Marykutty Joseph v. Revenue Divisional Officer / Sub Collector, Agricultural Field Officer, Village Officer

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE MURALI PURUSHOTHAMAN** **WEDNESDAY, THE 6[TH] DAY OF MARCH 2024 / 16TH PHALGUNA, 1945** **WP(C) NO. 7335 OF 2024** ## **PETITIONER:** **MARYKUTTY JOSEPH, AGED 70 YEARS W/O JOY JOHN NO. 5 , BISHOP NAGAR, KALAMASSERY NORTH P.O, ERNAKULAM DISTRICT - 683104** **BY ADVS. P.K.SOYUZ E.V.BABYCHAN** ## **RESPONDENTS:** |**1**|**THE REVENUE DIVISIONAL OFFICER/SUB COLLECTOR**| |---|---| ||**RDO OFFICE, FORT KOCHI P.O ERNAKULAM - 682001**| |**2**|**AGRICULTURAL FIELD OFFICER**| ||**KRISHI BHAVAN MINI CIVIL STATION,**| ||**THRIPUNITHURA ERNAKULAM DISTRICT., PIN - 682301**| |**3**|**THE VILLAGE OFFICER**| ||**NADAMA VILLAGE, KANAYANOORTALUK**| ||**ERNAKULAM DISTRICT., PIN - 682301**| ## **OTHER PRESENT:** **SMT.R.DEVI SHRI, GP** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON** **06.03.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C) NO. 7335 OF 2024 : 2 :** ## **JUDGMENT** The petitioner has approached this Court aggrieved by Ext.P7 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 4.69 Ares of land (11.58 cents) comprised in Re.Sy.Nos.53, 55 and 56 (Old Sy.Nos. 52/1 and 52/3) of Block No.28 of Nadama Village, Kanayannoor 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 **WP(C) NO. 7335 OF 2024 : 3 :** referred to as 'the Act, 2008' for short). 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) as paddy land. The petitioner states that as per Ext.P8 KSRSEC report, the land is indicated as fallow land with exposed soil and boundary walls in the side of the plot in 2008 data. The petitioner states that the land is surrounded by road on three sides and the property is converted prior to 2008. The petitioner therefore filed Ext.P6 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.P7 stating that the Agricultural Officer has reported that **WP(C) NO. 7335 OF 2024 : 4 :** on inspection by LLMC, the subject land was found to be paddy land and the LLMC has recommended not to remove the land from the Data Bank. 4. The petitioner impugns Ext.P7 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 Ext.P8 KSRSEC report was ignored and not considered. 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 **WP(C) NO. 7335 OF 2024 : 5 :** 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 institutions and Technological pass appropriate orders on the application. On a perusal of Ext.P7, 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 to refuse to remove 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, **WP(C) NO. 7335 OF 2024 : 6 :** 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. 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 **WP(C) NO. 7335 OF 2024 : 7 :** 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. 8. In **Adani Infrastructures & Developers Pvt. Ltd, Mumbai & Others Vs. State of Kerala & Others** [2014 (1) KHC 685], this Court has held that if the land suitable for paddy cultivation is **WP(C) NO. 7335 OF 2024 : 8 :** 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, 2008, such land cannot be said as suitable for cultivation and may come outside the definition of paddy land. 9. In **Mather Nagar Residents Association and Another v. District Collector, Ernakulam 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, it should have the characteristic features and requirement as is provided under Act, 2008. It is clear from the report **WP(C) NO. 7335 OF 2024 : 9 :** 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.” 10. In spite of the categorical declarations by this Court in the decisions cited above, the petitioner's **WP(C) NO. 7335 OF 2024 : 10 :** 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.P7. Accordingly, I set aside Ext.P7, with a direction to the 1[st] respondent, the Revenue Divisional Officer to reconsider Ext.P6 application in Form 5 and take a decision in the matter on the basis of Ext.P8 KSRSEC report, the observation of this Court, the binding precedents and other relevant factors mentioned in Rule 4(4F), within a period of two months from the date of receipt of a copy of this judgment. The petitioner shall produce a copy of this **WP(C) NO. 7335 OF 2024 : 11 :** 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. 7335 OF 2024 : 12 :** ## **APPENDIX** ## **PETITIONER EXHIBITS** |**Exhibit P1**|**A TRUE COPY OF THE NO. DDIS - S7 -**| |---|---| ||**17552/15, S7 - 2714/16 DATED**| ||**21.10.2021 OF THE TAHSILDAR (LR)**| ||**KANAYANNOOR**| |**Exhibit P2**|**A TRUE COPY OF THE LAND TAX RECEIPT**| ||**DATED 14.12.2023 ISSUED BY THE 3 RD**| ||**RESPONDENT VILLAGE OFFICER**| |**Exhibit P3**|**A TRUE COPY OF THE RELEVANT PAGE OF**| ||**DRAFT DATA BANK**| |**Exhibit P4**|**A TRUE COPY OF THE LETTER SENT BY**| ||**THE 2 ND RESPONDENT AGRICULTURAL**| ||**OFFICER TO THE DIRECTOR, KSREC**| ||**DATED 01.02.2019**| |**Exhibit P5**|**A TRUE COPY OF THE RELEVANT PAGES**| ||**OF THE NOTIFIED DATA BANK OF**| ||**THRIPUNITHURA MUNICIPALITY DATED**| ||**10.02.2021**| |**Exhibit P6**|**A TRUE COPY OF THE APPLICATION**| ||**DATED 24.12.2021 SUBMITTED BY THE**| ||**PETITIONER BEFORE THE 1 ST**| ||**RESPONDENT IN FORM NO. 5**| |**Exhibit P7**|**A TRUE COPY OF THE ORDER NO. NO.**| ||**K11/12464/2022 DATED 02.03.2023 OF**| ||**THE 1 ST RESPONDENT**| |**Exhibit P8**|**A TRUE COPY OF THE REPORT NO. A-**| ||**172/2015/KSREC/004476/004477/19 OF**| ||**THE KSREC DATED NIL**| |**Exhibit P9**|**A TRUE PHOTOGRAPH OF THE PROPERTY**| **WP(C) NO. 7335 OF 2024 : 13 :** ## **OWNED BY THE PETITIONER** ## **Exhibit P10** **A TRUE COPY OF THE CERTIFICATE ISSUED BY THE 2 ND RESPONDENT TO MR. T JAMES & ANNIE JAMES DATED 22.09.2018**