Baby Sarojam v. Revenue Divisional Officer Kollam Division and Others

## **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. 6669 OF 2024** ## **PETITIONER:** **BABY SAROJAM, AGED 78 YEARS D/O. JANAKI, SUDHAS, VADASSERIKONAM P.O, VARKALA, THIRUVANANTHAPURAM DISTRICT., PIN - 695143** **BY ADVS. M.K.SUMOD VIDYA M.K. RAJ CAROLIN V. THUSHARA.K** ## **RESPONDENTS:** **1 THE REVENUE DIVISIONAL OFFICER/ SUB COLLECTOR KOLLAM DIVISION, OFFICE OF THE REVENUE DIVISIONAL OFFICER KOLLAM, VIDYA NAGAR, CIVIL STATION P.O, KOLLAM DISTRICT, PIN - 691013 2 THE VILLAGE OFFICER KOLLAM WEST VILLAGE OFFICE, TALUK CUTCHERRY, KOLLAM DISTRICT - 691001 3 THE AGRICULTURAL OFFICER AGRICULTURAL OFFICER KOLLAM, CIVIL STATION, VIDYA NAGAR, KOLLAM DISTRICT – 691013 R BY GP SMT.DEVISREE** **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. 6669 OF 2024 : 2 :** ## **JUDGMENT** The petitioner has approached this Court aggrieved by Ext.P6 whereby Form 5 application submitted by her has been rejected by the Revenue Divisional Officer. 2. The petitioner is the owner in possession of a total extent of 7.68 Ares of property in Re.Sy.No.34/3 of Kollam West Village, Kollam District, by virtue of Ext.P1 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 is stated that the property is **WP(C) NO. 6669 OF 2024 : 3 :** wrongly included in Ext.P4 Data Bank prepared under the Kerala Conservation of Paddy Land and Wetland Rules, 2008 (hereinafter referred to as 'the Rules, 2008' for short) as 'paddy land'. The petitioner therefore filed Ext.P5 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.P6 stating that the Agricultural Officer has inspected the site and reported that the subject land and the adjoining land is continuing as wetland and need not be removed from the Data Bank. 4. The petitioner impugns Ext.P6 contending, _inter alia,_ that the same is vitiated by non **WP(C) NO. 6669 OF 2024 : 4 :** application of mind and is against the provisions of the Act, 2008 and the binding precedents of this Court. It is contended that a land which was originally a paddy land would never fall within the definition of wetland. It is also contended that the RDO should have conducted a site inspection or called for a report of 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. On a perusal of Ext.P6, it is evident that, without any independent assessment of the nature of property as on the date **WP(C) NO. 6669 OF 2024 : 5 :** 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. There is no finding that the land is suitable for paddy cultivation. 6. In **Suraj K.S. and Another** v. **State of Kerala and Others** [2018 (1) KHC 250], this Court has held that, the land which was originally a paddy land, would never fall within the definition of 'wet land' under the Act, 2008. 7. In **Asma** v. **District Collector, Thrissur and Others** [2015 KHC 2389], this Court after interpreting the definition of wetland under the Act, 2008 held that 'wetland' would indicate a natural land lying between terrestrial and aquatic **WP(C) NO. 6669 OF 2024 : 6 :** system. 8. 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 on the date of coming into force of the Act and also whether the land is suitable for paddy cultivation or not. 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. 6669 OF 2024 : 7 :** 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 **WP(C) NO. 6669 OF 2024 : 8 :** 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 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.P6 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.P5 application of the petitioner in Form 5 in accordance with law **WP(C) NO. 6669 OF 2024 : 9 :** and take a decision in the matter after obtaining KSRSEC report at the expense of the petitioner, 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 1[st] respondent. The writ petition is disposed of. **Sd/-** **MURALI PURUSHOTHAMAN JUDGE** SB ## **WP(C) NO. 6669 OF 2024 : 10 :** ## **APPENDIX** ## **PETITIONER EXHIBITS** **Exhibit P1 TRUE COPY OF THE REGISTERED PARTITION DEED NO. 3928/1983 DATED 17/12/1983 OF KOLLAM SRO** **Exhibit P2 TRUE COPY OF THE LAND TAX RECEIPT ISSUED BY THE 2ND RESPONDENT BEARING NO. KL02030301827/2022 DATED 24/2/2022** **Exhibit TRUE COPY OF THE POSSESSION CERTIFICATE P2(a) ISSUED BY THE SECOND RESPONDENT BEARING NO. 83508005 DATED 12/02/2024** **Exhibit TRUE COPY OF THE LOCATION SKETCH ISSUED BY P2(b) THE SECOND RESPONDENT DATED NIL** **Exhibit TRUE COPY OF THE FMB SKETCH OF RESURVEY P2(c) BLOCK NO. 260 UNDER THE SECOND RESPONDENT VILLAGE** **Exhibit P3 TRUE PHOTOGRAPH NO. 1 SHOWING THE PRESENT ACTUAL LIE OF THE SUBJECT MATTER PROPERTY** - **Exhibit TRUE PHOTOGRAPH NO. 2 SHOWING THE PRESENT P3(a) ACTUAL LIE OF THE SUBJECT MATTER PROPERTY** **Exhibit TRUE PHOTOGRAPH NO. 3 SHOWING THE PRESENT P3(b) ACTUAL LIE OF THE SUBJECT MATTER PROPERTY** **Exhibit TRUE PHOTOGRAPH NO. 4 SHOWING THE PRESENT P3(c) ACTUAL LIE OF THE SUBJECT MATTER PROPERTY** **Exhibit P4 TRUE COPY OF THE DATA BANK PUBLISHED BY THE KOLLAM MUNICIPAL CORPORATION BEARING NO. H5-64981/11 DATED 04/02/2021** **Exhibit P5 TRUE COPY OF THE APPLICATION SUBMITTED BY THE PETITIONER IN FORM 5 BEARING NO. 13/2022/271580 DATED 30/03/2022** **WP(C) NO. 6669 OF 2024 : 11 :** **Exhibit P6 TRUE COPY OF THE ORDER ISSUED BY THE FIRST RESPONDENT IN PROCEEDINGS BEARING FILE NO. 322/2023 DATED 25/02/2023**