Narayan Sivaram v. Revenue Divisional Officer, Office of the Revenue Divisional Officer, Thrissur District & Others

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE MURALI PURUSHOTHAMAN** **MONDAY, THE 8[TH] DAY OF APRIL 2024 / 19TH CHAITHRA, 1946** **WP(C) NO. 37153 OF 2023** ## **PETITIONER:** **NARAYAN SIVARAM, AGED 58 YEARS S/O.R. SIVARAM, PULIKUTTY MADOM PLAKKAT LANE, SREE RAM NIVAS, THRISSUR DISTRICT - 680 001.** **BY ADVS. BINOY VASUDEVAN SREEJITH SREENATH RINCY KHADER** ## **RESPONDENTS:** **1 THE REVENUE DIVISIONAL OFFICER OFFICE OF THE REVENUE DIVISIONAL OFFICER, CIVIL STATION, AYYANTHOLE, THRISSUR, PIN – 680 003. 2 THE AGRICULTURAL OFFICER KRISHI BHAVAN, CHEMBUKAVU THRISSUR, PIN – 680 020. 3 THE VILLAGE OFFICER PUNKUNNAM VILLAGE, AYYANTHOLE, THRISSUR DISTRICT, PIN – 680 003. SRI. JUSTIN JACOB – SR. GP** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 08.04.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C) NO. 37153 OF 2023 : 2 :** ## **JUDGMENT** Pursuant to the directions of this Court dated 09.11.2023 and 25.03.2024 it is submitted by the learned Government Pleader on instructions that the order of the LLMC refusing to remove the property from the Data Bank has not been communicated to the petitioner and the order has not taken effect. This is recorded. 2. The petitioner has approached this Court aggrieved by Ext.P5 whereby Form 5 application submitted by him has been rejected by the Revenue Divisional Officer. 3. The petitioner is the owner of 3.24 Ares of land in Re.Sy.No.1/1780 of Punkunnam Village in Thrissur District. 4. According to the petitioner, the said **WP(C) NO. 37153 OF 2023 : 3 :** property will not come within the definition 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). However, it has been wrongly included in Ext.P4 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 an 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 application has been rejected by the Revenue Divisional Officer stating that as per the report of the Agricultural Officer, the subject land is a part of fallow land and the LLMC has recommended to retain the land in the Data Bank. 5. The petitioner impugns Ext.P5 contending, **WP(C) NO. 37153 OF 2023 : 4 :** _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 ought to 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 12.08.2008, the date of coming into force of the Act, 2008. It is further contended that the subject property is lying as a garden land situated within a residential colony and the same is surrounded by several buildings such as school, hospital, theater etc. and is not suitable for paddy cultivation. 6. 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 **WP(C) NO. 37153 OF 2023 : 5 :** 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 institutions and Technological pass appropriate orders on the application. 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 Revenue Divisional Officer has relied solely upon the report of the Agricultural Officer as well as the recommendation of the LLMC to refuse to remove the property from the Data Bank. **WP(C) NO. 37153 OF 2023 : 6 :** 7. 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 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. 8. This Court has held in **Arthasasthra Ventures (India) LLP** v. **State of Kerala** [2022 (7) ## **WP(C) NO. 37153 OF 2023 : 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. 9. 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. 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, ## **WP(C) NO. 37153 OF 2023 : 8 :** 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.” 10. 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. 37153 OF 2023 : 9 :** 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. 11. 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 brought within the definition of paddy land but the Revenue Divisional **WP(C) NO. 37153 OF 2023 : 10 :** 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.” 12. In spite of the categorical declarations by this Court in the decisions cited above, the has been on petitioner's application rejected untenable grounds. Accordingly, I find that Ext.P5 order cannot be sustained and I set aside the same, with a direction to the 1[st] respondent, the Revenue Divisional Officer to reconsider the application of the petitioner in Form 5 in accordance with law and take a decision in the matter after obtaining KSRSEC report at the expense of the petitioner, within a period of two months from the date of receipt of the report of the KSRSEC. The petitioner shall apply **WP(C) NO. 37153 OF 2023 : 11 :** 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 1[st] respondent. The writ petition is disposed of. Sd/- **MURALI PURUSHOTHAMAN JUDGE** SB **WP(C) NO. 37153 OF 2023 : 12 :** ## **APPENDIX** ## **' - PETITIONER S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF DOCUMENT NO.1359 OF 2002 DATED 08.04.2002 OF S.R.O. THRISSUR.** **EXHIBIT2 TRUE COPY OF THE LAND TAX RECEIPT DATED 20.05.2023 ISSUED BY THE 3RD RESPONDENT.** **EXHIBIT P3 TRUE COPY OF THE POSSESSION CERTIFICATE DATED 25.09.2021 ISSUED BY THE 3RD RESPONDENT. EXHIBIT P4 TRUE COPY OF THE RELEVANT PAGES OF THE DATA BANK DATED 22-1-2021.** **EXHIBIT P5 TRUE COPY OF ORDER NO. 5246/23 DATED 24.10.2023 OF THE 1ST RESPONDENT.** ## **RESPONDENTS EXHIBITS: NIL.**