Lissy Poulose v. State of Kerala and Others

## **`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.5213 OF 2024 ``` ## **`PETITIONER:`** ``` LISSYPOULOSE, AGED 67 YEARS, W/O. LATE POULOSE, THELAPPILLIL HOUSE, PULIYANAM P.O., ANGAMALLY, ERNAKULAM DISTRICT, PIN - 683572 ``` ``` BY ADV MEREENA.J.JOSEPH ``` ## **`RESPONDENTS:`** - **`1 STATE OF KERALA, REPRESENTED BY THE SECRETARY,REVENUE DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM, PIN - 695001`** - **`2 THE LAND REVENUE COMMISSIONER, COMMISSIONERATE OF LAND REVENUE, PUBLIC OFFICE BUILDING, MUSEUM JUNCTION,THIRUVANANTHAPURAM, PIN - 695001`** - **`3 THE DISTRICT COLLECTOR, CIVIL STATION, KAKKANAD,ERNAKULAM, PIN - 682030`** - **`4 THE REVENUE DIVISIONAL OFFICER, OFFICE OF THE REVENUE DIVISIONAL OFFICER,FORTH KOCHI,ERNAKULAM, PIN - 682001`** - **`5 THE AGRICULTURAL OFFICER, KRISHIBHAVAN, MOOZHIKULAM, KURUMASSERRY P O., ALUVATALUK, ERNAKULAM DISTRICT, PIN - 683579`** - **`6 KERALA STATE REMOTE SENSING AND ENVIRONMENT CENTRE, REPRESENTED BY ITS DIRECTOR, VIKASBHAVAN, THIRUVANANTHAPURAM, PIN - 695033`** ``` BY SR.GP.SRI.E.G.GORDEN ``` ``` SRI.VISHNU S.CHEMPAZHANTHIYIL, SC, KSREC ``` ``` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 04.03.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` W.P.(C) No.5213 of 2024 2 ## **`JUDGMENT`** ``` Petitioner has approached this Court aggrieved by Ext.P8 order, whereby Form 5 application submitted by her has been rejected by the 4[th] respondent/Revenue Divisional Officer [RDO]. ``` ``` 2. Petitioner is the owner in possession of 18 Ares of land comprised in Sy.No.224/6 in Block No.4 of Parakkadavu Village, Aluva Taluk, Ernakulam District. ``` ``` 3. According to the petitioner, the aforesaid 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 (for brevity, ‘the Act, 2008’). However, the property is wrongly included in the Data Bank. The petitioner filed Ext.P6 application in Form 5 of ``` 3 W.P.(C) No.5213 of 2024 ``` Rule 4(d) of the Kerala Conservation of Paddy Land and Wetland Rules, 2008 [for brevity, ‘the Rules, 2008’] before the RDO to remove the said land from the Data Bank. The same has been rejected by the RDO vide Ext.P8 order on the ground that as per the report of the Kerala State Remote Sensing and Environment Centre [for short, ‘the KSRSEC’], the subject land is covered by vegetation and that the property is converted only after 2011. It is also stated that the property is waterlogged throughout the year. ``` ``` 4. The petitioner impugns Ext.P8 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 report ``` W.P.(C) No.5213 of 2024 4 ``` of the KSRSEC has been misinterpreted. ``` ``` 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, 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 ``` W.P.(C) No.5213 of 2024 5 ``` perusal of Ext.P8, it is evident that, without any independent assessment of the nature of the property as on the date of coming into force of the Act, 2008, the RDO has relied upon the report of the Agricultural Officer to refuse to remove the property from the Data Bank. The KSRSEC report has been misinterpreted and misread. ``` ``` 6. 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 as on the date of coming into force of the Act and also whether the land is suitable for paddy cultivation or not. In ``` W.P.(C) No.5213 of 2024 6 ``` Muraleedharan Nair v. Revenue Divisional Officer [2023 (4) KLT 270], this Court 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. In Aparna Sasi Menon v. Revenue ``` W.P.(C) No.5213 of 2024 7 ``` 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. ``` ``` 7. Further, it is trite law that, merely because the property is waterlogged, it cannot be termed as wetland or paddy land in contemplation of Act, 2008. 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 ``` W.P.(C) No.5213 of 2024 8 ``` 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 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." ``` ``` 8. In Sudheesh v.Revenue Divisional Officer, [2023 (2) KLT 386], this Court held as follows;. ``` W.P.(C) No.5213 of 2024 9 ``` "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." ``` ``` I find that there is total non application of mind on the part of the RDO in considering the Form 5 application of the petitioner and in passing the impugned order. ``` ``` Accordingly, I set aside Ext.P8 with a ``` W.P.(C) No.5213 of 2024 10 ``` direction to the RDO to reconsider Ext.P6 application of the petitioner in Form No.5 and take a decision in the matter on the basis of Ext.P7 KSRSEC report 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. Petitioner shall produce a copy of this judgment, along with a copy of the writ petition, before the 4[th]respondent for due compliance. ``` ``` The writ petition is disposed of with the above direction. ``` ``` Sd/- ``` ``` MURALI PURUSHOTHAMAN JUDGE ``` ``` sp/04/03/2024 ``` 11 W.P.(C) No.5213 of 2024 ## **`APPENDIX`** ## **`PETITIONER'S EXHIBITS:-`** ## **`Exhibit-P1`** ``` TRUE COPY OF THE GIFT DEED IN RESPECT OF PROPERTY COVERED BYRE-SY.NO:224/6,OF PARAKKADAVU VILLAGECOVERED BY DOCUMENT NO. 1269/1994 OFSUB REGISTRY OFFICE CHENGAMANADDATED 25/3/1990 IN FAVOUR OF POULOSEIS ``` ``` Exhibit-P2 ``` - **`THE TRUE COPY OF THE LAND TAX RECEIPT IN RESPECT OF THE PETITIONER'S PROPERTY COVERED BYRE-SY.NO:224/6,OF PARAKKADAVU VILLAGEDATED 13/12/2021`** - **`Exhibit-P3`** - **`TRUE COPY OF THE PHOTOGRAPHS OF THE PROPERTY OF THE PETITIONER`** - **`Exhibit-P4`** - **`TRUE COPY OF THE CERTIFICATE ISSUED BY THE AGRICULTURAL OFFICER, KRISHIBHAVAN, PARAKKADAVUDATED 1/1/2013`** - **`Exhibit-P5`** - **`TRUE COPY OF THE ORDER ALLOWING THE FORM 6 APPLICATION IN RESPECT OF PROPERTY COVERED BY SY. NO. 224/9-3 OF PARAKADAV VILLAGE DATED 8/11/2021`** - **`Exhibit-P6 TRUE COPY OF THE FORM 5 APPLICATION SUBMITTED BY THE PETITIONER BEFORE THE 4TH RESPONDENT DATED 17/12/2021`** - **`Exhibit-P7`** ``` THE TRUE COPY OF THE COMMUNICATION NO:A/172/2015/KSREC/003515/23DATED 8/3/2023 ISSUED BY THE DIRECTOR, KERALA STATE REMOTE SENSING AND ENVIRONMENT CENTRE, THIRUVANANTHAPURAM ``` W.P.(C) No.5213 of 2024 12 ## **`Exhibit-P8`** ``` TRUE COPY OF THE ORDER REJECTING THE FORM 5 APPLICATION SUBMITTED BY THE PETITIONER BEFORE THE 4TH RESPONDENT DATED 10/8/2023 ```