N. M. Ajith & Geetha P v. District Collector, Kozhikode & Others

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** # **`PRESENT`** ## **`THE HONOURABLE MR.JUSTICE MURALI PURUSHOTHAMAN`** ``` FRIDAY, THE 16[TH] DAY OF FEBRUARY 2024 / 27TH MAGHA, 1945 WP(C) NO.6088 OF 2024 ``` ## **`PETITIONERS:`** - **`1 N.M AJITH, AGED 55 YEARS S/O.PERAVAKKUTTY, MEYANAMEETHAL HOUSE, KOTTOOLI, KOZHIKODE DISTRICT, PIN - 673016`** - **`2 GEETHA. P, AGED 50 YEARS W/O.N.M AJITH, MEYANAMEETHAL HOUSE, KOTTOOLI, KOZHIKODE DISTRICT, PIN - 673016`** ``` BY ADV.BINIYAMIN K.S. ``` ## **`RESPONDENTS:`** - **`1 THE DISTRICT COLLECTOR CIVIL STATION KOZHIKODE, WAYANAD ROAD, ERANHIPPALAM, KOZHIKODE DISTRICT, PIN - 673020`** - **`2 THE REVENUE DIVISIONAL OFFICER KOZHIKODE REVENUE DIVISIONAL OFFICE, CIVIL STATION KOZHIKODE, WAYANAD ROAD, ERANHIPPALAM, KOZHIKODE DISTRICT, PIN - 673020`** - **`3 THE TAHSILDAR, KOZHIKODE TALUK OFFICE, CIVIL STATION KOZHIKODE, WAYANAD ROAD, ERANHIPPALAM, KOZHIKODE DISTRICT, PIN - 673020`** - **`4 THE VILLAGE OFFICER, KOTTOOLI VILLAGE OFFICE, KUTHIRAVATTOM, KOZHIKODE DISTRICT, PIN - 673016`** - **`5 THE AGRICULTURAL OFFICER, PUTHIYARA KRISHI BHAVAN, PUTHIYARA, KOZHIKODE DISTRICT, PIN - 673004 SMT.R.DEVI SHRI, GP`** ``` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 16.02.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` W.P.(C) No.6088 of 2024 2 ## **`JUDGMENT`** ``` Petitioners have approached this Court aggrieved by Ext.P5 order whereby Form 5 application submitted by them has been rejected by the 2[nd]respondent/Revenue Divisional Officer [RDO]. ``` ``` 2. Petitioners are the owners in possession of an extent of 1 Are 214 Sq.Meters of land comprised in Sy.No.58/71 in Kottooli Village, Kozhikode Taluk, Kozhikode District. ``` ``` 3. According to the petitioners, 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 the Kerala Conservation of Paddy Land and Wetland Rules, 2008. The petitioners, therefore, filed an application in Form 5 under the provisions of the ``` W.P.(C) No.6088 of 2024 3 ``` 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.P5 order, rejected the application on the ground that the Village Officer has reported that there are two coconut trees in the property which are 20 years old and the land is seen waterlogged and cannot be removed from the Data Bank and on perusing the report of the Village Officer, the report of the Kerala State Remote Sensing and Environment Centre [for short, ‘the KSRSEC’] and other documents, the land has to be retained in the Data Bank. ``` ``` 4. The petitioners impugn Ext.P5 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 ``` W.P.(C) No.6088 of 2024 4 ``` this Court. It is also contended that the KSRSEC report which shows as per 2007 data the land is observed as mixed vegetation/plantation was misread. ``` ``` 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. On a perusal of Ext.P5, 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 RDO has relied solely upon the report of the Village Officer to refuse to remove the property from the Data Bank. ``` ``` 6. This Court, inMuraleedharan Nair v. Revenue Divisional Officer [2023 (4) KLT 270], has held that when the petitioner seeks removal of his ``` W.P.(C) No.6088 of 2024 5 ``` land from the Data Bank, it will not be sufficient for the Revenue Divisional Officer to dismiss the application simply stating that the Village Officer has reported 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. ``` ``` 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 ``` W.P.(C) No.6088 of 2024 6 ``` 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 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 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 the property is lying fallow and water gets logged during rainy ``` W.P.(C) No.6088 of 2024 7 ``` 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 Aparna Sasi 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. ``` ``` 9. In Sudheesh v. Revenue Divisional Officer, [2023 (2) KLT 386], this Court held 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 ``` W.P.(C) No.6088 of 2024 8 ``` 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." ``` ``` In spite of the categorical declarations by this Court in the decisions cited above, the petitioners’ application has been rejected solely relying on the report of the Village Officer who recommended not to remove the land from the Data Bank. The KSRSEC report is not properly appreciated. I find that there is total non application of mind on the part of the RDO in passing Ext.P5 order. Accordingly, Ext.P5 order cannot be sustained and I set aside the same, with a direction to the 2[nd] respondent/RDO to reconsider ``` W.P.(C) No.6088 of 2024 9 ``` the application of the petitioners in Form No.5 in accordance with law and take a decision in the matter on the basis of Ext.P4 KSRSEC report within a period of two months from the date of a copy of this judgment. The petitioners shall produce a copy of this writ petition, along with a copy of the judgment, before the 2[nd] respondent/RDO for due compliance. ``` ``` The writ petition is disposed of with the above directions. ``` ``` Sd/- ``` ``` MURALI PURUSHOTHAMAN JUDGE ``` ``` sp/17/02/2024 ``` W.P.(C) No.6088 of 2024 10 ## **`APPENDIX`** ## **`PETITIONER'S EXHIBITS:-`** ``` Exhibit-P1 ``` ``` TRUE COPY OF THE TAX RECEIPT BEARING NO. KL11012400101/2024 FOR THE PERIOD OF 2023-2024 DATED 08-01-2024 ``` ``` Exhibit-P2 ``` ``` TRUE COPY OF THE RELEVANT EXTRACT OF THE DRAFT DATA BANK ``` ``` Exhibit-P3TRUE COPY OF REPORT SUBMITTED BY THE 4THRESPONDENTBEFORETHE2ND RESPONDENT DATED 01.02.2022 ``` ``` Exhibit-P4TRUE COPY OF THE KSREC REPORT DATED 08.11.2021 ``` ``` Exhibit-P5TRUE COPY OF THE ORDER NO.RDOKKDC2- 539/21 DATED 11.10.2022 ISSUED BY THE 2ND RESPONDENT ```