JAMAL M. v. Sub Collector Ottapalam, Palakkad District & Others

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR.JUSTICE MURALI PURUSHOTHAMAN`** ``` TUESDAY, THE 19[TH] DAY OF MARCH 2024 / 29TH PHALGUNA, 1945 ``` ## **`WP(C) NO. 29983 OF 2022`** ## **`PETITIONER:`** ``` JAMAL M. AGED 55 YEARS ``` ``` SON OF KHADER, MANGALIYIL HOUSE, EZHUVANTHALA P. O., NELLAYA VILLAGE, OTTAPALAM TALUK, PALAKKAD DISTRICT, PIN – 679 335. ``` ``` BY ADVS. P.M.ZIRAJ IRFAN ZIRAJ ``` ## **`RESPONDENTS:`** - **`1 THE SUB COLLECTOR OTTAPALAM, PALAKKAD DISTRICT, PIN – 679 101.`** - **`2 THE LOCAL LEVEL MONITORING COMMITTEE (LLMC) NELLAYA GRAMA PANCHAYATH, PALAKKAD DISTRICT, REPRESENTED BY ITS CONVENER AGRICULTURAL OFFICER, NELLAYA, PALAKKAD DISTRICT, PIN – 679 335.`** - **`3 THE VILLAGE OFFICER NELLAYA VILLAGE, PALAKKAD DISTRICT, PIN – 679 335.`** - **`4 THE DISTRICT COLLECTOR COLLECTORATE, CIVIL STATION, PALAKKAD DISTRICT, PIN – 678 013.`** - **`5 KERALA STATE REMOTE SENSING AGENCY AND ENVIRONMENT CENTRE (KSRSEC) VIKAS BHAVAN, C.BLOCK, THIRUVANANTHAPURAM, KERALA REPRESENTED BY THE DIRECTOR, PIN – 695 033.`** ``` SR.GP. - SMT.K.AMMINIKUTTY SRI. VISHNU S. CHEMPAZHANTHIYIL - SC ``` ``` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 19.03.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` WP(C).No.29983 OF 2022 ``` ``` 2 ``` ## **`JUDGMENT`** The petitioner has approached this Court aggrieved by Ext.P4 order whereby Form 5 application submitted by him has been rejected by the Revenue Divisional Officer. 2. The petitioner is the absolute owner in possession of an extent of 4.65 Ares of land comprised in Sy. No.24/15 of Nellaya Village, Ottappalam Taluk in Palakkad District. 3. According to the petitioner, the aforesaid property will not come within the definition of paddy land or wet land. However, it has been wrongly included in the Data Bank prepared under the Kerala Conservation of Paddy land and Wetland Rules, 2008 (for short, ‘the Rules’) as paddy land. The petitioner, therefore, filed Ext.P3 application in Form 5 under the provisions of the Kerala Conservation of Paddy Land ``` WP(C).No.29983 OF 2022 ``` ``` 3 ``` and Wetland Act, 2008 (hereinafter referred to as 'the Act, 2008’) to remove the property from the Data Bank. The Revenue Divisional Officer, by Ext.P4, rejected the application stating that as per the report of the Agricultural Officer, the subject land is not converted before 2008 and that the property is lying fallow for the last eight years and is converted only after 2008 and cannot be removed from the Data Bank. 4. The petitioner impugns Ext.P4 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. 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 the land as on 12.08.2008, the date of coming into force of the Act, 2008. ``` WP(C).No.29983 OF 2022 ``` ``` 4 ``` 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. Rule 4 (4E) of the Rules 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 pass appropriate orders on the application. On a perusal of Ext.P4, 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 solely relied upon the report of the Agricultural ``` WP(C).No.29983 OF 2022 ``` ## **`5`** Officer to refuse to remove the property from the Data Bank. 6. This Court had 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, 2008 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 the Data Bank. The Revenue Divisional Officer being the competent authority, has to ``` WP(C).No.29983 OF 2022 ``` ``` 6 ``` independently assess the status of the land and come to a conclusion that removal of the land from the 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. 7. 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 ``` WP(C).No.29983 OF 2022 ``` ``` 7 ``` 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 the property is locked on all four sides with lands which were reclaimed before the coming into force of the Act, 2008, such lands cannot be said as suitable for cultivation and may come outside the definition of paddy land. 10. 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.P4 order cannot be ``` WP(C).No.29983 OF 2022 ``` ``` 8 ``` sustained and I set aside the same with a direction to the 1[st] respondent to reconsider Ext.P3 application of the petitioner in Form 5 in accordance with law and take a decision in the matter after obtaining the 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 the writ petition along with a copy of this judgment before the 1[st] respondent for compliance. The writ petition is disposed of with the above directions. Sd/- ## **`MURALI PURUSHOTHAMAN JUDGE`** SPR ``` WP(C).No.29983 OF 2022 ``` ``` 9 ``` ## **`APPENDIX`** ## **`PETITIONER’S EXHIBITS:-`** ``` EXHIBIT P1TRUE COPY OF THE TAX RECEIPT DATED 07.01.2021ISSUEDBYTHETHIRD RESPONDENT. EXHIBIT P2TRUE COPY OF THE RELEVANT PAGES OF THE DATA BANK IN CONNECTION WITH THE PROPERTY OF PETITIONER WHICH WAS ISSUED BY THE FOURTH RESPONDENT. EXHIBIT P3TRUE COPY OF THE APPLICATION DATED 12.01.2021 SUBMITTED BY THE PETITIONER BEFORE THE FIRST RESPONDENT IN FORM-5. EXHIBIT P4TRUE COPY OF THE ORDER DATED 16.10.2021 ISSUED BY THE FIRST RESPONDENT. ``` ## **`RESPONDENTS EXHIBITS: NIL.`**