Dinesan T.P. and Baby Sree v. District Collector, Kozhikode; Revenue Divisional Officer, Kozhikode; Tahsildar (LR), Kozhikode; Village Officer, Kakodi; Agricultural Officer, Kakodi; Convenor Local Level Monitoring Committee, Kakodi Grama Panchayath; Kerala State Remote Sensing and Environment Centre (KSREC)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE MURALI PURUSHOTHAMAN** ## **MONDAY, THE 19[TH] DAY OF FEBRUARY 2024 / 30TH MAGHA, 1945** ## **WP(C) NO. 6215 OF 2024** ## **PETITIONERS:** |**1**|**DINESAN T.P, AGED 60 YEARS**| |---|---| ||**S/O. BALAKRISHNAN NAIR,**| ||**THACHADI PARAMBIL HOUSE,**| ||**MAKKADAMORIKKARA, KAKKODI,**| ||**KOZHIKODE DISTRICT, PIN - 673611**| |**2**|**BABY SREE, AGED 51 YEARS**| ||**W/O. DINESAN T.P, THACHADI PARAMBIL HOUSE,**| ||**MAKKADAMORIKKARA, KAKKODI,**| ||**KOZHIKODE DISTRICT, PIN - 673611**| ## **BY ADV BINIYAMIN K.S.** ## **RESPONDENTS:** |**1**|**THE DISTRICT COLLECTOR**| |---|---| ||**CIVIL STATION KOZHIKODE,**| ||**WAYANAD ROAD, ERANHIPPALAM,**| ||**KOZHIKODE DISTRICT, PIN - 673020**| |**2**|**THE REVENUE DIVISIONAL OFFICER**| ||**KOZHIKODE REVENUE DIVISIONAL OFFICE,**| ||**CIVIL STATION KOZHIKODE, WAYANAD ROAD,**| ||**ERANHIPPALAM, KOZHIKODE DISTRICT, PIN - 673020**| |**3**|**THE TAHSILDAR (LR)**| ||**KOZHIKODE TALUK OFFICE,**| ||**CIVIL STATION KOZHIKODE,**| ||**WAYANAD ROAD, ERANHIPPALAM,**| ||**KOZHIKODE DISTRICT, PIN - 673020**| |**4**|**THE VILLAGE OFFICER**| ||**KAKKODI VILLAGE OFFICE, KAKKODI,**| ||**KOZHIKODE DISTRICT, PIN - 673611**| |**5**|**THE AGRICULTURAL OFFICER**| ||**KAKKODI KRISHIBHAVAN, KAKKODI,**| ||**KOZHIKODE DISTRICT, PIN - 673611**| **WP(C) NO. 6215 OF 2024 : 2 :** **6 THE CONVENOR LOCAL LEVEL MONITTORING COMMITTEE, KAKKODI GRAMA PANCHAYATH, KAKKODI, KOZHIKODE DISTRICT, PIN - 673611** **7 KERALA STATE REMOTE SENSING AND ENVIRONMENT CENTRE (KSREC) 1ST FLOOR, VIKAS BHAVAN, NEAR LEGISLATIVE ASSEBLY, UNIVERSITY OF KERALA SENATE HOUSE CAMPUS, PMG, THIRUVANANTHAPURAM, REPRESENTED BY ITS DIRECTOR, PIN - 695033** ## **OTHER PRESENT:** ## **SR.GP.SMT.K.AMMINIKUTTY** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 19.02.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C) NO. 6215 OF 2024 : 3 :** ## **JUDGMENT** The petitioners have approached this Court aggrieved by Ext.P6 whereby Form 5 application submitted by them has been rejected by the Revenue Divisional Officer. 2. The first petitioner is the owner in possession of an extent of 2 Ares and 287 square metres of property in Sy.No.1/6 of Kakkodi Village, Kozhikode Taluk, Kozhikode District and the petitioners jointly own an extent of 6 Ares and 5965 square metres of land in Sy.No.1/7 of the same Village. 3. According to the petitioners, the said properties will not come within the definition of paddy land or wetland as defined under the Kerala Conservation of Paddy Land and Wetland Act, 2008 **WP(C) NO. 6215 OF 2024 : 4 :** (hereinafter referred to as 'the Act, 2008' for short). However, it has been wrongly included in the 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 Ext.P3 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 Revenue Divisional Officer, by Ext.P6 order, rejected the application on the ground that the Agricultural Officer has reported that three sides of the property is surrounded by paddy lands and conversion will adversely affect the environment. On site inspection, though age old coconut trees were found, the land is waterlogged and is suitable for paddy cultivation and that on verifying with Google Earth Pro, it was found that in 2007 also **WP(C) NO. 6215 OF 2024 : 5 :** the land is seen water logged. 4. The petitioners impugn Ext.P6 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 without obtaining the KSRSEC report, the RDO relied on Google Earth Pro which cannot be considered as authentic. 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. On a perusal of Ext.P6, 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 solely upon the report of the Agricultural **WP(C) NO. 6215 OF 2024 : 6 :** Officer and the recommendation of the LLMC to refuse to remove the property from the Data Bank. There is no finding that the land is suitable for paddy cultivation. The RDO did not ascertain the nature of land as on 2008. The RDO did not take into account the existence of age old coconut trees in the land. There is no independent assessment by the RDO as to whether the land is suitable for paddy cultivation. 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 **WP(C) NO. 6215 OF 2024 : 7 :** 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. Further, it is trite law that, merely because the land is waterlogged, it cannot be termed as wetland or paddy land in contemplation of Act, 2008. 8. 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 ## **WP(C) NO. 6215 OF 2024 : 8 :** 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.” 11. In **Aparna Sasi Menon** v. **RDO, Irinjalakuda [2023(6) KHC 83]** , this Court has held that existence of neerchals in a property should never **WP(C) NO. 6215 OF 2024 : 9 :** be a prime consideration in deciding whether the land is to be retained in data bank. Instead, the prime consideration should be whether paddy cultivation is possible in the property in question. 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 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, **WP(C) NO. 6215 OF 2024 : 10 :** ## 2008.” 12. In spite of the categorical declarations by this Court in the decisions cited above, the petitioners' application has been rejected, mainly relying on the report of the Agricultural Officer, who recommended not to remove the land from the Data Bank. I find that there is total non application of mind on the part of the RDO in passing Ext.P6 order. Accordingly, I find that Ext.P6 order cannot be sustained and I set aside the same, with a direction to the 2[nd] respondent, the Revenue Divisional Officer to reconsider Ext.P3 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 petitioner, 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 **WP(C) NO. 6215 OF 2024 : 11 :** 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 2[nd] respondent. The writ petition is disposed of. **Sd/MURALI PURUSHOTHAMAN JUDGE** SB ## **WP(C) NO. 6215 OF 2024 : 12 :** ## **APPENDIX** ## **PETITIONER EXHIBITS** **Exhibit-P1 TRUE COPY OF THE TAX RECEIPT BEARING NO. KL11011203469/2020 DATED 25.05.2020** **ExhibitTRUE COPY OF THE TAX RECEIPT BEARING NO. P1(A) KL11011203459/2020 DATED 25.05.2020** **Exhibit-P2 TRUE COPY OF THE RELEVANT EXTRACT OF THE DRAFT DATA BANK Exhibit-P3 TRUE COPY OF THE FORM 5 APPLICATION SUBMITTED BY THE PETITIONERS BEFORE THE 2ND RESPONDENT DATED 05.07.2021** **Exhibit-P4 TRUE COPY OF THE JUDGEMENT DATED 25.11.2021IN WP(C) NO. 26521/2021ISSUED BY THIS HON'BLE COURT** **Exhibit-P5 TRUE COPY OF THE REPORT SUBMITTED BY 5TH RESPONDENT BEFORE THE 2ND RESPONDENT DATED 10.03.2022** **Exhibit-P6 TRUE COPY OF THE ORDER BEARING NO. I/275060/2022 ISSUED BY 2ND RESPONDENT TO THE PETITIONERS DATED 04.06.2022**