NIRAM ARTS AND SPORTS CLUB v. Revenue Divisional Officer, Thalassery, Kannur District; Agricultural Officer, Krishi Bhavan, Panniayannur, Kannur District; Village Officer, Panniyannur, Kannur District; State of Kerala

## 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. 10851 OF 2024 ## PETITIONER: NIRAM ARTS AND SPORTS CLUB REG.NO. S.116/92, P.O.PANNIANNUR, KANNUR DISTRICT, REPRESENTED BY ITS SECRETARY, PIN – 670 671. BY ADVS. M.SASINDRAN P.K.SUBHASH ## RESPONDENTS: - 1 THE REVENUE DIVISIONAL OFFICER/SUB COLLECTOR THALASSERY, KANNUR DISTRICT, PIN – 670 101. - 2 THE AGRICULTURAL OFFICER, KRISHI BHAVAN, PANNIYANNUR, KANNUR DISTRICT, PIN – 670 671. - 3 THE VILLAGE OFFICER PANNIYANNUR, KANNUR DISTRICT, PIN – 670 671. WP(C) NO. 10851 OF 2024 : 2 : 4 STATE OF KERALA REPRESENTED BY ITS SECRETARY TO GOVERNMENT, REVENUE DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM, PIN – 695 001. BY ADV. SMT.K.AMMINIKUTTY, SENIOR GOVERNMENT PLEADER. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 18.03.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C) NO. 10851 OF 2024 : 3 : ## JUDGMENT Petitioner has approached this Court aggrieved by Ext.P8 whereby Form 5 application submitted by her has been rejected by the Revenue Divisional Officer relying on the report of the Agricultural Officer. 2. Petitioner has purchased the property having an extent of 4.05 Ares (10 cents) in Sy.No.55/1B of Panniyannur Village, Thalassery Taluk in Kannur District. 3. According to the petitioner, the aforesaid property is a garden land will not come within the ambit of paddy land or wet land as defined under the Kerala Conservation of Paddy Land and Wetland Act, 2008 (hereinafter referred to as 'Act, 2008'). However, it is stated that, the property is wrongly included in WP(C) NO. 10851 OF 2024 : 4 : the Data Bank. The petitioner filed Ext.P3 application in Form 5 of Rule 4(d) of the Kerala Conservation of Paddy land and Wetland Rules, 2008 (hereinafter referred to as '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.P8 stating that as per the report of the Agricultural Officer, the subject property which is presently lying fallow is fit for paddy cultivation and the LLMC has recommended not to remove the property from the Data Bank. It is also stated that a report has been submitted before the District Collector to initiate steps under Section 13 of the Act, 2008 for depositing earth in the land unauthorisedly. WP(C) NO. 10851 OF 2024 : 5 : 4. The petitioner has filed this writ petition challenging 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 Revenue Divisional Officer should have called for a report from the Kerala State Remote Sensing and Environment Centre [for short, the KSRSEC’] before disposing of the Form 5 application to ascertain the exact nature of the land as on 12.08.2008, the date of coming into force of the Act, 2008. 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 WP(C) NO. 10851 OF 2024 : 6 : 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 perusal of Ext.P8, it is evident that, without any independent assessment of the nature of property as on the date coming into force of the Act, 2008, the Revenue Divisional Officer has relied upon the report of the Agricultural Officer WP(C) NO. 10851 OF 2024 : 7 : to refuse to remove the property from the Data Bank. 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 on the date of coming into force of the Act and also whether the land is suitable for paddy cultivation or not. 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 WP(C) NO. 10851 OF 2024 : 8 : stating that the LIMC 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. 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 WP(C) NO. 10851 OF 2024 : 9 : 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 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.” WP(C) NO. 10851 OF 2024 : 10 : 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 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.” WP(C) NO. 10851 OF 2024 : 11 : 10. In Bharathan Ramanathan v State of Kerala [2022 (7) KHC 541], this Court held that the mere pendency of Section 13 proceedings or a revision proceedings based on Section 13 order cannot be a ground not to entertain an application invoking Rule 4(d) of the Kerala Conservation of Paddy Land and Wetland Rules, 2008 (for short, ‘the Rules, 2008’). In Devanand v. State of Kerala [2023 (1) KHC 123] this Court has held that, even if Section 13 proceedings are concluded, the petitioner has a right to get his form 5 application considered by the RDO. Therefore, the pendency of proceedings under Section 13 of the Act, 2008 or conclusion of the proceedings under Section 13, is not a ground to reject an application in WP(C) NO. 10851 OF 2024 : 12 : Form No.5. 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.P8 order cannot be sustained and I set aside the same, with a direction to the 1[st] respondent, the Revenue Divisional Officer to reconsider Ext.P3 application 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 before the Agricultural Officer for KSRSEC report WP(C) NO. 10851 OF 2024 : 13 : 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 the copy of the judgment before the Revenue Divisional Officer. The writ petition is disposed of with the above directions. Sd/- ## MURALI PURUSHOTHAMAN JUDGE SRJ WP(C) NO. 10851 OF 2024 : 14 : ## APPENDIX OF WP(C) 10851/2024 - Exhibit P1 A TRUE COPY OF THE SALE DEED NO.805/2016 DATED 23.05.2016 OF SRO CHOKLI EXECUTED IN FAVOUR OF THE PETITIONER TRANSFERRING THE PROPERTY. - Exhibit P2 PHOTOGRAPHS SHOWING THAT THE PROPERTY IS A GARDEN LAND AND THAT THERE ARE BUILIDNGS SITUATED AND THAT PADDY CULTIVATION IS NOT POSSIBLE IN THE PROPERTY COVERED BY EXT.P1. - Exhibit P3 A TRUE COPY OF THE APPLICATION FILED IN FORM 5 DATED 17.04.2021, FOR REMOVAL OF THE PROPERTY OF THE PETITIONER FROM THE DATA BANK,. - Exhibit P4 A TRUE COPY OF THE REPORT OF THE AGRICULTURAL OFFICER DATED 16.08.2023. - Exhibit P5 - A TRUE COPY OF THE REQUEST UNDER THE RIGHT TO INFORMATION ACT DATED 06.11.2023. - Exhibit P6 A TRUE COPY OF THE REPLY DATED 5.12.2023 ALONG WITH THE DOCUMENTS APPENDED THERETO, WHICH ARE NOT PROPERLY TAKEN COPIES BY THE AUTHORITY WHICH ISSUED THE COPY UNDER THE RIGHT TO INFORMATION ACT. - Exhibit P7 - A TRUE COPY OF THE REPLY DATED 29.12.2023 ALONG WITH THE APPENDED DOCUMENTS, WHICH ARE NOT PROPERLY TAKEN COPIES BY THE AUTHORITY WHICH ISSUED THE COPY UNDER THE RIGHT TO INFORMATION ACT. WP(C) NO. 10851 OF 2024 : 15 : Exhibit P8 A TRUE COPY OF THE PROCEEDINGS NO.RDOTLY/1125/2021-K5 K.DIS OF THE REVENUE DIVISIONAL OFFICER, THALASSERY DATED 19.12.2023