KURIAKOSE v. STATE OF KERALA and OTHERS

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR.JUSTICE MURALI PURUSHOTHAMAN`** ## **`WEDNESDAY, THE 24[TH] DAY OF JANUARY 2024 / 4TH MAGHA, 1945`** ## **`WP(C) NO. 2825 OF 2024`** ## **`PETITIONER:`** ``` KURIAKOSE, AGED 55 YEARS S/O. MATHAI, NANCHIRA, KADAMATTAM P.O.,ERNAKULAM DISTRICT, PIN - 682311 ``` ``` BY ADVS. SHERRY J. THOMAS JOEMON ANTONY ANTONY NILTON REMELO ``` ## **`RESPONDENTS:`** - `1 THE STATE OF KERALA, REPRESENTED BY THE SECRETARY, REVENUE DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM, PIN - 695001` - `2 THE DISTRICT COLLECTOR, COLLECTORATE, CIVIL STATION, KAKKANAD, ERNAKULAM DISTRICT, KERALA, PIN - 682030` - `3 THE REVENUE DIVISIONAL OFFICER, REVENUE DIVISIONAL OFFICE, GROUND FLOOR, PATTIMATTAM - MUVATTUPUZHA ROAD, MOOVATUPUZHA, KERALA, PIN - 686673` - `4 THE THAHSILDAR (LR) TALUK OFFICE KUNNATHUNADU, POOPPANI ROAD, PERUMBAVOOR, KERALA, PIN - 683543` - `5 THE AGRICULTURAL OFFICER, AIKARANADU KRISHIBAVAN, AIKARANAD, KUNNATHUNADU, KERALA, PIN - 693007` - `6 THE VILLAGE OFFICER, AIKARANAD NORTH VILLAGE OFFICE, KADAYIRIPPU, AIKARANAD NORTH, KERALA, PIN - 682311` - `7 THE LOCAL LEVEL MONITORING COMMITTEE, REPRESENTED BY ITS CONVENOR` - `AGRICULTURAL OFFICER, AIKARANADU KRISHIBAVAN, AIKARANAD, KUNNATHUNADU, KERALA, PIN - 693007` ## **`OTHER PRESENT:`** W.P.(c) No. 2825 of 2024 2 ## `SR.GP.SMT.K.AMMINIKUTTY` ``` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 24.01.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` W.P.(c) No. 2825 of 2024 3 ## **J UDGMENT** The petitioner has approached this Court aggrieved by Ext.P3 whereby Form-5 application submitted by him has been rejected by the Revenue Divisional Officer. 2. The petitioner is the owner in possession of 69.60 ares of property comprised in Sy. No. 303/6 in Block No. 47 in Aikaranad North Village in Kunnathunadu Taluk. 3. According to the petitioner, the aforesaid property is converted prior to 2008 and is a rubber plantation and will not come within the ambit of paddy land or wetland as defined under Kerala Conservation of Paddy Land and Wetland Act, 2008 (hereinafter referred to as ‘Act, 2008’). The petitioner filed Ext. P1 application in Form-5 of Rule 4(d) of the Kerala Conservation of Paddy Land and Wetland Rules, 2008 before the Revenue Divisional Officer to remove the said land from the Data Bank. The same has been rejected by the Revenue Divisional Officer vide Ext. P3 stating that on inspecting the land, it is seen lying three meters lower than the adjacent land and there are chances of water logging during rainy W.P.(c) No. 2825 of 2024 4 season. It is also stated there are two rubber trees in the property. The petitioner refers to Ext. P2 Local Level Monitoring Committee report wherein it is stated that there are tapping rubber trees in the property and there are no paddy field around the property. The petitioner has filed this writ petition challenging Ext. P3 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 low lying of land is not a ground to reject Form-5 application of the petitioner. 4. 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 be termed as wetland or paddy land in contemplation of Act, 2008. In **Mather 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,_ W.P.(c) No. 2825 of 2024 5 _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 KSREC, the nodal agency of State Government, that the properties in question is 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 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”_ 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. 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 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 **Muraleedharan Nair v. Revenue Divisional Officer [2023 (4) KLT 270],** has held that the Revenue Divisional Officer W.P.(c) No. 2825 of 2024 6 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. In **Aparna Sasi Menon v. Revenue Divisional Officer [2023 (6) KHC 83],** this Court 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. 6. Ext. P3 order has been passed without application of mind and without adherence to the categorical declarations by this Court in the decisions cited above. Accordingly, I find that Ext. P3 order cannot be sustained and I set aside the same, with a direction to the 3[rd] respondent, the Revenue Divisional Officer to reconsider Ext. P1 application in accordance with law and take a decision in W.P.(c) No. 2825 of 2024 **==> picture [8 x 10] intentionally omitted <==** 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 copy of this judgment. The writ petition is disposed of with the above directions. **Sd/-** bnu **MURALI PURUSHOTHAMAN JUDGE** W.P.(c) No. 2825 of 2024 8 ## **`APPENDIX`** ``` PETITIONER’S EXHIBITS Exhibit P1THE TRUE COPY OF THE FORM 5 APPLICATION DATED 28-04-2022. Exhibit P 2THE TRUE COPY OF THE LLMC REPORT DATED 23-02-2023 Exhibit P 3THE TRUE COPY OF THE REJECTION REPORT DATED 24-08-2023 ```