Radha v. State of Kerala

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR.JUSTICE MURALI PURUSHOTHAMAN`** ``` TUESDAY, THE 19[TH] DAY OF MARCH 2024 / 29TH PHALGUNA, 1945 WP(C) NO.13687 OF 2023 ``` ## **`PETITIONER:`** ``` RADHA, AGED 71 YEARS ``` ``` W/O.KESHAVANKUTTY, RESIDING IN THE ADDRESS "RAKENDHU', DUTT COMPOUND, MANKAVU P O, KOZHIKODE DISTRICT, PIN - 673007 ``` ``` BY ADV G.SREEKUMAR (CHELUR) ``` ## **`RESPONDENTS:`** - **`1 THE STATE OF KERALA, REPRESENTED BY THE SECRETARY TO THE GOVERNMENT REVENUE DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM P O, THIRUVANANTHAPURAM DISTRICT, PIN - 695001`** - **`2 THE DISTRICT COLLECTOR, OFFICE OF THE DISTRICT COLLECTOR, CIVIL STATION, KOZHIKODE P O, KOZHIKODE DISTRICT, PIN - 673001`** - **`3 THE REVENUE DIVISIONAL OFFICER, OFFICE OF THE REVENUE DIVISIONAL OFFICER KOZHIKODE, CIVIL STATION, KOZHIKODE P O, KOZHIKODE DISTRICT, PIN - 673001`** - **`4 THE TALUK TAHSILDAR, OFFICE OF THE TALUK TAHSILDAR, KOZHIKODE TALUK OFFICE, KOZHIKODE P O, KOZHIKODE DISTRICT, PIN - 673001`** - **`5 THE VILLAGE OFFICER, OFFICE OF THE VILLAGE OFFICER, OLAVANNA, OLAVANNA P O, KOZHIKODE DISTRICT, PIN - 673019`** W.P.(C) No.13687 of 2023 2 ``` 6THE AGRICULTURE OFFICER, CONVENER, LOCAL LEVEL MONITORING COMMITTEE, OLAVANNA PANCHAYATH, OLAVANNA P O, KOZHIKODE DISTRICT, PIN - 673019 ``` ``` BY SR.GP.SRI.E.G.GORDEN ``` ``` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 19.03.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` W.P.(C) No.13687 of 2023 3 ## **`JUDGMENT`** ``` Petitioner has approached this Court aggrieved by Ext.P5 order, whereby Form 5 application submitted by him has been rejected by the 3[rd] respondent/Revenue Divisional Officer [RDO]. ``` ``` 2. Petitioner is the owner in possession of 10 Ares 82.99 Sq.Meters of land comprised in Sy.No.52/16 of Olavanna Village, Kozhikode Taluk, Kozhikode District. ``` ``` 3. According to the petitioner, the aforesaid property will not come within the ambit of paddy land or wetland as defined under the Kerala Conservation of Paddy Land and Wetland Act, 2008 (for brevity, ‘the Act, 2008’). However, the property is wrongly included in the Data Bank. The ``` W.P.(C) No.13687 of 2023 4 ``` petitioner filed an application in Form 5 of Rule 4(d) of the Kerala Conservation of Paddy Land and Wetland Rules, 2008 before the RDO to remove the said land from the Data Bank. The same has been rejected by the RDO vide Ext.P5 order stating that as per the report of the Village Officer and the photograph, the subject land is lying marshy, low lying and waterlogged and there are paddy fields nearby. ``` ``` 4. The petitioner has filed this writ petition challenging Ext.P5 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 RDO should have called for a report from the Kerala State Remote Sensing and ``` W.P.(C) No.13687 of 2023 5 ``` 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 wetland 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, 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 ``` W.P.(C) No.13687 of 2023 6 ``` 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.P5, 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 RDO has refused 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 as on the date of coming into ``` 7 W.P.(C) No.13687 of 2023 ``` force of the Act and also whether the land is suitable for paddy cultivation or not. In Muraleedharan Nair v. Revenue Divisional Officer [2023 (4) KLT 270], this Court 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 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 ``` W.P.(C) No.13687 of 2023 8 ``` the absence of such findings, the impugned order is unsustainable. In Aparna Sasi Menon v. Revenue Divisional Officer [2023 (6) KHC 83], this Court held that existence of neerchals in a property should never be a prime consideration in deciding whether the land is to be retained in Data Bank. Instead, the prime consideration should be whether paddy cultivation is possible in the property in question. ``` ``` 7. InMather Nagar Residents Association and Another v. District Collector, Ernakulam and 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,itshouldhavethe ``` W.P.(C) No.13687 of 2023 9 ``` characteristic features and requirement as is provided under the Act, 2008. It is clear from the report submitted by the Sub Collector before the Apex Court as well as report of KSREC, 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 KSREC 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.`**_ W.P.(C) No.13687 of 2023 10 ``` 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, such land cannot be said as suitable for cultivation and may come outside the definition of paddy land. ``` ``` 9. This Court in Jessy Abraham v. Land Revenue Commissioner, Thiruvananthapuram [2021 (6) KHC 316]has also 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 spite of the categorical declarations by ``` W.P.(C) No.13687 of 2023 11 ``` 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. None of the parameters for consideration of a Form 5 application has been taken into account while passing the impugned order. Accordingly, I find that Ext.P5 order cannot be sustained and I set aside the same, with a direction to the 3[rd] respondent, the RDO, to reconsider the application in Form 5 in accordance with law and take a decision in the matter after considering the KSRSEC report to be obtained at the expense of the petitioner and other relevant factors mentioned in Rule 4(4F), within a period of two months from the date of receipt of the ``` W.P.(C) No.13687 of 2023 12 ``` report of 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 petitioner shall produce a copy of the writ petition along with a copy of the judgment before the 3[rd] respondent for due compliance. ``` ``` The writ petition is disposed of with the above directions. ``` ``` Sd/- ``` ``` MURALI PURUSHOTHAMAN JUDGE ``` ``` sp/21/03/2024 ``` W.P.(C) No.13687 of 2023 13 ## **`APPENDIX`** ## **`PETITIONER'S EXHIBITS:-`** ``` ExhibitP1A TRUE COPY OF THE DOCUMENT BEARING NO. 12/2003 DATED 01.01.2003 OF THE CHEVAYUR SRO. ``` ``` ExhibitP2A TRUE COPY OF THE FIELD SHEET OF THE OLAVANNA VILLAGE, FILED NO. 52 DATED NIL. ExhibitP3A TRUE COPY OF THE FILED NO. 52/8 OF OLAVANNA VILLAGE COPY ISSUED DATED 03.06.2016 ``` ``` ExhibitP4A TRUE COPY OF THE INTIMATION RECEIPT FOR TAX PAYMENT ISSUED DATED 04.04.2023 BY THE OLAVANNA VILLAGE OFFICE. ``` ``` ExhibitP5A TRUE COPY OF THE ORDER PASSED BY THE 3RD RESPONDENT DATED 23.03.2023. ```