M. Latha v. Revenue Divisional Officer, Palakkad and Agricultural Officer and Village Officer

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** # **`PRESENT`** ## **`THE HONOURABLE MR.JUSTICE MURALI PURUSHOTHAMAN`** ``` MONDAY, THE 18[TH] DAY OF MARCH 2024 / 28TH PHALGUNA, 1945 WP(C) NO.10678 OF 2024 ``` ## **`PETITIONER:`** ``` M.LATHA, AGED 43 YEARS W/O. SASIKUMAR, SREEKRISHNA NIVAS, ANDIMADOM, KADUKKAMKUNNAM P.O., AKATHETHARA VILLAGE, PALAKKAD ., PIN - 678651 ``` ``` BY ADV K.P.BALAGOPAL ``` ## **`RESPONDENTS:`** - **`1 REVENUE DIVISIONAL OFFICER, REVENUE DIVISIONAL OFFICE, PALAKKAD, PIN - 678001`** - **`2 THE AGRICULTURAL OFFICER, KRISHI BHAVAN, AKATHETHARA, PALAKKAD, PIN - 678008`** - **`3 THE VILLAGE OFFICER, AKATHETHARA VILLAGE OFFICE, AKATHETHARA P.O., PALAKKAD, PIN - 678008`** ## **`BY SMT.R.DEVISREE, GP`** ``` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 18.03.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` W.P.(C) No.10678 of 2024 2 ## **`JUDGMENT`** ``` Petitioner has approached this Court aggrieved by Ext.P2 order whereby Form 5 application submitted by her has been rejected by the 1[st] respondent/Revenue Divisional Officer [RDO]. ``` ``` 2. Petitioner is the owner in possession of an extent of 0.0231 Hectares of land comprised in Re.Sy.No.554/15 in Block No.24 of Akathethara 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 Kerala Conservation of Paddy Land and ``` W.P.(C) No.10678 of 2024 3 ``` Wetland Rules, 2008 [for brevity, ‘the Rules, 2008’] as paddy land. The petitioner, therefore, filed an application in Form 5 under the provisions of the Kerala Conservation of Paddy Land and Wetland Act, 2008 [for brevity, ‘the Act,2008’] to remove the said property from the Data Bank. The RDO, by Ext.P2 order, rejected the application stating that the Agricultural Officer has reported that the subject land is not converted prior to 2008 and is lying fallow and suitable for paddy cultivation and the conversion of the same will affect the flow of water and the cultivation in the nearby area and need not be removed from the Data Bank. ``` ``` 4.ThepetitionerimpugnsExt.P2 ``` 4 W.P.(C) No.10678 of 2024 ``` 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 short, ‘the KSRSEC’] to ascertain the status of the land as on 12.08.2028, 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. Rule 4(4E) of the Rules, 2008 provides that, on receipt of the application in Form 5, the RDO shall call ``` W.P.(C) No.10678 of 2024 5 ``` 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 preparedbyCentral/StateScientific Technological Institutions and pass appropriate orders on the application. On a perusal of Ext.P2, 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 solely upon the report of the Agricultural Officer to refuse to remove the property from the Data ``` W.P.(C) No.10678 of 2024 6 ``` Bank. ``` ``` 6. This Court, inMuraleedharan 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. 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 ``` W.P.(C) No.10678 of 2024 7 ``` in the absence of such findings, the impugned order is unsustainable. ``` ``` 7. 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. InAparna Sasi Menon v. RDO, Irinjalakuda [2023 (6) KHC 83], this Court held that existence of neerchals in a property should never be a prime consideration in deciding whether the land is to be retained in Data Bank. Instead, the prime consideration should be whether paddy cultivation is possible in the property in question. ``` ``` 8. InMather Nagar Residents Association and Another v. District Collector, Ernakulam ``` W.P.(C) No.10678 of 2024 8 ## _**`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 characteristicfeaturesand 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 report submitted by the KSREC is not disputed by the Residents Association. Merely because ``` W.P.(C) No.10678 of 2024 9 ``` 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. InAdani 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 suitable for cultivation and may come outside the definition of paddy land. ``` W.P.(C) No.10678 of 2024 10 ``` 10. InSudheesh v.Revenue Divisional Officer, [2023 (2) KLT 386], this Court has held that just for the reason that the property is left fallow, the land cannot be brought within the definition of paddy land. This Court observed 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 treated as paddy ``` W.P.(C) No.10678 of 2024 11 ``` 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, solely relying on the report of the Agricultural Officer, who recommended not to remove the land from the Data Bank. Accordingly, I find that Ext.P2 order cannot be sustained and I set aside the same with a direction to the 1[st]respondent/RDO to reconsider the application of the petitioner in Form 5, in accordance with law, and take a decision in the matter after obtaining the KSRSEC report at the expense of the petitioner, within a period of two months from the date of ``` W.P.(C) No.10678 of 2024 12 ``` 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 the writ petition along with a copy of the judgment before the 1[st] respondent for due compliance. ``` ``` The writ petition is disposed of with the above directions. ``` ``` Sd/- ``` ``` MURALI PURUSHOTHAMAN JUDGE ``` ``` sp/19/03/2024 ``` W.P.(C) No.10678 of 2024 13 ## **`APPENDIX`** ## **`PETITIONER'S EXHIBITS:-`** ``` Exhibit P1 ``` ``` TRUE COPY OF THE JENMOM ASSIGNMENT DEED NO.3126/2012 OF SUB-REGISTRAR'S OFFICE, OLAVAKKODE ``` ``` Exhibit P2 ``` ``` TRUE COPY OF THE ORDER IN PROCEEDINGS NO.8708/2023 DATED 18-12-2023 OF THE 1ST RESPONDENT ```