Kumari.K v. State of Kerala and 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.7333 OF 2024 ``` ## **`PETITIONER:`** ``` KUMARI.K, AGED 42 YEARS D/O.KARUPPASWAMI, NADUVUKKATTUPALAYAM C.N PURAM POST, PALAKKAD, PIN - 678005 ``` ``` BY ADV L.RAJESH NARAYAN ``` ## **`RESPONDENTS:`** - **`1 STATE OF KERALA REP BY SECRETARY & AGRICULTURAL PRODUCTION COMMISSIONER DEPARTMENT OF AGRICULTURE, SECRETARIAT, THIRUVANANTHAPURAM, PIN - 695001`** - **`2 DISTRICT COLLECTOR COLLECTORATE KENATHUPARAMBU, KUNATHURMEDU, PALAKKAD, KERALA, PIN - 678013`** - **`3 REVENUE DIVISIONAL OFFICER, PARAKKUNNAM, VIDYUT NAGAR, PALAKKAD, KERALA, PIN - 678001`** - **`4 THE AGRICULTURAL OFFICER MARUTHARODE PALAKKAD, PIN - 678007`** - **`5 THE LOCAL LEVEL MONITORING COMMITTEE CONSTITUTED UNDER THE CONSERVATION OF PADDY AND WETLAND ACT MARUTHARODE PANCHAYATH REPRESENTED BY THE CONVENOR AGRICULTURAL OFFICER, MARUTHARODE, PALAKKAD, PIN - 678007`** ``` BY SMT.AMMINIKUTTY-SR.GP ``` ``` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 12.03.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` W.P.(C) No.7333 of 2024 2 ## **`JUDGMENT`** ``` Petitioner has approached this Court aggrieved by Ext.P6 order whereby Form 5 application submitted by her has been rejected by the 3[rd] respondent/Revenue Divisional Officer [RDO]. ``` ``` 2. Petitioner is the owner in possession of an extent of 0.0142 Hectares of land comprised in Re- Sy.No.225/-9 in Block No.38 of Marutharode Village, Palakkad Taluk, Palakkad District. ``` ``` 3. According to the petitioner, the said property will not come within the definition of paddy land or wetland. However, it has been wrongly included in the Data Bank prepared under the Kerala Conservation of Paddy Land and Wetland Rules, 2008 as ‘nilam’. The petitioner, therefore, filed an application in Form 5 under the provisions of the Kerala Conservation of Paddy ``` W.P.(C) No.7333 of 2024 3 ``` Land and Wetland Act, 2008 [for brevity, ‘the Act,2008’]to remove the said property from the Data Bank. The RDO, by Ext.P6 order, rejected the application stating that as per the report of the Agricultural Officer, the subject land is lying fallow near padasekharam and if it is converted, that will adversely affect the nearby padasekharam and therefore, the Local Level Monitoring Committee [LLMC] has recommended not to remove the land from the Data Bank. ``` ``` 4. The petitioner impugns Ext.P6 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 ``` W.P.(C) No.7333 of 2024 4 ``` 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 wetland 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.P6, 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 and recommendation of the LLMC to refuse to remove the property from the Data Bank. ``` ``` 6. This Court, inMuraleedharan Nair v. Revenue Divisional Officer [2023 (4) KLT 270], has held that when the petitioner seeks removal of his ``` W.P.(C) No.7333 of 2024 5 ``` 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. ``` ``` 7. This Court has 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 ``` W.P.(C) No.7333 of 2024 6 ``` application for removal of a property from the Data Bank, consider the question whether the land was a paddy land as on the date of coming into force of the Act and also whether the land is suitable for paddy cultivation or not. 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 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 ``` W.P.(C) No.7333 of 2024 7 ``` suitable for cultivation and may come outside the definition of paddy land. ``` ``` 8. InMather Nagar Residents Association and Another v. District Collector, Ernakulam and 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,itshouldhavethe characteristic features and requirement as is provided under the Act, 2008. It is clear from the report submitted by the Sub Collector before the Apex Court as well as report of KSREC, 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 ``` W.P.(C) No.7333 of 2024 8 ``` report submitted by the KSREC 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 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 ``` W.P.(C) No.7333 of 2024 9 ``` treated as paddy land coming under the definition of S.2(xii) of the Act, 2008." ``` ``` 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.P6 order cannot be sustained and I set aside the same, with a direction to the 3[rd] respondent, the RDO, 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 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 ``` W.P.(C) No.7333 of 2024 10 ``` copy of this judgment. The petitioner shall produce a copy of the writ petition along with a copy of the judgment before the 3[rd] respondent for due compliance. ``` ``` The writ petition is disposed of with the above directions. ``` ``` Sd/- ``` ``` MURALI PURUSHOTHAMAN JUDGE ``` ``` sp/12/03/2024 ``` W.P.(C) No.7333 of 2024 11 ## **`APPENDIX`** ## **`PETITIONER'S EXHIBITS:-`** ``` Exhibit 1TTRUE COPY OF THE SALE DEED NO. 2990/2016 DATED 2.6.2016 OF SRO, PALAKKAD Exhibit P2TRUE COPY OF THE BASIC TAX RECEIPT DATED 20.10.20 ISSUED BY THE VILLAGE OFFICER, MARUTHARODE ``` ``` Exhibit P3TRUE COPY OF THE POSSESSION CERTIFICATE DATED 24.7.2020 ISSUED FROM THE MARUTHARODE VILLAGE OFFICE ``` ``` Exhibit P4TRUE COPY OF THE LOCATION CERTIFICATE DATED31.8.2020ISSUEDBYTHE MARUTHARODE VILLAGE OFFICE Exhibit P5TRUE COPY OF THE TOPO SKETCH WITH RESPECT TO THE PROPERTY OF THE PETITIONER Exhibit P6TRUE COPY OF THE ORDER DATED 23.7.2022 NO.RDOPKD/4033/2022-J3 OF THE 3RD RESPONDENT ```