Jayaprakashan.N v. State of Kerala and Others

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** # **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE MURALI PURUSHOTHAMAN THURSDAY, THE 15[TH] DAY OF FEBRUARY 2024 / 26TH MAGHA, 1945 ``` ``` WP(C) NO. 452 OF 2024 ``` ## **`PETITIONER:`** ``` JAYAPRAKASHAN.N AGED 49 YEARS S/O. NARAYANAN PULTHANKALAM, VELLARAKODE, CHITTILANCHERY PO, PALAKKAD DISTRICT -, PIN – 678 704. ``` ``` BY ADVS. K.MOHANAKANNAN D.S.THUSHARA. ``` ## **`RESPONDENTS:`** ``` 1STATE OF KERALA REPRESENTED BY ITS SECRETARY TO GOVERNMENT, REVENUE DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM, PIN – 682 031. 2THE DISTRICT COLLECTOR, PALAKKAD CIVIL STATION, PALAKKAD DISTRICT -, PIN – 678 001. 3REVENUE DIVISIONAL OFFICER, OFFICE OF THE REVENUE DIVISIONAL OFFICER PALAKKAD, PALAKKAD HEAD POST OFFICE, PALAKKAD DISTRICT -, PIN – 678 001. 4LOCAL LEVEL MONITORING COMMITTEE VANDAZHI, REPRESENTED BY ITS CONVENER - AGRICULTURAL OFFICER, VANDAZHI, PALAKKAD DISTRICT -, PIN – 678 706. 5THE VILLAGE OFFICER, VANDAZHI-II VILLAGE OFFICE, MUDAPPALLUR, PALAKKAD DISTRICT -, PIN – 678 705. ``` ``` WP(C) NO. 452 OF 2024 ``` 2 ## **`OTHER PRESENT:`** ``` SMT.R.DEVI SHRI, GP ``` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 15.02.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` WP(C) NO. 452 OF 2024 ``` 3 ## JUDGMENT The petitioner has approached this Court aggrieved by Ext.P8 porceedings whereby Form 5 application submitted by him has been rejected by the Revenue Divisional Officer. 2. The petitioner is the owner in possession of an extent of 0.0810 Hectares of land comprised in Survey No.182/7 of Vandazhi-II Village in Alathur Taluk, 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. The petitioner, filed Ext.P4 application in Form 5 under the provisions of the Kerala Conservation of Paddy Land and Wetland Act, 2008 ``` WP(C) NO. 452 OF 2024 ``` 4 (hereinafter referred to as 'the Act, 2008’) to remove the property from the Data Bank. The said application was rejected by the Revenue Divisional Officer as per Ext.P5 order. According to the petitioner, in view of the Ext.P6 order issued by the Revenue Divisional Officer under the Kerala Land Utilissation Order, 1967, in respect of the very same property prior to the publication of the Data Bank, wherein it was observed that the land was converted 50 years back and lying fallow, the Revenue Divisional Officer ought not have rejected his application. The petitioner challenged Ext.P5 order before this Court in W.P.(C) No. 6129 of 2023. By Ext.P7 judgment, this Court set aside Ext.P5 order directing the Revenue Divisional Officer to take up Form 5 application submitted by the petitioner and to pass afresh orders after obtaining report from the KSRSEC, ``` WP(C) NO. 452 OF 2024 ``` 5 if found necessary and in the light of Ext.P6 order passed in respect of the very same property. 4. The 3[rd] respondent reconsidered the application of the petitioner and rejected the same by Ext.P8 order. In Ext.P8 order, the Revenue Divisional Officer has stated that as per the report of the Agricultural Officer , site inspection and KSRSEC report, the property is found to be not converted before 2008 and that the land is lying fallow in the KSRSEC data of 2008 and is water logged and suitable for Agricultural cultivation and the Agricultural Officer has recommended not to remove the land from the Data Bank. The petitioner states that, Ext.P8 order has been passed disregarding the direction of this Court in Ext.P7 judgment whereby the Revenue Divisional Officer was directed to reconsider the application taking into the account Ext.P6 order passed in respect of the very same property. ``` WP(C) NO. 452 OF 2024 ``` 6 5. The petitioner impugns Ext.P8 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 has misquoted the report of the Kerala State Remote Sensing and Environment Centre (for short, the KSRSEC’) to ascertain the status of land as on 12.08.2008, the date of coming into force of the Act, 2008. 6. It is true that the Revenue Divisional Officer has not taken into account in Ext.P6 order passed in respect of the very same property as directed by this Court in Ext.P7 judgment. Accordingly, the said order cannot be sustained. Further, 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, ``` WP(C) NO. 452 OF 2024 ``` 7 2008. On a perusal of Ext.P8, 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 refused to remove the property from the Data Bank. 7. 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 ``` WP(C) NO. 452 OF 2024 ``` 8 adversely affect sustenance of wetlands in the area and in the absence of such findings, the impugned order is unsustainable. 8. 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 the Act, 2008. 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 ``` WP(C) NO. 452 OF 2024 ``` 9 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.” ## 10. In Sudheesh v. Revenue Divisional Officer [2023 (2) KLT 386], this Court held 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.” 12. In spite of the categorical declarations by this Court in the decisions cited above, the petitioner's ``` WP(C) NO. 452 OF 2024 ``` 10 application has been rejected on untenable grounds. Accordingly, I find that Ext.P8 order cannot be sustained and I set aside the same with direction to the 3[rd] respondent, Revenue Divisional Officer to reconsider Ext.P4 application of the petitioner in the light of the directions in Ext.P7 judgment and taking into account Ext.P6 order and the KSRSEC report as expeditiously as possible, at any rate, within a period of two months 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 the judgment before the 3[rd] respondent. The writ petition is disposed of with the above directions. ## Sd/- ## MURALI PURUSHOTHAMAN ## JUDGE SRJ ``` WP(C) NO. 452 OF 2024 ``` 11 ## APPENDIX OF WP(C) 452/2024 PETITIONER EXHIBITS Exhibit P1 TRUE COPY OF THE SALE DEED NO. 2992/2022 DATED 24/08/2012 OF SRO, NENMARA EXECUTED IN FAVOUR OF THE PETITIONER. Exhibit P2 TRUE COPY OF THE ANTERIOR TITLE DEED NO. 305/1991 OF SRO, NENMARA DATED 09/01/1991. Exhibit P3 TRUE COPY OF THE POSSESSION CERTIFICATE OF THE PROPERTY DATED 27/10/2021. Exhibit P4 TRUE COPY OF THE APPLICATION SUBMITTED BY THE PETITIONER BEFORE THE REVENUE DIVISIONAL OFFICER IN FORM NO. 5 DATED 19/11/2021. Exhibit P5 TRUE COPY OF THE PROCEEDINGS OF THE REVENUE DIVISIONAL OFFICER, NO. RDOPKD/4647/2022-J5 DATED 25/12/2022. Exhibit P6 TRUE COPY OF THE PROCEEDINGS OF THE 3RD RESPONDENT, NO. J-8493/2011 DATED 26/12/2011 ALONG WITH TYPED COPY. Exhibit P7 TRUE COPY OF THE JUDGMENT IN WRIT PETITION(C) 6129/2023 DATED 15-3-2023. Exhibit P8 TRUE COPY OF THE PROCEEDINGS NO. RDOPKD/729/2023/ A5 DATED 17-10-2023 OF THE 3RD RESPONDENT