Dr. Sabitha Ansari v. District Collector, Civil Station Kakkanad, Ernakulam & Others

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** # **`PRESENT`** ## **`THE HONOURABLE MR.JUSTICE MURALI PURUSHOTHAMAN`** ``` MONDAY, THE 18[TH] DAY OF MARCH 2024 / 28TH PHALGUNA, 1945 WP(C) NO.24076 OF 2023 ``` ## **`PETITIONER:`** ``` DR.SABITHA ANSARI, AGED 56 YEARS, W/O.LATE S.V.ANSARI, 'MINI HOME', FORT ROAD KANNUR, PIN - 670001 ``` ``` BY ADVS. S.SHANAVAS KHAN S.INDU KALA G.NAMBIAR ``` ## **`RESPONDENTS:`** - **`1 THE DISTRICT COLLECTOR CIVIL STATION KAKKANAD, ERNAKULAM, PIN - 682030`** - **`2 THE REVENUE DIVISIONAL OFFICER REVENUE DIVISIONAL OFFICE FORT KOCHI, PIN - 682001`** - **`3 THE TAHSILDAR TALUK OFFICE ALUVA, ERNAKULAM, PIN - 683101`** - **`4 THE VILLAGE OFFICER, VILLAGE OFFICE, KEEZHMADU ALUVA, ERNAKULAM, PIN - 683112`** - **`5 THE AGRICULTURAL OFFICER, AGRICULTURE OFFICE KEEZHMADU, ALUVA, ERNAKULAM, PIN - 683112`** - **`6 THE LOCAL LEVEL MONITORING COMMITTEE KEEZHMADU, ALUVA, ERNAKULAM, PIN - 683112 BY SMT.R.DEVISREE, GP`** ``` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 18.03.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` W.P.(C) No.24076 of 2023 2 ## **`JUDGMENT`** ``` Petitioner has approached this Court aggrieved by Ext.P7 order, whereby Form 5 application submitted by him has been rejected by the 2[nd] respondent/Revenue Divisional Officer [RDO]. ``` ``` 2. Petitioner is the owner in possession of 51.50 Ares of land comprised in Sy.Nos.164/1, 164/2 & 164/3 in Block No.33 of Keezhmadu Village, Aluva Taluk, Ernakulam District. ``` ``` 3. According to the petitioner, the aforesaid property will not come within the ambit of paddy land or wetland as defined under the Kerala Conservation of Paddy Land and Wetland Act, 2008 (for brevity, ‘the Act, 2008’). However, the property is wrongly included in the Data Bank. The petitioner filed Ext.P5 application in Form 5 of Rule 4(d) of the Kerala Conservation of Paddy Land ``` 3 W.P.(C) No.24076 of 2023 ``` and Wetland Rules, 2008 before the RDO to remove the said land from the Data Bank. The same has been rejected by the RDO vide Ext.P7 order stating that as per the report of the Agricultural Officer, the Local Level Monitoring Committee [LLMC] has inspected the site and found that the subject land is lying fallow and that as per the report of the Kerala State Remote Sensing and Environment Centre [for short, ‘the KSRSEC’] the property was a paddy land as on 2008 and need not be removed from the Data Bank. ``` ``` 4. The petitioner has filed this writ petition challenging Ext.P7 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 ``` W.P.(C) No.24076 of 2023 4 ``` a property as paddy land or wetland 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, 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 Technological Institutions and pass appropriate orders on the application. On a perusal of Ext.P7, it is evident that, without any independent assessment of the nature of the property as on the date of coming into force of ``` W.P.(C) No.24076 of 2023 5 ``` the Act, 2008, the RDO has refused to remove the property from the Data Bank. It is seen from Ext.P7 that there is no proper appreciation of the KSRSEC report. ``` ``` 6. This Court has 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 as on the date of coming into force of the Act and also whether the land is suitable for paddy cultivation or not. In Muraleedharan Nair v. Revenue Divisional Officer [2023 (4) KLT 270], this Court has held that when the petitioner seeks removal of his land from the Data Bank, it will not be sufficient for the ``` 6 W.P.(C) No.24076 of 2023 ``` 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 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. InMather Nagar Residents Association and Another v. District Collector, Ernakulam and Others [2020 (2) KLT 192], a Division Bench of this Court held as follows: ``` ``` “22. Going by the definition of ``` W.P.(C) No.24076 of 2023 7 ``` wetland, we are of the view that, in order to treat a particular land as wetland,itshouldhavethe characteristic features and requirement as is provided under the Act, 2008. It is clear from the report submitted by the Sub Collector before the Apex Court as well as report of KSREC, 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 KSREC 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." ``` W.P.(C) No.24076 of 2023 8 ``` 8. In Adani Infrastructures & Developers Pvt. Ltd, Mumbai & Others Vs. State of Kerala & Others reported in 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, such land cannot be said as suitable for cultivation and may come outside the definition of paddy land. ``` ``` 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. None of the parameters for ``` W.P.(C) No.24076 of 2023 9 ``` consideration of a Form 5 application has been taken into account while passing the impugned order. Accordingly, I find that Ext.P7 order cannot be sustained and I set aside the same, with a direction to the 2[nd] respondent, the RDO, to reconsider the application in Form 5 in accordance with law and take a decision in the matter after considering the KSRSEC report to be obtained at the expense of the petitioner and other relevant factors mentioned in Rule 4(4F), within a period of two months from the date of receipt of the 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 petitioner shall produce a copy of the writ petition along with a copy of the judgment before ``` W.P.(C) No.24076 of 2023 10 ``` the 1[st] respondent for due compliance. ``` ``` The writ petition is disposed of with the ``` ``` above directions. ``` ``` Sd/- ``` ``` MURALI PURUSHOTHAMAN JUDGE ``` ``` sp/21/03/2024 ``` W.P.(C) No.24076 of 2023 11 ## **`APPENDIX`** ## **`PETITIONER'S EXHIBITS:-`** ``` Exhibit - P1 ``` ``` TRUE COPY OF THE GIFT DEED NO.2181/2017 DATED 30/08/2017 OF ALUVA SUB REGISTRY OFFICE. ``` ``` Exhibit - P2TRUE COPY OF THE LAND TAX RECEIPT DATED 25/02/2022ISSUEDBYTHE4TH RESPONDENT. Exhibit - P3TRUE COPY OF THE POSSESSION CERTIFICATE DATED 01/04/2022 ISSUED BY THE 4TH RESPONDENT. ``` ``` Exhibit - P4TRUE COPY OF THE RELEVANT PAGE OF DATA BANK EXTRACTS OF THE PROPERTY OF THE PETITIONER. ``` ``` Exhibit - P5TRUE COPY OF THE APPLICATION DATED 30/06/2022 SUBMITTED BEFORE THE 2ND RESPONDENT. ``` ``` Exhibit - P6TRUE COPY OF THE JUDGMENT DATED 01/09/2022 IN W.P.(C) NO.28344/2022 OF THIS HON'BLE COURT. ``` ``` Exhibit - P7TRUE COPY OF THE PROCEEDINGS DATED 09/03/2023 OF THE 2ND RESPONDENT. ```