Ashly K Jacob v. State of Kerala and Others

## IN THE HIGH COURT OF KERALA AT ERNAKULAM ## PRESENT THE HONOURABLE MR.JUSTICE MURALI PURUSHOTHAMAN THURSDAY, THE 29[TH] DAY OF FEBRUARY 2024 / 10TH PHALGUNA, 1945 ## WP(C) NO. 4838 OF 2024 ## PETITIONER: ASHLY K JACOB, AGED 44 YEARS KOCHALUMUTTIL ASHLY VILLA, PATHIYOOR P.O, ALAPUZHA DISTRICT, THROUGH HIS POWER OF ATTORNEY HOLDER JACOB PAPPY, KOCHALUMUTTIL ASHLY VILLA, PATHIYOOR P.O, ALAPUZHA DISTRICT, PIN 690508, PIN – 690 508. ## BY ADV UNNI. K.K. (EZHUMATTOOR) ## RESPONDENTS: - 1 STATE OF KERALA , REPRESENTED BY SECRETARY TO GOVERNMENT REVENUE DEPARTMENT , GOVT. SECRETARIAT THIRUVANANTHAPURAM, PIN – 695 001. - 2 DISTRICT COLLECTOR, CIVIL STATION, ALAPUZHA, PIN – 688 001. - 3 REVENUE DIVISIONAL OFFICER, REVENUE DIVISIONAL OFFICE, CHENGANNUR, PIN – 689 121. - 4 VILLAGE OFFICER, VILLAGE OFFICE, PATHIYOOR, PIN – 690 508. - 5 LOCAL LEVEL MONITORING COMMITTEE REPRESENTED BY ITS CONVENER,AGRICULTURAL OFFICER, PATHIYOOR GRAMA PANCHAYATH, PATHIYOOR P.O , ALAPUZHA DISTRICT, PIN – 690 508. W. P.(C) No. 4838 of 2024 : 2 : ## `BY ADV. ## SMT.G.SHEEBA, GOVERNMENT PLEADER THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 29.02.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W. P.(C) No. 4838 of 2024 : 3 : ## JUDGMENT Petitioner has approached this Court aggrieved by Ext.P7 whereby Form 5 application submitted by him has been rejected by the Revenue Divisional Officer relying on the report of the Agricultural Officer. 2. Petitioner is the owner and in possession of 11.00 Ares of land in Re.Survey No.826/3 of Pathiyoor Village, Karthikapally Taluk in Alappuzha District. 3. According to the petitioner, the aforesaid property will not come within the ambit of paddy land or wet land as defined under the Kerala Conservation of Paddy Land and Wetland Act, 2008 (hereinafter referred to as 'Act, 2008'). The property is full of coconut trees which are more than 30 years old. As W. P.(C) No. 4838 of 2024 : 4 : per Ext.P5 KSRSEC report, in 2005 data, the land is observed as mixed vegetation and plantation corps. However, it is stated that, the property is wrongly included in the Data Bank. The petitioner filed Ext.P3 application in Form 5 of Rule 4(d) of the Kerala Conservation of Paddy land and Wetland Rules, 2008 (hereinafter referred to as '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.P7 stating that, the Agricultural Officer has reported that the land is marshy- like and removal from Data Bank will lead to environmental issues. 4. The petitioner has filed this writ petition challenging Ext.P7 contending, inter alia, that the W. P.(C) No. 4838 of 2024 : 5 : 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 the Revenue Divisional Officer should not have ignored Ext.P5 report of the KSRSEC and ought to have relied on the said report 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 W. P.(C) No. 4838 of 2024 : 6 : 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.P7, it is evident that, without any independent assessment of the nature of property as on the date 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. 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 W. P.(C) No. 4838 of 2024 : 7 : 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 simply stating that the LIMC 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 W. P.(C) No. 4838 of 2024 : 8 : 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. It is trite law that, just because the land is ‘marshy’ the land cannot be included in the Data Bank. In Aparna Sasi Menon v. Revenue Divisional Officer [2023 (6) KHC 83], this Court has held that the predominant factor for consideration 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 and existence of neerchal in the property shall never be the prime consideration. W. P.(C) No. 4838 of 2024 : 9 : 8. This Court in Jessy Abraham v. Land Revenue Commissioner, Thiruvananthapuram, [2021 (6) KHC 316] has held that merely for the reason that the land is lying low and is waterlogged, the same cannot be included as paddy land in the Data Bank. 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 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 W. P.(C) No. 4838 of 2024 : 10 : 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.” 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. Accordingly, I find that Ext.P7 order cannot be sustained and I set aside the same, with a direction to the 3[rd] respondent, the Revenue Divisional Officer to reconsider Ext.P3 application of the petitioner in Form 5 in accordance with law and take a decision in the matter on the basis of Ext.P5 KSRSEC report and other relevant factors under Rule 4 (4F), and the W. P.(C) No. 4838 of 2024 : 11 : binding precedents within a period of two months from the date of receipt of a copy of the judgment. The petitioner shall produce a copy of the writ petition along with the copy of the judgment before the Revenue Divisional Officer. The writ petition is disposed of with the above directions. Sd/- MURALI PURUSHOTHAMAN JUDGE SRJ W. P.(C) No. 4838 of 2024 : 12 : ## APPENDIX OF WP(C) 4838/2024 PETITIONER’S EXHIBITS - Exhibit P1 TRUE COPY OF THE TAX RECEIPT DATED 26.7.22 ISSUED BY THE 4TH RESPONDENT. - Exhibit P2 TRUE COPY OF THE RELEVANT PAGES OF FINAL DATA BANK PUBLISHED BY THE 5TH RESPONDENT IN THE GAZETTE DATED 21.12.2020. - Exhibit P3 TRUE COPY OF THE APPLICATION IN FORM.5 DATED 8.2.2022 SUBMITTED BY THE PETITIONER. - Exhibit P4 TRUE COPY OF THE PHOTOGRAPHS OF THE PROPERTY. - Exhibit P5 TRUE COPY OF THE KSRSEC REPORT DATED 16.12.2019. - Exhibit P6 TRUE COPY OF THE MAHAZAR DATED 23.12.2022 PREPARED BY THE 4TH RESPONDENT. - Exhibit P7 TRUE COPY OF THE ORDER DATED 13.3.2023 OF THE 3RD RESPONDENT. - Exhibit P8 TRUE COPY OF THE JUDGMENT DATED 16.10.2023 IN W.P[C].NO.27659/2023. - Exhibit P9 TRUE COPY OF THE ORDER DATED 7.12.2023 OF THE 3RD RESPONDENT.