K.S. Jassitha v. District Collector, Wynad District & 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. 40247 OF 2023** ## **PETITIONER:** **K.S.JASSITHA, AGED 44 YEARS W/O. HALBITH, MANNAMPAT PUTHAN PURAYIL HOUSE, KALOOR ROAD, MANKAVU.P.O., KOZHIKODE - 673007** **BY ADVS. R.SUDHISH M.MANJU** ## **RESPONDENTS:** |**1**|**THE DISTRICT COLLECTOR**| |---|---| ||**WYNAD DISTRICT, CIVIL STATION, WAYNAD - 670645**| |**2**|**REVENUE DIVISIONAL OFFICER**| ||**CIVIL STATION, WAYNAD - 670645**| |**3**|**LOCAL LEVEL MONITORING COMMITTEE**| ||**MUTTIL GRAMA PANCHAYATH, REPRESENTED BY ITS**| ||**CONVENOR/AGRICULTURAL OFFICER, KRISHI BHAVAN,**| ||**MUTTIL, WYNAD, PIN - 673122**| |**4**|**THE VILLAGE OFFICER**| ||**MUTTIL NORTH VILLAGE, WYNAD, PIN - 673122**| |**5**|**THE AGRICULTURAL OFFICER**| ||**KRISHI BHAVAN, MUTTIL, WAYANAD, PIN - 673122**| ## **OTHER PRESENT:** ## **SRI.E.G.GORDEN-SR,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. 40247 OF 2023 : 2 :** ## **JUDGMENT** The petitioner has approached this Court aggrieved by Ext.P4 whereby Form 5 application submitted by her has been rejected by the Revenue Divisional Officer. 2. The petitioner is the owner in possession of an extent of 5.667 Ares of property comprised in Re.Sy.No.588/4 of Vythiri Village, Wayanad Taluk, Wayanad District. 3. According to the petitioner, 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, 2008 (hereinafter referred to as 'the Act, 2008' for short). It is stated that the property is locked on **WP(C) NO. 40247 OF 2023 : 3 :** all sides with commercial buildings and one side is National Highway and paddy cultivation is not possible in the land. 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 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. 4. The application has been rejected by the Revenue Divisional Officer as per Ext.P4 order stating that as per report of the Agricultural Officer, there are 8 coconut trees in the subject land which is 10 years old and the property is not converted before 2008 and the change of nature **WP(C) NO. 40247 OF 2023 : 4 :** of the land will adversely affect the neerchal on the southern side of the property and the conversion will adversely affect the environment. It is also stated that the LLMC has recommended not to remove the property from the Data Bank as the land is found to be marshy and there are chances of water logging and other environmental problems in the land. It is further stated that it is evident from the report of the KSRSEC that the land is not converted prior to 2008. Ext.P4 also states that the Village Officer has reported that the land is 'nilam'. 5. The petitioner impugns Ext.P4 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 **WP(C) NO. 40247 OF 2023 : 5 :** this Court. It is contended that the KSRSEC report has been misread and misinterpreted by the RDO. 6. 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 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 **WP(C) NO. 40247 OF 2023 : 6 :** Scientific institutions and Technological pass appropriate orders on the application. On a perusal of Ext.P4, 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 Agricultural Officer as well as the recommendation of the LLMC and the Village Officer to refuse to remove the property from the Data Bank. KSRSEC report shows that as per the data of 2011, the plot was observed under mixed plantation/vegetation with few buildings and structures. There is no proper assessment of KSRSEC report by the RDO. 7. This Court in **Muraleedharan Nair** v. **Revenue Divisional Officer** [2023 (4) KLT 270] **WP(C) NO. 40247 OF 2023 : 7 :** 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 **WP(C) NO. 40247 OF 2023 : 8 :** (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 **Aparna Sasi Menon** v. **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. 9. Further, it is trite law that, merely because there is water logging in the property or the existence of the water channels cannot be a **WP(C) NO. 40247 OF 2023 : 9 :** reason for including the property in the Data Bank or for not removing the property from the Data Bank and it cannot also be termed as wetland or paddy land in contemplation of Act, 2008. 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 definition of paddy land. 10. In **Mather Nagar Residents** **WP(C) NO. 40247 OF 2023 : 10 :** **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 ## **WP(C) NO. 40247 OF 2023 : 11 :** 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.” ## 11. This Court in **Jessy Abraham** v. **Land** **Revenue Commissioner, Thiruvananthapuram** [2021 (6) KHC 316] has held that merely for the reason that the land is lying low and is water logged, the same cannot be included as paddy land in the Data Bank. 12. In **Sudheesh v. Revenue Divisional Officer** [2023 (2) KLT 386], this Court held as follows: “Going by the definition in S.2(xii) ## **WP(C) NO. 40247 OF 2023 : 12 :** 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.” 13. 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 **WP(C) NO. 40247 OF 2023 : 13 :** 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.P4. Ext.P6 KSRSEC report is not property appreciated. Accordingly, I set aside Ext.P4, with a direction to the 2[nd] respondent, the Revenue Divisional Officer to reconsider the application in Form 5 in accordance with law and take a decision in the matter on the basis of Ext.P6 KSRSEC report and other relevant factors mentioned in Rule 4(4F) and the observation of this Court and the binding precedents, within a period of two months from the date of receipt of a copy of this judgment. The petitioner shall **WP(C) NO. 40247 OF 2023 : 14 :** produce a copy of this writ petition along with the copy of the judgment before the RDO. The writ petition is disposed of with the above directions. **Sd/MURALI PURUSHOTHAMAN JUDGE** SB **WP(C) NO. 40247 OF 2023 : 15 :** ## **APPENDIX** ## **PETITIONER EXHIBITS** |**Exhibit P1**|**TRUE PHOTOCOPY OF THE REGISTERED**| |---|---| ||**SALE DEED NO. 788 OF 2013 OF SUB**| ||**REGISTRAR'S OFFICE, KALPETTA, WYNAD**| ||**DISTRICT DATED 27.02.2013**| |**Exhibit P2**|**TRUE PHOTOSTAT COPY OF THE LAND TAX**| ||**RECEIPT DATED 17.11.2023 ISSUED BY**| ||**THE VILLAGE OFFICER, MUTTIL NORTH**| |**Exhibit P3**|**TRUE PHOTOCOPY OF THE JUDGMENT OF**| ||**THE HONOURABLE HIGH COURT OF KERALA**| ||**IN WP(C) 19817 OF 2021 DATED**| ||**28/10/2021**| |**Exhibit P4**|**TRUE PHOTOCOPY OF THE ORDER OF THE**| ||**2ND RESPONDENT DATED 25/07/2022**| |**Exhibit P5**|**PHOTOGRAPHS OF THE PROPERTY OF THE**| ||**PETITIONER**| |**Exhibit P6**|**TRUE PHOTOCOPY OF THE REPORT OF THE**| ||**KERALA STATE REMOTE SENSING AND**| ||**ENVIRONMENT CENTRE DATED 13/03/2018**| |**Exhibit P7**|**TRUE PHOTOCOPY OF THE ORDER OF THE**| ||**2ND RESPONDENT DATED 12/07/2022**|