P. K. Varghese v. Revenue Divisional Officer, Fort Kochi and Local Level Monitoring Committee represented by Agricultural Officer, Thripunithura, Kerala

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE MURALI PURUSHOTHAMAN** **TUESDAY, THE 6[TH] DAY OF FEBRUARY 2024 / 17TH MAGHA, 1945** ## **WP(C) NO. 4282 OF 2024** ## **PETITIONER:** **P. K. VARGHESE AGED 70 YEARS S/O. LATE. KURUVILA P.V., PALATHINKAL HOUSE, METRO PILLAR NO.956, POONITHURA P.O., KANAYANNUR TALUK ERNAKULAM, PIN - 682038** **BY ADVS. K.J.MOHAMMED ANZAR P.K.MINIMOLE A.RADHAKRISHNAN NAIR BAPPU GALIB SALAM MUHAMMED ASHIQUE G.MOTILAL** ## **RESPONDENTS:** **1 THE REVENUE DIVISIONAL OFFICER/ SUB COLLECTOR, FORT KOCHI FIRST FLOOR, KB JACOB ROAD, FORT KOCHI, KOCHI, PIN - 682001** **2 THE LOCAL LEVEL MONITORING COMMITTEE REPRESENTED BY THE AGRICULTURAL OFFICER, MINI CIVIL STATION, MAIN ROAD, THRIPPUNITHURA, KOCHI, KERALA, PIN - 682301** ## **OTHER PRESENT:** **SMT.R.DEVI SHRI, GP** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 06.02.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C) NO. 4282 OF 2024 : 2 :** ## **JUDGMENT** The petitioner has approached this Court aggrieved by Ext.P6 whereby Form 5 application submitted by him has been rejected by the Revenue Divisional Officer. 2. The petitioner is the owner in possession of an extent of 15.89 Ares of property in Re.Sy.No.41/2 (old Sy.No.437) of Nadama Village, Kanayannur Taluk, Ernakulam District, by virtue of Ext.P1 sale deed. 3. According to the petitioner, the aforesaid property 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 'the Act, 2008' for short). **WP(C) NO. 4282 OF 2024 : 3 :** However, it is stated that the property is wrongly included in the Data Bank as 'converted land'. The petitioner filed an application in Form 5 under Rule 4(d) of the Kerala Conservation of Paddy Land and Wetland 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.P6 stating that as per site inspection the land is seen as paddy land. It is shown in the Data Bank as converted land. In the report of the Kerala State Remote Sensing and Environment Centre (for short, 'the KSRSEC), the land is shown as fallow land with scattered plantations and in the circumstances, the LLMC has recommended not to remove the land from Data Bank. **WP(C) NO. 4282 OF 2024 : 4 :** 4. The petitioner has filed this writ petition challenging Ext.P6 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 KSRSEC report was wrongly appreciated by the Revenue Divisional Officer and on the basis of the report of the Agricultural Officer, the application has been rejected. 5. 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 **Mather Nagar Residents Association and Another v. District Collector, Ernakulam** **WP(C) NO. 4282 OF 2024 : 5 :** **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, 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 **WP(C) NO. 4282 OF 2024 : 6 :** low lying nature of the property, it cannot be termed as wetland or paddy land in contemplation of Act, 2008.” 6. In **Adani Infrastructures & Developers Pvt. Ltd, Mumbai & Others Vs. State of Kerala & Others reported in** [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 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. 7. The relevant consideration for inclusion of the property as a paddy land or wetland is as to the nature of the property as on the date of coming into **WP(C) NO. 4282 OF 2024 : 7 :** force of the Act, 2008. On a perusal of Ext.P6, it is evident that, without any independent assessment of the nature of the property as on the date of coming into force of the Act, 2008, the Revenue Divisional Officer has passed the said order refusing to remove the property from the Data Bank. 8. This Court has held 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. 9. I find that there is total non application of mind on the part of the RDO while interpreting the **WP(C) NO. 4282 OF 2024 : 8 :** reports of the Agricultural Officer as well as the KSRSEC. Accordingly, I set aside Ext.P6 with a direction to the Revenue Divisional Officer to reconsider the application of the petitioner in Form No.5 and take a decision in the matter on the basis of Ext.P7 KSRSEC report and the observation of this Court and the binding precedents, within a period of two months from the date of receipt of a copy of this judgment. The writ petition is disposed with the above direction. **Sd/MURALI PURUSHOTHAMAN JUDGE** SB **WP(C) NO. 4282 OF 2024 : 9 :** ## **APPENDIX** ## **PETITIONER EXHIBITS** - **Exhibit P1 TRUE COPY OF THE SALE DEED NO. 9169/83 DATED 25.08.1983 OF SRO THRIPPUNITHARA** - **Exhibit P2 TRUE COPY OF THE SETTLEMENT DEED NO. 2247/1 DATED 08.04.2005** - **Exhibit P3 TRUE COPY OF THE DEED NO. 3344/1/11 DATED 24.10.2011 OF SRO THRIPPUNITHARA** - **Exhibit P4 TRUE COPY OF PHOTOGRAPHS SHOWING THE PETITIONER'S LAND** - **Exhibit P5 TRUE COPY OF THE DATA BANK ISSUED BY THE THRIPPUNITHARA KRISHI BHAVAN DATED 22.12.2017** - **Exhibit P6 TRUE COPY OF ORDER NO. RDOCHN/3681/2020-K3 DATED 25.03.2023** - **Exhibit P7 TRUE COPY OF THE KSREC REPORT NO. A- 172/2015/KSREC/005401/20**