J U D G M E N T

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Dated this the 26th day of August, 2021 The petitioner seeks to quash Ext.P7 and to direct the 2nd respondent to reconsider and pass fresh orders on Ext.P5 application in Form-5 and Ext.P5(a) application in Form-6 in the light of the judgment of this Court in Mather Nagar Residents Association v. District Collector [2020 (2) KLT 192]. The petitioner further seeks to direct the 3rd respondent to reassess the land tax under Section 6A of the Kerala Land Tax Act.

2. The petitioner states that he is owner of 43 cents of property in Survey No.187/1B-4, 5 and 6 of Edappal Village in Ponnani Taluk. The land is a dry land with three buildings thereon and 30 Acacia trees. However, the Panchayat authorities declined to give the petitioner a Building Permit to construct a commercial building on the ground that the land is described as wetland in Revenue records.

3. The petitioner submitted Ext.P5 application in Form-5 to remove the land from Data Bank, invoking the provisions of the Kerala Conservation of Paddy Land and Wetland Act, 2008. Ext.P5(a) application was submitted in Form-6 to change the nature of the land in Revenue records. In WP(C) No.4435/2020, filed by the petitioner, this Court as per Ext.P6 judgment directed the Revenue Divisional Officer to pass orders on Ext.P5 application within three months. On refusal of the RDO to pass orders as directed by this Court, the petitioner filed Contempt Case No.918/2020. Thereupon, without giving an opportunity of hearing to the petitioner, the RDO rejected the application as per Ext.P7 order.

4. The petitioner states that in Ext.P7, it has been observed that an Advocate represented the petitioner in the personal hearing. The petitioner has not engaged any lawyer to represent him in the hearing. The RDO rejected the applications for the reason that the property is not a converted land prior to 2008. A Division Bench of this Court in the judgment in Mather Nagar Residents Association (supra) has held that a property which is lying fallow and which gets waterlogged during rainy season due to the low lying nature cannot be termed as paddy land or wetland. The 2nd respondent-RDO has not considered the application in the light of the Division Bench judgment of this Court. Hence, Ext.P7 order is liable to be set aside.

5. The 2nd respondent-RDO filed a counter affidavit.

The 2nd respondent stated that a hearing was conducted on 20.08.2020. As the 2nd respondent was quarantined on that date, the Senior Superintendent heard the Advocate of the petitioner. The site was inspected and it was revealed that the land has been converted illegally subsequent to 12.08.2008. KSREC report was also considered. The said report showed that the land was fallow/waterlogged, as per 2008 data. The land was observed as mix vegetation/plantation in the data for the years 2013, 2015 and 2018. Ext.P7 order is therefore perfectly legal, contended the 2nd respondent.

6. Heard the learned counsel for the petitioner and the learned Government Pleader representing the respondents.

7. The petitioner would state that the land is dry land even prior to 2008 and there are three buildings in the property. The petitioner has produced Ext.P9 property tax receipt issued by the Panchayat though the same is for the year 2018-'19. The report of the LLMC is also to the effect that there are buildings and 30 standing Acacia trees in the property. Still, the 2nd respondent proceeded to hold that the land has been converted recently only, based on KSREC report.

8. When the petitioner has a case that there were buildings in the property and LLMC also has reported that there are buildings, it was incumbent upon the 2nd respondent to find out as to when those buildings were constructed. Similarly, when admittedly there are standing trees in the land, steps could have been taken to ascertain the age of the trees. Without doing so, the 2nd respondent proceeded to reject the application submitted by the petitioner b