C. V Anand Iyer and Chitra Anand v. Revenue Divisional Officer, Thrissur; Agricultural Officer; Village Officer, Thrissur District

# **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. 37220 OF 2023** ## **PETITIONERS:** |**1**|**C.V ANAND IYER, AGED 55 YEARS**| |---|---| ||**S/O. LATE VISWANATHAN IYER, 1/574,**| ||**CHATHAPURAM VILLAGE, KALPATHY (PO)**| ||**PALAKKAD DISTRICT,, PIN - 678003**| |**2**|**CHITRA ANAND, AGED 52 YEARS**| ||**W/O. C.V ANAND IYER, 1/574,**| ||**CHATHAPURAM VILLAGE, KALPATHY (PO)**| ||**PALAKKAD DISTRICT,, PIN - 678003**| **BY ADVS. BINOY VASUDEVAN SREEJITH SREENATH RINCY KHADER** ## **RESPONDENTS:** |**1**|**THE REVENUE DIVISIONAL OFFICER**| |---|---| ||**OFFICE OF THE REVENUE DIVISIONAL OFFICER,**| ||**CIVIL STATION, AYYANTHOLE, THRISSUR, PIN - 680003**| |**2**|**THE AGRICULTURAL OFFICER**| ||**KRISHI BHAVAN, CHEMBUKKAVU,**| ||**THRISSUR, PIN - 680020**| |**3**|**THE VILLAGE OFFICER**| ||**PUNKUNNAM VILLAGE, AYYANTHOLE (PO)**| ||**THRISSUR DISTRICT, PIN - 680003**| ## **OTHER PRESENT:** **GP - SMT. G SHEEBA** **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. 37220 OF 2023 : 2 :** ## **JUDGMENT** The petitioners have approached this Court aggrieved by Ext.P5 whereby Form 5 application submitted by them has been rejected by the Revenue Divisional Officer. 2. The are the owners in petitioners possession of 7 Ares (17.297 cents) of land in Re.Sy.No.Y01/1781 (Old Sy.No.58/PT) of Punkunnam Village in Thrissur District. 3. According to the petitioners, the said property will not come within the definition 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 ## **WP(C) NO. 37220 OF 2023 : 3 :** short). However, it has been 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). The petitioners 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 as per the report of the Agricultural Officer, the subject land is a part of fallow land the LLMC has recommended to retain the land in the Data Bank. 4. The petitioners impugn Ext.P5 contending, _inter alia,_ that the same is vitiated by non **WP(C) NO. 37220 OF 2023 : 4 :** 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 ought to 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. It is further contended that the subject property is lying as a garden land situated within a residential colony surrounded by several buildings such as school, hospital and theater and is not suitable for paddy cultivation. 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 **WP(C) NO. 37220 OF 2023 : 5 :** 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 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.P5, 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 **WP(C) NO. 37220 OF 2023 : 6 :** upon the report of the Agricultural Officer as well as the recommendation of the LLMC 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 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 **WP(C) NO. 37220 OF 2023 : 7 :** 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. This Court has held 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. 8. Further, it is trite law that, merely because the property is lying fallow, it cannot be termed as **WP(C) NO. 37220 OF 2023 : 8 :** wetland or paddy land in contemplation of Act, 2008. 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 **WP(C) NO. 37220 OF 2023 : 9 :** 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 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 **WP(C) NO. 37220 OF 2023 : 10 :** 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 is suitable for paddy cultivation and left fallow and therefore only on **WP(C) NO. 37220 OF 2023 : 11 :** 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 has been on petitioners' application rejected untenable grounds. Accordingly, I find that Ext.P5 order cannot be sustained and I set aside the same, with a direction to the 1[st] respondent, the Revenue Divisional Officer to reconsider the application of the petitioners in Form 5 in accordance with law and take a decision in the matter after obtaining KSRSEC report at the expense of the petitioners, within a period of two months from the date of receipt of the report of **WP(C) NO. 37220 OF 2023 : 12 :** the KSRSEC. The petitioners 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 petitioners 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. 37220 OF 2023 : 13 :** ## **APPENDIX** ## **PETITIONER EXHIBITS** **Exhibit P1 TRUE COPY OF DOCUMENT NO.900/04 DATED 19.02.2004 OF S.R.O. THRISSUR Exhibit P1 TRUE COPY OF DOCUMENT NO.840/2004 DATED (a) 13.02.2004 OF S.R.O. THRISSUR Exhibit P2 TRUE COPY OF THE LAND TAX RECEIPT DATED 20.05.2023 ISSUED BY THE 3RD RESPONDENT Exhibit P3 TRUE COPY OF THE POSSESSION CERTIFICATE DATED 01.10.2021 ISSUING THE 3RD RESPONDENT Exhibit P4 TRUE COPY OF THE RELEVANT PAGES OF THE DATA BANK DATED 22-1-2021 Exhibit P5 TRUE COPY OF ORDER NO. 5247/23 DATED 24.10.2023 OF THE 1ST RESPONDENT**