Deepak S. v. Revenue Divisional Officer, Nedumangad & State of Kerala

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR.JUSTICE MURALI PURUSHOTHAMAN`** ``` MONDAY, THE 5[TH] DAY OF FEBRUARY 2024 / 16TH MAGHA, 1945 ``` ``` WP(C) NO. 1367 OF 2024 ``` ## **`PETITIONER:`** ``` DEEPAK S, AGED 65 YEARS KALIYILIL VEEDU, GANDHI NAGAR, VALAVUPACHA P.O, CHITHARA, KOLLAM, KERALA, PIN – 691 559. ``` ``` BY ADVS. SRIKANTH THAMBAN SRAVAN M.S. ABHILASH.B FIRDOUSE.K.K ``` ## **`RESPONDENTS:`** - **`1 REVENUE DIVISIONAL OFFICER, REVENUE DIVISIONAL OFFICE, NEDUMANGAD, THIRUVANANTHAPURAM, KERALA, PIN – 695 541.`** - **`2 STATE OF KERALA, REPRESENTED BY GOVERNMENT PLEADER, HIGH COURT OF KERALA, PIN – 682 031.`** ## **`SR.GP. - SRI.E.G.GORDEN`** ``` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 05.02.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` WP(C).No.1367 OF 2024 ``` ``` 2 ``` ## **`JUDGMENT`** The petitioner has approached this Court aggrieved by Ext.P2 order whereby Form 5 application submitted by him has been rejected by the Revenue Divisional Officer. 2. The petitioner is the absolute owner in possession of an extent of 42.00 Ares of land comprised in Re.Sy. No.299/5 in Block No.13 of Palode Village, Nadaumangad Taluk in Thiruvananthapuram 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.P1 application in Form 5 of Rule 4(d) of the Kerala Conservation of ``` WP(C).No.1367 OF 2024 ``` ``` 3 ``` Paddy land and Wetland 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.P2 stating that as per the report of the Agricultural Officer, the land is marshy and there is water logging and not seen converted before 2008. 4. The petitioner has filed this writ petition challenging Ext.P2 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 should have called for a report from the Kerala State Remote Sensing and Environment Centre, Thiruvananthapuram (for short, the KSRSEC’) to ascertain the status of land as on 12.08.2008, the date of coming into force of the Act, 2008. 5. It is trite law that, merely because the ``` WP(C).No.1367 OF 2024 ``` ``` 4 ``` 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. 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 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.” 6. In **Adani Infrastructures & Developers Pvt. Ltd, Mumbai & Others Vs. State of Kerala &** ``` WP(C).No.1367 OF 2024 ``` ``` 5 ``` **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 of the Act, 2008 such lands cannot be said as suitable for cultivation and may come outside the definition of paddy land. 7. The relevant consideration for inclusion of property as a 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.P2, 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 passed Ext.P2 refusing to remove the property from the Data Bank. This Court had held in the decision in **Arthasasthra Ventures (India) LLP v.** ``` WP(C).No.1367 OF 2024 ``` ## **`6`** **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. 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 Bank. Accordingly, I find that Ext.P2 order cannot be sustained and I set aside the same, with a direction to the 1[st] respondent Revenue Divisional Officer to reconsider Ext.P1 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 ``` WP(C).No.1367 OF 2024 ``` ``` 7 ``` 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 writ petition is disposed of with the above directions. Sd/- ``` MURALI PURUSHOTHAMAN JUDGE ``` SPR ``` WP(C).No.1367 OF 2024 ``` ``` 8 ``` ## **`APPENDIX`** ## **`PETITIONER’S EXHIBITS:-`** ``` EXHIBIT P1A TRUE COPY OF THE FORM-5 HAVING THE NUMBER 10/2022/237667 APPLICATION MADE TO THE RESPONDENT DATED 03.06.2022. EXHIBIT P2A TRUE COPY OF THE ORDER OF THE REVENUE DIVISIONAL OFFICER, HAVING FILE NO. 527/2023 DATED 04.04.2023. EXHIBIT P3A TRUE COPY OF THE LOCATION SKETCH/MAP ISSUED BY THE VILLAGE OFFICER, DATED 20.10.2015. ``` ## **`RESPONDENTS EXHIBITS: NIL.`**