Jaseela v. State of Kerala and Others

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** # **`PRESENT`** ## **`THE HONOURABLE MR.JUSTICE MURALI PURUSHOTHAMAN`** ``` TUESDAY, THE 12[TH] DAY OF MARCH 2024 / 22ND PHALGUNA, 1945 WP(C) NO.39352 OF 2023 ``` ## **`PETITIONERS:`** ``` JASEELA AGED 31 YEARS W/O. ASHARAF, ERUKULAM HOUSE, CHULANNUR, PERINGOTTUKURISSI, ALATHUR TALUK, PALAKKAD DISTRICT, PIN - 678573 ``` ``` BY ADVS. K.MOHANAKANNAN D.S.THUSHARA ``` ## **`RESPONDENTS:`** - **`1 STATE OF KERALA REPRESENTED BY ITS SECRETARY TO GOVERNMENT, REVENUE DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM, PIN - 695001`** - **`2 THE COMMISSIONER OF LAND REVENUE OFFICE OF THE COMMISSIONER OF LAND REVENUE, PUBLIC OFFICE BUILDING, MUSEUM ROAD, OPPOSITE ZOO, VIKAS BHAVAN P.O, THIRUVANANTHAPURAM, PIN - 695033`** - **`3 THE DISTRICT COLLECTOR THRISSUR DISTRICT COLLECTOR OFFICE, FIRST FLOOR, CIVIL STATION, CIVIL LINES ROAD, KALYAN NAGAR, AYYANTHOLE, THRISSUR DISTRICT, PIN - 680003`** - **`4 THE SUB COLLECTOR SUB COLLECTOR OFFICE, KALYAN NAGAR, AYYANTHOLE, THRISSUR DISTRICT-, PIN - 680003`** - **`5 THE CHAIRMAN DISTRICT LEVEL AUTHORIZED COMMITTEE (REVENUE DIVISIONAL OFFICER), REVENUE DIVISIONAL OFFICE, FIRST FLOOR, CIVIL STATION, CIVIL LINES ROAD, AYYANTHOLE, THRISSUR DISTRICT, PIN - 680003`** W.P.(C) No.39352 of 2023 2 ``` 6THE PRINCIPAL AGRICULTURAL OFFICER OFFICE OF THE PRINCIPAL AGRICULTURAL OFFICER, UDAYA NAGAR, CHEMBUKKAV, THRISSUR DISTRICT, PIN - 680005 ``` ``` 7THE AGRICULTURAL OFFICER KRISHI BHAVAN, THIRUVILWAMALA, THRISSUR DISTRICT, PIN - 680588 ``` ``` 8LOCAL LEVEL MONITORING COMMITTEE REPRESENTED BY ITS CONVENER - AGRICULTURAL OFFICER, KRISHI BHAVAN, THIRUVILWAMALA, THRISSUR DISTRICT, PIN - 680588 ``` ``` 9THE VILLAGE OFFICER THIRUVILWAMALA VILLAGE OFFICE, THIRUVILWAMALA, THRISSUR DISTRICT, PIN - 680588 ``` ``` BY SMT.SHEEBA, GP ``` ``` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 12.03.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` W.P.(C) No.39352 of 2023 3 ## **`JUDGMENT`** ``` Petitioner has approached this Court aggrieved by Ext.P12 order whereby Form 5 application submitted by her has been rejected by the 4[th] respondent/Revenue Divisional Officer [RDO]. ``` ``` 2. Petitioner is the owner in possession of an extent of 2 Ares 55 Sq.Meters of land comprised in Sy.Nos.155/2-6 & 158/1-4 in Block No.79 of ThiruvilwamalaVillage,ThalappillyTaluk, Thrissur District. ``` ``` 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 Kerala Conservation of Paddy Land and Wetland Rules, 2008 [for brevity, ‘the Rules, 2008’]. The petitioner, therefore, filed Ext.P6 Form 5 ``` W.P.(C) No.39352 of 2023 4 ``` application under the provisions of the Kerala Conservation of Paddy Land and Wetland Act, 2008 [for brevity, ‘the Act,2008’] to remove the said property from the Data Bank. The RDO, by Ext.P12 order, rejected the application stating that as per the report of the Agricultural Officer, the Local Level Monitoring Committee [LLMC] has recommended to reject the application since the permission to construct the house has been granted on certain conditions and permission cannot be granted for removal of the remaining 1.30 cents from the Data Bank. ``` ``` 4. The petitioner impugns Ext.P12 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 contended by the petitioner that ``` W.P.(C) No.39352 of 2023 5 ``` the reasons stated in Ext.P12 are not within the required parameters of consideration of an application in Form 5 under the Rules, 2008. ``` ``` 5. 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 pass ``` W.P.(C) No.39352 of 2023 6 ``` appropriate orders on the application. On a perusal of Ext.P12, 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 upon the report of the Agricultural Officer and LLMC to refuse to remove the property from the Data Bank. ``` ``` 6. This 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 ``` W.P.(C) No.39352 of 2023 7 ``` 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. ``` ``` 7. Further, it is trite law that, 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 the Act, 2008. InAparna Sasi Menon v. Revenue Divisional Officer, Irinjalakuda [2023 (6) KHC 83], this Court has held that the existence of neerchals in a property should never be a prime consideration in deciding whether the land is to be retained in Data Bank. Instead, the ``` W.P.(C) No.39352 of 2023 8 ``` prime consideration should be whether paddy cultivation is possible in the property in question. ``` ``` 8. 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 also significant to note that from the definition of wetland under Act, 2008, ``` W.P.(C) No.39352 of 2023 9 ``` 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." ``` ``` 9. In Adani Infrastructures & Developers Pvt. Ltd, Mumbai & Others Vs. State of Kerala & Others reported in 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, such land cannot be said as suitable for cultivation and may come outside the definition of paddy land. ``` W.P.(C) No.39352 of 2023 10 ``` 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 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 ``` W.P.(C) No.39352 of 2023 11 ``` this Court in the decisions 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.P12 order cannot be sustained and I set aside the same, with a direction to the 4[th] respondent, the RDO, to reconsider the 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 the writ petition along ``` W.P.(C) No.39352 of 2023 12 ``` with a copy of the judgment before the 4[th] respondent for due compliance. The writ petition is disposed of with the above directions. ``` ``` Sd/- ``` ``` MURALI PURUSHOTHAMAN JUDGE ``` ``` sp/12/03/2024 ``` W.P.(C) No.39352 of 2023 13 ## **`APPENDIX`** ## **`PETITIONER'S EXHIBITS:-`** ``` Exhibit P1 ``` ``` TRUE COPY OF THE REGISTERED DOCUMENT, NO. 2552 OF SRO, THALAPPILLY DATED 16/05/2013 ``` ``` Exhibit P2 ``` ``` TRUE COPY OF THE POSSESSION CERTIFICATE OF THE PROPERTY DATED 13/11/2021 WITH LOCATION CERTIFICATE DATED 18/01/2015 ``` - **`Exhibit P3`** - **`TRUE COPY OF THE BASIC TAX RECEIPT IN RESPECT OF THE PROPERTY DATED 28/04/2023`** - **`Exhibit P4`** - **`TRUE COPY OF THE PROCEEDINGS, NO. T.A. (2)1370/2016(S-17) ISSUED BY THE DISTRICT LEVEL AUTHORIZED COMMITTEE DATED 26/08/2017`** - **`Exhibit P5 TRUE COPY OF THE COMMUNICATION, NO.C27961/2021/(1) SENT BY THE SECRETARY, THIRUVILWAMALA GRAMA PANCHAYAT TO THE PETITIONER DATED 13/06/2022`** - **`Exhibit P6 TRUE COPY OF THE FORM 5 APPLICATION SUBMITTED BY THE PETITIONER DATED 18/07/2022`** - **`Exhibit P7 TRUE COPY OF THE COMMUNICATION, NO. C27961/2021/(6) ISSUED BY THE SECRETARY, THIRUVILWAMALA GRAMA PANCHAYAT DATED 16/08/2022`** - **`Exhibit P8 TRUE COPY OF THE COMMUNICATION, NO. C27961/2021 SENT BY THE PANCHAYAT TO THE PETITIONER DATED 16/08/2022`** W.P.(C) No.39352 of 2023 14 ``` Exhibit P9 ``` ``` Exhibit P10 ``` ``` Exhibit P11 ``` ``` Exhibit P12 ``` ``` Exhibit P13 ``` ``` TRUE COPY OF THE RECEIPT ISSUED BY THE THIRUVILWAMALA GRAMA PANCHAYAT DATED 16/01/2023 ``` ``` TRUE COPY OF THE REPRESENTATION SUBMITTED BY THE PETITIONER BEFORE THE PRINCIPAL AGRICULTURAL OFFICER DATED 08/02/2023 ``` ``` TRUE COPY OF THE REPRESENTATION SUBMITTED BY THE PETITIONER BEFORE THE REVENUE DIVISIONAL OFFICER, THRISSUR DATED 26/07/2023 ``` ``` TRUE COPY OF THE PROCEEDINGS OF THE SUB COLLECTOR, THRISSUR, VIDE NO. 1679/2023 DATED 21/10/2023 ``` ``` TRUE COPY OF A FEW PHOTOGRAPHS OF THE SITE ```