Jayalakshmi v. District Collector, Palakkad; Revenue Divisional Officer; Tahsildar (LR); Village Officer; Agricultural Officer; Local Level Monitoring Committee represented by its Convener

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR.JUSTICE MURALI PURUSHOTHAMAN`** ``` MONDAY, THE 18[TH] DAY OF MARCH 2024 / 28TH PHALGUNA, 1945 ``` ``` WP(C) NO. 42553 OF 2023 ``` ## **`PETITIONER:`** ``` JAYALAKSHMI AGED 44 YEARS W/O. SAGITH K V, KUNNATHULLY HOUSE, COMPANY PADI, MANALOOR, THRISSUR, PIN – 680 617. ``` ``` BY ADVS. K.R.RAJKUMAR A.R.GANGADAS JAGADEESH LAKSHMAN R.K.RAKESH NANDANA BABU T. ``` ## **`RESPONDENTS:`** - **`1 THE DISTRICT COLLECTOR CIVIL STATION, KENATHUPARAMBU, KUNATHURMEDU, PALAKKAD, PIN – 678 013.`** - **`2 THE REVENUE DIVISIONAL OFFICER REVENUE DIVISIONAL OFFICE, KENATHUPARAMBU, KUNATHURMEDU, PALAKKAD, PIN – 678 013.`** - **`3 THE TAHSILDAR (LR) ALATHUR TALUK OFFICE, ALATHUR, PALAKKAD, PIN – 678 541.`** - **`4 THE VILLAGE OFFICER KANNAMBRA -II VILLAGE OFFICE, KANNAMBRA, ALATHUR, PALAKKAD, PIN – 678 686.`** - **`5 THE AGRICULTURAL OFFICER KANNAMBRA -II KRISHIBHAVAN ALATHUR, PALAKKAD, PIN – 678 686.`** ``` WP(C).No.42553 OF 2023 ``` ``` 2 ``` - **`6 LOCAL LEVEL MONITORING COMMITTEE REPRESENTED BY ITS CONVENER, THE AGRICULTURAL OFFICER, KANNAMBRA -II KRISHIBHAVAN ALATHUR, PALAKKAD, PIN – 678 686.`** ``` SR.GP - SRI. E.G.GORDEN ``` ``` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 18.03.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` WP(C).No.42553 OF 2023 ``` ``` 3 ``` ## **`JUDGMENT`** The petitioner has approached this Court aggrieved by Ext.P4 order whereby Form 5 application submitted by her has been rejected by the Revenue Divisional Officer. 2. absolute owner in The petitioner is the possession of an extent of 9.71 Ares of land comprised in Sy. No.187/11-2 (Re.Sy.No.22/5), Block No.044 of Kannambra - II Village, Alathur 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 ``` WP(C).No.42553 OF 2023 ``` ``` 4 ``` Form 5 under the provisions of the Kerala Conservation of Paddy Land 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 the Agricultural Officer has reported that the land is low lying and is not converted before 2008 and conversion will affect the free flow of water and that the property need not 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 ``` WP(C).No.42553 OF 2023 ``` ``` 5 ``` 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. 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, ``` WP(C).No.42553 OF 2023 ``` ``` 6 ``` the Revenue Divisional Officer has solely relied upon the report of the Agricultural 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 ``` WP(C).No.42553 OF 2023 ``` ``` 7 ``` 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 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. 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 Act, 2008. In **Aparna Sasi Menon v. Revenue Divisional Officer, Irinjalakuda** [2023 (6) KHC 83], this Court has held that existence of neerchals in a property should never be a prime consideration in deciding whether the land is to be retained in the ``` WP(C).No.42553 OF 2023 ``` ## **`8`** Data Bank. Instead, the prime consideration should be whether paddy cultivation is possible in the property in question. 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 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. This Court in **Jessy Abraham v. Land Revenue Commissioner, Thiruvananthapuram** ``` WP(C).No.42553 OF 2023 ``` ``` 9 ``` [2021 (6) KHC 316] has held that merely for the reason that the land is lying low and is waterlogged, the same cannot be included as paddy land in the Data Bank. 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 sustained and I set aside the same with a direction to the 2[nd] respondent, the Revenue Divisional Officer 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 ``` WP(C).No.42553 OF 2023 ``` ``` 10 ``` 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 2[nd] respondent for compliance. The writ petition is disposed of with the above directions. Sd/- ``` MURALI PURUSHOTHAMAN JUDGE ``` SPR ``` WP(C).No.42553 OF 2023 ``` ``` 11 ``` ## **`APPENDIX`** ## **`PETITIONER’S EXHIBITS:-`** ## **`EXHIBIT P1`** ``` EXHIBIT P2 ``` ``` EXHIBIT P3 ``` ``` EXHIBIT P4 ``` ``` THE TRUE COPY OF THE BASIC TAX RECEIPT NO. KL09010503467/2023 IN RESPECT OF 9 ARES 71 SQ. MTR. IN BLOCK NO. 044, SURVEY NO: 187/11-2 (RESURVEY NO: 22/5) OF KANNAMBRA-II VILLAGE ISSUED BY THE 4TH RESPONDENT TO THE PETITIONER DATED 31-07- 2023. ``` ``` THE TRUE COPY OF THE RELEVANT PORTION OF THE DATA BANK OF THE KANNAMBRA - II VILLAGE ISSUED BY THE 4TH RESPONDENT TO THE PETITIONER ON 03-08-2022. ``` - **`THE TRUE COPY OF THE APPLICATION FILED BY THE PETITIONER ONLINE BEFORE THE 2ND RESPONDENT UNDER FORM 5 AS PER THE KERALA CONSERVATION OF PADDY LAND AND WET LAND ACT, 2008 DATED 11-08-2022.`** ``` THE TRUE COPY OF THE ORDER NO: 3922/2023 ISSUED BY THE 2ND RESPONDENT TO THE PETITIONER DATED 25-05-2023. ``` ## **`RESPONDENTS EXHIBITS: NIL.`**