Joseph Andrews v. State of Kerala and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE MURALI PURUSHOTHAMAN** **MONDAY, THE 26[TH] DAY OF FEBRUARY 2024 / 7TH PHALGUNA, 1945** ## **WP(C) NO. 6304 OF 2023** ## **PETITIONER:** **JOSEPH ANDREWS, AGED 79 YEARS S/O AUGUSTIN, HAVING ADDRESS AT TRINITY CASTLE 14 B, 4 C APARTMENTS, EDAPPALLY ERNAKULAM, PIN - 682024** **BY ADVS. LAL K.JOSEPH P.MURALEEDHARAN (THURAVOOR) SURESH SUKUMAR P.K.SALEEM ANZIL SALIM** ## **RESPONDENTS:** - **1 STATE OF KERALA, REPRESENTED BY ITS SECRETARY, DEPARTMENT OF AGRICULTURE, SECRETARIAT, THIRUVANANTHAPURAM, PIN - 695001** - **2 THE DISTRICT COLLECTOR, ERNAKULAM, COLLECTORATE, KAKKANADU, ERNAKULAM, PIN - 682030** - **3 THE REVENUE DIVISIONAL OFFICER, FIRST FLOOR, K B JACOB ROAD, FORT KOCHI, KOCHI, KERALA, PIN - 682001** **4 THE CHAIRMAN, LOCAL LEVEL MONITORING COMMITTEE CONSTITUTED UNDER THE PROVISIONS OF KERALA CONSERVATION OF PADDY LAND & WET LAND ACT, ELOOR MUNICIPALITY, ERNAKULAM DISTRICT, PIN - 683501** **5 THE AGRICULTURAL OFFICER, CONVENER, LOCAL LEVEL MONITORING COMMITTEE CONSTITUTED UNDER THE PROVISIONS OF KERALA CONSERVATION OF PADDY LAND & WET LAND ACT, KRISHI BHAVAN, ELOOR, PIN - 683501** **WP(C) NO. 6304 OF 2023 : 2 :** **6 THE VILLAGE OFFICER, ELOOR VILLAGE OFFICE, ELOOR FERRY ROAD, VERAPOLI, ELOOR, ERNAKULAM, KERALA – 683501 R BY GP SMT.DEVISREE** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 26.02.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C) NO. 6304 OF 2023 : 3 :** ## **JUDGMENT** The petitioner has approached this Court aggrieved by Ext.P8 whereby Form 5 application submitted by him has been rejected by the Revenue Divisional Officer. 2. The petitioner is the owner in possession of a total extent of 39.18 Ares of property comprised in Sy.Nos.53 and 2 of Eloor Village, Paravoor Taluk, Ernakulam District, by virtue of Ext.P1 settlement deed. 3. According to the petitioner, the said property will not come within the definition of paddy land or wetland as defined under the Kerala Conservation of Paddy Land and Wetland Act, 2008 (hereinafter **WP(C) NO. 6304 OF 2023 : 4 :** 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 petitioner therefore filed Ext.P3 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 Revenue Divisional Officer, by Ext.P8 order, rejected the application on the ground that as per the report of the Agricultural Officer, the property seems to be paddy land since it is found to be fallow, with weeds growing all around and no trees. It is stated that the Agricultural Officer has recommended not to remove the property from the Data Bank. **WP(C) NO. 6304 OF 2023 : 5 :** 4. 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 RDO 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. 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. 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 **WP(C) NO. 6304 OF 2023 : 6 :** into force of the Act, 2008, the Revenue Divisional Officer has relied solely upon the report of the Agricultural Officer to refuse to remove the property from the Data Bank. There is no finding as to whether the land is suitable for paddy cultivation or the nature of land as on the date of commencement of the Act. 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 **WP(C) NO. 6304 OF 2023 : 7 :** 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. 7. 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 Act, 2008. In **Aparna Sasi Menon** v. **RDO, Irinjalakuda [2023(6) KHC 83]** , this Court has held that existence of neerchals in property should never be a prime consideration in deciding whether the land is to be retained in data bank. Instead, the prime consideration should be whether paddy **WP(C) NO. 6304 OF 2023 : 8 :** 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. **WP(C) NO. 6304 OF 2023 : 9 :** The report submitted by the KSRSEC is not disputed by the Residents Association. Merely because the property is lying fallow and water gets season or logged during rainy 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 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 **WP(C) NO. 6304 OF 2023 : 10 :** 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 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.” **WP(C) NO. 6304 OF 2023 : 11 :** 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. Accordingly, I find that Ext.P8 order cannot be sustained and I set aside the same, with a direction to the 3[rd] 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 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 **WP(C) NO. 6304 OF 2023 : 12 :** 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 3[rd] respondent. The writ petition is disposed of. **Sd/-** **MURALI PURUSHOTHAMAN JUDGE** SB ## **WP(C) NO. 6304 OF 2023 : 13 :** ## **APPENDIX** ## **PETITIONER EXHIBITS** **Exhibit1 TRUE COPY OF THE SETTLEMENT DEED NO 513/59 DATED 17/03/1959 OF S.R.O EDAPPALLY** - **Exhibit P2 TRUE COPY OF SURVEY PLOT GEO-REFERENCED WITH SATELLITE DATA OF 2008** **Exhibit P3 TRUE COPY OF THE APPLICATION S.27 A OF THE ACT, 2008 DATED 9/8/2021 SUBMITTED BEFORE THE 3RD RESPONDENT.** **Exhibit P4 TRUE COPY OF THE JUDGMENT DATED 31/8/2021 IN WPC 17480 OF 2021 OF THIS HON'BLE COURT.** **Exhibit P5 TRUE COPY OF THE MINUTES OF THE LLMC MEETING CONDUCTED BY THE 4TH RESPONDENT ON 18.09.2021.** **Exhibit P6 TRUE COPY OF THE REPORT DATED 18.09.2021 SUBMITTED BY THE 5TH RESPONDENT IN RESPECT OF THE PROPERTIES COVERED BY EXBT P1.** **Exhibit P7 TRUE COPY OF THE PHOTOGRAPHS REVEALING THE NATURE OF THE PROPERTY AFTER THE WEEDS ARE CUT.** **Exhibit P8 TRUE COPY OF THE ORDER DATED 03.03.2022 PASSED BY THE 3RD RESPONDENT.**