K.M. Ameer's Writ Petition (Civil) challenging Ext.P10 order under the Kerala Conservation of Paddy Land and Wetland Act, 2008, WP(C) No. 13708 of 2023

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR.JUSTICE MURALI PURUSHOTHAMAN`** ``` MONDAY, THE 4[TH] DAY OF MARCH 2024/14TH PHALGUNA, 1945 ``` ``` WP(C) NO. 13708 OF 2023 ``` ## **`PETITIONER:`** ``` K.M.AMEER, AGED 47 YEARS S/O. MOIDEEN HAJI, KAVIKKOTT NJALIL HOUSE, CHIRAMANANGAD, THRISSUR DISTRICT, PIN – 680 604. ``` ``` BY ADVS. V.M.KRISHNAKUMAR RENJITH THAMPAN (SR.) P.R.REENA ``` ## **`RESPONDENTS:`** - **`1 THE REVENUE DIVISIONAL OFFICER, CIVIL STATION, ERANHIPPALAM, KOZHIKODE, PIN – 673 020.`** - **`2 THE LOCAL LEVEL MONITORING COMMITTEE, REPRESENTED BY ITS CONVENOR, AGRICULTURAL OFFICER, KRISHI BHAVAN, OLAVANNA, KOZHIKKODE, PIN – 673 019.`** - **`3 THE VILLAGE OFFICER, PANTHEERANKAVU VILLAGE, ARAPPUZHA RD, KOZHIKODE, PIN – 673 019.`** ## **`SMT. SHEEBA - GP`** ``` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 04.03.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` WP(C).No.13708 OF 2023 ``` ``` 2 ``` ## **`JUDGMENT`** The petitioner has approached this Court aggrieved by Ext.P10 order 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 54.557 Ares of land comprised in Sy. Nos.2/56 and 2/57 (Re.Sy.No.2/6A) of Pantheerankavu Village, Kozhikode Taluk in Kozhikode District. 3. The petitioner states that the said land is not a paddy land. According to him, it is a garden land and there are 35 coconut trees apart from thick vegetation in the property. There are also buildings situated around the petitioner’s property. 4. Earlier, the property was included in the draft Data Bank. The petitioner sought to remove the property from the draft Data Bank and Ext.P2 is ``` WP(C).No.13708 OF 2023 ``` ``` 3 ``` the report submitted by the Village Officer. The Village Officer has, in Ext.P2, reported that though the property is included in the revenue records as നിലം (wet land), the property is a converted land and there are about 60 coconut trees aged 25-30 years and there are commercial buildings around the property of the petitioner. 5. The petitioner also obtained Ext.P3 KSRSEC report wherein it is stated that in 2007-2016 data, the plot is observed under plantation crops cover. However, in Ext.P4 report, the Agricultural Officer has reported that the property will come within the definition of wet land and the conversion of the property will lead to environmental issues. The challenge as to the inclusion of the petitioner's property in the Data Bank is pending consideration before this Court in Writ Appeal No.413 of 2018. 6. After the inclusion of the property in the final Data Bank, the petitioner has submitted Ext.P7 ``` WP(C).No.13708 OF 2023 ``` ``` 4 ``` application in Form 5 under the Kerala Conservation of Paddy Land and Wetland Rules, 2008 (for short, ‘the Rules’) before the 1[st] respondent. The petitioner also submitted Ext.P8 application in Form 6 and Ext.P9 application in Form 7 for the larger extent, for change of nature of the land. The 1[st] respondent took up Ext.P7 application filed by the petitioner in Form 5 and rejected the same as per Ext.P10. In Ext.P10, it is stated that as per the report of the Village Officer, the subject property is surrounded by waterlogged lands. It is further stated that as per the report of the Village Officer, the KSRSEC report and other documents, it is convinced that the property was not converted before 2008 and conversion of the said property will adversely affect the environment and has therefore to be retained in the Data Bank. 7. The petitioner impugns Ext.P10 contending, inter alia, that the same is vitiated by non application of mind and is against the provisions of the Kerala ``` WP(C).No.13708 OF 2023 ``` ``` 5 ``` Conservation of Paddy Land and Wetland Act, 2008 (for short, ‘the Act, 2008’) and the binding precedents of this Court. It is contended that the 1[st] respondent, the RDO has failed to appreciate Ext.P3 report of the KSRSEC, wherein it is reported that even as on 2007 the land was observed under plantation crops cover. The petitioner also refers to Ext.P2 report of the Village Officer wherein it is reported that there are coconut trees in the subject land which are more than 25-30 years of age and that the land is a converted land. It is further contended that the 1[st] respondent cannot rely on the report of the Village Officer alone to arrive at a conclusion that the land has to be retained in the Data Bank. 8. It is also contended that the nature of the land as on the date of commencement of the Act, 2008 has not been considered by the 1[st] respondent. The petitioner also contends that there was no site inspection by the RDO as required under the Rules. ``` WP(C).No.13708 OF 2023 ``` ``` 6 ``` 9. Heard Sri.Renjith Thampan, the learned Senior Counsel for the petitioner and Smt.Sheeba, the learned Government Pleader. 10. 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 appropriate orders on the application. On a perusal of Ext.P10, it is evident that, without any independent assessment of the nature of property ``` WP(C).No.13708 OF 2023 ``` ``` 7 ``` 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 to refuse to remove the property from the Data Bank. 11. 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 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 ``` WP(C).No.13708 OF 2023 ``` ## **`8`** 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. 12. Further, it is trite law that, merely because the property is water logged or marshy, it cannot be termed as wetland or paddy land in contemplation of Act, 2008. 13. The term Wetland is defined under Section 2(xviii) of the Act,2008 and reads as under; “(xviil) ‘wetland’ means land lying between terrestrial and aquatic systems, where the water table is usually at or near the surface or which is covered by shallow water or charactrized by the presence of sluggishly moving or standing water, saturating the soil ``` WP(C).No.13708 OF 2023 ``` ``` 9 ``` with water and includes backwaters, estuary, & fens, lagoon, mangroves, marshes, salt marsh and swamp % forests but does not include paddy lands and rivers.” In order to treat a particular land as wetland, it should have the characteristic features and requirement as is provided under Act, 2008. This Court in **Suraj K.S. and another v. State of Kerala and Others** [2018 (1) KHC 250], relying on the decision in **Asma v. District Collector** (2015 (1) KLT 30], held that, the wetlands brought under the purview of the Act, 2008 are natural lands lying between terrestrial and aquatic systems and only natural lands lying between terrestrial ecosystems and aquatic ecosystems in the State would fall within the ambit of the definition. 14. In **Adani Infrastructures & Developers Pvt. Ltd, Mumbai & Others Vs. State of Kerala** **& Others** [2014 (1) KHC 685], this Court held that if the land suitable for paddy cultivation is uncultivated and left fallow and if the said land is ``` WP(C).No.13708 OF 2023 ``` ``` 10 ``` 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. 15. 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 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.” ``` WP(C).No.13708 OF 2023 ``` ``` 11 ``` ## 16. 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.” 17. The 1[st] respondent has not considered any of the parameters for consideration of Form 5 application. There is non application of mind on the part of the 1[st] respondent in issuing Ext.P10. Ext.P3 report of the KSRSEC has not been considered in its proper perspective. The binding precedents of this Court were not adverted to while passing Ext.P10 order. Accordingly, I set aside Ext.P10 with a direction to the 1[st] respondent, the Revenue ``` WP(C).No.13708 OF 2023 ``` ``` 12 ``` Divisional Officer to reconsider Ext.P7 application of the petitioner in Form 5 in accordance with law and after considering Ext.P3 KSRSEC report and other relevant factors mentioned in Rule 4(4F) of the Rules, 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 this judgment before the 1[st] respondent for compliance. The writ petition is disposed of with the above directions. Sd/- ## **`MURALI PURUSHOTHAMAN JUDGE`** SPR ``` WP(C).No.13708 OF 2023 ``` ``` 13 ``` ## **`APPENDIX`** ## **`PETITIONER’S EXHIBITS:-`** > **`EXHIBIT P1 TRUE COPY OF THE BASIC TAX RECEIPT OF THE PROPERTY IN SY.NO.2/56, 2/57 (RE.SY.NO.2/6A) OF PANTHEERANKAVU VILLAGE ALONG WITH OTHER PROPERTY DATED 25.05.2022.`** > **`EXHIBIT P2 TRUE COPY OF REPORT DATED 05.04.2016 OF VILLAGE OFFICER.`** > **`EXHIBIT P3 TRUE COPY OF THE REPORT OF THE KERALA STATE REMOTE SENSING AND ENVIRONMENT CENTRE DATED 20.02.2017.`** > **`EXHIBIT P4 TRUE COPY OF THE LETTER OF THE AGRICULTURAL OFFICER TO THE PETITIONER DATE NIL.`** > **`EXHIBIT P5 TRUE COPY OF DECISION REPORTED IN 2020(2) KHC 94 (MATHER NAGAR RESIDENTS ASSOCIATION AND ANOTHER V. DISTRICT COLLECTOR, EKM AND OTHERS).`** > **`EXHIBIT P6 TRUE COPY OF THE DECISION REPORTED IN 2022 (4) KHC 527 (VASU KALLAYI V. STATE OF KERALA AND OTHERS).`** > **`EXHIBIT P7 TRUE COPY OF THE FORM 5 APPLICATION FILED BY THE PETITIONER DATED 23.07.2022.`** > **`EXHIBIT P8 TRUE COPY OF FORM 6 APPLICATION DATED 26.07.2022 SUBMITTED BY THE PETITIONER.`** > **`EXHIBIT P9 TRUE COPY OF THE FORM 7 APPLICATION DATED 26.07.2022 SUBMITTED BY THE PETITIONER.`** > **`EXHIBIT P10 TRUE COPY ORDER OF THE REVENUE DIVISIONAL OFFICER DATED 16.03.2023.`** ``` RESPONDENTS EXHIBITS :- NIL. ```