Anil Joe Paul v. Revenue Divisional Officer, Fort Kochi & Agricultural Officer, Kalady

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE MURALI PURUSHOTHAMAN** **THURSDAY, THE 7[TH] DAY OF MARCH 2024 / 17TH PHALGUNA, 1945** ## **WP(C) NO. 9092 OF 2024** ## **PETITIONER:** **ANIL JOE PAUL, AGED 31 YEARS VADAKKUMCHERI HOUSE, KAIPPATTUR, KALADY P.O., ALUVA, ERNAKULAM, PIN - 683574** **BY ADVS. ROOPKUMAR G. LAKSHMI K.G. ASHWIN ANTONY ARUL MURALIDHARAN SREEKUMAR K.V.** ## **RESPONDENTS:** **1 THE REVENUE DIVISIONAL OFFICER, FORT KOCHI OFFICE OF THE REVENUE DIVISIONAL OFFICER, 1ST FLOOR K.B JACOB ROAD FORT KOCHI ERNAKULAM (DISTRICT LEVEL AUTHORIZED COMMITTEE UNDER THE KERALA CONSERVATION OF PADDY LAND AND WETLAND ACT, 2008), PIN - 672001 2 THE AGRICULTURAL OFFICER, KALADY OFFICE OF THE AGRICULTURAL OFFICER, KALADY ERNAKULAM DISTRICT, (LOCAL LEVEL MONITORING COMMITTEE UNDER THE KERALA CONSERVATION OF PADDY LAND AND WETLAND ACT, 2008)683574** ## **OTHER PRESENT:** ## **SMT.R.DEVI SHRI, GP** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 07.03.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C) NO. 9092 OF 2024 : 2 :** ## **JUDGMENT** The petitioner has approached this Court aggrieved by Ext.P4 whereby Form 5 application submitted by him has been rejected by the Revenue Divisional Officer. 2. The petitioner is the owner in possession of an extent of 2.04 Ares of land comprised in Re.Sy.Block No.27, Re.Sy.Nos.39/3-2-2 of Mattur Village, Aluva Taluk, Ernakulam District. 3. According to the petitioner, the said property will not come within the ambit of paddy land or wetland as defined under the Kerala Conservation of Paddy Land and Wetland Act, 2008 (hereinafter referred to as 'the Act, 2008' for short). However, the property is wrongly included in the Data Bank **WP(C) NO. 9092 OF 2024 : 3 :** prepared under the Kerala Conservation of Paddy Land and Wetland Rules, 2008 (hereinafter referred to as 'the Rules, 2008' for short). The petitioner therefore filed Ext.P3 application in Form 5 under Rule 4(d) of the Rules, 2008 before the Revenue Divisional Officer to remove the said land from the Data Bank. The same has been rejected by the Revenue Divisional Officer vide Ext.P4. In Ext.P4, the Revenue Divisional Officer has stated in the following terms: “ After inquiry in to the Form-5 application(s) submitted by the petitioner, the AO has submitted a report. In the said report it has been observed that the concerned properties comprising 2.04 Ares in Re-Sy. Block No.27 in Re-Sy.No.39/3-2-2- of Mattur Village, Aluva Taluk is included in the Data Bank with remarks that, ## **WP(C) NO. 9092 OF 2024 : 4 :** “Appropriate date of conversion 2001”. Further, the Agricultural Officer (2[nd] respondent) has also submitted that, even though it has been noted in the data bank that the said properties have been converted prior to 2001, the LLMC, on the basis of a site inspection has found that, it cannot be presumed that the complete conversion of the applied land have been done prior to 2008 and hence, the Committee recommends that the said lands should not be removed from the Data Bank.” 4. The petitioner impugns Ext.P4 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. 5. 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 **WP(C) NO. 9092 OF 2024 : 5 :** the Act, 2008. Rule 4(4E) of the Rules, 2008 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 institutions and Technological pass appropriate orders on the application. On a perusal of Ext.P4, it is 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 and the recommendation of the LLMC to refuse to **WP(C) NO. 9092 OF 2024 : 6 :** remove the property from the Data Bank. The RDO has neither conducted direct inspection of site nor verified the KSRSEC report. 6. This Court has held 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 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 **WP(C) NO. 9092 OF 2024 : 7 :** simply stating that the LLMC has decided not to remove the land from 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 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. 7. Further, this Court in **Aparna Sasi Menon** v. **Revenue Divisional Officer** [2023 (6) KHC 83] has held that the predominant factor for determination while considering the Form-5 application should be whether the land which is sought to be excluded from Data Bank is one where paddy cultivation is possible **WP(C) NO. 9092 OF 2024 : 8 :** and feasible. 8. In spite of the categorical declarations by this Court in the decisions cited above, the petitioner's application has been rejected, solely relying on the report of the Agricultural Officer, who recommended not to remove the land from the Data Bank. None of the parameters for consideration of a Form 5 application has been taken into account while passing the impugned order. Accordingly, I find that Ext.P4 order cannot be sustained and I set aside the same, with a direction to the 1[st] respondent, the Revenue Divisional Officer to reconsider Ext.P3 application in Form 5 in accordance with law and take a decision after considering the KSRSEC report to be obtained at the expense of the petitioner and other relevant factors mentioned in Rule 4(4F), **WP(C) NO. 9092 OF 2024 : 9 :** within a period of two months from the date of receipt of the report of the KSRSEC. The petitioner shall apply before the Agricultural Officer concerned for KSRSEC report within a period of two weeks from the date of receipt of a copy of this judgment. The petitioner shall produce a copy of this writ petition along with the copy of the judgment before the RDO. The writ petition is disposed of. **Sd/MURALI PURUSHOTHAMAN JUDGE** SB **WP(C) NO. 9092 OF 2024 : 10 :** ## **APPENDIX** ## **PETITIONER EXHIBITS** **Exhibit P-1 TRUE COPY OF THE REGISTERED SALE DEED NOS. 2302/2013 DATED 05.08.2013 EXECUTED IN FAVOUR OF THE PETITIONER.** **Exhibit P-2 TRUE COPY OF THE LOCATION SKETCH OF THE SUBJECT PROPERTY** **Exhibit P-3 TRUE COPY OF RECEIPT NO. KL07040601016/2022 ALONG WITH FORM-5 APPLICATION UNDER ACT 28/2008 DATED 25.02.2022 SUBMITTED BY THE PETITIONER BEFORE THE 1ST RESPONDENT** **Exhibit P-4 TRUE COPY OF THE ORDER PASSED BY THE 1ST RESPONDENT IN FILE NO. 3392/2023 DATED 18.05.2023 DISMISSING EXHIBIT P-3 APPLICATION** **Exhibit P-5 TRUE COPY OF THE SAID ORDER OF THE DISTRICT COLLECTOR, ERNAKULAM** **Exhibit P-6 TRUE PHOTOGRAPH OF THE PROPERTY OF THE PETITIONER**