Kerala High Court
Pareed Salim vs State Of Kerala
Author: T.R.Ramachandran Nair
Bench: T.R.Ramachandran Nair
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE T.R.RAMACHANDRAN NAIR
WEDNESDAY, THE 12TH DAY OF SEPTEMBER 2012/21ST BHADRA 1934
WP(C).No. 34539 of 2011 (N)
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PETITIONER(S):
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PAREED SALIM,
S/O.MOIDEEN,KAMMALAYIL HOUSE,PAREEKANNY PO.,
KOTHAMANGALAM,ERNAKULAM DISTRICT - 686 693.
BY ADVS.SRI.SHEJI P.ABRAHAM
SRI.O.K.MURALEEDHARAN
RESPONDENT(S):
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1. STATE OF KERALA,
REP.BY LAND REVENUE COMMISSIONER,SECRETARIAT,
TRIVANDRUM - 695 001.
2. DISTRICT COLLECTOR,
IDUKKI, PIN - 685 584.
3. VILLAGE OFFICER,
THODUPUZHA,IDUKKI DISTRICT - 685 584
BY GOVERNMENT PLEADER SMT. SANJEETHA
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD
ON 12-09-2012, THE COURT ON THE SAME DAY DELIVERED
THE FOLLOWING:
Kss
WPC.NO.34539/2011 N
APPENDIX
PETITIONER'S EXHIBITS:
EXHIBIT P1 COPY OF THE REGISTERED DOCUMENT NO.1689/11 DATED 18//6/11
OF SRO ,THODUPUZHA.
EXHIBIT P1(A) COPY OF THE REGISTERED DOCUMENT NO.1690/11 DATED18/6/11
OF SRO,THODUPUZHA.
EXHIBIT P2 COPY OF THE REPORT SUBMITTED BY THE DEPUTY TAHASILDAR
BEFORE THE DISTRICT COLLECTOR.
EXHIBIT P3 PHOTOGRAPH OF THE PROPERTY.
EXHIBIT P3(A) PHOTOGRAPH OF THE PROPERTY.
EXHIBIT P3(B) PHOTOGRAPH OF THE PROPERTY.
EXHIBIT P3(C) PHOTOGRAPH OF THE PROPERTY.
EXHIBIT P4 REPORT OF THE AGRICULTURAL OFFICER, THODUOPUZHA
MUNICIPALITY.
EXHIBIT P5 ORDER OF THE 2ND RESPONDENT REJECTING PETITIONER'S
APPLICATION FOR MUTATION.
RESPONDENTS' EXHIBITS:
R2(A): COPY OF THE LETTER DATED 17/08/11 OF REVENUE DIVISIONAL
OFFICER, IDUKKI.
R2(B): COPY OF THE THANDAPER ACCOUNT NO.19140 IN THODUOPUZHA
VILLAGE.
R2(C): COPY OF THE THANDAPER ACCOUNT NO.19857 IN THODUOPUZHA
VILLAGE.
/TRUE COPY/
P.S.TO JUDGE
Kss
T.R.RAMACHANDRAN NAIR, J.
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W.P.(C).No. 34539 of 2011
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DATED THIS THE 12TH DAY OF SEPTEMBER, 2012
JUDGMENT
The issue that arises for consideration is whether, for effecting mutation the description of the property has to be changed by executing a rectification deed. The petitioner purchased by Exts.P1 and P1(a), 18 cents and 1 acre 73 cents of properties in Sy. Nos.195/16/2, 195/11, 195/5 and 195/6 with two old buildings numbered as X/209 and X/210 in Thodupuzha Village. Stamp duty was remitted as per the fair value fixed by the Government, wherein the property is classified as a commercially important one. In the registered deed, the description of the property is given as 'purayidam' instead of 'nilam' as stated in the old Basic Tax Register. It is averred that when the application for effecting mutation was submitted, the Revenue Divisional Officer conducted an enquiry and found that the properties are commercial and not agricultural and submitted a report accordingly and thereafter the District Collector conducted a further enquiry through the Deputy Tahsildar who also submitted a report describing that the properties of the petitioner are not agricultural properties and have been lying as a barren land. Ext.P2 is the copy of the report. The W.P.(C).No.34539/2011 -2- petitioner has produced Exts.P3 to P3(c) photographs of the property to show its nature. Thereafter, for verifying the present situation of the land as per the request of the petitioner, the Agricultural Field Officer attached to Thodupuzha Municipality inspected the property and prepared a report, a copy of which has been produced as Ext.P4. In the said report, the nature of the properties has again been confirmed, as barren land. But, finally by Ext.P5 the petitioner was directed to execute a rectification deed to change the description in the registered sale deeds, of some of the items as 'nilam', so as to be in tune with the village records.
2. Heard learned counsel for the petitioner and learned Government Pleader.
3. Learned counsel for the petitioner submitted that the description of the properties in the documents Exts.P1 and P1(a) tallies with the true nature and the ground realities. Therefore, the description in the sale deeds does not suffer from any infirmity. A rectification deed is being executed for rectifying any error, whereas no such error is in existence herein. Learned counsel for the petitioner therefore submitted that actually the B.T.R. has to be corrected by changing the classification as 'purayidam', especially in the light of the principles stated by this Court in Jalaja Dileep W.P.(C).No.34539/2011 -3- v. Revenue Divisional Officer (2012 (3) KLT 333). Learned counsel also submitted that various decisions of this Court under the Kerala Conservation of Paddy Land and Wet Land Act also have emphasised the fact that the actual fact situation is important.
4. In the counter affidavit filed by the second respondent, in para 2 it is stated that in the Fair Value Register, the property is classified as commercially important property and stamp duty was paid as per the fair value fixed by the Government. The further plea raised is that for a document to be valid in effect, it should bear the details corresponding to revenue records and the present nature of the property has no relevance for effecting mutation. It is also stated that the classification of the land as commercially important in the Fair Value Register is not a ground for effecting mutation in the village records. The Revenue Divisional Officer referred the matter to the District Collector for opinion in the light of the fact that in the Village records, certain items of properties are classified as 'nilam'.
5. As regards the real nature of the property, it can be seen from Ext.P2 report submitted by the Additional Tahsildar dated 27.9.2011 submitted to the District Collector that in the Fair Value Register W.P.(C).No.34539/2011 -4- the classification is shown as commercially important plots. There is a two storied building in the properties and in the adjacent plots there are business establishments, cinema theatre, market and other commercial institutions. It is also stated that in the properties which are shown as 'nilam' in Sy. Nos.195/5 and 195/6 for more than 20 years no paddy cultivation was there and therefore it will not come within the purview of Kerala Conservation of Paddy Land and Wet Land Act. It is also stated that the reconversion for effecting paddy cultivation is not possible and the property is lying as 'purayidam' as of now and it is being used for conducting various public functions as stage and stadium, etc. In the property there is only one coconut tree having more than 15 years of age as a permanent cultivation. Ext.P4 is the report submitted by the Agricultural Field Officer, Krishi Bhavan. The said report also shows that the property is lying as a barren land and that in the adjoining properties and locality, there is no paddy cultivation. Therefore, as far as the nature of the property is concerned, it can be seen that it is lying as 'purayidam' and it is neither a paddy land nor a wet land. The objection in Ext.P5 is raised only because of the description of some of the items of properties covered by the documents as 'nilam' in the revenue records.
W.P.(C).No.34539/2011 -5-
6. Whether the mere description of the property as 'nilam' in the revenue records will be crucial in considering the effect of Kerala Paddy Land and Wet Land Act, 2008 was considered by a learned Single Judge of this Court in the decision reported in Shahanaz Shukloor v. Chelannur Grama Panchayat (2009 (3) KLT 899). Para 3 of the said judgment laid down the principles in the following words:
"Not only that, the mere description of an item of property as 'Nilam'(paddy field) 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 field or wetland can be used. This is because the Kerala Conservation of Paddy Land and Wetland Act, 2008, deals with the conversion of lands, which are wetland or paddy fields, on the basis of the actual fact situation and not depending on the description of the property in the revenue records. The definition of the terms 'paddy field' and 'wetland' in the said Act is 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 its description in the title document."
Hence, the description in the revenue records will be insufficient to assume that the land cannot be used for any purpose other than those for which a paddy field or wetland can be used. The ground realities are relevant, in W.P.(C).No.34539/2011 -6- the context.
7. In Jalaja Dileep'c case (2012 (3) KLT 333) I had occasion to consider the very same legal issue while considering the question whether the BTR can be corrected for recording the true nature of the land. In para 15, it has been held thus:
"Therefore, it is clear that the description in the title deed or in the revenue records will not be crucial in such cases where the fact situation show that the property is reclaimed already, like the one herein. Hence, the provisions of the Conservation of Paddy Land and Wet Land Act will not come in the way of reclassification of the same as dry land in the revenue records........."
It has been held further that the prescribed authority to order a correction is the Tahsildar who is having jurisdiction of the Taluk in which the land is situated and the following aspects laid down in paragraphs 21 to 24:
"Going by S.6 of the Act read with R.5(i) of the Rules and the notifications, it can be seen that the prescribed authority in this case is the Tahsildar who is having jurisdiction of the taluk in which the land is situated. The details to be recorded in the BTR include classification of the land, extent and other details. In the light of the factual situation the property remains as 'reclaimed purayidam' and therefore the classification will have to be W.P.(C).No.34539/2011 -7- accordingly corrected. It is therefore declared that the property of the petitioner will have to be classified as 'reclaimed purayidam' (dry land) in the Basic Tax Register."
Therefore, when the true nature of the land requires change of classification in the BTR, the insistence that the petitioner should execute a rectification deed (erratum) to show the description of the property in the sale deeds, as 'nilam' cannot be justified, which will be against the actual fact situation.
8. In fact, Section 28A of the Stamp Act will show that the fair value will have to be fixed in terms of the matters provided in sub section (2) which are as follows:
"(2) The Revenue Divisional Officer shall, in fixing the fair value of a land under sub-section (1), have regard inter alia to the following matter, namely:--
(a) development of the area in which the land is situate such as the commercial importance, facilities for water supply, electricity, transport and communication;
(b) proximity of the land to markets, bus stations, railway stations, factories, educational institutions or other institutions;
(c) the geographical lie of the land, the nature of the land such as dry, waste, wet or garden land, fertility, nature of crop, yielding capacity and cost of cultivation; and
(d) such other matters as may be provided in the rules made under this Act."
W.P.(C).No.34539/2011 -8-
Sub clause (a) recognises the development of the area in which the land is situated and sub clause (c) is also important because, going by the same, the nature of the land such as dry, wet or garden land, fertility, nature of crop, yielding capacity and cost of the cultivation etc. has to be considered.
9. Therefore, for fixing the fair value herein, sub clauses (a) and (c) of Section 28A(2) have obviously been considered. The land is lying as a dry and barren one and commercially important. Therefore, those aspects cannot be ignored as now contended by the respondents in the counter affidavit.
10. The further aspect to be considered is whether the direction now issued could be justified under the procedures prescribed under the Transfer of Registry Rules, 1966. Rule 16 of the Rules is relevant in this context. It will show that what is involved is a summary enquiry and a decision thereon and it is only an arrangement for fiscal purposes and does not affect the legal rights of any person in respect of the lands covered by the decisions in transfer of registry cases. None of the provisions of the Transfer of Registry Rules will give any support to the order now passed directing the petitioner to execute a rectification deed. Going by Rule 2, transfer of registry takes place: (1) by voluntary action of the owners; (2) by virtue of decrees of W.P.(C).No.34539/2011 -9- Civil Courts or by Revenue sales, or (3) by succession. Rule 3(a) provides for the procedure to be followed in cases covered by item (1) above. After the report of the Village Officer, the further actions will have to be taken in the matter as evident from Rules 6, 7 and 9. Certain principles to be followed for conducting enquiries in the case of transfer of registry, are covered by Rule 14. Rule 15 will show that it is the immediate concern of the Land Revenue Department to keep the thandaper accounts (Chitta) upto date and bring into it the names of the real land-holders who shall be held liable for the payment of Government revenue due on the land. These rules do not confer any power to direct a rectification deed to be executed.
11. I had occasion to consider a similar issue in the judgment in W.P.(C) NO. 18900/2012 wherein also in similar circumstances a rectification deed was directed to be produced. After referring to the judgments of this Court in Shahanaz Shukkoor's case (2009 (3) KLT 899) and Jafarkhan v. Kochumarakkar (2012 (1) KLT 491), it has been held therein in para 6 as follows:
"6. Therefore, the crucial question is whether the property is a converted land and as the description of the property in the document show that it is shown as nilam nikathu purayidam, the same will have to be accepted prima facie for the purpose of W.P.(C).No.34539/2011 -10- effecting mutation. With regard to the other aspects, whether any paddy land has been converted or not is not a matter for the authorities under the Transfer of Registry Rules to be gone into. In that view of the matter, it is not required that the petitioner should execute a rectification deed as a pre-condition for effecting mutation, especially, the Transfer of Registry Rules do not insist so."
Similar is the situation herein also.
12. In the light of the above, the order Ext.P5 cannot be sustained. The petitioner cannot be compelled to execute a rectification deed as a pre- condition for effecting mutation. In fact, the petitioner has got a remedy to get the BTR corrected, in the light of the judgment in Jalaja Dileep's case (2012 (3) KLT 333).
Therefore, the writ petition is allowed. There will be a direction to the respondents to reconsider the application for mutation and dispose of the same in the light of the findings rendered above, within a period of one month from the date of receipt of a certified copy of this judgment. No costs.
(T.R.RAMACHANDRAN NAIR, JUDGE) kav/ W.P.(C).No.34539/2011 -11-