Baby v. State of Kerala and Others

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** # **`PRESENT`** ## **`THE HONOURABLE MR.JUSTICE MURALI PURUSHOTHAMAN`** ``` TUESDAY, THE 27[TH] DAY OF FEBRUARY 2024 / 8TH PHALGUNA, 1945 WP(C) NO.7577 OF 2024 ``` ## **`PETITIONER:`** ``` BABY, AGED 60 YEARS, WIFE OF PAUL VADAKKUMCHERRY (H), KALADY P.O ALUVA TALUK ERNAKULAM DISTRICT, PIN - 683574 ``` ``` BY ADVS. ROOPKUMAR G. ASHWIN ANTONY SREEKUMAR K.V. ARUL MURALIDHARAN LAKSHMI K.G. ``` ## **`RESPONDENTS:`** - **`1 STATE OF KERALA, 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`** - **`2 THE AGRICULTURAL OFFICER, KALADY OFFICE OF THE AGRICULTURAL OFFICER, KALADY, ERNAKULAM (LOCAL LEVEL MONITORING COMMITTEE UNDER THE KERALA CONSERVATION OF PADDY LAND AND WETLAND ACT, 2008), PIN – 683574`** - **`3 THE REVENUE DIVISIONAL OFFICER, REVENUE DIVISIONAL OFFICE, FORT KOCHI, ERNAKULAM DISTRICT-682001`** - **`[ADDL.R3 IS SUO MOTU IMPLEADED AS PER JUDGMENT DATED 27.02.2024]`** ## **`BY SR.GP.SMT.K.AMMINIKUTTY`** ``` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 27.02.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` W.P.(C) No.7577 of 2024 2 ## **`JUDGMENT`** ``` ‘The Revenue Divisional Officer, Revenue Divisional Office, Fort Kochi, Ernakulam District- 682001’ is suo motu impleaded as the additional 3[rd] respondent. ``` ``` 2. Petitioner has approached this Court aggrieved by Ext.P4 order, whereby Form 5 application submitted by her has been rejected by the additional 3[rd] respondent/Revenue Divisional Officer [RDO] solely relying on the report of the Agricultural Officer. ``` ``` 3. Petitioner is the co-owner in possession of a total extent of 6.35 Ares of land comprised in Sy.NoS.426/16-2 and 426/16 (Old Sy.No.313/10) in Block No.26 of Kalady Village, Aluva Taluk, Ernakulam District. ``` **`4. According to the petitioner, the aforesaid`** W.P.(C) No.7577 of 2024 3 ``` 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, 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 (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 order stating that after inquiry into the Form-5 application submitted by the petitioner, the 2[nd] respondent, the Agricultural Officer vide report dated 16.03.2023 has found that the concerned property comprising of 0.28 Are and 06.07 Ares (Total – 6.35 Ares) in Block No 26, Survey ``` W.P.(C) No.7577 of 2024 4 ``` Nos.426/16, 426/16-2 of Kalady Village, Aluva Taluk is included in the Data Bank and is classified as "Nilam ". The Local Level Monitoring Committee (hereinafter referred to as ‘LLMC’) conducted a site inspection and found that in the subject land a metal company is situated and there are no other trees, as the entire land area constitutes a shed storage space and its boundaries comprise of a small road in the north, a road in the east, a wet land (chathuppu sthalam) in the west and a property similar to a dry land in the south. Based on the said recommendations of the meeting of the LLMC held on 31.01.2023 and recorded in the Minutes as Decision No.46, the Agricultural Officer (2[nd] respondent) has submitted a report (to the 1[st] respondent) that, it cannot be assumed that the conversion of the subject land ``` W.P.(C) No.7577 of 2024 5 ``` has been done prior to 2008 and hence, the subject land shall be retained in Data Bank. ``` ``` 5. 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. ``` ``` 6. 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 the case of wetland. Rule 4(4F) provides that, on receipt of the report as above, the RDO shall, if ``` W.P.(C) No.7577 of 2024 6 ``` 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. ``` ``` 7. 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 ``` W.P.(C) No.7577 of 2024 7 ``` 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. This Court, inMuraleedharan 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 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 ``` W.P.(C) No.7577 of 2024 8 ``` 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 petitioner’s application has been rejected, solely relying on the report of the Agricultural Officer and recommendation of the LLMC, which recommended not to remove the land from the Data Bank. Accordingly, Ext.P4 order cannot be sustained and I set aside the same, with a direction to the additional 3[rd]respondent, the RDO, to reconsider ``` W.P.(C) No.7577 of 2024 9 ``` Ext.P3 application 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 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 the writ petition along with a copy of the judgment before the Revenue Divisional Officer. ``` ``` The writ petition is disposed of with the above directions. ``` ``` Sd/- ``` ``` MURALI PURUSHOTHAMAN JUDGE ``` ``` sp/27/02/2024 ``` W.P.(C) No.7577 of 2024 10 ## **`APPENDIX`** ## **`PETITIONER'S EXHIBITS:-`** ``` Exhibit P1 ``` ``` TRUE COPY OF THE REGISTERED SALE DEED NO. 4650/2006 OF SREEMOOLANAGARAM SRO DATED 01-11-2006 EXECUTED IN FAVOUR OF THE PETITIONER. ``` ``` Exhibit P2 ``` ``` TRUE PHOTOGRAPH OF THE PROPERTY OF THE PETITIONER. ``` ``` Exhibit P3 ``` ``` TRUE COPY OF THE APPLICATION IN FORM 5 SUBMITTED BY PETITIONER BEFORE THE 1ST RESPONDENT DATED 31-03-2022 SANS THE DOCUMENTS SUBMITTED THEREWITH ``` ``` Exhibit P4 ``` ``` TRUE COPY OF THE ORDER DATED 17.04.2023 IN FILE NO. 2983/2023 PASSED BY THE 1ST RESPONDENT DISMISSING EXHIBIT P-3 FORM-5 APPLICATION SUBMITTED BY 1ST PETITIONER. ```