Noushad, Jeeja Jayaprakash, Amith Jayaprakash and Akhil Jayaprakash v. State of Kerala and others

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR.JUSTICE MURALI PURUSHOTHAMAN TUESDAY, THE 27[TH] DAY OF FEBRUARY 2024 / 8TH PHALGUNA, 1945 WP(C) NO. 2659 OF 2023`** ## **`PETITIONERS:`** ``` 1NOUSHAD, AGED 50 YEARS S/O. C.ABDUL RAHIMAN, ARAFAS, SOUTH BAZAR, KANNUR DISTRICT, REPRESENTED BY POA HOLDER, P. PRAKASHAN, S/O. RAGHAVAN, AGED 61 YEARS, RESIDING AT AISWARYA, CHALA PANTHRANDUKANDI, P.O. THOTTADA, KANNUR DISTRICT, PIN – 670 007. 2JEEJA JAYAPRAKASH, AGED 66 YEARS W/O. LATE JAYAPRAKASH, 'LAKSHMI MUKUNDAM', NEAR PUZHATHI HOUSING COLONY, P.O. CIVIL STATION, REPRESENTED BY POA HOLDER, P. PRAKASHAN, S/O. RAGHAVAN, AGED 61 YEARS, RESIDING AT AISWARYA, CHALA PANTHRANDUKANDI, P.O. THOTTADA, KANNUR DISTRICT, PIN – 670 007. 3AMITH JAYAPRAKASH, AGED 41 YEARS S/O. LATE JAYAPRAKASH, 'LAKSHMI MUKUNDAM', NEAR PUZHATHI HOUSING COLONY, P.O. CIVIL STATION, REPRESENTED BY POA HOLDER, P. PRAKASHAN, S/O. RAGHAVAN, AGED 61 YEARS, RESIDING AT AISWARYA, CHALA PANTHRANDUKANDI, P.O. THOTTADA, KANNUR DISTRICT, PIN – 670 007. 4AKHIL JAYAPRAKASH, AGED 37 YEARS S/O. LATE JAYAPRAKASH, 'LAKSHMI MUKUNDAM', NEAR PUZHATHI HOUSING COLONY, P.O. CIVIL STATION, REPRESENTED BY POA HOLDER, P. PRAKASHAN, S/O. RAGHAVAN, AGED 61 YEARS, RESIDING AT AISWARYA, CHALA PANTHRANDUKANDI, P.O. THOTTADA, KANNUR DISTRICT, PIN – 670 007. ``` ``` WP(C).No.2659 OF 2023 ``` ``` 2 ``` ## **`BY ADVS. MANU VYASAN PETER P.B.KRISHNAN P.B.SUBRAMANYAN SABU GEORGE`** ## **`RESPONDENTS:`** - **`1 STATE OF KERALA, REPRESENTED BY ITS SECRETARY, DEPARTMENT OF REVENUE, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM, PIN – 695 001.`** - **`2 THE DISTRICT COLLECTOR, KANNUR, COLLECTORATE, COLLECTORATE ROAD, THAVAKKARA, KANNUR DISTRICT, PIN – 670 002.`** - **`3 REVENUE DIVISIONAL OFFICER, REVENUE DIVISIONAL OFFICE, REVENUE TOWER, COURT ROAD, THALIPPARAMBA, KANNUR DISTRICT, PIN – 670 141.`** - **`4 THE VILLAGE OFFICER, CHEMBILODE VILLAGE, CHALA, KANNUR DISTRICT, PIN – 670 621.`** - **`5 LOCAL LEVEL MONITORING COMMITTEE, CHEMBILODE GRAMA PANCHAYATH, REPRESENTED BY ITS CONVENOR, THE AGRICULTURAL OFFICER, KRISHI BHAVAN, CHEMBILODE, MOWANCHERY P.O., KANNUR DISTRICT, PIN – 670 613.`** - **`6 AGRICULTURAL OFFICER, KRISHI BHAVAN, CHEMBILODE, MOWANCHERY P.O., KANNUR DISTRICT, PIN – 670 613.`** ``` SRI. E. G GORDEN – SR. GP ``` ``` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 27.02.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` WP(C).No.2659 OF 2023 ``` ``` 3 ``` ## **`JUDGMENT`** The petitioners have approached this Court aggrieved by Ext.P13 order whereby Form 5 application submitted by them has been rejected by the Revenue Divisional Officer. 2. The are the owners in petitioners possession of an extent of 46.94 Ares of land comprised in Re.Sy. Nos.56/105 and 55/125 of Chembilode Village, Kannur Taluk in Kannur District. 3. According to the petitioners, the said property consists of mixed vegetation which includes about 140 coconut trees aged more than 25 years, arecanut trees, jackfruit trees, mango trees and cashew trees etc. However, the property was wrongly included in the Data Bank. the submitted an Accordingly, petitioners application in Form 5 under the Kerala Conservation ``` WP(C).No.2659 OF 2023 ``` ``` 4 ``` of Paddy land and Wetland Rules, 2008 (for short, ‘the Rules’). The LLMC, as per Ext.P3 minutes, observed that the property consists of 145 coconut trees, 47 arecanut trees, 8 mango trees, 3 jackfruit trees, 3 cashew trees etc., aged more than 20 years. It was further observed by the LLMC that the property being a converted land as on the date of inspection, the KSRSEC report has to be obtained to ascertain the status of the land. Accordingly, Ext.P4 KSRSEC report was obtained which shows that as per 2008 satellite data, the land is bordered by a road on the eastern side and was observed under mixed vegetation/plantation. However, no formal orders were issued removing the property from the Data Bank as advised. The petitioners submitted Ext.P7 application in form 5 before the RDO. Pursuant to Ext.P7 Form 5 application, the LLMC by Ext.P8 minutes, recorded that the property in ``` WP(C).No.2659 OF 2023 ``` ``` 5 ``` question consists more than 100 coconut trees, arcanut trees, mango trees, jack fruit trees and cashew trees etc., aged about 15 – 20 years, a rivulet passes around the property and that there are lands suitable for paddy cultivation near the subject land and as such, the reclamation of the property would lead to reclamation of nearby paddy lands and thereby adversely affect the environment. Based on Ext.P8, the RDO rejected the application of the petitioners by Ext.P11. The petitioners challenged Ext.P11 order before this Court. This Court, by Ext.P12 judgment directed the RDO to re-consider Ext.P7 application submitted by the petitioners. The relevant portion of Ext.P12 judgment reads as follows:- “8. A perusal of Ext.P11 order of the Revenue Divisional Officer would show that the Revenue Divisional Officer has found from the report of the Agricultural Officer that there are more than 100 coconut trees, arecanut trees, mango trees, jack fruit trees and cashew nut trees in the property of the ``` WP(C).No.2659 OF 2023 ``` ``` 6 ``` petitioners. Nevertheless, the Agricultural Officer stated that the land is waterlogged and there are water channels and paddy lands nearby. It is based on the report of the LLMC as communicated by the Agricultural Officer that the Revenue Divisional Officer has rejected the Form-5 application submitted by the petitioners. 9. It is to be noted that Ext.P3 LLMC Report, which was of the year 2018, recommended to obtain a report from the KSREC. The LLMC has not spoken about any water channels /rivulets/ thodu flowing through the property of the petitioners, in Ext.P3. Ext.P3 report does not also speak anything about paddy land in the nearby area. 10. Exts.P4 and P5 Reports issued by the KSREC would indicate that in the data of the year 2008, the land was found to be of mixed vegetation and plantation. When such Scientific Data was available, this Court is of the view that the Revenue Divisional Officer ought to have considered those reports also, while passing an order on the Form-5 application filed by the petitioners. To that extent, Ext.P11 order cannot stand the scrutiny of law. In the circumstances, the writ petition is disposed of setting aside Ext.P11 and directing the 3[rd] respondent - Revenue Divisional Officer to reconsider the Form-5 application submitted by the petitioners, taking into account Ext.P3 LLMC Report and Exts.P4 and P5 KSREC Reports. Orders afresh shall be passed within a period of two months.” ``` WP(C).No.2659 OF 2023 ``` ``` 7 ``` Pursuant to Ext.P12 judgment, the RDO passed Ext.P13 order rejecting Ext.P7 application. The petitioners state that Ext.P13 order has been passed in total derogation of the directions in Ext.P12 judgment and that the RDO has reiterated its earlier stand and confirmed Ext.P11 order. It is stated in Ext.P13 that, though the KSRSEC report indicates that the subject land was having mixed vegetation/plantation in the year 2008, the Agricultural Officer has reported that the property cannot be removed from the Data Bank on the basis of KSRSEC report alone, and therefore a site inspection was done by the office of the RDO, and it was found that the subject land is water logged and marshy and conversion would adversely affect the paddy cultivation in the nearby area. The petitioners challenge Ext.P13 contending that the same has been issued in total disregard to Ext.P12 ``` WP(C).No.2659 OF 2023 ``` ``` 8 ``` judgment. It is also contended that the LLMC cannot review in its earlier proceedings on the status of the property and that the RDO did not consider the proposal of the petitioners to maintain the natural water channels in the property. 4. A counter affidavit has been filed by the 3[rd] respondent reiterating the averments in Ext.P13. 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 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 ``` WP(C).No.2659 OF 2023 ``` ## **`9`** 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.P13, 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 solely relied upon the report of the Agricultural Officer to refuse to remove the property from the Data Bank. 6. The KSRSEC report shows that the subject land was observed under mixed vegetation/ plantation in 2008 data. From Ext.P13 order, it is evident that the RDO did not conduct site inspection of the said land as provided under Rule 4(4F) of Rules 2008 and the inspection was done through her sub ordinate officer. Ext.P13 order is therefore one passed in total disregard to the provisions under Rule 4(4F). Further, just because ``` WP(C).No.2659 OF 2023 ``` ## **`10`** the property is low lying and marshy, the same cannot be a reason to include it in the Data Bank. 7. This Court had 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, 2008 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 the Data Bank. The Revenue ``` WP(C).No.2659 OF 2023 ``` ``` 11 ``` 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 the 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. It is trite law that, 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. In **Aparna Sasi Menon v. Revenue Divisional Officer, Irinjalakuda** [2023 (6) KHC 83], this Court has held that existence of neerchals in a property should never be a prime consideration ``` WP(C).No.2659 OF 2023 ``` ## **`12`** in deciding whether the land is to be retained in the Data Bank. Instead, the prime consideration should be whether paddy cultivation is possible in the property in question. 9. In **Adani Infrastructures & Developers Pvt. Ltd, Mumbai & Others Vs. State of Kerala & Others** [2014 (1) KHC 685], this Court 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, 2008, such lands cannot be said as suitable for cultivation and may come outside the definition of paddy land. 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:- ``` WP(C).No.2659 OF 2023 ``` ``` 13 ``` “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 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. This Court in **Jessy Abraham v. Land Revenue Commissioner, Thiruvananthapuram** [2021 (6) KHC 316] has held that merely for the reason that the land is lying low and is waterlogged, the same cannot be included as paddy land in the Data Bank. 11. In **Sudheesh v. Revenue Divisional Officer** [2023 (2) KLT 386], this Court held as follows:- ``` WP(C).No.2659 OF 2023 ``` ``` 14 ``` “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.” 12. In spite of the categorical declarations by this Court in the decisions cited above and the direction in Ext.P12 judgment, Ext.P13 order has been passed by the RDO without taking into account the KSRSEC report and without conducting direct inspection of the site as provided under Rule 4(4F). The proposal made by the petitioners to retain the natural water channels is also not taken into account by the RDO. Accordingly, Ext.P13 order is set aside. There will be a direction to the 3[rd] respondent, the Revenue Divisional Officer to reconsider Ext.P7 application of the petitioners in ``` WP(C).No.2659 OF 2023 ``` ``` 15 ``` Form 5 afresh after taking into account the directions of this Court in Ext.P12 judgment, the binding precedents, Ext.P5 KSRSEC report and other relevant factors mentioned in Rule 4(4F), within a period of two months from the date of receipt of a of this shall copy judgment. The petitioners produce a copy of the writ petition along with a copy of this judgment before the 3[rd ] respondent for compliance. The writ petition is disposed of with the above directions. Sd/- ## **`MURALI PURUSHOTHAMAN JUDGE`** SPR ``` WP(C).No.2659 OF 2023 ``` ``` 16 ``` ## **`APPENDIX`** ## **`PETITIONER’S EXHIBITS:-`** ``` EXHIBIT P1TRUE COPY OF THE BASIC TAX RECEIPT NO. KL13021604925/2022 DATED 22.06.2022 ISSUED BY THE VILLAGE OFFICER, CHEMBILODE. EXHIBIT P2TRUE COPY OF THE POSSESSION CERTIFICATE NO. 65778774 DATED 24.06.2022. EXHIBIT P3TRUE COPY OF THE MINUTES OF LLMC MEETING HELD ON 18.05.2018. EXHIBIT P4TRUE COPY OF THE REPORT DATED 16.12.2021 ISSUED BY THE KERALA STATE REMOTE SENSING & ENVIRONMENT CENTRE, THIRUVANANTHAPURAM TO THE AGRICULTURAL OFFICER, CHEMBILODE. ``` - **`EXHIBIT P5 TRUE COPY OF THE REPORT DATED 14.03.2022 ISSUED BY THE KERALA STATE REMOTE SENSING & ENVIRONMENT CENTRE, THIRUVANANTHAPURAM TO THE AGRICULTURAL OFFICER, CHEMBILODE.`** - **`EXHIBIT P6 THE PHOTOGRAPHS OF THE PROPERTY. EXHIBIT P7 TRUE COPY OF THE FORM 5 APPLICATION DATED 24.06.2022 SUBMITTED BY THE PETITIONERS.`** - **`EXHIBIT P8 TRUE COPY OF THE MINUTES OF THE LLMC MEETING.`** - **`EXHIBIT P9 TRUE COPY OF THE LETTER DATED 27.07.2022 SUBMITTED BY THE PETITIONERS BEFORE THE REVENUE DIVISIONAL OFFICER, THALIPARAMBA.`** - **`EXHIBIT P10 TRUE COPY OF THE LETTER DATED 02.08.2022 SUBMITTED BY THE PETITIONERS BEFORE THE REVENUE DIVISIONAL OFFICER, THALIPPARAMBA.`** - **`EXHIBIT P11 TRUE COPY OF THE ORDER DATED 17.10.2022 ISSUED BY THE REVENUE DIVISIONAL OFFICER, THALIPPARAMBA`** - **`EXHIBIT P12 TRUE COPY OF THE JUDGMENT DATED 04.11.2022 IN W.P(C) NO. 33880 OF 2022 OF THIS HON'BLE COURT.`** ``` EXHIBIT P13TRUE COPY OF THE ORDER DATED 24.12.2022 ISSUED BY THE REVENUE DIVISIONAL OFFICER, TALIPPARAMBA. ``` ## **`RESPONDENTS EXHIBITS :-`** ``` EXHIBIT R3 (a)REPORT NO.KBC.23/22-23 DATED 01.12.2022 OF AGRICULTURAL OFFICER ,CHEMBILOD ADDRESSED TO REVENUE DIVISIONAL OFFICER,THALIPARAMB. ```