Kadheja v. District Collector, Civil Station, Palakkad and Others

## **`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. 18964 OF 2023`** ## **`PETITIONER:`** ``` KADHEEJA AGED 67 YEARS W/O. V.A.SIDHIQ, SAFA MANZIL AMAKKULAM, VADAKKENCHERRY, ALATHUR, PALAKKAD, PIN – 678 683. ``` ## **`BY ADV V.A.JOHNSON (VARIKKAPPALLIL)`** ## **`RESPONDENTS:`** - **`1 THE DISTRICT COLLECTOR, CIVIL STATION, PALAKKAD, PIN – 678 001.`** - **`2 REVENUE DIVISIONAL OFFICER CIVIL STATION, PALAKKAD, PIN – 678 001.`** - **`3 THE PRINCIPAL AGRICULTURAL OFFICER OFFICE OF THE PRINCIPAL AGRICULTURAL OFFICER CIVIL STATION, PALAKKAD, PIN – 678 001.`** - **`4 THE VILLAGE OFFICER VADAKKENCHERRY-I VILLAGE, ALATHUR TALUK, PALAKKAD, PIN – 678 683.`** - **`5 THE AGRICULTURAL OFFICER KRISHIBHAVAN VADAKKENCHERRY P.O, PALAKKAD, PIN – 678 683.`** - **`6 LOCAL LEVEL MONITORING COMMITTEE VADAKKENCHERRY GRAMA PANCHAYAT, VADAKKENCHERRY, PALAKKAD REPRESENTED BY ITS CONVENER, PIN – 678 683.`** ## **`SMT. SHEEBA - GP`** ``` 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.18964 OF 2023 ``` ``` 2 ``` ## **`JUDGMENT`** The petitioner has approached this Court aggrieved by Ext.P7 order whereby Form 5 application submitted by her has been rejected by the Revenue Divisional Officer. 2. The petitioner is the absolute owner in possession of an extent of 0.0865 Hectares of land comprised in Re.Sy. No.88/17 (88/3), Block No.43 of Vadakkencherry - I 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.P6 ``` WP(C).No.18964 OF 2023 ``` ``` 3 ``` application in 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.P7, rejected the application stating that the has that on Agricultural Officer reported inspection of the land it is found that the subject land is lying fallow with grass and on the eastern side of the property there is a road and in the northern side there is a water channel. The western portion is lying fallow. The land is low lying and there is chance that there will be water logging. It is further reported that the land is suitable for paddy cultivation and the land need not be removed from the Data Bank. 4. The petitioner impugns Ext.P7 contending, inter alia, that the same is vitiated by ``` WP(C).No.18964 OF 2023 ``` ``` 4 ``` non application of mind and is against the provisions of the Act, 2008 and the binding precedents of this Court. 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 orders on the On a appropriate application. ``` WP(C).No.18964 OF 2023 ``` ``` 5 ``` perusal of Ext.P7, 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 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 ``` WP(C).No.18964 OF 2023 ``` ``` 6 ``` 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 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 ``` WP(C).No.18964 OF 2023 ``` ``` 7 ``` 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 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 ``` WP(C).No.18964 OF 2023 ``` ``` 8 ``` 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 if the property is locked on all four sides with lands which were reclaimed before the coming into force of the Act, 2008, such lands cannot be said as suitable for cultivation and may come outside the definition of paddy land. ## 10. This Court in **Jessy Abraham v. Land** ``` WP(C).No.18964 OF 2023 ``` ``` 9 ``` **Revenue Commissioner, Thiruvananthapuram** [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. 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.P7 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.P6 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 ``` WP(C).No.18964 OF 2023 ``` ``` 10 ``` 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 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.18964 OF 2023 ``` ``` 11 ``` ## **`APPENDIX`** ## **`PETITIONER’S EXHIBITS:-`** ``` EXHIBIT P1TRUE COPY OF THE BASIC TAX RECEIPT DATED 23.09.2021 ISSUED BY THE 3RD RESPONDENT. EXHIBIT P2TRUE COPY OF THE LOCATION SKETCH OF THE PETITIONER'S PROPERTY. EXHIBIT P3TRUE COPY OF THE COMMUNICATION DATED 11.08.2021 ISSUED FROM THE OFFICE OF 3RD RESPONDENT. EXHIBIT P4TRUE COPY OF THE RELEVANT PAGE OF DATA BANK OF VADAKKENCHERRY GRAMA PANCHAYAT. EXHIBIT P5PHOTOGRAPHS OF THE PETITIONER'S PROPERTY. EXHIBIT P6TRUE COPY OF THE PETITIONER'S APPLICATION DATED 06.12.2021. EXHIBIT P7TRUECOPYOFTHEORDER NO.RDOPKD/5068/2022-J5 DATED 06.10.2022 ISSUED BY THE 2ND RESPONDENT. ``` ``` RESPONDENTS EXHIBITS: NIL. ```