Chippy R Nair v. State of Kerala and Others

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE MURALI PURUSHOTHAMAN WEDNESDAY, THE 6[TH] DAY OF MARCH 2024 / 16TH PHALGUNA, 1945 WP(C) NO. 8887 OF 2024 ``` ## **`PETITIONER:`** ``` CHIPPY.R.NAIR AGED 28 YEARS D/O. RAJEEVAN NAIR, CHATHANANICKAL HOUSE, MANAKKAD.P.O, THODUPUZHA, IDUKKI DISTRICT, PIN – 685 608. ``` ## **`BY ADV AVANEESH KOYIKKARA`** ## **`RESPONDENTS:`** - **`1 STATE OF KERALA REPRESENTED BY ITS SECRETARY, REVENUE DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM, PIN – 695 001.`** - **`2 DISTRICT COLLECTOR, IDUKKI COLLECTORATE, IDUKKI, KUYILIMALA, PAINAV.P.O, IDUKKI, PIN – 685 603.`** - **`3 REVENUE DIVISIONAL OFFICER REVENUE DIVISIONAL OFFICE, IDUKKI, PARAKKUNNAM, VIDYUT NAGAR, IDUKKI, PIN – 685 603.`** - **`4 KERALA STATE REMOTE SENSING AND ENVIRONMENT CENTER, 1ST FLOOR, VIKAS BHAVAN, NEAR LEGISLATIVE ASSEMBLY, UNIVERSITY OF KERALA SENATE HOUSE CAMPUS, PMG, THIRUVANANTHAPURAM DISTRICT REPRESENTED BY ITS DIRECTOR, PIN – 695 033.`** - **`5 LOCAL LEVEL MONITORING COMMITTEE REPRESENTED BY ITS CONVENER AGRICULTURAL OFFICE, KRISHI BHAVAN, MANAKKAD, PUTHUPARIYARAM P.O., IDUKKI, PIN – 686 508.`** ``` WP(C).No.8887 OF 2024 ``` ``` 2 ``` ``` 6AGRICULTURAL OFFICER KRISHI BHAVAN, MANAKKAD, PUTHUPARIYARAM P.O., IDUKKI, PIN – 686 508. ``` ``` SMT.R.DEVI SHRI – GP SRI. VISHNU S. CHEMPAZHANTHIYIL - SC ``` ``` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 06.03.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` WP(C).No.8887 OF 2024 ``` ``` 3 ``` ## **`JUDGMENT`** The petitioner has approached this Court aggrieved by Ext.P4 whereby Form 5 application submitted by her has been rejected by the Revenue Divisional Officer. 2. The petitioner is the absolute owner in possession of an extent of 6.47 Ares of land in Block No.010, Sy.No.416/7-2-1 of Manakkad Village, Thodupuzha Taluk in Idukki District. 3. According to the petitioner, the aforesaid property will not come within the ambit of paddy land or wet land as defined under the Kerala Conservation of Paddy Land and Wetland Act, 2008 (hereinafter referred to as '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 under Rule 4(d) of the Kerala Conservation of Paddy Land and Wetland Rules, 2008 (for short, ‘the Rules’) before the Revenue Divisional Officer to remove the said land from the Data Bank. The same has been ``` WP(C).No.8887 OF 2024 ``` ``` 4 ``` rejected by the Revenue Divisional Officer vide Ext.P4 stating that the Agricultural Officer has reported that as per the KSRSEC report, during 2008, there were crops in the subject land and the LLMC has opined that there were paddy cultivation in the subject land and in the nearby areas during 2008 and there are no trees in the property and there are water chals across the property and water logged and the LLMC has recommended to retain the property in the Data Bank. 4. 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. It is also contended that the Revenue Divisional Officer has not himself examined the KSRSEC report to ascertain the exact nature of the land as on 12.08.2008, the date of coming into force of the Act, 2008, but relied on the ``` WP(C).No.8887 OF 2024 ``` ``` 5 ``` version of the Agricultural Officer. 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 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 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 property as on the date of coming into force of the Act, 2008, the Revenue Divisional Officer has relied upon the report of the Agricultural Officer ``` WP(C).No.8887 OF 2024 ``` ## **`6`** and LLMC to refuse to remove the property from the Data Bank. 6. This Court had 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, 2008 and also whether the land is suitable for paddy cultivation or not. 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 the Data Bank. The Revenue Divisional Officer being the competent authority, has to ``` WP(C).No.8887 OF 2024 ``` ``` 7 ``` 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. In **Aparna Sasi Menon v. Revenue Divisional Officer** [2023 (6) KHC 83], this Court has held that the predominant factor for consideration while considering Form 5 application should be whether the land which is sought to be excluded from the Data Bank is one where paddy cultivation is possible and feasible. 8. 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 ``` WP(C).No.8887 OF 2024 ``` ``` 8 ``` Bank. None of the parameters for consideration of Form 5 application has been taken into account while passing the impugned order. 9. Accordingly, I find that Ext.P4 order cannot be sustained and I set aside the same, with a direction to the 3[rd] respondent, the Revenue Divisional Officer to reconsider Ext.P3 application in Form 5 in accordance with law and take a decision after considering Ext.P5 KSRSEC report and the observation of this Court and the binding precedents within a period of two months 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 this judgment before the 3[rd] respondent for compliance. The writ petition is disposed of with the above directions. Sd/- ``` MURALI PURUSHOTHAMAN JUDGE ``` SPR ``` WP(C).No.8887 OF 2024 ``` ``` 9 ``` ## **`APPENDIX`** ## **`PETITIONER’S EXHIBITS:-`** ``` EXHIBIT P1THE COPY OF THE TAX RECEIPT ISSUED BY THE MANAKKAD VILLAGE OFFICE DATED 14.07.2022. EXHIBIT P2A COPY OF THE RELEVANT PAGES OF DATA BANK PUBLISHED IN GAZETTE DATED 23.02.2012. EXHIBIT P3A COPY OF THE FORM 5 APPLICATION DATED 11.05.2022. EXHIBIT P4THE TRUE COPY OF THE ORDER IN FILE NO: 353/2023 DATED 26.03.2023 ISSUED BY THE 3RD RESPONDENT. EXHIBIT P5A TRUE COPY OF RELEVANT PAGES OF KSREC REPORT. ``` ## **`RESPONDENTS EXHIBITS: NIL.`**