Ajith A. Moopen v. Revenue Divisional Officer / Sub Collector, Fort Kochi and others

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE MURALI PURUSHOTHAMAN MONDAY, THE 4[TH] DAY OF MARCH 2024 / 14TH PHALGUNA, 1945 WP(C) NO. 9493 OF 2023 ``` ## **`PETITIONER:`** ``` AJITH A. MOOPEN, AGED 56 YEARS S/0. LATE BAVA MOOPEN, 16 - D, AVENUE 1 APARTMENT, (RDS) SHIHAB TAHANGAL ROAD, PANAMPILLY NAGAR - P.O, KOCHI, PIN – 682 036. ``` ``` BY ADVS. P.K.SOYUZ E.V.BABYCHAN ``` ## **`RESPONDENTS:`** - **`1 THE REVENUE DIVISIONAL OFFICER/SUB COLLECTOR, RDO OFFICE, FORT KOCHI P.O., ERNAKULAM, PIN – 682 001.`** - **`2 THE AGRICULTURAL OFFICER, KRISHI BHAVAN, KALAMASERY MUNICIPALITY, KANGARAPADY, VADACODE P.O, ERNAKULAM, PIN – 682 021.`** - **`3 THE VILLAGE OFFICER, THRIKKAKARA NORTH VILLAGE, KOONAMTHAI, CHANGAPUZHA NAGAR P.O., ERNAKULAM, PIN – 682 033.`** - **`4 THE DIRECTOR, KERALA STATE REMOTE SENSING AND ENVIRONMENT CENTRE, (KSREC) C BLOCK, VIKAS BHAVAN, THIRUVANANTHAPURAM, PIN – 695 033.`** ``` SRI. E.G.GORDEN – SR.GP. SRI. VISHNU S.CHEMPAZHANTHIYIL - SC ``` ``` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 04.03.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` WP(C).No.9493 OF 2023 ``` ``` 2 ``` ## **`JUDGMENT`** The petitioner has approached this Court aggrieved by Ext.P6 order whereby Form 5 application submitted by him has been rejected by the Revenue Divisional Officer. 2. The petitioner is in joint ownership and possession of an extent of 44.42 Ares (109.76 Cents) of land comprised in Re.Sy. Nos.153/2, 153/3, 153/42, 154/1 and 173/7 in Block No.6 of Thrikkakara North Village, Kanayannoor Taluk, Ernakulam District along with his mother and sister, who are the legal heirs of his late father. 3. The property is classified as ‘Nilam’ in the Data Bank. According to the petitioner, the property was converted much before the commencement of the Kerala Conservation of Paddy Land and Wetland Act, 2008 (for short, ‘the Act, 2008’). The petitioner ``` WP(C).No.9493 OF 2023 ``` ``` 3 ``` states that the land was irreversibly converted and was not cultivable even at the time of the commencement of the Act, 2008. According to the petitioner, since the property was wrongly included in the Data Bank, the petitioner submitted Ext.P3 application for removal of the property from the Data Bank. The petitioner also approached this Court by filing W.P.(C) No.23108 of 2022 and this Court, by Ext.P4 judgment, directed the RDO to obtain a report from the KSRSEC and to dispose of Ext.P3 application in the light of the judgments in **Adani Infrastructures and Developers Pvt. Ltd. v. State of Kerala** [2014 (1) KLT 774] and in **Lalu v. State of Kerala** [2020 (5) KLT 712]. 4. Pursuant to the direction of this Court, Ext.P5 report from the KSRSEC was obtained which shows that the land was reclaimed and converted before 2008 and the land was observed under crops in the data of the year 2003 - 2008. However, the 1[st] ``` WP(C).No.9493 OF 2023 ``` ``` 4 ``` respondent rejected Ext.P3 application of the petitioner. As per the report of the Agricultural Officer, the land is lying at a lower level from the road and there are no trees or buildings in the property. It is also stated that, on examining the report of the KSRSEC, it is seen that the subject property was under cultivation during the period 2003 - 2008 and the LLMC has recommended to retain the property in the Data Bank. 5. The petitioner impugns Ext.P6 order contending, inter alia, that the same is vitiated by non application of mind and is against the provisions of the Act, 2008 and the binding precedents of this Court. It is also contended that though a report from the KSRSEC report was obtained as directed by this Court in Ext.P4 judgment, the same was misread and misinterpreted by the 1[st] respondent. It is also contended that the Kerala Conservation of Paddy Land and Wetland Rules, 2008 (for short, ‘the Rules’) ``` WP(C).No.9493 OF 2023 ``` ## **`5`** contemplates only a report from the Agricultural Officer and not a report from the LLMC. It is also contended that the 1[st] respondent has not considered whether the land is cultivable and suitable for paddy cultivation. 6. The relevant consideration for inclusion of a property as paddy land or wet land is as to the nature of the property as on the date of coming into force of the Act, 2008. Rule 4 (4E) of the Rules provides that, on receipt of the application in Form 5, the RDO shall call for a report from the Agricultural Officer in the case of paddy land and that of the Village Officer in the case of wetland. Rule 4(4F) provides that, on receipt of the report as above, the RDO shall, if deems necessary, verify the contents of the Data Bank by direct inspection or with the help of satellite images prepared by Central/State Scientific Technological Institutions and pass appropriate orders on the application. On a perusal of Ext.P6, it is ``` WP(C).No.9493 OF 2023 ``` ``` 6 ``` evident that, without any independent assessment of the nature of property as on the date of coming into force of the Act, 2008, the Revenue Divisional Officer has relied upon the report of the Agricultural Officer to refuse to remove the property from the Data Bank. 7. This Court had held in the decision in **Arthasasthra Ventures (India) LLP v. State of Kerala** [2022 (7) KHC 591] that, the Revenue Divisional Officer must, while considering an application for removal of a property from the Data Bank consider the question whether the land was a paddy land on the date of coming into force of the Act, 2008 and also whether the land is suitable for paddy cultivation or not. This Court, in **Muraleedharan Nair v. Revenue Divisional Officer** [2023 (4) KLT 270], has held that when the petitioner seeks removal of his land from the Data Bank, it will not be sufficient for the Revenue Divisional Officer to dismiss the application simply ``` WP(C).No.9493 OF 2023 ``` ``` 7 ``` stating that the LLMC has decided not to remove the land from the Data Bank. The Revenue Divisional Officer being the competent authority, has to independently assess the status of the land and come to a conclusion that removal of the land from the Data Bank will adversely affect paddy cultivation in the land in question or in the nearby paddy lands or that it will adversely affect sustenance of wetlands in the area and in the absence of such findings, the impugned order is unsustainable. 8. Further, it is trite law that, merely because the property is low lying, it cannot be termed as wetland or paddy land in contemplation of Act, 2008. 9. In **Mather Nagar Residents Association and Another v. District Collector, Ernakulam others** (2020 (2) KLT 192), a Division Bench of this Court held as follows:- “22. Going by the definition of wetland, we are of the view that, in order to treat a particular land as wetland, it should have the characteristic features and requirement as is provided under Act, 2008. It is clear from the ``` WP(C).No.9493 OF 2023 ``` ``` 8 ``` report submitted by the Sub Collector before the Apex Court as well as report of KSRSEC, the nodal agency of State Government, that the properties in question is a fallow land. Fallow land is never treated as wetland in accordance with the provisions of Act, 2008. It is also significant to note that from the definition of wetland under Act, 2008, paddy land and rivers are excluded. The report submitted by the KSRSEC is not disputed by the Residents Association. Merely because the property is lying fallow and water gets logged during rainy season or otherwise due to the low lying nature of the property, it cannot be termed as wetland or paddy land in contemplation of Act, 2008.” 10. In **Adani Infrastructures & Developers Pvt. Ltd, Mumbai & Others Vs. State of Kerala & Others** [2014 (1) KHC 685], this Court has held that if the land suitable for paddy cultivation is uncultivated and left fallow and if the said land is included as paddy land in the village records and if the property is locked on all four sides with lands which were reclaimed before the coming into force of the Act, 2008, such lands cannot be said as suitable for cultivation and may come outside the definition of paddy land. ## 11. In **Sudheesh v. Revenue Divisional** ``` WP(C).No.9493 OF 2023 ``` ``` 9 ``` ## **Officer** [2023 (2) KLT 386], this Court held as follows:- “Going by the definition in S.2(xii) of “paddy land” in the Act, 2008, to bring in a land within the definition of paddy land, it should be suitable for paddy cultivation, but uncultivated and left fallow. Just for the reason that the property is left fallow, the land cannot be brought within the definition of paddy land but the Revenue Divisional Officer should be satisfied that the land is suitable for paddy cultivation and left fallow and therefore only on satisfaction of the said twin conditions that a land could be treated as paddy land coming under the definition of S.2(xii) of the Act, 2008.” 12. Eventhough, this Court directed the 1[st] respondent to consider Ext.P3 application in the light of the decisions in **Adani Infrastructures** (supra) and **LaLu** (supra) and after obtaining a report from the KSRSEC, the decisions referred to above and the dictum laid down therein are not adverted to in Ext.P6 order. Ext.P6 is a non speaking order. There is non application of mind on the part of the 1[st] respondent. Further, the report of the KSRSEC was not appreciated in the proper ``` WP(C).No.9493 OF 2023 ``` ``` 10 ``` perspective. None of the parameters for consideration of Form 5 application has been taken into consideration by the 1[st] respondent while passing the impugned order. Accordingly, I set aside Ext.P6 order with a direction to the 1[st] respondent to consider Ext.P3 application afresh, in accordance with law and after considering Ext.P5 KSRSEC report and other relevant factors mentioned in Rule 4(4F), within a period of two months from the date of receipt of a copy of this judgment. The petitioner shall produce a copy of the writ petition along with a copy of this judgment before the 1[st] respondent for compliance. The writ petition is disposed of with the above directions. Sd/- ## **`MURALI PURUSHOTHAMAN JUDGE`** SPR ``` WP(C).No.9493 OF 2023 ``` ``` 11 ``` ## **`APPENDIX`** ## **`PETITIONER’S EXHIBITS:-`** ``` EXHIBIT P1TRUE COPY OF THE LAND TAX RECEIPT DATED 06.08.2020. EXHIBIT P2TRUE COPY OF THE RELEVANT PAGES OF THE NOTIFIED DATA BANK OF, KALAMASERY MUNICIPALITY DATED 05-02-2021. EXHIBIT P3TRUE COPY OF THE APPLICATION DATED 12.03.2021 SUBMITTED BY THE PETITIONER IN FORM NO.5. EXHIBIT P4TRUE COPY OF THE JUDGMENT IN WPC NO. 11884 OF 2021 DATED 14.06.2021. EXHIBIT P5TRUE COPY OF THE REPORT OF THE KSREC DATED 25.01.2022. EXHIBIT P6TTRUE COPY OF THE ORDER ISSUED BY THE 1 ST RESPONDENT DATED 21.02.2023. EXHIBIT P7TRUE COPY OF THE JUDGMENT IN W.PC NO. 23108 OF 2022 DATED 04.08.2022. ``` ## **`RESPONDENTS EXHIBITS: NIL.`**