Francis K.X and Anithara Poulose v. Revenue Divisional Officer, Thrissur; Local Level Monitoring Committee Thrissur Municipal Corporation; Agricultural Officer, Vilvattam, Thrissur District

## IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR.JUSTICE MURALI PURUSHOTHAMAN FRIDAY, THE 1[ST] DAY OF MARCH 2024 / 11TH PHALGUNA, 1945 ## WP(C) NO. 8304 OF 2024 ## PETITIONERS: - 1 FRANCIS K.X AGED 39 YEARS S/O KIDANGAN FRANCIS XAVIOUR, ISRAEL HOUSE, DR. GOURI AMMA ROAD,POONKUNNAM P.O., THRISSUR DISTRICT, PIN – 680 002. ## 2 ANITHARA POULOSE AGED 37 YEARS W/O FRANCIS K.X, ISRAEL HOUSE, DR. GOURI AMMA ROAD, POONKUNNAM P.O., , THRISSUR DISTRICT, PIN – 680 002. BY ADVS. ASOK KUMAR K.P. ALEXANDER K.C. RAKESH S MENON ABDUL HAMEED RAFI ## RESPONDENTS: - 1 THE REVENUE DIVISIONAL OFFICER FIRST FLOOR,COLLECTORATE, CIVIL STATION, AYYANTHOLE, THRISSUR, PIN – 680 003. - 2 LOCAL LEVEL MONITORING COMMITTEE THRISSUR MUNICIPAL CORPORATION, REPRESENTED BY ITS CONVENER & AGRICULTURAL OFFICER , VILVATTAM KRISHI BHAVAN, THRISSUR DISTRICT, PIN – 680 008. - 3 THE AGRICULTURAL OFFICER KRISHI BHAVAN, VILVATTAM, THRISSUR DISTRICT, PIN – 680 008. ``` WP(C) NO. 8304 OF 2024 ``` ``` 2 ``` ## BY ADV. R.DEVI SHRI, GOVERNMENT PLEADER THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 01.03.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` WP(C) NO. 8304 OF 2024 ``` ``` 3 ``` ## JUDGMENT The Petitioners who are husband and wife, have approached this Court aggrieved by Exts.P9 and P10 whereby Form 5 applications submitted by them have been rejected by the Revenue Divisional Officer. 2. The 1[st] petitioner is the owner and in possession of 0.02020 Hector of land comprised in Resurvey No.1220/12-1, and the 2[nd] petitioner is absolute owner and in possession of 0.0081 Hector comprised in Resurvey No.1220/12-2, of Peringavu Village, Thrissur Taluk in Thrissur District. 3. According to the petitioners, their properties will not come within the definition of paddy land and Wetland. However, the properties have been wrongly ``` WP(C) NO. 8304 OF 2024 ``` **==> picture [8 x 9] intentionally omitted <==** included in the Data Bank prepared under the Kerala Conservation of Paddy Land and Wetland Rules, 2008. The petitioners, therefore, filed Exts.P7 and P8 applications respectively in Form 5 under the provisions of the Kerala Conservation of Paddy Land and Wetland Act, 2008 (for short, ‘the Act, 2008’) to remove the properties from the Data Bank. The applications were rejected by Exts.P9 and P10 by the Revenue Divisional Officer stating that, as per the report of the Agricultural Officer, the petitioners land is fallow and was not converted prior to 2008 and the LLMC has recommended not to remove the subject land from the Data Bank. 4. The petitioners impugn Exts.P9 and P10 contending, inter alia, that they are vitiated by non application of mind and are against the provisions of the ``` WP(C) NO. 8304 OF 2024 ``` **==> picture [8 x 9] intentionally omitted <==** 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 (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. 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 Exts.P9 and P10, 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 the of the Officer and upon report Agricultural ``` WP(C) NO. 8304 OF 2024 ``` **==> picture [8 x 9] intentionally omitted <==** recommendation of the LLMC to refuse to remove the property from the Data Bank. 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 LIMC 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, ``` WP(C) NO. 8304 OF 2024 ``` ``` 7 ``` the impugned order is unsustainable. 7. 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 on the date of coming into force of the Act and also whether the land is suitable for paddy cultivation or not. 8. Further, it is trite law that, merely because the property is lying fallow, it cannot be termed as wetland or paddy land in contemplation of Act, 2008. In Adani Infrastructure & Developers Pvt. Ltd, Mumbai & Others Vs. State of Kerala & Others [2014 (1) KHC 685], this Court has held that if the land suitable for paddy ``` WP(C) NO. 8304 OF 2024 ``` **==> picture [8 x 9] intentionally omitted <==** 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 lands cannot be said as suitable for cultivation and may come outside the definition of paddy land. 9. 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 ``` WP(C) NO. 8304 OF 2024 ``` ``` 9 ``` 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.” 8. In Sudheesh v. Revenue Divisional Officer [2023 (2) KLT 386], this Court held that just for the ``` WP(C) NO. 8304 OF 2024 ``` ``` 10 ``` reason that the property is left fallow, the land cannot be brought within the definition of Paddy Land. This Court observed 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, 2008.” In spite of the categorical declarations by this Court ``` WP(C) NO. 8304 OF 2024 ``` **==> picture [15 x 9] intentionally omitted <==** in the decisions cited above, the petitioners’ applications have been rejected on untenable grounds. Accordingly, I find that Exts.P9 and P10 orders cannot be sustained and I set aside the same, with a direction to the 1[st] respondent, the Revenue Divisional Officer to reconsider the applications 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 writ petition along with a copy of the judgment before the Revenue ``` WP(C) NO. 8304 OF 2024 ``` ``` 12 ``` Divisional Officer. The writ petition is disposed of with the above directions. Sd/- MURALI PURUSHOTHAMAN JUDGE SRJ ``` WP(C) NO. 8304 OF 2024 ``` ``` 13 ``` ## APPENDIX OF WP(C) 8304/2024 ## PETITIONER’S EXHIBITS Exhibit P-1 TRUE COPY OF THE DOCUMENT NO. 342/2017 DATED 09.02.2017 OF SUB REGISTRAR'S OFFICE, THRISSUR. - Exhibit P- 2 TRUE COPY OF THE DOCUMENT NO. 709/2017 OF SUB REGISTRAR'S OFFICE, THRISSUR. - Exhibit P-3 - TRUE COPY OF THE RECEIPT NO. KL08016102941/2023 DATED 16.08.2023. Exhibit P-4 TRUE COPY OF THE RECEIPT NO.KL08016102942/2023 DATED 16.08.2023. - Exhibit P-5 TRUE COPY OF THE RELEVANT PAGES OF THE NOTIFIED DATA BANK. - Exhibit P-6 TRUE COPIES OF THE PHOTOGRAPHS SHOWING THE GROUND REALITY OF THE LAND. - Exhibit P-7 TRUE COPY OF THE APPLICATION IN FORM 5 DATED 14.12.2022 PREFERRED BY THE 1ST PETITIONER. - Exhibit P-8 TRUE COPY OF THE APPLICATION IN FORM 5 DATED 14.12.2022 PREFERRED BY THE 2ND PETITIONER. - Exhibit P-9 TRUE COPY OF THE ORDER NO. 1492/2024 DATED 27.01.2024. - Exhibit P-10 - TRUE COPY OF THE ORDER NO. 1497/2024 DATED 27.01.2024.