Leelamma Subash v. The District Collector, Collectorate, Kakkanad, Ernakulam District & The Revenue Divisional Officer, Fort Kochi, Ernakulam

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE MURALI PURUSHOTHAMAN** **THURSDAY, THE 7[TH] DAY OF MARCH 2024 / 17TH PHALGUNA, 1945** **WP(C) NO. 36634 OF 2023** ## **PETITIONER:** **LEELAMMA SUBASH, AGED 72 YEARS W/O SUBASH GEORGE., ALAKALATHIL HOUSE, EDAPPALLY P.O, ERNAKULAM DISTRICT., PIN - 682024** **BY ADVS. SUBHASH CYRIAC SHEEBA JOSEPH ASHA JYOTHY** ## **RESPONDENTS:** **1 THE DISTRICT COLLECTOR COLLECTORATE,KAKKANADERNAKULAM., PIN - 682030** **2 THE REVENUE DIVISIONAL OFFICER FORT KOCHI.P.O, ERNAKULAM, PIN – 682001 R BY GP SMT.DEVISHRI.** ## **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON** **07.03.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C) NO. 36634 OF 2023 : 2 :** ## **JUDGMENT** The petitioner has approached this Court aggrieved by Ext.P3 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 20.23 Ares of land comprised in Sy.No.45/1 (old sy.no. 205) of Nadama Village, Kanayannur Taluk, Ernakulam 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). **WP(C) NO. 36634 OF 2023 : 3 :** 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 Ext.P1 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. The same has been rejected by the Revenue Divisional Officer vide Ext.P3 stating that the Agricultural Officer has reported that the LLMC has recommended not to remove the subject land from the Data Bank. The petitioner states that Ext.P3 order has been passed in total disregard to the directions of this Court in Ext.P2 judgment, wherein, it was held as follows: “4. Accordingly, it is ordered that the **WP(C) NO. 36634 OF 2023 : 4 :** 2[nd] respondent Agricultural Officer will ensure that the petitioners are permitted to pay the prescribed fee for obtaining satellite pictures and expert report of the Kerala State Remote Sensing and Environment Centre (KSREC), Thiruvananthapuram, and then should send the requisition to the said expert body for obtaining satellite pictures and expert opinion regarding the subject property as to whether the property would fulfill the definition of paddy land as per Section 2(xii) of the Kerala Conservation of Paddy Land and Wet Land Act, 2008, as on 12.8.2008 (the date of coming into force of the Kerala Conservation of Paddy Land and Wet Land Act,2008). This process should be duly completed by the 2[nd] respondent Agricultural Officer within two months from the date of receipt of a certified copy of this judgment. While forwarding the requisition a copy of this judgment should also be forwarded by the 2[nd] respondent Agricultural Officer to the **WP(C) NO. 36634 OF 2023 : 5 :** ## Director of KSREC. 5. After receipt of the requisition, the KSREC will ensure that satellite pictures and expert opinion in the matter are obtained in respect of the subject property within two months from the date of receipt of the requisition. Thereafter the 2[nd] respondent will ensure that copy of the satellite pictures as well as the expert report of the KSREC are given to the petitioners in advance and thereafter, the 2[nd] respondent will conduct an inspection with due prior notice to the petitioners, and should give a comprehensive report to the 1[st] respondent Revenue Divisional Officer as to the nature and lie of the property, and also as to whether the property would fulfill the definition of paddy land as per Section 2(xii) of the Kerala Conservation of Paddy Land Act, 2008, as on 12.08.2008, and should also deal with the satellite pictures and expert report given by the KSREC. The process of inspection report and submission of **WP(C) NO. 36634 OF 2023 : 6 :** inspection report to the 1[st] respondent Revenue Divisional Officer shall be duly completed by the 2[nd] respondent Agricultural Officer, within one month from the date of receipt of the expert report and satellite pictures from the KSREC. It shall be ensured by the 2[nd] respondent Agricultural Officer that a copy of said inspection report is also given to the petitioner in advance. Ext.P-1 as well as the inspection report of the KSREC and the satellite pictures should be duly forwarded by the 2[nd] respondent Agricultural Officer to the 1[st] respondent Revenue Divisional Officer. 6. After receipt of the above said documents from the 2[nd] respondent Agricultural Officer, the 1[st] respondent Revenue Divisional Officer will, thereafter afford reasonable opportunity of being heard to the petitioners through authorised representative/counsel if any, and after considering various aspects of the matter, more particularly the **WP(C) NO. 36634 OF 2023 : 7 :** inspection report as well as the expert opinion and satellite pictures furnished by the KSREC, should pass orders on Ext.P-1 application on the plea made by the petitioners for exclusion of the subject property from the land data bank without much delay, preferably within a period of one month from the date of the receipt of the papers from the 2[nd] respondent Agricultural Officer, as afore directed”. 4. The petitioner impugns 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. 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, **WP(C) NO. 36634 OF 2023 : 8 :** 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 Scientific Technological institutions and pass appropriate orders on the application. On a perusal of Ext.P3, 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 the recommendation of the LLMC to refuse to remove **WP(C) NO. 36634 OF 2023 : 9 :** the property from the Data Bank. 6. This Court has held 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 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. **WP(C) NO. 36634 OF 2023 : 10 :** 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. Further, 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. **WP(C) NO. 36634 OF 2023 : 11 :** 8. 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. 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.P3. Further, Ext.P3 has been passed in total disregard to the direction of this Court in Ext.P2 judgment. Accordingly, I set aside Ext.P3, with a direction to the 2[nd] respondent, the Revenue Divisional Officer to reconsider the Form 5 application in accordance with law and take a decision after considering the **WP(C) NO. 36634 OF 2023 : 12 :** KSRSEC report to be obtained at the expense of the petitioner and other relevant factors mentioned in Rule 4(4F), 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 petitioner shall produce a copy of this writ petition along with the copy of the judgment before the RDO. The writ petition is disposed of. **Sd/MURALI PURUSHOTHAMAN JUDGE** SB **WP(C) NO. 36634 OF 2023 : 13 :** ## **APPENDIX** ## **PETITIONER EXHIBITS** |**Exhibit P1**|**A TRUE COPY OF THE APPLICATION DATED**| |---|---| ||**27-02-2020 (SUBMITTED ON 28-02-**| ||**2020)SUBMITTED**<br>**BEFORE**<br>**THE**<br>**2ND**| ||**RESPONDENT ALONG WITH SEAL.**| |**Exhibit P2**|**A TRUE COPY OF THE JUDGMENT DATED 14-**| ||**07-2020 IN WP( C) NO. 13703/2020 OF**| ||**THIS HON'BLE COURT.**| |**Exhibit P3**|**A TRUE COPY OF THE ORDER DATED 26-09-**| ||**2023 OF THE 2ND RESPONDENT.**|