Jalaja v. Revenue Divisional Officer, Palakkad

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE MURALI PURUSHOTHAMAN WEDNESDAY, THE 14[TH] DAY OF FEBRUARY 2024 / 25TH MAGHA, 1945** **WP(C) NO. 5777 OF 2024** ## **PETITIONER:** **JALAJA, AGED 47 YEARS W/O UNNIKRISHNAN, ARAYAKKAD, KURIDIKKAD, PUDUSSERY, PALAKKAD TALUK AND DISTRICT, PIN - 678623** **BY ADVS. RAJESH SIVARAMANKUTTY MAYA C.P. K.V.ANTONY A.P.BEELAMMA VIJINA K. ARUL MURALIDHARAN** ## **RESPONDENTS:** **1 THE REVENUE DIVISIONAL OFFICER PALAKKAD , OFFICE OF THE REVENUE DIVISIONAL OFFICER, PALAKKAD. (DISTRICT LEVEL AUTHORIZED COMMITTEE UNDER THE KERALA CONSERVATION OF PADDY LAND AND WETLAND ACT, 2008)., PIN - 678001 2 THE AGRICULTURAL OFFICER KODUMBU OFFICE OF THE AGRICULTURAL OFFICER, KODUMBU PALAKKAD DISTRICT, . ( LOCAL LEVEL MONITORING COMMITTEE UNDER THE KERALA CONSERVATION OF PADDY LAND AND WETLAND ACT, 2008), PIN - 678551** ## **OTHER PRESENT:** ## **SR.GP.SMT.K.AMMINIKUTTY** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 14.02.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C) NO. 5777 OF 2024 : 2 :** ## **JUDGMENT** The petitioner has approached this Court aggrieved by Ext.P6 whereby Form 5 application submitted by her has been rejected by the Revenue Divisional Officer. 2. The petitioner is the owner in possession of an extent of 0.0216 Hectares (5.34 cents) of property in Re.Sy.No.119/6 in Block No.46 of Kodumbu Village, Palakkad Taluk, Palakkad District, by virtue of Ext.P1 sale deed. 3. According to the petitioner, the said property will not come within the definition of paddy land or wetland as defined under the Kerala Conservation of Paddy Land and Wetland Act, **WP(C) NO. 5777 OF 2024 : 3 :** 2008 (hereinafter referred to as 'the Act, 2008' for short). However, it has been wrongly included in the Data Bank prepared under the Kerala Conservation of Paddy Land and Wetland Rules, 2008 (hereinafter referred to as 'the Rules,2008' for short). The petitioner therefore filed Ext.P5 application in Form 5 under Rule 4(d) of the Rules, 2008 before the Revenue Divisional Officer to remove the said land from the Data Bank. The application has been rejected by the Revenue Divisional Officer stating that the Agricultural Officer has reported that the property is not converted and is lying fallow and it is convinced that the land is suitable for cultivation and therefore, it is recommended not to be removed from the Data Bank. **WP(C) NO. 5777 OF 2024 : 4 :** 4. The petitioner impugns Ext.P6 contending, _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. 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 property as on the date of coming into force of the Act, 2008, the Revenue Divisional Officer has relied solely upon the report of the Agricultural Officer and the recommendation of the LLMC to refuse to remove the property from the Data Bank. **WP(C) NO. 5777 OF 2024 : 5 :** 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 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. **WP(C) NO. 5777 OF 2024 : 6 :** 7. 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. 8. 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 **WP(C) NO. 5777 OF 2024 : 7 :** 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.” 9. 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 **WP(C) NO. 5777 OF 2024 : 8 :** the property is locked on all 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 **Sudheesh v. Revenue Divisional Officer** [2023 (2) KLT 386], this Court held that just for the 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 **WP(C) NO. 5777 OF 2024 : 9 :** 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 on only 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.” 11. In spite of the categorical declarations by this Court in the decisions cited above, the petitioner's application has 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 Ext.P6 order cannot be sustained and I set aside the same, with a direction to the 1[st] respondent, the Revenue Divisional Officer to reconsider the **WP(C) NO. 5777 OF 2024 : 10 :** application of the petitioner in Form 5 in accordance with law and take a 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 petitioner shall produce a copy of this writ petition along with the copy of the judgment before the 1[st] respondent. The writ petition is disposed of. **Sd/MURALI PURUSHOTHAMAN JUDGE** SB **WP(C) NO. 5777 OF 2024 : 11 :** ## **APPENDIX** ## **PETITIONER EXHIBITS** - **Exhibit P1 A TRUE COPY OF THE REGISTERED SALE DEED NO.2209/2014 OF SRO, PALAKKAD DATED 31-32014 EXECUTED IN FAVOUR OF PETITIONER** - **Exhibit P2 A TRUE COPY OF THE POSSESSION CERTIFICATE DATED 9-2-2024 ISSUED TO PETITIONER FROM KODUMBU VILLAGE OFFICE** - **Exhibit P3 A TRUE COPY OF THE LAND TAX RECEIPT DATED 11-4-2023 ISSUED FROM THE KODUMBU VILLAGE OFFICE TO PETITIONER** - **Exhibit P4 A TRUE COPY OF THE PHOTOGRAPHS OF THE PROPERTY INCLUDING ITS NEIGHBHOURHOOD ARE PRODUCED** - **Exhibit P5 A TRUE COPY OF THE FORM 5 APPLICATION DATED 17-1-2023 SUBMITTED BEFORE THE 1 ST RESPONDENT BY PETITIONER** - **Exhibit P6 A TRUE COPY OF THE ORDER DATED 27-1-2024 IN FILE NO. 29/2024 PASSED BY THE 1 ST RESPONDENT**