THE REVENUE DIVISIONAL OFFICER FORT, KOCHI & ORS.versusJALAJA DILEEP &ANR.

                         [2015) 3 S.C.R. 380


A              THE REVENUE DIVISIONAL OFFICER
                        FORT, KOCHI & ORS.

                                   v.

B                     JALAJA DILEEP &ANR.

                   (Civil Appeal No. 2749 of 2015)

                          MARCH 10, 2015

C        [V. GOPALAGOWDAAND R. BANUMATHI, JJ.]
             Kera/a Land Tax Act 1961 - s. 18 - Kera/a
     Conservation of Paddy and Wetland Act, 2008 - Kera/a Land
     Utilization Order, 1967 - Conversion of land- From Wetland
o   to Dry Land - Order passed by the courts below that the
     Tahsildar to effect a change in the Basic Tax Register and
    correct the nature of land from "Ni/am" (Wetland) to
     'Purayidam' (Dry Land) - Said order, if would circumvent the
    provisions of beneficial /egislations-2008 Act and 1967 Order
E   - Held: 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 - Statutory enquiry
    to ascertain whether the land is a "Paddy Land" or "Wetland"
    and conversion of the land for residential purpose or for any
F   public purpose is governed by 1967 Order/2008 Act for
    conversion of the land from Wetland to Dry Land -
    Concerned authorities constituted under 2008Act and 1967
    Order are the competent authority - s. 18 cannot be made
G   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 1967
    Order and 2008 Act - Order passed by the High Court set
    aside - Respondents to approach the competent authorities
H   for conversion of the land.
                                 380
 THE REVENUE DIVISIONAL OFFICER FORT, KOCHI v.            381
                JALAJA DILEEP

      Allowing the appeals, the Court                      A

      HELD: 1.1 State of Kera la has two statutes-Kera la
Land Utilization Order 1967 and Kerala Cultivation of
Paddy La.nd and Wetland Act 2008 each dealing with
delineated areas with respect to preservation, B
management and process of reclamation of agricultural
and paddy land for any other legitimate use. [Para 18]
[391-A-B]

       1.2 Kerala Land Tax Act 1961 is an Act to provide c
for levy of basic tax of land in the State of Kerala. The
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 D
conversion which can be rectified under Section 18 of
the KLT Act. 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 E
authority under the Act. Therefore, the rectification of
mistake can only be in respect of proceedings or orders
passed by the original authority, a;>pellate authority or
the revisional authority.[Paras 19 and 20] [391-C-D; 392- F
A-8]

       1.3 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 G
governed by Kera la Land Utilization Order or the Kera la
Wetland Act, 2008 for conversion of the land from
"Nilam" (Wetland) to 'Purayidam' (Dry Land). The
concerned authorities constituted under Kerala Land
Utilization Order or Kerala Wetland Act 2008 are the H
382         SUPREME COURT REPORTS               [2015) 3 S.C.R.



A 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 can
  only be in respect of arithmetical or clerical error, that
8
  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
c stipulated under the Kerala Land Utilization Order, 1967
  and the Kerala Wetland Act, 2008 and the impugned
  judgment is liable to be set aside. The respondents are
  directed to approach the competent authorities
  constituted under Kerala Land Utilization Order 1967/
D Kerala Conservation of Paddy Land and Wetland Act
  2008 as the case may be for conversion of the land.
  [Paras 21 and 23) [392-C-F, H; 393-A]

            CIVILAPPELLATE JURISDICTION: Civil Appeal No.
E     2749 of 2015 etc.

            From the Judgment and Order dated 02.01.2014 of the
      High Court of Kerala at Ernakulam in WA412 of 2013

                               WITH
F
      C. A. Nos. 2750, 2751, 2752, 2753 & 2754 of 2015

           V. Giri, ZulfikerAli P., Liz Mathew, Mohd. Sadique, M.
  F. Philip, Nisha Rajen Shanker, Uttara Babbar, Romy Chacko,
G Roy Abraham, Seema Jain, Chandrani Prasad, Himinder Lal,
  K. V. Mohan, N. M. Varghese, Tessy Varghese for the
  Appearing Parties.

            The Judgment of the Court was delivered by
H
 THE REVENUE DIVISIONAL OFFICER FORT, KOCHI v.                 383
                JALAJA DILEEP

        R. BANUMATHI, J.1. Delay condoned in SLP (C)             A
No.32231 of 2014 and leave granted in all the special leave
petitions.

       2. This bunch of appeals raises question of substantial
importance, whether the order of conversion of land passed B
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?
                                                                 c
        3. These appeals arise out of the order passed by the
Division Bench of the Kera la 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 D
'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:- E
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
respondents approached the Agricultural Officer who gave a
certificate on 10.2.2012, to the effect that the land in question F
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 thatthe land in question G
is actually a dry land. When the heirs of the respondents tried
to sell the land, the purchasers of the land ir1sisted 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.                  H
384       SUPREME COURT REPORTS                  [2015] 3 S.C.R.



A         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
B 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 the
C 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
o 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 byway of
  special leave assailing the impugned judgment.
E
          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
F 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
G effected or made by itself will not 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
H and the impugned order is liable to be set aside as they are in
  THE REVENUE DIVISIONAL OFFICER FORT, KOCHI v.                      385
         JALAJA DI LEEP [R. BANUMATHI, J.]

contravention of provisions of KLU Order, 1967 and Kerala            A
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            B
 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             c
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 schem.e of the relevant Acts.

         9. Scheme and Object of Land Utilization Order, 1967:        o
The Kerala Land Utilization Order, 1967 ('KLUO' for brevity)
was issued by the Government of Kera la under the Essential
Commodities Act 1955 (10of1955) ata 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            E
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 preventthe conversion of any land
cultivated with food crops for other purpose, except with the
written permission of the District Collector or the Revenue          F
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 G
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 H
386          SUPREME COURT REPORTS                  (2015] 3 S.C.R.



A the role of Collector in implementing the object of theAct and
  the sanctions he can impose in case of non-compliance by
  holder of land. Clause 6 of the order provides that land
  cultivated with any food crop for a continuous period of three
  years· shall not be converted or utilized for cultivation of any
B 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
C 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.
D
             11. Furthervide Notification No. GO. (Rt.) No. 15712002/
      AD dated 5.2.2002, Government of Kerala, Agriculture (NCA)
      Department has issued instructions to follow the modalities
      for implementation of the KLU Order, wherein converaion for
E     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
F
             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
G            KLU Order and related standing instructions. The
             Land Revenue Commissioner will hear appeals
             and the Government (in the Agriculture Department)
             will exercise revisional powers as provided for in
             the KLU Orders.
H
 THE REVENUE DIVISIONAL OFFICER FORT, KOCHI v.                   387
        JALAJA DI LEEP [R. BANUMATHI, J.]

   •   District Collectors will ensure the conversions, which     A
        are likely to render irrigation investments
        infructuous, are not to be allowed. Similarly large
        scale conversion for Commercial purpose should
        be discouraged.
                                                                 B
   •   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.
                                                                  c
   • 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.                  D

   • The revenue machinery at the ta Iuka and village-
      level should be activated to ensure that in future,
      conversions or attempted conversions without
      sanction are promptly detected and proceeded                E
      against. Conversions should not presented as a
      'fait accompli' which have to be inevitably
      regularized.

   •   Government will examine the suggestions of                 F
       Collectors/Principal Agricultural Officers for
       changes to the KLU Order to make the penal
       provisions more effective and also for levying as
       on conversion.
                                                                 G
       12. Scheme and Object of the Kerala Conservation of
Paddy Land and Wetland Act, 2008 (for short 'Wetland Act'):-
lndiscriminate and uncontrolled reclamation and massive
conversion of paddy land and wetland that were taking place
                                                                  H
388         SUPREME COURT REPORTS                    [2015] 3 S.C.R.


A  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
   agricultural sector and to sustain the ecological system in the
B State of Kera la.

           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,
C 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,
D 2008, is to be determined on the basis offacts 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
E 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
F with Section 3 provides that District Collector is empowered
  to order re-conversion of the land only if reclamation or
  conversion was made after the commencement of the
  provisions of the Act.

G            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
H
 THE REVENUE DIVISIONAL OFFICER FORT, KOCHI v.                 389
        JALAJA DILEEP [R. BANUMATHI, J.]

the reporting officers under Section 7 who are Agriculture A
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 B
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 C
Committee to monitor whether the provisions of the Act are
being complied with and the same has to be reported to the
Revenue Divisional Officer. The Committee can examine
complaints from the public about attempts to violate the D
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 E
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 F
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 G
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
area for the purpose and the ecological changes that may
                                                                H
390          SUPREME COURT REPORTS                     [2015] 3 S.C.R.


A     occurfrom 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
B      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 Kera la 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
C     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
D     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
E     of Paddy Lands in the State, the Government have also
      prescribed certain restrictions in the Notification dated
      5.2.2002 noted (supra), in which District Collectors have been
      directed intera/ia to ensure that the conversions which are
      likely to render irrigation investments infructuous and large
F     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
G noted as "Nilam" in revenue records, the provisions oftheAct
  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
H                                                              '
 THE REVENUE DIVISIONAL OFFICER FORT, KOCHI v.                    391
        JALAJA DILEEP [R. BANUMATHI, J.]

Data Bank as "Paddy Land" or "Wetland" as defined under A
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 B
agricultural and paddy land for any other legitimate use.

        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 C
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:-    D

   "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
                                                                   E
   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
                                                                   F
   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
                                                                  G
   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    H
392         SUPREME COURT REPORTS                   [2015] 3 S.C.R.



A     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,
      the rectification of mistake can only be in respect of
8     proceedings or orders passed by the original authority,
      appellate authority or the revisional authority.

           21. Statutory enquiry to ascertain whetherthe land is a
  "Paddy Land" or "Wetland" and conversion of the land for
C 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
0
  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
E 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 Kera la Wetland Act, 2008 and
F 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
G 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
H Order 1967/Kerala Conservation of Paddy Land and Wetland
  THE REVENUE DIVISIONAL OFFICER FORT, KOCHI v.                   393
         JALAJA DILEEP [R. BANUMATHI, J.]

Act2008 as the case may be for conversion oftfie land. When A
the respondents approach the concerned authorities
constituted under the above statutes, the concerned authorities
shall consider the application of the respondents in accordance
with the relevant provisions of the statutes and also the
notification GO.(Rt.) No.157/2002/AD dated 5.2.2002 already B
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 C
as to costs.

Nidhi Jain                                     Appeals allowed.