K. Ouseppachan v. Revenue Divisional Officer, Pala; Agricultural Officer, Krishi Bhavan, Karoor Grama Panchayath, Valvoor P.O., Pala; Village Officer, Vallichira Village Office, Pala

IN THE HIGH COURT OF KERALA AT ERNAKULAM ## PRESENT ## THE HONOURABLE MR.JUSTICE MURALI PURUSHOTHAMAN TUESDAY, THE 5[TH] DAY OF MARCH 2024 / 15TH PHALGUNA, 1945 ## WP(C) NO. 8623 OF 2024 ## PETITIONER/S: K. OUSEPPACHAN AGED 67 YEARS S/O MATHAI KOTTANNOOR HOUSE (CHINGAMKUNNATHU) , VALAVOOR P.O PALA, KOTTAYAM DISTRICT., PIN - 686635 BY ADVS. P.K.SOYUZ E.V.BABYCHAN ## RESPONDENTS: - 1 THE REVENUE DIVISIONAL OFFICER PALA RDO OFFICE, MINI CIVIL STATION, PALA, KOTTAYAM DISTRICT., PIN - 686575 - 2 AGRICULTURAL OFFICER KRISHI BHAVAN, KAROOR GRAMA PANCHAYATH, VALVOOR P.O, PALA, KOTTAYAM DISTRICT ,, PIN - 686635 - 3 THE VILLAGE OFFICER VALLICHIRA VILLAGE VILLAGE OFFICE, VALLICHIRA P.O PALA, KOTTAYAM DISTRICT., PIN - 686574 ## OTHER PRESENT: SR.GP.SMT.PREETHA.K.K. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 05.03.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` WPC No.8623/2024 ``` ``` 2 ``` ## **JUDGMENT** The petitioner has approached this Court aggrieved by Ext.P5 whereby Form 5 application submitted by him has been rejected by the Revenue Divisional Officer. 2. The petitioner is the owner and in possession of an extent of 9.60 Ares (23.72 Cents) of land comprised in Re.Survey No.8/4 in Block 19 of Vallichira Village, Meenachil Taluk. 3. According to the petitioner, the said property will not come within the definition of paddy land or wetland. The above said land was converted much before the commencement of Kerala Conservation of Paddy Land and Wetland Act, 2008 (hereinafter referred to as ‘Act, 2008’) and it was not a cultivable land or suitable for paddy cultivation at the time of commencement of the Act, 2008 (i.e.12.08.2008). There are 60 Arecanut trees and 25 Mahagani Trees aged more than 30 years standing in the property and it is surrounded by road on ``` WPC No.8623/2024 ``` ``` 3 ``` one side, converted lands on 2 sides and a thodu on one side. 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’). The petitioner, therefore, filed Ext.P3 application in Form 5 under the provisions of the Act, 2008 to remove the property from the Data Bank. The application is rejected by the Revenue Divisional officer stating that on inspection of the site, it is seen that though there are arecanut trees and Mahagani trees which are 30 years old, there are neerchals in the property. 4. Heard the learned counsel for the petitioner and the learned Government Pleader. 5. The petitioner impugns Ext.P5 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. ``` WPC No.8623/2024 ``` ``` 4 ``` 6. 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 appropriate orders on the application. On a perusal of Ext.P5, it is evident that, there is no assessment of the nature of property as on the date of coming into force of the Act, 2008 and the Revenue Divisional Officer has not considered whether the land is suitable for paddy cultivation or not. ``` WPC No.8623/2024 ``` ``` 5 ``` 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 adversely affect sustenance of wetlands in the area and in the absence of such findings, the impugned order is unsustainable. 8. 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 ``` WPC No.8623/2024 ``` ``` 6 ``` 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. 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. 10. Further it is trite law that, merely because there is neerchal in the property, it cannot be termed as wetland or paddy land in contemplation of Act, 2008. In **Aparna Sasi Menon** v. **Revenue Divisional Officer** [2023 (6) KHC 83], this Court has held that existence of neerchals in a property should never be a prime ``` WPC No.8623/2024 ``` ``` 7 ``` consideration in deciding whether the land is to be retained in the data bank. Instead, the prime consideration should be whether paddy cultivation is possible in the property in question. Further, the petitioner submits that there is only one neerchal in the property and he is ready to retain that drainage. In spite of the categorical declarations by this Court in the decisions cited above, the petitioner's application has been rejected on untenable grounds. Accordingly, I find that Ext.P5 order cannot be sustained and I set aside the same, with a direction to the Revenue Divisional Officer 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 a copy 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 ``` WPC No.8623/2024 ``` ``` 8 ``` this judgment. The petitioner shall produce a copy of the writ petition along with a copy of the judgment before the Revenue Divisional Officer. The writ petition is disposed of with the above direction. Sd/- **MURALI PURUSHOTHAMAN JUDGE** al/-.06.03.2024. ``` WPC No.8623/2024 ``` ``` 9 ``` ## APPENDIX OF WP(C) 8623/2024 PETITIONER EXHIBITS Exhibit P1 A TRUE COPY OF THE LAND TAX RECEIPT DATED 10.05.2023 OF THE PETITIONER'S LAND ISSUED BY THE 3RD RESPONDENT VILLAGE OFFICER Exhibit P2 A TRUE COPY OF THE RELEVANT PAGE OF NOTIFIED DATA BANK OF KAROOR GRAMA PANCHAYATH DATED 17.11.2020 Exhibit P3 A TRUE COPY OF THE APPLICATION DATED 20.04.2022 UPLOADED BY THE PETITIONER BEFORE THE 1ST RESPONDENT IN FORM NO. 5 Exhibit P4 A TRUE COPY OF THE REPORT NO. A/172/2015/KSREC / 004201/21 DATED 03.04.2021 Exhibit P5 A TRUE COPY OF THE ORDER NO. 4814/ 2023 DATED 15.11.2023 OF THE 1ST RESPONDENT Exhibit P6 A TRUE PHOTOGRAPH OF THE PROPERTY OWNED BY THE PETITIONER