Jose Toby and Sangeetha Jose 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. 39008 OF 2023** ## **PETITIONERS:** - **1 JOSE TOBY, AGED 52 YEARS KAVALAKAT HOUSE, MAMPILLY ROAD, KARAMUCK, KANDASSAMKADAVU, THRISSUR DISTRICT REPRESENTED BY POWER OF ATTORNEY HOLDER RAMADAS P.R, AGED 48 YEARS, S/O RAGHAVAN PLAKKATTUPARAMBIL HOUSE , THANIKUDAM, KURICHIKKARA P.O THRISSUR DISTRICT 680028** - **2 SANGEETHA JOSE, AGED 46 YEARS W/O JOSE TOBY, KAVALAKAT HOUSE, MAMPILLY ROAD, KARAMUCK, KANDASSAMKADAVU, THRISSUR DISTRICTREPRESENTED BY POWER OF ATTORNEY HOLDER RAMADAS P.R, AGED 48 YEARS, S/O RAGHAVAN PLAKKATTUPARAMBIL HOUSE , THANIKUDAM, KURICHIKKARA P.O THRISSUR DISTRICT 680028** **BY ADVS. T.K.SANDEEP SWETHA R.** ## **RESPONDENTS:** - **1 STATE OF KERALA, REPRESENTED BY DEPARTMENT OF REVENUE, STATUE P.O., THIRUVANANTHAPURAM, PIN - 695001** - **2 SUB COLLECTOR THRISSUR DISTRICT COLLECTORATE, AYYANTHOLE. THRISSUR, PIN - 680003** - **3 TAHSILDAR BHOOREKHA, THRISSUR TOWN HALL, CHEMBUKKAV, THRISSUR, PIN - 680020** - **4 AGRICULTURAL OFFICER, "KRISHI BHAVAN", KARAMUCK, MANALUR,** **WP(C) NO. 39008 OF 2023 : 2 :** **THRISSUR, PIN - 680613** **5 VILLAGE OFFICER VILAKKUMKAL-PALAZHY ROAD. KARAMUCK, THRISSUR KERALA, PIN - 680613** ## **OTHER PRESENT:** **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:** **WP(C) NO. 39008 OF 2023 : 3 :** ## **JUDGMENT** The petitioners have approached this Court aggrieved by Ext.P3 whereby Form 5 application submitted by them has been rejected by the Revenue Divisional Officer. 2. The are the owners in petitioners possession of an extent of 0.4613 Hectares of property (0.0627 Hectares in Sy.No.836/2, 0.0101 Hectares in Sy.No.836/3, 0.1787 Hectares in Sy.No.849/1, 0.2104 Hectares in Sy.No.849/6) of Karamuck Village, Thrissur District. 3. According to the petitioners, the said property will not come within the ambit of paddy land or wetland as defined under the Kerala Conservation of Paddy Land and Wetland Act, **WP(C) NO. 39008 OF 2023 : 4 :** 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 petitioners therefore filed an 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 as per the report of the Village Officer, on the western side of the property, there is paddy field and that on site inspection, it is seen that the property is water logged during rainy season. Further, the LLMC has reported that the eastern portion of the property is lying fallow and that if the property is **WP(C) NO. 39008 OF 2023 : 5 :** converted, that will lead to water logging in the adjoining lands during rainy season. Accordingly, the application of the petitioner was rejected. 4. The petitioner impugns Ext.P3 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 that though the KSRSEC report is available, the same has been misread and misinterpreted by the RDO. 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, 2008 provides that, on receipt of the application in Form 5, the RDO shall call for a **WP(C) NO. 39008 OF 2023 : 6 :** 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 institutions and Technological pass appropriate orders on the application. On a perusal of Ext.P3, 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 upon the report of the Village Officer as well as the recommendation of the LLMC to refuse to remove the property from the Data Bank. **WP(C) NO. 39008 OF 2023 : 7 :** 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. 39008 OF 2023 : 8 :** 7. This Court has held 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 and also whether the land is suitable for paddy cultivation or not. This Court in v. **Aparna Sasi Menon Revenue Divisional Officer** [2023 (6) KHC 83] has held that the predominant factor for determination while considering the Form-5 application should be whether the land which is sought to be excluded from Data Bank is one where paddy cultivation is possible and feasible. 8. Further, it is trite law that, merely because **WP(C) NO. 39008 OF 2023 : 9 :** the property is water logged during rainy season, the application of the petitioner to remove the property from the Data Bank cannot be rejected and it cannot also be termed as wetland or paddy land in contemplation of 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 ## **WP(C) NO. 39008 OF 2023 : 10 :** 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 **WP(C) NO. 39008 OF 2023 : 11 :** if 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 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 ## **WP(C) NO. 39008 OF 2023 : 12 :** 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.” 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. None of the parameters for consideration of a Form 5 application has been taken into account while passing the impugned order. I find that there is total non application of mind on the part of the RDO in issuing Ext.P3. Accordingly, I set aside Ext.P3, with a direction to the 2[nd] respondent, the Revenue Divisional Officer **WP(C) NO. 39008 OF 2023 : 13 :** to reconsider the application in Form 5 in accordance with law and take a decision after considering the KSRSEC report to be obtained at the expense of the petitioner and other relevant factors mentioned in Rule 4(4F), 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 RDO. The writ petition is disposed of. ## **Sd/-** ## **MURALI PURUSHOTHAMAN JUDGE** SB **WP(C) NO. 39008 OF 2023 : 14 :** ## **APPENDIX** ## **PETITIONER EXHIBITS** **Exhibit P1 TRUE COPY OF THE LAND TAX RECEIPT DATED 27-08-2020 ISSUED BY THE KARAMUCK VILLAGE OFFICE Exhibit P2 THE PHOTOGRAPHS SHOWING THE NATURE OF THE SAID PROPERTY Exhibit P3 TRUE COPY OF THE ORDER DATED 16.01.2023 ISSUED BY THE 2 ND RESPONDENT REJECTING THE APPLICATION FILED BY THE PETITIONER**