Aravindaksha Prasad v. District Collector, Kalpetta; Revenue Divisional Officer, Wayanad; Tahsildar, Vythiri; Village Officer, Muttil South; Agricultural Officer, Krishi Bhavan, Muttil South; Local Level Monitoring Committee (LLMC), represented by its Convener, Agricultural Officer, Krishi Bhavan, Muttil South, Vythiri, Wayanad

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE MURALI PURUSHOTHAMAN** **FRIDAY, THE 23[RD] DAY OF FEBRUARY 2024 / 4TH PHALGUNA, 1945** ## **WP(C) NO. 1254 OF 2024** ## **PETITIONERS:** **ARAVINDAKSHA PRASAD, AGED 43 YEARS S/O KUNJU VAIDYAR, KALATHINGAL VEETIL, MANJERI, MANJERI P.O, MALAPPURAM, PIN - 676121** **BY ADVS. PRAVEEN K. JOY FATHIMA SHALU S.** ## **RESPONDENTS:** |**1**|**THE DISTRICT COLLECTOR,**| |---|---| ||**CIVIL STATION, KAIRALI NAGAR,**| ||**KALPETTA, WAYANAD, PIN - 673122**| |**2**|**THE REVENUE DIVISIONAL OFFICER,**| ||**WAYANAD REVENUE DIVISIONAL OFFICE,**| ||**MALAYORA HIGHWAY, MANATHAWADY,WAYANAD - 670645**| |**3**|**THE TAHSILDAR,**| ||**VYTHIRI, KUNNATHIDAVAKA,WAYANAD - 673576**| |**4**|**THE VILLAGE OFFICER,**| ||**MUTTIL SOUTH, VYTHIRI, WAYANAD - 673122**| |**5**|**THE AGRICULTURAL OFFICER,**| ||**KRISHI BHAVAN, MUTTIL SOUTH, VYTHIRI,**| ||**WAYANAD - 673122**| |**6**|**LOCAL LEVEL MONITORING COMMITTEE,**| ||**REPRESENTED BY ITS CONVENER,**| ||**THE AGRICULTURAL OFFICER, KRISHI BHAVAN,**| ||**MUTTIL SOUTH, VYTHIRI, WAYANAD - 673122**| ## **GP - SMT. G SHEEBA** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 23.02.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C) NO. 1254 OF 2024 : 2 :** ## **JUDGMENT** The petitioner has approached this Court aggrieved by Ext.P3 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 61.60 Ares of property comprised in Re.Sy.No.193 of Muttil South Village, Vythiri Taluk, Wayanad District, by virtue of Ext.P2 sale deed. 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, it has been wrongly included in Ext.P3 Data Bank **WP(C) NO. 1254 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 an 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 application has been rejected by the Revenue Divisional Officer stating that the Agricultural Officer has reported that as per site inspection, the land is lying fallow and marshy and the LLMC has recommended to retain the subject land in the Data Bank. 4. The petitioner impugns Ext.P3 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 **WP(C) NO. 1254 OF 2024 : 4 :** Court. It is also contended that the RDO should have called for a report from the Kerala State Remote Sensing and Environment Centre (for short, 'the KSRSEC') before disposing of the Form 5 application to ascertain the exact nature of the land as on 12.08.2008, the date of coming into force of the Act, 2008. 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 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 **WP(C) NO. 1254 OF 2024 : 5 :** 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.P3, 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 solely upon the report of the Agricultural Officer and the recommendation of the LLMC to refuse to remove the property from the Data Bank. 6. 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 **WP(C) NO. 1254 OF 2024 : 6 :** the Revenue Divisional Officer to dismiss the application 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, it is trite law that, merely because the property is lying fallow or marshy, it cannot be termed as wetland or paddy land in contemplation of Act, 2008. This Court in **Aparna Sasi Menon** v. **WP(C) NO. 1254 OF 2024 : 7 :** **Revenue Divisional Officer** [2023 (6) KHC 83] has held that the prime consideration to retain a property in Data Bank should be whether paddy cultivation is possible in the property in question. 8. 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 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 **WP(C) NO. 1254 OF 2024 : 8 :** 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.” ## 9. 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 **WP(C) NO. 1254 OF 2024 : 9 :** of the Act, 2008, such land cannot be said as suitable for cultivation and may come outside the definition of paddy land. 10. In **Sudheesh v. Revenue Divisional 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 on only satisfaction of the said twin conditions that a land could be treated as paddy land coming under the definition of **WP(C) NO. 1254 OF 2024 : 10 :** S.2(xii) of the Act, 2008.” 11. 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. I find that there is total non application of mind on the part of the RDO in issuing Ext.P3. Accordingly, I set aside Ext.P3, with a direction to the 2[nd] respondent, the Revenue Divisional Officer to reconsider the 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 **WP(C) NO. 1254 OF 2024 : 11 :** 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 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 as above. **Sd/-** **MURALI PURUSHOTHAMAN JUDGE** SB **WP(C) NO. 1254 OF 2024 : 12 :** ## **APPENDIX OF WP(C) 1254/2024** **PETITIONER EXHIBITS** **Exhibit P1 TRUE COPY OF THE TAX RECEIPT NO.KL12031201623/2023 DATED 11.04.2023 ISSUED FROM THE MUTTIL SOUTH VILLAGE** **Exhibit P2** **TRUE COPY OF THE SALE DEED NO.2326/2018 DATED 14.08.2018** **Exhibit P3 TRUE COPY OF THE ORDER OF THE 2ND RESPONDENT DATED 13.05.2022** **Exhibit P4 TRUE COPY OF THE PHOTOGRAPH DATED NIL** **Exhibit P5** **TRUE COPY OF THE LOCATION SKETCH DATED OF THE PROPERTY ISSUED FROM THE 4TH RESPONDENT**