P. Kunhiraman Nair and Sujith Ram Parayil v. District Collector, Kozhikode and others

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE MURALI PURUSHOTHAMAN WEDNESDAY, THE 14[TH] DAY OF FEBRUARY 2024 / 25TH MAGHA, 1945 ``` ## **`WP(C) NO. 34988 OF 2023`** ## **`PETITIONERS:`** ``` 1P. KUNHIRAMAN NAIR AGED 69 YEARS S/O. RAMAN NAIR, RESIDING AT RAM NIVAS, THADAPARAMBA, PO. NELLIKODE, KOZHIKODE, PIN – 673 016. 2SUJITH RAM PARAYIL AGED 40 YEARS S/O. KUNHIRAMAN NAIR, RESIDING AT RAM NIVAS, THADAPARAMBA, PO. NELLIKODE, KOZHIKODE, PIN – 673 016. BY ADVS. P.A.HARISH SANIKA.V.S. V.V.SURENDRAN DIVIN V.VIJAYAN ``` ## **`RESPONDENTS:`** ``` 1THE DISTRICT COLLECTOR, KOZHIKODE OFFICE OF THE DISTRICT COLLECTOR, PO. CIVIL STATION, KOZHIKODE-, PIN – 673 020. 2THE REVENUE DIVISIONAL OFFICER, KOZHIKODE OFFICE OF THE REVENUE DIVISIONAL OFFICER, PO. CIVIL STATION, KOZHIKODE-, PIN – 673 020. 3THE VILLAGE OFFICER, ELATHUR OFFICE OF THE VILLAGE OFFICER, PO. ELATHUR, KOZHIKODE-, PIN – 673 303. ``` `WP(C) NO. 34988 OF 2023` 2 ``` BY ADV. SMT.R.DEVI SHRI, GOVERNMENT PLEADER ``` ``` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 14.02.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` WP(C) NO. 34988 OF 2023 ``` 3 ## JUDGMENT Ext.P6 application of the petitioner in Form No.7 of the Kerala Conservation of Paddy and Wetland Act, 2008 (for short, the ‘Act’) was rejected by the 2[nd] respondent, Revenue Divisional Officer by Ext.P8 stating that, as per the report of the Village Officer, the property is recorded as ‘nanja’ in the village register and there is ‘neerchal’ in the property and change of nature of land would affect the nearby paddy cultivation and the environment. The petitioner preferred an appeal against the said order under Section 27B of the Act and the 1[st] respondent, District Collector `WP(C) NO. 34988 OF 2023` 4 rejected the same vide Ext.P10 stating that, the property of the petitioner is waterlogged and there is a neerchal in the property and if Form No.7 application is allowed, that would adversely affect the cultivation in the area. 2. Section 27A(2) of the Act mandates that the Revenue Divisional Officer shall pass orders on the request for a change of nature of unnotified land after considering the report of the Village Officer concerned and after ensuring that there is no disruption to the free flow of water to the neighbouring paddy lands, if any, through such water measures as is deemed conservancy `WP(C) NO. 34988 OF 2023` 5 necessary and that if the area of such parcel of land where the application is allowed is more than 20.2 Ares, ten percent of such land shall be set apart for water conservancy measures. Section 27A(4) further mandates that if the application is allowed, the Revenue Divisional Officer shall ensure that the reclamation of unnotified land shall not adversely affect the cultivation of paddy or any other corps, in the adjoining land and shall specify such water conservancy measures as is necessary to ensure such cultivation. 3. Rule 12 of the Kerala Conservation of Paddy Land and Wetland Rules, 2008 (for short, `WP(C) NO. 34988 OF 2023` 6 ‘the Rules, 2008’) deals with the procedure for change of nature of unnotified land, as provided in Section 27A of the Act 2008 Rule 12(4) provides that on receipt of an application under Form 6 the Revenue Divisional Officer (RDO) shall forward the application to the Village Officer concerned and the Village Officer, in turn, shall conduct an enquiry on the application and submit a report before the RDO and Rule 12(5) mandates that the Village Officer shall also report whether if a change of nature of the land is permitted, it will cause any obstruction to the free flow of water to the nearby paddy fields, if any. The Rules further `WP(C) NO. 34988 OF 2023` 7 provide that if the extent of the property is more than 20.2 Ares, the report of the Agricultural Officer should also be obtained by the RDO as to the effectiveness of water conservancy measures that the applicant is proposing to implement in the property. A perusal of the Act and the Rules, 2008 reveals that the only aspect that should be ascertained by the RDO while considering a Form 6 application seeking permission to change the nature of the unnotified land is whether such change of nature of land will affect the free flow of water to the nearby paddy field, if any, and that such reclamation would adversely affect the `WP(C) NO. 34988 OF 2023` 8 cultivation of paddy or any other crops in the adjoining land. 4. A perusal of Ext.P8 order reveals that the application has been rejected on the ground that the land is waterlogged and there is neerchal and if the application is allowed, that would affect the cultivation in the area. The reasons stated in Ext.P8 for rejecting the Form 7 application submitted by the petitioner are not contemplated as per Section 27A of the Act, or in Rule 12 of the Rule 2008. The reasons stated are essentially parameters to be considered at the time of consideration of Form 5 application for removal of `WP(C) NO. 34988 OF 2023` 9 the land from the Data Bank. The property has already been removed from the Data Bank. The existence of neerchal or waterlogging by itself is not a reason available to the RDO to reject an application in Form 6 or Form 7, seeking to change the nature of the land. The order does not state how the change of nature of land would obstruct the free flow of water to nearby paddy fields. 5. This Court in Mather Nagar Residents Association and another v. District Collector, Ernakulam and other, [2020(2) KHC 94] has held that merely for the reasons that the property is `WP(C) NO. 34988 OF 2023` 10 lying fallow and water gets logged during the rainy season or otherwise due to the low-lying nature of the property, the property cannot be termed as wetland or paddy land as per the provisions of the Act. This Court in Jessy Abraham v. Land Revenue Commissioner, Thiruvananthapuram, 2021 (6) KHC 316 has also held that merely for the reason that the land is lying low and is waterlogged, same cannot be included as paddy land in the Data Bank. In Aparna Sasi Menon v. RDO, Irinjalakuda [2023(6) KHC 83], this Court has held that there has to be a finding by the RDO that the water chals are `WP(C) NO. 34988 OF 2023` 11 connected to the nearby paddy fields or that the water chals in the petitioner’s property is indispensable for irrigation of paddy fields in the nearby area. In George Varghese v. District Collector [2023 (7) KHC 93], this Court held that the only aspect that should be ascertained by the RDO while considering a Form 6 application seeking permission to change the nature of the unnotified land is whether such change of land will affect the free flow of water to the nearby paddy field, if any, and that such reclamation would adversely affect the cultivation of paddy or any other crops in the adjoining land. `WP(C) NO. 34988 OF 2023` 12 6. In view of the categorical declaration of law by this Court in the decisions cited (supra), the reasons stated in Exts.P8 and P10 cannot be sustained. Accordingly, Exts.P8 and P10 are set aside. There will be a direction to the 2[nd] respondent, Revenue Divisional Officer to reconsider Ext.P6 application of the petitioner in Form No.7 in accordance with law, on the basis of the observations hereinabove and keeping in mind the binding precedents of this Court, as expeditiously as possible, at any rate, within a period of two months from the date of receipt of a copy of this judgment. `WP(C) NO. 34988 OF 2023` 13 The petitioner to produce a copy of this writ petition along with copy of the judgment before the 2[nd] respondent for compliance. Writ petition is disposed of. Sd/- MURALI PURUSHOTHAMAN JUDGE SRJ `WP(C) NO. 34988 OF 2023` 14 ## **`APPENDIX OF WP(C) 34988/2023`** ``` PETITIONERS’ EXHIBITS ``` ``` Exhibit P1 ``` - `A TRUE COPY OF THE POSSESSION CERTIFICATE DATED 19.11.2021 ISSUED BY THE VILLAGE OFFICER, ELATHUR IN FAVOUR OF THE PETITIONERS.` - `Exhibit P2 A TRUE COPY OF THE BASIC TAX RECEIPT DATED 12.10.2022 ISSUED BY THE 3RD RESPONDENT IN FAVOUR OF THE PETITIONERS.` - `Exhibit P3 A TRUE PHOTOGRAPHS SHOWING THE LIE AND NATURE OF THE PROPERTY.` - `Exhibit P4 A TRUE COPY OF THE GAZETTE NOTIFICATION DATED 20.01.2021 ALONG WITH RELEVANT PAGES.` - `Exhibit P5 A TRUE COPY OF THE PUBLIC NOTICE ISSUED BY THE 3RD RESPONDENT DATED 06.02.2020.` - `Exhibit P6 A TRUE COPY OF THE APPLICATION DATED 19.11.2021 IS FILED BY THE PETITIONER UNDER FORM 7 OF THE RULES FRAMED UNDER THE KERALA CONSERVATION OF PADDY LAND AND WET LAND ACT.` - `Exhibit P7 A TRUE COPY OF THE SKETCH.` - `Exhibit P8 A TRUE COPY OF THE ORDER DATED 08.12.2022 PASSED BY THE 2ND RESPONDENT.` - `Exhibit 9 A TRUE COPY OF THE REPORT OF THE KSREC DATED 09.03.2023.` ``` Exhibit P10A TRUE COPY OF THE ORDER DATED 05.09.2023 PASSED BY THE 1ST RESPONDENT. ```