Dijosh and Soumya v. State of Kerala and Others

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE MURALI PURUSHOTHAMAN MONDAY, THE 26[TH] DAY OF FEBRUARY 2024 / 7TH PHALGUNA, 1945 WP(C) NO. 6360 OF 2024 ``` ## **`PETITIONERS:`** - **`1 DIJOSH AGED 32 YEARS`** ``` S/O. DIVAKARAN THANNIKKATTIL HOUSE, KOTTAPADY VILLAGE, MEPPADI, PALAVAYAL VYTHIRI THALUK, KOTTANADU POST, WAYANAD DIST., PIN – 673 577. ``` - **`2 SOUMYA`** ``` AGED 28 YEARS ``` ``` W/O DIJOSH, THANNIKKATTIL HOUSE, KOTTAPADY VILLAGE, MEPPADI, PALAVAYAL VYTHIRI THALUK, KOTTANADU POST, WAYANAD DIST.,-673 577., PIN – 673 577. ``` ``` BY ADVS. CELINE JOSEPH BENNY P.S ``` ## **`RESPONDENTS:`** - **`1 STATE OF KERALA REPRESENTED BY SECRETARY, DEPARTMENT OF REVENUE, GOVERNMENT SECRETARIAT,THIRUVANANTHAPURAM., PIN – 695 001.`** - **`2 REVENUE DIVISIONAL OFFICER (SUB COLLECTOR), OFFICE OF THE REVENUE DIVISIONAL`** - **`OFFICER,MANANTHAVADY. WAYANAD DIST., PIN – 670 645.`** - **`3 THE DISTRICT COLLECTOR COLLECTORATE, CIVIL STATION,KALPETTA, WAYANAD DISTRICT, PIN – 673 121.`** - **`4 THE VILLAGE OFFICER, KOTTAPADY, WAYANAD DISTRICT., PIN – 673 577.`** - **`5 LOCAL LEVEL MONITORING COMMITTEE, REP BY ITS CONVENER AND AGRICULTURE`** ``` WP(C) NO. 6360 OF 2024 ``` 2 ``` OFFICER,KRISHI BHAVAN, MEPPADI, WAYANAD DISTRICT., PIN – 673 577. ``` ``` BY ADV SMT.R.DEVI SHRI, GOVERNMENT PLEADER ``` ``` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 26.02.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` WP(C) NO. 6360 OF 2024 ``` 3 ## JUDGMENT The petitioners have approached this Court aggrieved by Ext.P8 whereby Form 5 application submitted by them has been rejected by the Revenue Divisional Officer. 2. The petitioners are the owners of 0.0607 Hectors of land comprised in Survey No.410/9 of Kottapady Village in Wayanad District. 3. According to the petitioners, the said property will not come within the definition of paddy land or wetland and is not suitable for paddy cultivation as it is surrounded by building on all sides. However, it has been wrongly included in the Data Bank prepared under the Kerala Conservation of Paddy Land and Wetland Rules, 2008 as paddy land. The petitioners, therefore, ``` WP(C) NO. 6360 OF 2024 ``` 4 filed Form 5 application under the provisions of Kerala Conservation of Paddy Land and Wetland Act, 2008 (for short, ‘Act, 2008’) to remove the property from the Data Bank. The application has been rejected by the Revenue Divisional Officer stating that the Agricultural Officer has reported that it is not clear as to whether the property was converted before 2008 or not, and the same can be ascertained only by verifying the KSRSEC report. Referring to the KSRSEC report, the Revenue Divisional Officer states that satellite images would shows that the property was paddy fields in 1967 and as per the data of 2011, 2016 and 2022 there is vegetation in the land. It is further stated in Ext.P8 that on inspection from the office of the Revenue Divisional Officer, it is seen that there is cardamom cultivation in the land and the Village Officer has ``` WP(C) NO. 6360 OF 2024 ``` 5 initiated proceedings under the Kerala Land Utilisation Order, 1967. It is also stated that there is paddy cultivation on the western side of the land. 4. The petitioners impugnes Ext.P8 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. 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. Though KSRSEC report was relied on by the Revenue Divisional Officer, the same has been incorrectly interpreted. Though 2008 data of the property is not available, 2011 data shows that there is vegitation in the land. The Revenue Divisional Officer has not taken steps to ascertain the age of the crops as ``` WP(C) NO. 6360 OF 2024 ``` 6 on the date of inspection and the nature of land as on 2008. 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, the Revenue Divisional Officer 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 the absence of such findings, the impugned order is unsustainable. 7. In Adani Infrastructure & Developers Pvt. Ltd, Mumbai & Others Vs. State of Kerala & Others [2014 (1) KHC 685] this Court has held that if the property is ``` WP(C) NO. 6360 OF 2024 ``` 7 locked on all four sides with lands which were reclaimed before the coming into force of the Act, such lands cannot be said as suitable for cultivation and may come outside the definition of paddy land. 8. This Court in Bharathan Ramanathan v State of Kerala [2022 (7) KHC 541] has held that pendency of proceedings under Section 13 of the Kerala Conservation of Paddy Land and Wetland Rules, 2008 is not a ground to consider an application in Form 5. In Devanand v. State of Kerala [2023 (1) KHC 123], this Court has held that even if Section 13 proceedings are concluded, the petitioner has right to get his form 5 application considered by the RDO. Therefore, pendency of proceedings under Section 13 of the Kerala Conservation of Paddy Land and Wetland Rules, 2008 or under the Kerala Land Utilisation Order, 1967 is not a ground to ``` WP(C) NO. 6360 OF 2024 ``` 8 reject the application of the petitioners. In spite of the categorical declarations by this Court in the decisions cited above, the petitioners’ application has been rejected on untenable grounds. Accordingly, I find that Ext.P8 order cannot be sustained and I set aside the same, with a direction to the 2[nd] 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 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 the ``` WP(C) NO. 6360 OF 2024 ``` 9 writ petition along with a copy of the judgment before the Revenue Divisional Officer. The writ petition is disposed of. ## Sd/- ## MURALI PURUSHOTHAMAN JUDGE SRJ ``` WP(C) NO. 6360 OF 2024 ``` 10 ## **`APPENDIX OF WP(C) 6360/2024`** ## **`PETITIONERS’ EXHIBITS`** - **`Exhibit P1`** ``` TRUE COPY OF THE JENMAM ASSIGNMENT DEED NO. 4265/2014 OF THE S.R.O. KALPETTA DATED 22/11/2014 OF S.R.O. KALPETTA. ``` - **`Exhibit P2`** - **`TRUE COPY OF THE LAND TAX RECEIPT DATED 22/06/2023 FOR THE PERIOD 2023- 2024 ISSUED FROM VILLAGE OFFICE, KOTTAPPADI.`** - **`Exhibit P3 TRUE COPY OF THE FIELD MAP OF THE PROPERTY SITUATED IN SURVEY NO.410 OF THE KOTTAPPADI VILLAGE INCLUDING THE PROPERTY OF THE PETITIONER`** - **`Exhibit P4 TRUE COPY OF THE BASIC TAX REGISTER OF THE PETITIONER'S PROPERTY.`** - **`Exhibit P5 TRUE COPY OF THE POSSESSION CERTIFICATE DATED 22/11/2021 ISSUED FROM VILLAGE OFFICE, KOTTAPPADI.`** - **`Exhibit P6 THE PHOTOGRAPHS SHOWING THE PRESENT PHYSICAL CONDITION OF THE PROPERTY`** - **`Exhibit P7`** - **`TRUE COPY OF THE ACKNOWLEDGEMENT OF RECEIPT OF FORM-5 APPLICATION SUBMITTED BEFORE THE SUB COLLECTOR, MANANTHAVADY. DATED:23-11-2021`** - **`Exhibit P8 TRUE COPY OF THE ORDER ISSUED BY THE SUB COLLECTOR, MANANTHAVADY. DATED:1810-2022.`** - **`Exhibit P9 TRUE COPY OF THE COMMUNICATION DATED 30.06.2023 ISSUED BY THE 2ND RESPONDENT TO THE 1ST PETITIONER.`**