JACOB v. Revenue Divisional Officer, Thrissur & Others

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR.JUSTICE MURALI PURUSHOTHAMAN`** ``` THURSDAY, THE 8[TH] DAY OF FEBRUARY 2024 / 19TH MAGHA, 1945 ``` ``` WP(C) NO.636 OF 2024 ``` ## **`PETITIONER:`** ``` JACOB, AGED 69 YEARS S/O.JACOB, EDAKALATHUR CHENGALAYI HOUSE, KANNAMKULANGARA DESOM, CHIYYARAM VILLAGE, KURIYACHIRA PO, THRISSUR DT, PIN - 680006 BY ADVS. SHOBY K.FRANCIS AGI SHOBY ``` ## **`RESPONDENT/S:`** |**`1`**|**`REVENUE DIVISIONAL OFFICER,`**| |---|---| ||**`OFFICE OF THE RDO, COLLECTERATE, AYYANTHOLE PO,`**| ||**`THRISSUR DT, PIN - 680003`**| |**`2`**|**`TAHSILDAR [LAND RECORDS],`**| ||**`TALUK OFFICE, CHAVAKKAD , CHAVAKKAD PO,`**| ||**`THRISSUR DT-, PIN - 680506`**| |**`3`**|**`VILLAGE OFFICER,`**| ||**`VILLAGE OFFICER, MULLASSERY VILLAGE,`**| ||**`MULLASSERY PO, THRISSUR DT-, PIN - 680509`**| |**`4`**|**`LOCAL LEVEL MONITORING COMMITTEE LLMC WITHIN THE`**| ||**`LIMITS OF MULLASSERY GRAMA PANCHAYATH],`**| ||**`REPRESENTED BY ITS CONVENER & AGRICULTURAL`**| ||**`OFFICER, MULLASSERY KRISHI BHAVAN,`**| ||**`MULLASSERY PO, THRISSUR DT-, PIN - 680509`**| |**`5`**|**`AGRICULTURAL OFFICER`**| ||**`KRISHI BHAVAN, MULLASSERY , MULLASSERY PO,`**| ||**`THRISSUR DT- 680509, PIN - 680509`**| |**`6`**|**`STATE OF KERALA,`**| ||**`REPRESENTED BY ITS SECRETARY TO THE GOVT.`**| ||**`REVENUE DEPARTMENT, GOVT. SECRETARIAT,`**| ||**`THIRUVANANTHAPURAM, PIN – 695001`**| ||**`BY SMT.DEVISREE, GOVERNMENT PLEADER`**| |**`THIS `**|**`WRIT PETITION (CIVIL) HAVING COME UP FOR`**| |**`ADMISSION `**|**`ON 08.02.2024, THE COURT ON THE SAME DAY`**| |**`DELIVERED`**|**`THE FOLLOWING:`**| ``` WP(C).No.636 OF 2024 ``` ``` 2 ``` ## **`JUDGMENT`** ``` Petitioner has approached this Court aggrieved by Exts.P7 and P8 orders whereby Exts.P5 and P6 Form 5 applications submitted by him have been rejected by the 1[st] respondent/ Revenue Divisional Officer [RDO] solely relying on the report of the Agricultural Officer. ``` ``` 2. Petitioner is the owner in possession of two items of adjacent properties having an extent of 4.5 Ares [11.11 cents] comprised in Sy.No.262/2-3 and 4.31 Ares [10.64 cents] comprised in Sy.No.262/2-2, of Mullassery Village, Chavakkad Taluk, Thrissur 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 ``` ``` WP(C).No.636 OF 2024 ``` ## **`3`** ``` Wetland Act, 2008 (for brevity, ‘the Act, 2008’). However, it is stated that the property is wrongly included in the Data Bank. The petitioner filed Exts.P5 & P6 applications in Form 5 of Rule 4(d) of the Kerala Conservation of Paddy Land and Wetland Rules, 2008 before the 1[st] respondent/RDO, and the RDO rejected the same by Exts.P7 & P8 orders stating that the property is lying ‘fallow’ and the LLMC has recommended to retain the same in the Data Bank as per the report of the Agricultural Officer. ``` ``` 4. The petitioner has filed this writ petition challenging Exts.P7 & P8 contending, inter alia, that they are vitiated by non application of mind and are against the provisions of the Act, 2008 and the binding precedents of this Court. It is also contended ``` ``` WP(C).No.636 OF 2024 ``` ``` 4 ``` ``` that the RDO should have called for a report from the Kerala State Remote Sensing and Environment Centre [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 Exts.P7 & P8, it is evident that, without any independent assessment of the nature of the property as on the date of coming into force of the Act, 2008, the RDO has relied solely upon the report of the Agricultural Officer and LLMC to refuse to remove the property from the Data Bank. ``` ``` WP(C).No.636 OF 2024 ``` ## **`5`** ``` 6. 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. 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 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 ``` ``` WP(C).No.636 OF 2024 ``` ``` 6 ``` ``` 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.". ``` ``` 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 as on the date of coming into force of the Act and also whether the land is suitable for paddy cultivation or not. This ``` ``` WP(C).No.636 OF 2024 ``` ``` 7 ``` ``` Court, inMuraleedharan 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 sustenance of wetlands in the area and in the absence of such findings, the impugned order is unsustainable. In Aparna Sasi Menon v. Revenue ``` ``` WP(C).No.636 OF 2024 ``` ``` 8 ``` ``` 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. ``` ``` In spite of the categorical declarations by this Court in the decisions cited above, the petitioner’s applications have been rejected, solely relying on the report of the Agricultural Officer, who recommended not to remove the land from the Data Bank. Accordingly, I find that Exts.P7 & P8 orders cannot be sustained and I set aside the same, with a direction to the 1[st] respondent/RDO, to reconsider Exts.P5 & P6 applications in accordance with law and take a ``` ``` WP(C).No.636 OF 2024 ``` ``` 9 ``` ``` decision in the matter after obtaining KSRSEC report at the expense of the petitioner, 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 writ petition is disposed of with the above directions. ``` ``` Sd/- ``` ``` MURALI PURUSHOTHAMAN JUDGE ``` ``` sp/09/02/2024 ``` ``` WP(C).No.636 OF 2024 ``` ``` 10 ``` ## **`APPENDIX`** ## **`PETITIONER’S EXHIBITS:-`** ``` Exhibit P- 1A TRUE COPY OF THE BASIC TAX RECEIPT DATED 26-2-2023 WITH RECEIPT NO. KL08041303005/2023 ISSUED BY THE 3RD RESPONDENT FOR THE PROPERTY HAVING AN EXTENT OF 4. 5ARS [ 11.11 CENTS] OF LAND COMPRISED IN SURVEY NO. 262/2-3 Exhibit P-2A TRUE COPY OF THE BASIC TAX RECEIPT DATED 19-12-2023 WITH RECEIPT NO. KL08041305805/2023 ISSUED BY THE 3RD RESPONDENT FOR THE PROPERTY HAVING AN EXTENT OF 4 .31 ARS [10.64 CENTS] OF LAND COMPRISED IN SURVEY NO. 262/2-2 Exhibit P-3A TRUE COPY OF THE DRAFT DATA BANK DATED NIL ISSUED BY THE 5TH RESPONDENT Exhibit P- 4A COLOR PHOTOGRAPH SHOWING THE PRESENT NATURE OF THE PROPERTY OF THE PETITIONER DATED NIL Exhibit P-5A TRUE COPY OF THE FORM 5 APPLICATION DATED 8-3-2022 SUBMITTED BY THE PETITIONERASAPPLICATIONNO. 11/2022/947261 TO THE 1ST RESPONDENT FOR THE PROPERTY HAVING AN EXTENT OF 4. 5ARS [ 11.11 CENTS] OF LAND COMPRISED IN SURVEY NO. 262/2-3 Exhibit P- 6A TRUE COPY OF THE FORM 5 APPLICATION DATED 5-3-2022 SUBMITTED BY THE PETITIONERASAPPLICATIONNO. 10/2022/947261 TO THE 1ST RESPONDENT FOR THE PROPERTY HAVING AN EXTENT OF 4. 31ARS [ 10.64 CENTS] OF LAND COMPRISED IN SURVEY NO. 262/2-2 ``` ``` WP(C).No.636 OF 2024 ``` ``` 11 ``` ``` Exhibit P- 7 ``` ``` Exhibit P- 8 ``` ``` A TRUE COPY OF THE ORDER DATED 19/10/2023 PASSED BY THE 1ST RESPONDENT IN ORDER NO. 4829/2023 FOR THE PROPERTY HAVING AN EXTENT OF 4. 5ARS [ 11.11 CENTS] OF LAND COMPRISED IN SURVEY NO. 262/2-3 ``` ``` A TRUE COPY OF THE ORDER DATED 19/10/2023 PASSED BY THE 1ST RESPONDENT IN ORDER NO. 4826/2023 FOR THE PROPERTY HAVING AN EXTENT OF 4. 31ARS [ 10.64 CENTS] OF LAND COMPRISED IN SURVEY NO. 262/2-2 ```