Rectification in BTR Made After Re-Survey before Enactment of Paddy Land & Wetland Act is Valid: Kerala HC dismisses Petition of Revenue Dept. [Read Order]

The petitioner revenue challenged the common judgment of the Single Judge. The question was whether the correction of the Basic Tax Register (BTR) from nilam to purayidam, based on re-survey conducted prior to the enactment of Act 28 of 2008, requires compliance with the process of Section 27A of the Kerala Conservation of Paddy Land and Wetland Act, 2008 ('the Act' ). This question was answered in favour of the writ petitioner, who had challenged the action of the Revenue Authorities. There is no dispute to the fact that all these lands were originally classified as nilam in the settlement register.

Based on a re-survey conducted prior to the enactment of Act 28 of 2008, land involved in these cases were classified as purayidam in the re-survey BTR. The nature of the land as on the date of the promulgation of Act 28 of 2008 is not in doubt; it is neither paddy land nor wetland. The change in description of the land from nilam in the settlement register to purayidam in the re-survey BTR form the subject of the challenge.

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In Indira v. Sub Collector; [2020], the single bench took the view that the BTR, as envisaged in Rule 4 of Kerala Land Tax Rules, 1976, is a vital statutory document, and that the entries therein cannot be simply ignored by the competent Revenue Authority to proceed adversely as against the parties merely on the ground that the settlement register describes the property as nilam or wetland.

The Government Pleader submitted that Rule2(e) of the Kerala Conservation of Paddy Land and Wetland Rules, 2008 ('the Rules' in short) was not adverted to in Indira's case(supra) and, therefore, the judgment in Indira's case(supra) cannot be relied on. The Rules were never intended to unsettle any entry in the BTR made prior to their formulation in 2018.

It was noted that there is no substantive provision in the parent Act governing this aspect, and the extent to which the Rules can hold the field in addressing the issue is left open. The point for consideration is that, in the event of inconsistency between the settlement register and the Basic Tax Register, it is the BTR that has to be followed by the Revenue Authorities or not. Admittedly, in all these cases, the land is classified as nilam in the settlement register, whereas in the BTR it is classified as purayidam.

The Single Judge, in the impugned judgment, referred to the distinguishing features of the settlement register and the BTR. It is to be noted that the change effected in the BTR in all these cases was the result of a conscious act following the re-survey. This indicates that the Revenue Authorities intended to effect a change of classification to purayidam through a process undertaken by the survey authorities.

It is not a mere descriptive change consequent upon a re-survey, but an acknowledgment of the nature of the land by declaring it as purayidam. The fact that the settlement register continues to describe the land as nilam is not decisive, since the Revenue Authorities had consciously taken a decision to record it as purayidam in the BTR.

Though the State has pleaded in its counter that it is an erroneous entry. In the other cases also, the land is continued to be treated as purayidam, and no one has contended that, on the strength of a mistaken entry, the landholders converted the land from nilam to purayidam after the enactment of Act 28 of 2008. This indicates that the conversion had taken place prior to Act 28 of 2008 and that the land has since then remained as purayidam. That is precisely why none of the land in these cases found a place in the Data Bank.

A mere assertion that the entry is mistaken or erroneous cannot support the case of the State, unless it is demonstrated how such mistake or error occurred in changing the description of the land in the BTR. On the other hand, the authority for effecting such changes in the Government Orders issued from time to time since 1965.

The division bench comprising Justice A Muhamed Mustaque and Justice Harisankar V Menon viewed that the Revenue Authorities had the power to correct the entries in the BTR consequent upon resurvey. It was evident that the present dilemma of the Revenue Officials arises from the incorporation of Section 27A of the Act, under which the State may demand premium for conversion of land and levy the prescribed fee with effect from 31.12.2017 onwards. If the land has been treated as purayidam for more than a decade, the State cannot now contend that the entry in the BTR was a mistake. The State itself has acted on such an entry for a long period.

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The Single Judge held that, based on a re-survey conducted in 1994, the land has been treated as purayidam in the BTR and assessed as such under the Land Tax Act, and that this could not be revisited by the Revenue Officials. We also note that similar arguments have been raised by the Revenue in the above case, contending that such entries are mistaken.

The Division Bench proceeded on the premise that there was no provision enabling the Tahsildar to pass such orders for correction of the basic entries. The court held that, if the Revenue Officials have a case that, notwithstanding the description of the property in the Basic Tax Register as purayidam, the natural lie of the land shows it to be nilam or wetland, it is open for them to proceed in accordance with law to include such land in the Data Bank.

However, in none of these cases, the Revenue Officials have made such a contention that the natural lie of the property has remained as paddy land or wetland. For treating land as paddy land or wetland, the entries in the BTR or settlement register are not decisive; it must be established that the land comes within the meaning of paddy land or wetland as defined under the Paddy Land and Wetland Act as on the date of enactment of Act 28 of 2008.

In the light of the above, these writ appeals are dismissed.

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