Omana v. Revenue Divisional Officer, Palakkad and Agricultural Officer, Pudupariyaram

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** # **THE HONOURABLE MR.JUSTICE MURALI PURUSHOTHAMAN THURSDAY, THE 8[TH] DAY OF FEBRUARY 2024 / 19TH MAGHA,** ## **1945** ## **WP(C) NO. 2356 OF 2024** ## **PETITIONER/S:** OMANA AGED 57 YEARS W/O LATE RAVINDRANATH SURYAKIRAN, MURALI, INDUSTRIAL ESTATE P.O., PUDUPARIYARAM, PALAKKAD,, PIN - 678731 BY ADVS. RAJESH SIVARAMANKUTTY MAYA C.P. K.V.ANTONY A.P.BEELAMMA VIJINA K. ARUL MURALIDHARAN ## **RESPONDENTS:** 1 THE REVENUE DIVISIONAL OFFICER, PALAKKAD , OFFICE OF THE REVENUE DIVISIONAL OFFICER, PALAKKAD (DISTRICT LEVEL AUTHORIZED COMMITTEE UNDER THE KERALA CONSERVATION OF PADDY LAND AND WETLAND ACT, 2008)., PIN - 678001 2 THE AGRICULTURAL OFFICER, PUDUPARIYARAM OFFICE OF THE AGRICULTURAL OFFICER, PUDUPARIYARAM, PALAKKAD DISTRICT( LOCAL LEVEL MONITORING COMMITTEE UNDER THE KERALA CONSERVATION OF PADDY LAND AND WETLAND ACT, 2008), PIN – 678731 BY G.P. SMT. DEVESHREE. ## **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 08.02.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ``` WPC 2356/2024 ``` ``` 2 ``` ## Dated this the 8[th] day of February, 2024 ## **JUDGMENT** The petitioner has approached this Court aggrieved by Ext.P7 order whereby Form 5 application submitted by her has been rejected by the Revenue Divisional Officer. 2. The petitioner along with his son is the owner in possession of an extent of 36 Ares 13 sq.mtr. (89 cents) of land comprised in Sy. No.387/36, 390/3 in Block 022 of Pudupariyaram-II Village in Palakkad Taluk of Palakkad District. 3. According to the petitioner, the aforesaid property will not come within the definition of paddy land or wet land. However, it has been wrongly included in the Data Bank prepared under the Kerala Conservation of Paddy land and Wetland Rules, 2008 ``` WPC 2356/2024 ``` ``` 3 ``` as paddy land. The petitioner, therefore, filed an application in Form 5 under the provisions of the Kerala Conservation of Paddy Land and Wetland Act, 2008 (hereinafter referred to as 'the Act, 2008’) to remove the property from the Data Bank. The Revenue Divisional Officer, by Ext.P7 order, rejected the application on the basis of the report of the Agricultural Officer that there was paddy cultivation in 2008 and that the land is lying fallow and is capable of cultivation. It is also stated that 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 the Revenue Divisional Officer should have called for a report from the Kerala State Remote ``` WPC 2356/2024 ``` ``` 4 ``` 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. 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. On a perusal of Ext.P7, it is evident that, without any independent assessment of the nature of the property as on the date coming into force of the Act, 2008, the Revenue Divisional Officer has relied solely upon the report of the Agricultural Officer and LLMC to refuse to remove the property from the Data Bank. 6. 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 ``` WPC 2356/2024 ``` ``` 5 ``` 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. 7. Further, it is trite law that, merely because the property is lying fallow, it cannot by itself 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 ``` WPC 2356/2024 ``` ``` 6 ``` ## 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 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.” 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 uncultivated and left fallow and if the said land is included as paddy land in the village records and if ``` WPC 2356/2024 ``` ``` 7 ``` 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 **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."_ 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 ``` WPC 2356/2024 ``` ``` 8 ``` land from the Data Bank. Accordingly, I find that Ext.P7 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.P5 application in accordance with law and take a decision in the matter after obtaining the KSRSEC report at the expense of the petitioner, within a period of two months from the date of receipt of the report from the KSRSEC. The petitioner shall apply 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 writ petition is disposed of with the above directions. Sd/- **MURALI PURUSHOTHAMAN JUDGE** al/-.08.02.2024. ``` WPC 2356/2024 ``` ``` 9 ``` ## **APPENDIX OF WP(C) 2356/2024** ## PETITIONER EXHIBITS Exhibit 1 A TRUE COPY OF THE REGISTERED WILL NO. 200/2011 OF SRO, PALAKKAD DATED 17-52011 EXECUTED BY RAVINDRANATH IN FAVOUR OF PETITIONER AND HER SON RAJEEV Exhibit P2 A TRUE COPY OF THE DEATH CERTIFICATE OF RAVINDRANATH DATED 17-8-2011 ISSUED BY THE SUB REGISTRAR OF BIRTHS AND DEATHS, PUDUPARIYARAM Exhibit P3 A TRUE COPY OF THE TAX RECEIPT DATED 12-6-2023 ISSUED BY THE PUDUPARIYARAM-II VILLAGE TO THE PETITIONER Exhibit P4 A TRUE COPY OF THE PHOTOGRAPH OF THE PROPERTY Exhibit P5 A TRUE COPY OF THE FORM 5 APPLICATION DATED 23-3-2022 SUBMITTED BY PETITIONER BEFORE THE 1 ST RESPONDENT Exhibit P6 A TRUE COPY OF THE JUDGMENT DATED 218- 2023 IN W.P.(C) NO. 27542/2023 PASSED BY THIS HONOURABLE COURT Exhibit P7 A TRUE COPY OF THE ORDER IN FILE NO.8408/2023 DATED 16-12-2023 PASSED BY THE 1 ST RESPONDENT