Anil Joe Paul v. Revenue Divisional Officer, Fort Kochi and 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.8846 OF 2024 ``` ## **`PETITIONER:`** ``` ANIL JOE PAUL, AGED 31 YEARS SON OF PAUL VADAKKUMCHERI HOUSE, KAIPPATTUR, KALADY P.O., ALUVA, ERNAKULAM, PIN - 683574 ``` ``` BY ADVS. ROOPKUMAR G. LAKSHMI K.G. SREEKUMAR K.V. ASHWIN ANTONY ARUL MURALIDHARAN ``` ## **`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`** ``` 2THE 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), PIN - 683574 ``` ``` By SMT.R.DEVISREE, GP ``` ``` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 07.03.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` W.P.(C) No.8846 of 2024 2 ## **`JUDGMENT`** ``` Petitioner has approached this Court aggrieved by Ext.P4 order, whereby Form 5 application submitted by him has been rejected by the 1[st] respondent/Revenue Divisional Officer [RDO]. ``` ``` 2. Petitioner is the owner in possession of 1.38 Ares of land comprised in Re-Sy.No.39/3-2-3 in Block No.27 of Mattur Village, Aluva Taluk, Ernakulam District. ``` ``` 3. According to the petitioner, the aforesaid 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 (for brevity, ‘the Act, 2008’). However, the property is wrongly included in the Data Bank. The petitioner filed Ext.P3 application in Form 5 of ``` W.P.(C) No.8846 of 2024 3 ``` Rule 4(d) of the Kerala Conservation of Paddy Land and Wetland Rules, 2008 [for brevity, ‘the Rules, 2008’] before the RDO to remove the said land from the Data Bank. The same has been rejected by the RDO vide Ext.P4, wherein it is stated as follows: ``` ``` “After inquiry into the Form-5 application submitted by the petitioner, the 2[nd] respondent has submitted a report. In the said report it has been observed that the concerned properties comprising of 1.38 Ares in Re-Sy.Block No.27 in Re- Sy.No.39/3-2-3 of Mattur Village, Aluva Taluk is included in the Data Bank with remarks that, "Approximate date of conversion 2001". ``` ``` Further, the Agriculture 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 ``` W.P.(C) No.8846 of 2024 4 ``` 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 has filed this writ petition challenging 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 wetland 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, 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 ``` W.P.(C) No.8846 of 2024 5 ``` 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.P4, it is evident that, without any independent assessment of the nature of the property as on the date of coming into force of the Act, 2008, the RDO has relied upon the report of the Agricultural Officer and LLMC to refuse to remove the property from the Data Bank. The RDO has neither conducted a direct inspection of the subject land nor called for report from the Kerala State Remote Sensing and Environment Centre [for short, ‘the KSRSEC’] to verify the contents of ``` W.P.(C) No.8846 of 2024 6 ``` Data Bank. ``` ``` 6. This Court has 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 as on the date of coming into force of the Act and also whether the land is suitable for paddy cultivation or not. In Muraleedharan Nair v. Revenue Divisional Officer [2023 (4) KLT 270], this Court 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 stating that the LLMC has decided not to remove the land from Data Bank. The ``` W.P.(C) No.8846 of 2024 7 ``` 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. In Aparna Sasi Menon v. Revenue Divisional Officer [2023 (6) KHC 83], this Court 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 and feasible. ``` ``` In spite of the categorical declarations by this Court in the decisions cited above, the ``` W.P.(C) No.8846 of 2024 8 ``` 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 RDO, to reconsider Ext.P3 application in Form 5 in accordance with law and take a decision in the matter after considering the report of the KSRSEC to be obtained at the expense of the petitioner and other relevant factors mentioned in Rule 4(4F), within a period of two months from the date of receipt of the report of the KSRSEC. The petitioner shall apply before the Agricultural ``` W.P.(C) No.8846 of 2024 9 ``` 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 the writ petition along with a copy of the judgment before the 1[st] respondent for due compliance. ``` ``` The writ petition is disposed of with the above directions. ``` ``` Sd/- ``` ``` MURALI PURUSHOTHAMAN JUDGE ``` ``` sp/07/03/2024 ``` W.P.(C) No.8846 of 2024 10 ## **`APPENDIX`** ## **`PETITIONER'S EXHIBITS:-`** ``` Exhibit P-1 ``` ``` TRUE COPY OF THE REGISTERED SALE DEED NOS. NO. 156/2014 DATED 20.01.2015 EXECUTED IN FAVOUR OF THE PETITIONER ``` - **`Exhibit P-2`** - **`TRUE COPY OF THE LOCATION SKETCH OF THE SUBJECT PROPERTY IS PRODUCED HEREWITH`** - **`Exhibit P-3 TRUE COPY OF RECEIPT NO. KL07040601015/2022 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. 3380/2023 DATED 18.05.2023 DISMISSING EXHIBIT P-3 APPLICATION.`** - **`Exhibit P-5 TRUE COPY OF THE ORDER DATED 29.09.2023 PASSED BY THE DISTRICT COLLECTOR, ERNAKULAM`** - **`Exhibit P-6 TRUE PHOTOGRAPH OF THE PROPERTY OF THE PETITIONER`**