E.M. Michael v. District Collector, Ernakulam and Others

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR.JUSTICE MURALI PURUSHOTHAMAN`** ``` TUESDAY, THE 16[TH] DAY OF JANUARY 2024 / 26TH POUSHA, 1945 ``` ## **`WP(C) NO. 1639 OF 2024`** ## **`PETITIONER:`** ``` E.M. MICHAEL AGED 61 YEARS SON OF MATHAN MICHAEL, EAZHAMATTATHIL HOUSE, KOTTAPPADY P.O, ERNAKULAM DISTRICT, PIN – 686 692. ``` ``` BY ADVS. PEEYUS A.KOTTAM RAGESH CHAND R.G. ``` ## **`RESPONDENTS:`** - **`1 DISTRICT COLLECTOR, ERNAKULAM COLLECTORATE, CIVIL STATION, KAKKANAD, ERNAKULAM DISTRICT, PIN – 682 030.`** - **`2 REVENUE DIVISIONAL OFFICER, MUVATTUPUZHA PATTIMATTOM - MUVATTUPUZHA ROAD, MUVATTUPUZHA, KERALA, PIN – 686 673.`** - **`3 LOCAL LEVEL MONITORING COMMITTEE, KOTTAPPADY REPRESENTED BY ITS AGRICULTURAL OFFICER/CHAIRMAN, ERNAKULAM DISTRICT, PIN – 686 692.`** ## **`SR.GP. - SMT.K.AMMINIKUTTY`** ``` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 16.01.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` WP(C).No.1639 OF 2024 ``` ``` 2 ``` ## **`JUDGMENT`** The petitioner is the owner in possession of 8.50 Ares of land comprised in Sy. No.266/5-4 of Kottappady Village. According to the petitioner, the property is not suitable for cultivation and is not included in the Data Bank. The petitioner submitted Ext.P4 application in Form 6 under the Kerala Conservation of Paddy Land and Wetland Rules, 2008 (for short, ‘the Rules 2008’) before the 2[nd] respondent, the Revenue Divisional Officer. The RDO, as per Ext.P5, rejected the application stating that the property is lying 1 meter below the road level and there is presence of water in the property as reported by the Village Officer and that the land has not been converted prior to 2008. The petitioner impugns Ext.P5 order contending that the ``` WP(C).No.1639 OF 2024 ``` ``` 3 ``` reasons stated therein are not contemplated under Section 27A of the Kerala Conservation of Paddy Land and Wetland Act, 2008 (for short, ‘the Act’) or under Rule 12 of the Rules 2008. 2. Section 27A (2) of the Act mandates that the Revenue Divisional Officer shall pass orders on the request for change of nature of unnotified land after considering the report of the Village Officer concerned and after ensuring that there is no disruption to the free flow of water to the neighbouring paddy lands, if any, through such water conservancy measures as is deemed necessary and that if the area of such parcel of land where the application is allowed is more than 20.2 Ares, ten per cent of such land shall be set apart for water conservancy measures. Section 27A(4) mandates that if the application is allowed, the Revenue Divisional Officer shall ensure that the ``` WP(C).No.1639 OF 2024 ``` ``` 4 ``` reclamation of unnotified land shall not adversely affect the cultivation of paddy or any other crops, If any, in the adjoining land and shall specify such water conservancy measures as is necessary to ensure such cultivation. 3. Rule 12 of the Rules 2008 deals with the procedure for change of nature of unnotified land, as provided in Section 27A of the Act. Rule 12(4) provides that on receipt of an application under Form 6 as provided in Rule 12 of the Rules 2008, the Revenue Divisional Officer (RDO) shall forward the application to the Village Officer concerned and the Village Officer, in turn, shall conduct an enquiry on the application and submit a report before the RDO. Rule 12(5) mandates that the Village Officer shall also report whether if a change of nature of the land is permitted, it will cause any obstruction to the free flow of water to the nearby paddy fields, if any. The ``` WP(C).No.1639 OF 2024 ``` ## **`5`** Rule further provide that if the extent of the property is more than 20.23 Ares, the report of the Agricultural Officer should also be obtained by the RDO as to the effectiveness of water conservancy measures that the applicant is proposing to implement in the property. 4. A perusal of the Act and the Rules, 2008 reveals that the only aspect that should be ascertained by the RDO while considering a Form 6 application seeking permission to change the nature of the unnotified land is whether such change of nature of land will affect the free flow of water to the nearby paddy field, if any, and that such reclamation would adversely affect the cultivation of paddy or any other crops, if any, in the adjoining land. A scrutiny of Ext.P5 order would show that there is no adverse finding by the RDO that the reclamation will affect the free flow of water to the ``` WP(C).No.1639 OF 2024 ``` ``` 6 ``` nearby paddy field and whether it will adversely affect the cultivation of paddy or any other crops in the adjoining lands. Ext.P4 application has been rejected based on the report of the Village Officer that the property is lying one and a half feet below the road level and there is presence of water in the property and the land has not been converted. The reasons stated in Ext.P5 for rejecting the application are not contemplated as per Section 27A of the Act or in Rule 12 of the Rules 2008. 5. This Court, in **Mather Nagar Residents Association and another v. District Collector, Ernakulam and others** [2020 (2) KHC 94], has held that merely for the reasons that the property is lying fallow and water gets logged during the rainy season or otherwise due to the low - lying nature of the property, the property cannot be termed as wetland or paddy land as per the provisions of the ``` WP(C).No.1639 OF 2024 ``` ``` 7 ``` Act. This Court in **Jessy Abraham v. Land Revenue Commissioner, Thiruvananthapuram** [2021 (6) KHC 316] has also that merely for the reason that the land is lying low and is waterlogged, same cannot be included as paddy land in the data bank. In **George Varghese v. District Collector** [2023 (7) KHC 93], this Court held that the only aspect that should be ascertained by the RDO while considering a Form 6 application seeking permission to change the nature of the unnotified land is whether such change of nature of land will affect the free flow of water to the nearby paddy field, if any, and that such reclamation would adversely affect the cultivation of paddy or any other crops, if any, in the adjoining land. 6. In view of the categoric declaration of law by this Court in the decisions cited supra, the reasons stated in Ext.P5 cannot be sustained. ``` WP(C).No.1639 OF 2024 ``` ``` 8 ``` Accordingly, Ext.P5 order is set aside. There will be a direction to the 2[nd] respondent to consider Ext.P4 application afresh in the light of the decisions cited supra and pass appropriate orders, within a period of two months from the date of receipt of a copy of this judgment. The writ petition is disposed of with the above direction. Sd/- ``` MURALI PURUSHOTHAMAN JUDGE ``` SPR ``` WP(C).No.1639 OF 2024 ``` ``` 9 ``` ## **`APPENDIX`** ## **`PETITIONER’S EXHIBITS:-`** ``` EXHIBIT P1THE TRUE COPY OF THE CERTIFICATE DATED 09.08.2021 ISSUED BY THE AGRICULTURAL OFFICER, KOTTAPPADY TO CERTIFY THAT PETITIONER'S PROPERTY IN SY.NO. 266/5-4 OF KOTTAPPADY VILLAGE IS NOT INCLUDED IN THE DATA BANK. ``` ``` EXHIBIT P2THE TRUE COPY OF THE VALIDATION OF THE AGRICULTURAL DATA BANK USING REMORT SENSING AND GIS TECHNOLOGY BY THE KOTTAPPADY KRISHI BHAVAN CONDUCTED BY KSREC. ``` ``` EXHIBIT P3THE TRUE COPY OF THE PHOTOGRAPHS SHOWING THE LIE AND NATURE OF THE PETITIONER'S PROPERTY. ``` - **`EXHIBIT P4 THE TRUE COPY OF THE FORM 6 APPLICATION SUBMITTED BY THE PETITIONER DATED 25-12022.`** ``` EXHIBIT P5THE TRUE COPY OF THE PROCEEDINGS OF THE REVENUE DIVISIONAL OFFICER, MUVTTUPUZHA DATED 29.06.2023. ``` ## **`RESPONDENTS EXHIBITS: NIL.`**