George P.V. v. State of Kerala and Others

## **`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. 3397 OF 2023`** ## **`PETITIONER:`** ``` GEORGE P.V. AGED 58 YEARS S/O VARGHESE, PALLIPARAMBIL, NETOOR, MARADU, ERNAKULAM -682040 , NOW RESIDING AT BK-6, P AND T QUARTERS, THEVARA P.O., ERNAKULAM, PIN – 682 013. BY ADVS. S.KRISHNAMOORTHY SNEHA ROSE P.S.ARUNA. ``` ## **`RESPONDENTS:`** ``` 1STATE OF KERALA REP BY SECRETARY TO GOVT, REVENUE DEPARTMENT, SECRETARIATE, TRIVANDRUM, PIN – 695 001. 2THE DISTRICT COLLECTOR O/O THE DISTRICT COLLECTOR, COLLECTORATE, KAKKANAD, ERNAKULAM, PIN – 682 030. 3THE REVENUE DIVISIONAL OFFICER O/O THE SUB COLLECTOR, FORT KOCHI, PIN – 682 001. 4THE VILLAGE OFFICER MARADU VILLAGE, ERNAKULAM, PIN – 682 304. ``` ``` WP(C) NO. 3397 OF 2023 ``` 2 ## **`OTHER PRESENT:`** ``` SR.GP.SRI.E.G.GORDEN ``` ``` 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. 3397 OF 2023 ``` 3 ## JUDGMENT The Petitioner has approached this Court aggrieved by Ext.P6 whereby Form 5 application submitted by him has been rejected by the Revenue Divisional Officer solely relying on the report of the Agricultural Officer. 2. The is the absolute owner in petitioner possession of property having an extent of 1.21 Ares, (2.989 Cents) in Block No.14, Re.Sy No.52/3 of Maradu Village in Ernakulam District. 3. According to the petitioner the aforesaid property will not come within the ambit of paddy land or wet land as defined under the Kerala Conservation of Paddy Land and Wet Land Act, 2008 (herein referred to as ‘Act, 2008’). However, it is stated that the property is wrongly included in the Data Bank. The petitioner `WP(C) NO. 3397 OF 2023` 4 filed Ext.P3 application in Form 5 of Rule 4(d) of the Kerala Conservation of Paddy Land and Wet Land Rules, 2018 (herein after referred to as ‘the Rules’) before the Revenue Divisional Officer to remove the said land from the Data Bank. The same has been rejected by the Revenue Divisional Officer vide Ext.P6 stating that, the Agricultural Officer has reported that, on inspection by the LLMC it was seen that the subject land is formed water logged with grass that whether the property has to be removed from the Data Bank has to be ascertained only obtaining KSRSEC report. The KSRSEC report was examined from the datas of 2006 and 2013 it is seen that, the properties partially was water logged and it is not clear that as to whether the land was converted before 2008. `WP(C) NO. 3397 OF 2023` 5 4. The petitioner has filed this writ petition challenging Ext.P6 order contending inter alia that the same is vitiated by non application of mind and is against the provisions of the Act 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, Thiruvananthapuram [for short, ‘the KSRSEC’] to ascertain the status of the 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 Ext.P6 it is evident that, without any independent assessment of the nature of the ``` WP(C) NO. 3397 OF 2023 ``` 6 property as on the date of coming into force of the Act, 2008, the Revenue Divisional Officer to remove the property from the Data Bank. 6. As per Ext.P5 KSRSEC Report, the plot was observed with linear feature representing road towards north-south direction and formed partially water logged towards east with building/structure towards west in 2006 data, that being so, I find that the 3[rd] respondent has went round in interpreting Ext.P5 report of the KSRSEC. In Ext.P6 has been passed without any application of mind, there is no finding by the Revenue Divisional Officer as to the nature of the property as on 2008 and whether the property is suitable for paddy cultivation. 7. This Court has held in the decision in Arthasasthra Ventures (India) LLP v. State of Kerala [2022 `WP(C) NO. 3397 OF 2023` 7 (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. 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 `WP(C) NO. 3397 OF 2023` 8 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. In Aparna Sasi Menon v. Revenue Divisional Officer [2023 (6) KHC 83], this Court has held that the predominant factor for consideration while considering the Form 5 application should be whether the land which is sought to be excluded from Data Bank is one where paddy cultivation is possible and feasible. 8. This Court in Mather Nagar Residents Association and another v. District Collector, Ernakulam and other, 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 ``` WP(C) NO. 3397 OF 2023 ``` 9 termed as wetland or paddy land as per the provisions of the Act, 2008. ## 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 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.” ## 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” ``` WP(C) NO. 3397 OF 2023 ``` 10 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 above categorical declaration by this Court in the decision cited above, the petitioner's application has been rejected, solely relying on the report of the Agricultural Officer, which recommended not to remove the land from the Data Bank. Accordingly I find that Ext.P6 order cannot be sustained and I set aside the same, with a direction to the 3[rd] respondent, the Revenue Divisional Officer to reconsider Ext.P3 application in accordance with law and take a decision in the matter on the basis of Ext.P5 KSRSEC report within a period of two `WP(C) NO. 3397 OF 2023` 11 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 3[rd] respondent for compliance. The writ petition is disposed of with the above direction. Sd/- MURALI PURUSHOTHAMAN JUDGE SRJ `WP(C) NO. 3397 OF 2023` 12 ## **`APPENDIX OF WP(C) 3397/2023`** ## **`PETITIONER’S EXHIBITS`** ``` Exhibit P1 ``` ``` TRUE COPY OF THE TAX RECEIPT DATED 2.8.2022 ISSUED BY THE 4TH RESPONDENT. ``` ``` Exhibit P2 ``` ``` TRUE COPY OF THE SALE DEED NO. 1934/2010 DATED 23.7.2010 OF MARADU SUB REGISTRY. ``` ``` Exhibit P3 ``` ``` TRUE COPY OF THE APPLICATION IN FORM NO.5 DATED 5.2.2020, BEFORE THE 3RD RESPONDENT. ``` ``` Exhibit P4 ``` ``` TRUE COPY OF THE LETTER DATED 15.3.2021 PREFERRED BY THE PETITIONER BEFORE THE 3RD RESPONDENT. ``` ``` Exhibit P5 ``` ``` TRUE COPY OF THE REPORT OF THE KERALA STATE REMOTE SENSING & SATELLITE & ENVIRONMENT CENTER DATED 2.3.2021. ‘ ``` ``` Exhibit P6 ``` ``` TRUE COY OF THE ORDER DATED 11.7.2022 ISSUED BY THE 3RD RESPONDENT. ``` ``` Exhibit P7 ``` ``` TRUE COPY OF THE APPLICATION/APPEAL DATED 5.1.2023 PREFERRED BEFORE THE 2ND RESPONDENT. ```