Geetha M v. District Collector, Palakkad & Others

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** # **THE HONOURABLE MR.JUSTICE MURALI PURUSHOTHAMAN MONDAY, THE 4[TH] DAY OF MARCH 2024 / 14TH PHALGUNA,** ## **1945** ## **WP(C) NO. 8505 OF 2024** ## PETITIONER/S: GEETHA.M AGED 60 YEARS W/O.DIVAKARAN, AYILYAM, MALAMAL VEEDU, ALATHUR.P.O, PALAKKAD, PIN - 678541 BY ADV V.A.JOHNSON (VARIKKAPPALLIL) ## RESPONDENTS: - 1 THE DISTRICT COLLECTOR, PALAKKAD CIVIL STATION, PALAKKAD, PIN - 678001 - 2 REVENUE DIVISIONAL OFFICER CIVIL STATION, PALAKKAD, PIN - 678001 - 3 THE PRINCIPAL AGRICULTURAL OFFICER OFFICE OF THE PRINCIPAL AGRICULTURAL OFFICER, CIVIL STATION, PALAKKAD, PIN - 678001 - 4 THE VILLAGE OFFICER, ALATHUR VILLAGE, ALATHUR, ALATHUR TALUK, PALAKKAD, PIN - 678541 - 5 THE AGRICULTURAL OFFICER, KRISHIBHAVAN, ALATHUR.P.O, ALATHUR, PALAKKAD, PIN - 678541 - 6 LOCAL LEVEL MONITORING COMMITTEE ALATHUR GRAMA PANCHAYAT, ALATHUR.P.O, ALATHUR TALUK, PALAKKAD, REP.BY ITS CONVENER., PIN - 678543 ## OTHER PRESENT: SR.GP.SMT.K.AMMINIKUTTY THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 04.03.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` WPC No.8505/2024 ``` ``` 2 ``` ## **JUDGMENT** The petitioner has approached this Court aggrieved by Ext.P5 whereby Form 5 application submitted by her has been rejected by the Revenue Divisional Officer. 2. The petitioner is the absolute owner in possession and enjoyment of property comprised in Re.Sy. Nos.25/24 (25/9) and 26/8 in Block No.27 of Alathur Village, Alalthur Taluk In Palakkad District having an extent of 0.0574 Hectare. 3. According to the petitioner, the said property will not come within the definition of paddy land or wetland. However, it has been wrongly included in the Data Bank prepared under the Kerala Conservation of Paddy Land and Wetland Rules, 2008 (for short, Rules, 2008). The petitioner, therefore, filed Ext.P4 application in Form 5 under the provisions of the Kerala Conservation of Paddy Land and Wetland Act, 2008 (hereinafter referred to as ``` WPC No.8505/2024 ``` ``` 3 ``` 'the Act of 2008) to remove the property from the Data Bank.The application has been rejected by the Revenue Divisional Officer, stating that as per the report of the Agricultural Officer, the subject land is lying fallow and will come within in the ambit of Paddy land as defined in Act, 2008 and the land need not be removed from the Data Bank. It is further stated that as per the Kerala State Remote Sensing and Environment Centre (for short, KSRSEC) report, the land cannot be removed from the Data Bank. In Ext.P5, the RDO has extracted the KSRSEC report which reads as follows : “ As per the topo sheet of 1967, the survey plot 25/9 was observed as paddy land. The plot bordered by a road on western side was observed under fallow land with partially mixed vegetation/ plantation and a building/structure at the centre of the plot in 2004 data. The same land use pattern was continued with increase in density of mixed vegetation/plantation in the data of year 2013,2015 and 2018.” 4. The petitioner impugns Ext.P5 contending, ``` WPC No.8505/2024 ``` ``` 4 ``` _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 the Revenue Divisional Officer has misread and misinterpreted the report of the KSRSEC. 5. Heard the learned counsel for the petitioner and the learned Government Pleader. 6. The relevant consideration for inclusion of 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 ``` WPC No.8505/2024 ``` ``` 5 ``` pass appropriate orders on the application. On a perusal of Ext.P5, it is evident that, without any independent assessment of the nature of property as on the date coming into force of the Act, 2008, the Revenue Divisional Officer has relied upon the report of the Agricultural Officer and misread the KSRSEC report to refuse to remove the property from the Data Bank. 7. 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 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 ``` WPC No.8505/2024 ``` ``` 6 ``` sustenance of wetlands in the area and in the absence of such findings, the impugned order is unsustainable. 8. This Court has held 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. 9. 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 Infrastructures & 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 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 ``` WPC No.8505/2024 ``` ``` 7 ``` four sides with lands which were reclaimed before the coming into force of the Act, 2008, such land cannot be said as suitable for cultivation and may come outside the definition of paddy land. 10. 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 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.” ``` WPC No.8505/2024 ``` ``` 8 ``` ## 11. 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, 2008."_ In spite of the categorical declarations by this Court in the decisions cited above, the petitioner's application has been rejected without any application of mind and on untenable grounds. Accordingly, I set aside Ext.P5 with a direction to the Revenue Divisional Officer to reconsider the application of the petitioner in Form 5 and take a decision in the matter on the basis of the KSRSEC report referred to in Ext.P5 and the observation of this Court ``` WPC No.8505/2024 ``` ``` 9 ``` and the binding precedents within a period of 2 months 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 the 2[nd] respondent. The writ petition is disposed of. Sd/- **MURALI PURUSHOTHAMAN JUDGE** al/-.04.03.2024. ``` WPC No.8505/2024 ``` ``` 10 ``` ## A PPENDIX OF WP(C) 8505/2024 ## PETITIONER EXHIBITS |Exhibit P1|TRUE COPY OF|THE POSSESSION| |---|---|---| ||CERTIFICATE DATED|20.11.2020 ISSUED| ||FROM THE OFFICE OF THE 4TH RESPONDENT|| |Exhibit P2|TRUE COPY OF THE|LOCATION SKETCH| ||DATED 01.12.2022|ISSUED BY 4TH| ||RESPONDENT|| |Exhibit P3|PHOTOGRAPH OF THE PETITIONER'S|| ||PROPERTY|| |Exhibit P4|TRUE COPY OF THE FORM.5 APPLICATION|| ||SUBMITTED BY THE PETITIONER BEFORE|| ||THE 2ND RESPONDENT|DATED 04.12.2020| |Exhibit P5|TRUE<br>COPY<br>OF|THE<br>ORDER| ||NO.RDOPKD/1847/|2021-J2<br>DATED| ||16.12.2022 ISSUED|BY<br>THE<br>2ND| ||RESPONDENT||