BINOY FRANCIS v. STATE OF KERALA & 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. 3596 OF 2024** ## **PETITIONER:** **BINOY FRANCIS, AGED 53 YEARS S/O FRANCIS, RESIDING AT M76 THYKOODAN HOUSE, CHANGAMPUZHA NAGAR P.O., THRIKKAKKARA NORTH VILLAGE, KANAYANNOOR TALUK, ERNAKULAM DISTRICT, PIN - 682033** **BY ADVS. K.V.JAYADEEP MENON T.P.RAMESH (THENGUMPILLIL) P.KRISHNAPRIYA HARIPRASAD K.** ## **RESPONDENTS:** |**1**|**STATE OF KERALA**| |---|---| ||**REPRESENTED BY ITS SECRETARY,**| ||**AGRICULTURE DEPARTMENT, SECRETARIAT,**| ||**THIRUVANANTHAPURAM DISTRICT, PIN - 695001**| |**2**|**THE DISTRICT COLLECTOR**| ||**COLLECTORATE, CIVIL STATION,**| ||**KAKKANAD, ERNAKULAM DISTRICT, PIN - 682030**| |**3**|**THE DISTRICT LEVEL AUTHORIZED COMMITTEE**| ||**REPRESENTED BY THE REVENUE DIVISIONAL OFFICER,**| ||**REVENUE DIVISIONAL OFFICE FORT KOCHI,**| ||**FIRST FLOOR, KB JACOB ROAD, FORT KOCHI,**| ||**ERNAKULAM DISTRICT, PIN - 682030**| |**4**|**THE VILLAGE OFFICER**| ||**NADAMA VILLAGE, POST OFFICE ROAD,**| ||**THRIPUNITHURA, ERNAKULAM DISTRICT, PIN - 682301**| |**5**|**THE LOCAL LEVEL MONITORING COMMITTEE**| ||**REPRESENTED BY ITS CONVENER,**| ||**AGRICULTURAL OFFICER, KRISHI BHAVAN,**| ||**THRIPUNITHURA, MINI CIVIL STATION, MAIN ROAD,**| ||**THRIPUNITHURA, ERNAKULAM DISTRICT, PIN - 682301**| |***6**|**THE REVENUE DIVISIONAL OFFICER**| **WP(C) NO. 3596 OF 2024 : 2 :** **REVENUE DIVISIONAL OFFICE FORT KOCHI, FIRST FLOOR, KB JACOB ROAD, FORT KOCHI, ERNAKULAM DISTRICT (*IS IMPLEADED AS PER ORDER DATED 29.02.2024 IN I.A.NO.1/2024)** **BY ADV No Advocate** ## **OTHER PRESENT:** **SMT.R.DEVI SHRI, GP** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 29.02.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C) NO. 3596 OF 2024 : 3 :** ## **JUDGMENT** The moot question arising for consideration in this case is whether the Local Level Monitoring Committee is required to forward the decision made under Rule 4(8) of the Kerala Conservation of Paddy Land and Wetland Rules, 2008, in an application for correction of entries in the Data Bank to the Revenue Divisional Officer for approval. 2. The petitioner is the absolute owners and in possession of an extent of 1.99 Ares of land comprised in Block No.123, Re. Sy. No.24/4 of Nadama Village, Kanayannoor Taluk, Ernakulam District. The said property is included as 'Nilam' in the Basic Tax Register and as 'converted dry land' in the Data Bank prepared under the Kerala Conservation of Paddy Land and Wetland Act, 2008 **WP(C) NO. 3596 OF 2024 : 4 :** (hereinafter referred to as 'Act, 2008'). According to the petitioner, the said property is lying as dry land and is not suitable for any agricultural operation and there is no cultivation in the property for the past several years. However, it has been wrongly included in the Data Bank. The petitioner intend to carry out constructions in the property. Therefore, they submitted Ext.P4 application before the 5[th] respondent LLMC to remove the property from the Data Bank. 3. The Agricultural Officer, vide Ext.P5 reported that, on inspecting the subject land, the LLMC has found that the land is still remaining as 'Nilam' and as per the decision of the LLMC on 26.02.2022, entered in the Minutes Book as decision No. 114, it has been decided not to remove the property from **WP(C) NO. 3596 OF 2024 : 5 :** the Data Bank. Ext. P6 is the relevant extract of the Minutes Book of the LLMC. 4. The petitioner state that, following the decision of the LLMC, the Revenue Divisional Officer has not taken Ext.P4 application to a logical conclusion by passing further orders. Aggrieved by the inaction on the part of the Revenue Divisional Officer to proceed further on Ext.P4 application, the petitioner have filed this writ petition. 5. Heard the learned counsel for the petitioner and the learned Government Pleader for respondents. 6. Section 5(4)(i) of the Act, 2008, empowers6 the LLMC to prepare a Data Bank with the details of the cultivable paddy land and wetland within the jurisdiction of the Committee. The proviso to Section **WP(C) NO. 3596 OF 2024 : 6 :** 5(4)(i) provides that any person aggrieved by the entries in the Data Bank notified and exhibited as per Section 5(4)(i), may prefer an application to the Revenue Divisional Officer concerned and the Revenue Divisional Officer shall dispose of such application within a period of three months after following such procedure, as may be prescribed, and in case the Revenue Divisional Officer finds that the land included as paddy land or wetland in the said Data Bank is not paddy land or wetland, it shall be deemed to have been removed from the Data Bank. 7. Rule 4 of the Kerala Conservation of Paddy Land and Wetland Rules, 2008 (hereinafter referred to as 'Rules, 2008') deals with preparation of Data Bank. Rule 4(4d) provides that, if any person is aggrieved by inclusion of property in the Data Bank, **WP(C) NO. 3596 OF 2024 : 7 :** he can submit an application in Form 5 before the Revenue Divisional Officer, who shall pass appropriate orders on the application in terms of Rules 4(4E) and 4(4F). Rule 4(6) provides that any person aggrieved by wrong entries in the Data Bank notified as per sub rule 4 of Rule 4, may file a review application before the convener of the LLMC concerned within 90 days from the date of commencement of Kerala Conservation of Paddy Land and Wetland (Amendment) Rules, 2017. Under Rule 4(7), the LLMC is empowered to accept applications despite any delay in filing, on sufficient reasons. Rule 4(8) provides that, on receipt of an application under Rule 4(6), the LLMC shall inspect the land concerned and prepare a report as to the nature of the land and shall arrange for satellite **WP(C) NO. 3596 OF 2024 : 8 :** images to be taken before and after the date of commencement of the Act, 2008 and shall take a decision regarding the nature of the land. Wherever there is change in the nature of land from that notified in the gazette, necessary corrections shall be made in the Data Bank and republish the same. Rule 4(10) provides that if there is no change in the nature of land, the applicant shall be notified accordingly. If the Data Bank is renewed, the same shall also be informed. 8. Under Rules, 2008, a person who is aggrieved by an entry in the Data Bank can either approach the RDO or the LLMC for appropriate correction therein or for removal of land from the Data Bank. This Court, in **Lalu P.S.** _**v**_ **. State of Kerala and Others [2020 (5) KHC 490],** held **WP(C) NO. 3596 OF 2024 : 9 :** that, a person aggrieved by an entry in a notified Data Bank can either approach the Revenue Divisional Officer or the LLMC for appropriate correction therein or for removal of land from Data Bank. The Court held as under: “6. Sub-Rule (6) of Rule 4 which was in existence even at the time when sub-rule (4) of Rule 4 was amended in terms of SRO 902 of 2018, provides that if anybody is aggrieved by any entry in the notified Data Bank, he can prefer an application before the LLMC, and sub-rules (7) and (8) of Rule 4 provide that if an application is received under sub-rule (6), the LLMC shall consider the same and make appropriate corrections therein, after causing an inspection to be made and after perusing the satellite picture of the land. It is seen that when **WP(C) NO. 3596 OF 2024 : 10 :** sub-rule (4d) of Rule 4 of the Rules was introduced, sub-rule (6) of Rule 4 was not omitted from the Rules. In other words, the position now is that a person who is aggrieved by an entry in a notified Data Bank can either approach the Revenue Divisional Officer or the LLMC for appropriate correction therein or for removal of his land from the Data Bank.” 9. In **Niyas** _**v**_ **. District Collector, Palakkad [2023 (2) KHC 359]** also, this Court has taken the same view. The Revenue Divisional Officer and the LLMC are having coordinate jurisdiction in the matter of correction of entries /removal of land from the Data Bank. Rule 4(8) of Rules, 2008 provides that, on receipt of an application under Rule 4(6), the LLMC shall, after inspecting the land and after perusing the satellite picture as on 12.08.2008 and **WP(C) NO. 3596 OF 2024 : 11 :** after that date, take a decision regarding the nature of the land, and wherever there is change in the nature of land from that notified in the gazette, necessary corrections shall be made in the databank and republish the same. If there is no change in the nature of land, the applicant shall be notified accordingly. If the Data Bank is renewed, the same shall also be informed. Rule 4(8) of Rules, 2008 empowers the LLMC to take a decision regarding the nature of the land. In case there is change in the nature of land from that notified in the gazette, the Rules, 2008 empowers the LLMC to make necessary corrections in the Data Bank and republish it. Once the LLMC considers the application and takes a decision, the Act or Rules do not require the matter to be forwarded to the Revenue Divisional Officer **WP(C) NO. 3596 OF 2024 : 12 :** for approval. 10. As regards Ext. P6 decision of the LLMC, it is recorded in the Minutes that, on inspection of the land, the LLMC has found that the land is still remaining as 'Nilam' and decided not to remove the property from the Data Bank. Rule 4(8) of Rules, 2008 provides that, on receipt of a Review application under Rule 4(6), the LLMC shall, after inspecting the land and after perusing the satellite picture of the land as on 12.08.2008 and subsequent thereto, take a decision regarding the nature of the land. Thus, if a Review application is received under Rule 4(6) by the LLMC, it has to conduct a local inspection and obtain the satellite images of the land to find out the lie and nature of the land. The decision regarding the nature of the land has to be **WP(C) NO. 3596 OF 2024 : 13 :** taken by the LLMC on the basis of local inspection and the satellite images. There is nothing on record to show that the LLMC has obtained the satellite images of the land before taking a decision not to remove the property from the Data Bank. 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. It is for the said purpose that Rule 4 (8) of Rules, 2008 mandates local inspection report and the satellite images. The decision of the LLMC is without following the relevant factors mentioned in Rules 4 (6) & (8) of Rules, 2008. Accordingly, Exts. P5 and P6 are set aside. There will be a direction to the 5[th] respondent LLMC to pass fresh orders on Ext. P4 application, after calling for a report from **WP(C) NO. 3596 OF 2024 : 14 :** the Kerala State Remote Sensing and Environment Centre (KSRSEC, nodal agency of the State Government). The petitioner shall make necessary application before the Agricultural Officer within a period of two weeks from the date receipt of a copy of the judgment for the report of the KSRSEC and the LLMC shall pass orders in accordance with law, as expeditiously as possible, at any rate, within a period of two months from the date of receipt of the KSRSEC report. The petitioner shall produce a copy of this writ petition along with a copy of the judgment before the 5[th] respondent for due compliance. The writ petition is disposed of as above. **Sd/MURALI PURUSHOTHAMAN JUDGE** SB ## **WP(C) NO. 3596 OF 2024 : 15 :** ## **APPENDIX** ## **PETITIONER EXHIBITS** **Exhibit P1 THE TRUE PHOTOCOPY OF THE LAND TAX RECEIPT DATED 21.07.2020 ISSUED FROM THE VILLAGE OFFICE NADAMA.** - **Exhibit P2 THE TRUE PHOTOCOPY OF THE CERTIFICATE DATED 18.01.2011 ISSUED FROM THE VILLAGE OFFICE NADAMA** - **Exhibit P3 THE TRUE PHOTOCOPY OF THE RELEVANT PAGE OF THE DATA BANK ISSUED FROM THE KRISHIBHAVAN, THRIPUNITHURA** - **Exhibit P4 THE TRUE PHOTOCOPY OF THE APPLICATION SUBMITTED BY THE PETITIONER BEFORE THE LOCAL LEVEL MONITORING COMMITTEE UNDER FORM 5 OF THE KERALA CONSERVATION OF PADDY LAND AND WET LAND ACT, 2008 DATED NIL** - **Exhibit P5 THE TRUE PHOTOCOPY OF THE REPORT OF THE AGRICULTURAL OFFICER, KRISHI BHAVAN, THRIPUNITHURA DATED 25.03.2022** **Exhibit P6 THE RUE PHOTOCOPY OF RELEVANT PAGES OF THE LLMC REPORT**