Asuma Beevi v. Local Level Monitoring Committee, Karunagappilly Municipality, Sub Collector/Revenue Divisional Magistrate, Agricultural Officer, Village Officer, The Tahsildar (L.R)

# **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. 9101 OF 2024** ## **PETITIONER:** **ASUMA BEEVI, AGED 63 YEARS WIFE OF ABDUL VAHAB, KALACHAVARAMBEL, S.V.MARKET P.O., KARUNAGAPPALLY TALUK, KOLLAM DISTRICT- 690573** **BY ADVS. P.M.ZIRAJ IRFAN ZIRAJ** ## **RESPONDENT:** |**1**|**THE LOCAL LEVEL MONITORING COMMITTEE**| |---|---| ||**KARUNAGAPPILLY MUNICIPALITY, KARUNAGAPPILLY P.O.,**| ||**KOLLAM DISTRICT-690518 REPRESENTED BY ITS CONVENER,**| ||**AGRICULTURAL OFFICER, KRISHI BHAVAN, KARUNAGAPPILLY,**| ||**KOLLAM DISTRICT, PIN - 690518**| |**2**|**SUB COLLECTOR/REVENUE DIVISIONAL MAGISTRATE**| ||**KARUNAGAPPILLY, KOLLAM DISTRICT, PIN - 690518**| |**3**|**AGRICULTURAL OFFICER**| ||**KRISHI BHAVAN, KARUNAGAPPILLY,**| ||**KARUNAGAPPILLY P.O., KOLLAM DISTRICT - 690518**| |**4**|**THE VILLAGE OFFICER**| ||**AYANIVELIKULANGARA VILLAGE,**| ||**KOLLAM DISTRICT, PIN - 690573**| |**5**|**THE THAHASILDAR (L.R)**| ||**KARUNAGAPPALLY TALUK,**| ||**KOLLAM DISTRICT, PIN - 690518**| **SR.GP.SMT.PREETHA .K.K.** **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. 9101 OF 2024 : 2 :** ## **JUDGMENT** The petitioner has approached this Court aggrieved by Ext.P3 whereby Form 5 application submitted by her has been rejected by the Revenue Divisional Officer. 2. The petitioner is the owner in possession of an extent of 7.45 Ares of property comprised in Re.Sy.No.395/3 of Ayanivelikulangara Village, Karunagappilly Taluk. 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 the Data Bank prepared **WP(C) NO. 9101 OF 2024 : 3 :** 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 it is seen that the subject land was filled up recently and water logged on the northern and western sides. There is purayidom on the southern side with four coconut trees aged 8-9 years and the rest of the land is lying fallow and conversion may lead to environmental issues and need not be removed from the Data Bank. 4. The petitioner impugns Ext.P3 contending, **WP(C) NO. 9101 OF 2024 : 4 :** _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 the RDO should have called for a report from the Kerala State Remote Sensing and Environment Centre (for short, 'the KSRSEC') to ascertain the status 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 **WP(C) NO. 9101 OF 2024 : 5 :** 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.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 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. 9101 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 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. **WP(C) NO. 9101 OF 2024 : 7 :** In **Aparna Sasi Menon** v. **Revenue Divisional Officer** [2023 (6) KHC 83] this Court has held that the existence of neerchals in a property should never be a prime consideration in deciding whether the land is to be retained in data bank. Instead, the prime consideration 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 ## **WP(C) NO. 9101 OF 2024 : 8 :** 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.” 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 **WP(C) NO. 9101 OF 2024 : 9 :** 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 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 **WP(C) NO. 9101 OF 2024 : 10 :** 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.” 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. Accordingly, I find that Ext.P3 order cannot be sustained and I set aside the same, with a direction to the 2[nd] respondent, the Revenue Divisional Officer to reconsider the application of the petitioner in Form 5 in accordance with law and take a decision in the matter after obtaining KSRSEC report at the expense of the petitioner, within a period of two months from **WP(C) NO. 9101 OF 2024 : 11 :** 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. 9101 OF 2024 : 12 :** ## **APPENDIX** ## **PETITIONER EXHIBITS** **Exhibit P1 TRUE COPY OF THE TAX RECEIPT DATED 13.11.2023 ISSUED BY THE FOURTH RESPONDENT** **Exhibit P2 TRUE COPY OF THE RELEVANT PAGES OF DATA BANK IN CONNECTION WITH THE PROPERTY OF PETITIONER DATED 27.1.2021** **Exhibit P3 TRUE COPY OF THE ORDER NO.4253 DATED 4.10.2023 ISSUED BY THE SECOND RESPONDENT** **Exhibit P4 TRUE COPY OF THE ORDER DATED 22.1.2022 ISSUED BY THE FIFTH RESPONDENT TO ONE MR.SHAMMER AND ANWAR SHAN TO USE THE CONVERTED PADDY LAND FOR OTHER PURPOSES THAN PADDY CULTIVATION WHICH IS THE ADJACENT LAND OF THE PETITIONER AND COMPRISED IN RESURVEY NO.395/4-1**