and wetland that were taking place
in the State led to the passing of the Kerala Conservation of
Paddy and Wetland Act, 2008 with an aim to conserve the
paddy land and wetland and to restrict the conversion or
reclamation thereof, in order to promote growth in the
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agricultural sector and to sustain the ecological system in the
State of Kerala.
13.
Section 2 (xii) of the Act of 2008 defines “paddy
land” as 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. Further, as evident from the objects and scheme
of the Act, whether a land in question would come under
paddy land defined in Conservation of Paddy Land and
Wetland Act, 2008, is to be determined on the basis of facts
as they exist on ground and not on the basis of description in
the revenue records or in the deeds. Section 3 is the pivotal
provision of the Act which prohibits conversion or reclamation
of paddy land. As per Section 3, that on and from the date of
commencement of this Act, the owner, occupier or the person
in custody of any paddy land shall not undertake any activity
for the conversion or reclamation of such paddy land except in
accordance with the provisions of this Act. Section 13 read
with Section 3 provides that District Collector is empowered to
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order re-conversion of the land only if reclamation or
conversion was made after the commencement of the
provisions of the Act.
14.
To ensure the proper implementation of objectives,
the Act envisages the constitution of Committees at three
different levels i.e. Local Level Monitoring Committee (S.5),
State Level Committee (S.8) and District Level Authorized
Committee (S.9). Besides it, Wetland Act also provides for the
reporting officers under Section 7 who are Agriculture Officers
vested with responsibility to report the Revenue Divisional
Officer as well as to Committees, regarding any act in
violation of provisions of the Act.
15.
The
Act
provides
for
a
local-level
monitoring
committee in each panchayat or municipality for monitoring
the implementation of the Act. The powers of the Committee
are conferred under sub-section (3) of Section 5. Sub-section
(ii) of Section 5(3),
vests the power to Local Committee to
inspect the paddy land situated within the jurisdiction of the
Committee to monitor whether the provisions of the Act are
being complied with and the same has to be reported to the
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Revenue Divisional Officer.
The Committee can examine
complaints from the public about attempts to violate the
provisions of the Act and intervene to prevent violation. Under
sub-section 4(iv) of Section 5, the Committee has got the
function to collect the details of the paddy land within the
area
of
jurisdiction
of
the
Committee,
reclaimed
in
contravention of the provision of any law for the time being in
force, before the date of commencement of the Act and to
give the report to the Revenue Divisional Officer.
16.
The
Local
Level
Monitoring
Committee
is
empowered to recommend to the State-Level Committee or
the District-Level Authorized Committee, as the case may be,
the reclamation of paddy land for public purpose or for
construction of residential buildings for the owner of the land,
subject to conditions fixing the extent of the land to be so
utilized.
The State-Level Committee has to scrutinize each
application recommended by the local-level committee for
filling up or reclamation of paddy land for public purpose. It
should examine in detail if alternative land is available in the
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area for the purpose and the ecological changes that may
occur from reclamation.
17.
“Paddy land” and “Wetlands” are defined under
Sections 2 (xii) and 2 (xviii) of the Act respectively. As per
Section 5(4), the Committee shall interalia prepare a Data
Bank with details of cultivable paddy land within the
jurisdiction of the Committee.
If the land is not included in
the Data Bank or Draft Data Bank prepared under the Kerala
Cultivation of Paddy Land and Wetland Act 2008 and if it is not
a “Paddy Land” or “Wetland” as defined
under Act 28 of
2008, at the time of commencement of the Act 12 of 2008
and the classification of land is noted as “Nilam” in the
revenue records, the provision of Kerala Land Utilization Order
1967 will be applicable to such land and the Collector as
defined in clause 2(a) of KLU Order 1967 has the power to
grant permission to utilize the land for other purposes.
As
stated in clause 2 (a) of KLU Order, Collectors shall examine
such request for residential purpose, on merits on a case to
case basis.
However, with a view to prevent indiscriminate
filling of Paddy Lands in the State, the Government have also
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Page 12
prescribed certain restrictions in the Notification dated
5.2.2002 noted (supra), in which District Collectors have been
directed interalia
to ensure that the conversions which are
likely to render irrigation investments infructuous and large
scale conversion for commercial purpose are not allowed.
18.
If a property is included in the Data Bank or the
Draft Data Bank prepared under the Wet Land Act 2008 as a
“Paddy Land” or “Wetland” and the classification of land is
noted as “Nilam” in revenue records, the provisions of the Act
28/2008 would apply.
As noticed earlier, there is ample
provision within the Act to grant permission for such land for
residential purpose or public purpose as defined in the Act.
And as elaborated earlier, if the property is not included in the
Data Bank as “Paddy Land” or “Wetland” as defined under Act
28/2008, it is still governed by the provisions of KLU Order
1967. Thus, State of Kerala has two statutes -KLU Order 1967
and Kerala Cultivation of Paddy Land and Wetland Act 2008
each
dealing
with
delineated
areas
with
respect
to
preservation, management and process of reclamation of
agricultural and paddy land for any other legitimate use.
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Page 13
19.
Kerala Land Tax Act 1961 is an Act to provide for
levy of basic tax of land in the State of Kerala. High Court
directed correction of Basic Tax Register (BTR) under Section
18 of Kerala Land Tax Act to order change of nature of land.
The change of nature of the land with the passage of time
cannot be regarded as a conversion which can be rectified
under Section 18 of the KLT Act. Section 18 of KLT Act provides
for rectification of mistakes. Section 18 reads as follows:-
“18.
Rectification of mistakes.—At any time
within four years from the date of any order passed
by it the prescribed authority
or the appellate
authority or the revisional authority may, on its own
motion, rectify any mistake apparent from the record
and shall, within a like period, rectify any such
mistake which has not been brought to the notice of
the prescribed authority or the appellate authority or
the revisional authority, as the case may be, by a
land-holder or other person liable to pay tax:
Provided that no such rectification shall be
made which has the effect of enhancing the tax
payable unless the landholder and any other person
liable to pay tax have been given a reasonable
opportunity of being heard in the matter.”
20.
By the perusal of the above provision, it is evident
that the rectification of mistake narrated in Section 18 relates
to the apparent mistake on the face of the record in relation to
any order passed by the prescribed authority,
appellate
authority or the revisional authority under the Act. Therefore,
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Page 14
the rectification of mistake can only be in respect of
proceedings or orders passed by the original authority,
appellate authority or the revisional authority.
21.
Statutory enquiry to ascertain whether the land is a
“Paddy Land” or “Wetland” and conversion of the land for
residential purpose or for any public purpose is governed by
KLU Order or the Kerala Wetland Act, 2008 for conversion of
the land from “Nilam” (Wetland) to ‘Purayidam’ (Dry Land).
The concerned authorities constituted under KLU Order or
Kerala Wetland Act 2008 are the competent authority. Nature
of the land cannot be changed or converted by directing
changes in the Basic Tax Register which is maintained only for
the purpose of
land tax. The rectification envisaged by
Section 18 of Kerala Land Tax Act can only be in respect of
arithmetical or clerical error, that too in the order of
determining the tax due. Section 18 cannot be made use or
the same cannot be taken as a means to effect conversion of
the nature of the land bye-passing the competent authority
and the procedure stipulated under the KLU Order, 1967 and
the Kerala Wetland Act, 2008 and the impugned judgment is
liable to be set aside.
22.
For the foregoing reasons, the impugned judgment
passed by the High Court in Writ Appeal No.412/2013 is set
aside and the appeal is allowed. Accordingly impugned
judgments in connected matters are also set aside and the
appeals are allowed.
23.
The respondents in all the appeals are directed to
approach the competent authorities constituted under KLU
Order 1967/Kerala Conservation of Paddy Land and Wetland
Act 2008 as the case may be for conversion of the land. When
the
respondents
constituted
under
approach
the
the
above
concerned
statutes,
the
authorities
concerned
authorities shall consider the application of the respondents in
accordance with the relevant provisions of the statutes and
also the notification G.O.(Rt.) No.157/2002/AD dated 5.2.2002
already extracted above in para 11 and in accordance with
law keeping in view the factual position that may be brought
to the notice of the authorities alongwith material to
substantiate their claim. In the facts and circumstances of the
case, we make no order as to costs.
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...............................J.
(V. GOPALA GOWDA)
..............................J.
(R. BANUMATHI)
New Delhi;
March 10, 2015
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