Rajesh V and P. Padmapriya v. State of Kerala and others

## **`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.3749 OF 2024 ``` ## **`PETITIONERS:`** - **`1 RAJESH V, AGED 50 YEARS, S/O.BHANU VIKRAMAN, RESIDING AT PALLIYIL HOUSE, SHASTHRI NAGAR, POONITHURA DESOM, MARADU P.O., POONITHURA VILLAGE, KANAYANNOOR TALUK, ERNAKULAM DISTRICT, PIN - 682304`** - **`2 P.PADMAPRIYA, AGED 41 YEARS, W/O.RAJESH V, RESIDING AT PALLIYIL HOUSE, SHASTHRI NAGAR, POONITHURA DESOM, MARADU P.O., POONITHURA VILLAGE, KANAYANNOOR TALUK, ERNAKULAM DISTRICT, PIN - 682304`** ``` BY ADVS. ``` ``` K.V.JAYADEEP MENON T.P.RAMESH (THENGUMPILLIL) P.KRISHNAPRIYA HARIPRASAD K. ``` ## **`RESPONDENTS:`** - **`1 STATE OF KERALA REPRESENTED BY ITS SECRETARY, AGRICULTURE DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM DISTRICT, PIN - 695001`** - **`2 THE DISTRICT COLLECTOR, COLLECTORATE, CIVIL STATION, KAKKANAD, ERNAKULAM DISTRICT, PIN - 682030`** - **`3 THE DISTRICT LEVEL AUTHORIZED COMMITTEE REPRESENTED BY THE REVENUE DIVISIONAL OFFICER, REVENUE DIVISIONAL OFFICE FORT KOCHI, FIRST FLOOR, KB JACOB ROAD, FORT KOCHI, ERNAKULAM DISTRICT, PIN - 682001`** - **`4 THE VILLAGE OFFICER NADAMA VILLAGE, POST OFFICE ROAD, THRIPUNITHURA, ERNAKULAM DISTRICT, PIN - 682301`** W.P.(C) No.3749 of 2024 2 ``` 5THE LOCAL LEVEL MONITORING COMMITTEE REPRESENTED BY ITS CONVENER, AGRICULTURAL OFFICER, KRISHI BHAVAN, THRIPUNITHURA, MINI CIVIL STATION, MAIN ROAD, THRIPUNITHURA, ERNAKULAM DISTRICT, PIN - 682301 ``` ``` * 6THE REVENUE DIVISIONAL OFFICER, REVENUE DIVISIONAL OFFICE, FORT KOCHI, FIRST FLOOR, KB JACOB ROAD, FORT KOCHI, ERNAKULAM DISTRICT ``` ``` *[ADDL.R6 IS IMPLEADED AS PER ORDER DATED 08.02.2024 IN I.A.NO.1 OF 2024] ``` ``` BY SMT.K.AMMINIKUTTY, SR.GOVERNMENT PLEADER ``` ``` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 08.02.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` W.P.(C) No.3749 of 2024 3 ## **`JUDGMENT`** ``` Petitioners have approached this Court aggrieved by Ext.P7 order, whereby Form 5 application submitted by them has been rejected by the additional 6[th] respondent/Revenue Divisional Officer [RDO] solely relying on the report of the Agricultural Officer. ``` ``` 2. Petitioners are the owners in possession of 2.31 Ares of land comprised in Re-Sy.No.24/9 in Block No.123 of Nadama Village, Kanayannur Taluk, Ernakulam District. ``` ``` 3. According to the petitioners, 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, it is stated that the property is wrongly included in ``` W.P.(C) No.3749 of 2024 4 ``` the Data Bank. The petitioners filed Ext.P4 application in Form 5 of Rule 4(d) of the Kerala Conservation of Paddy Land and Wetland Rules, 2008 before the RDO, and the RDO rejected the same by Ext.P7 order stating that as per the report of the Agricultural Officer, the land is still lying as paddy land and the LLMC has recommended not to remove the land from the Data Bank. ``` ``` 4. The petitioners have filed this writ petition challenging 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 RDO should have called for a report from the Kerala State Remote Sensing and Environment Centre, Thiruvananthapuram [for short, ‘the KSRSEC’] to ascertain the status of ``` W.P.(C) No.3749 of 2024 5 ``` 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. On a perusal of Ext.P7, 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 relied solely upon the report of the Agricultural Officer and LLMC to refuse 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 ``` W.P.(C) No.3749 of 2024 6 ``` 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. 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 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 ``` W.P.(C) No.3749 of 2024 7 ``` affect sustenance of wetlands in the area and in the absence of such findings, the impugned order is unsustainable. In Aparna Sasi Menon v. Revenue Divisional Officer [2023 (6) KHC 83] this Court has held that the predominant factor for consideration while considering the Form-5 application should be whether the land which is sought to be excluded from Data Bank is one where paddy cultivation is possible and feasible. ``` ``` In spite of the above categorical declarations by this Court in the decisions cited above, the petitioners’ application has been rejected, solely relying on the report of the Agricultural Officer, which recommended not to remove the 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 additional 6[th] respondent, the ``` W.P.(C) No.3749 of 2024 8 ``` RDO, to reconsider Ext.P4 application in accordance with law and take a decision in the matter after obtaining KSRSEC report at the expense of the petitioners, within a period of two months from the date of receipt of a copy of the report of the KSRSEC. The petitioners 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 ``` ``` sp/08/02/2024 ``` W.P.(C) No.3749 of 2024 9 ## **`APPENDIX`** ## **`PETITIONER'S EXHIBITS:-`** ``` Exhibit P1 ``` ``` THE TRUE PHOTOCOPY OF THE LAND TAX RECEIPT DATED 11.07.2019 ISSUED FROM THE VILLAGE OFFICE NADAMA ``` ``` Exhibit P2THE TRUE PHOTOCOPY OF THE CERTIFICATE DATED 18.01.2011 ISSUED FROM THE VILLAGE OFFICE NADAMA ``` - **`Exhibit P3 THE TRUE PHOTOCOPY OF THE RELEVANT PAGE OF THE DATA BANK ISSUED FROM THE KRISHIBHAVAN, THRIPUNITHURA`** - **`Exhibit P4 THE TRUE PHOTOCOPY OF THE APPLICATION SUBMITTED BY THE PETITIONERS BEFORE THE LOCAL LEVEL MONITORING COMMITTEE UNDER FORM 5 OF THE KERALA CONSERVATION OF PADDY LAND AND WET LAND ACT, 2008 DATED NIL`** - **`Exhibit P5 THE TRUE PHOTOCOPY OF THE REPORT OF THE AGRICULTURAL OFFICER, KRISHI BHAVAN, THRIPUNITHURA`** - **`Exhibit P6 THE TRUE PHOTOCOPY OF RELEVANT PAGES OF THE LLMC REPORT`** - **`Exhibit P7`** - **`THE TRUE PHOTOCOPY OF THE ORDER PASSED BY THE 3RD RESPONDENT DATED 22.03.2023`** - **`Exhibit P8`** ``` THE TRUE PHOTOCOPY OF THE APPLICATION DATED 03.04.2023 BY THE PETITIONERS TO THE 3RD RESPONDENT ```