Rajeswari v. State of Kerala

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** # **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE MURALI PURUSHOTHAMAN WEDNESDAY, THE 13[TH] DAY OF MARCH 2024 / 23RD PHALGUNA, 1945 WP(C) NO.41882 OF 2023 ``` ## **`PETITIONER:`** ``` RAJESWARI AGED 65 YEARS W/O.RAMAKRISHNAN K, AGED 65 YEARS, NAIDU HOUSE, MALLISSERPARAMBIL, SHORNUR PALAKKAD, KERALA, PIN - 679121 ``` ``` BY ADVS. KARTHIKA MARIA SANTHOSH MATHEW ARUN THOMAS ANIL SEBASTIAN PULICKEL SHINTO MATHEW ABRAHAM MATHEW NEVIN THOMAS ABI BENNY AREECKAL KURIAN ANTONY MATHEW DIANA LAURANCE PAUL ``` ## **`RESPONDENTS:`** - **`1 STATE OF KERALA REPRESENTED BY SECRETARY TO GOVERNMENT, DEPARTMENT OF AGRICULTURE, SECRETARIAT, THIRUVANANTHAPURAM, PIN - 695001`** - **`2 THE DISTRICT COLLECTOR, PALAKKAD COLLECTORATE, CIVIL STATION, KUNATHURMEDU PALAKKAD, PIN - 678001`** - **`3 REVENUE DIVISIONAL OFFICER REVENUE DIVISIONAL OFFICE, OTTAPALAM, KERALA, PIN - 679101`** - **`4 THE VILLAGE OFFICER VANIYAMKULAM - I VILLAGE NEAR PANCHAYAT OFFICE VANIYAMKULAM, PIN - 679522`** W.P.(C) No.41882 of 2023 2 ``` 5THE AGRICULTURAL OFFICER KRISHI BHAVAN, VANIYAMKULAM - I VILLAGE, NEAR PANCHAYAT OFFICE,VANIYAMKULAM, PIN - 679522 ``` ``` 6KERALA STATE REMOTE SENSING AND ENVIRONMENT CENTRE, VIKAS BHAVAN, NEAR LEGISLATIVE ASSEMBLY, THIRUVANANTHAPURAM REPRESENTED BY THE DIRECTOR, PIN - 695033 ``` ``` By SMT.DEVISREE, GP ``` ``` SRI.VISHNU S.CHEMPAZHANTHIYIL, SC, KSREC ``` ``` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 13.03.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` W.P.(C) No.41882 of 2023 3 ## **`JUDGMENT`** ``` Petitioner has approached this Court aggrieved by Ext.P5 order, whereby Form 5 application submitted by her has been rejected by the 3[rd] respondent/Revenue Divisional Officer [RDO]. ``` ``` 2. Petitioner is the owner in possession of 10.12 Ares of land comprised in Sy.No.15/7-12 in Block No.3 of Vaniyamkulam-I Village, Ottappalam Taluk, Palakkad 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 petitioner filed Ext.P3 application in Form 5 of Rule 4(d) of the Kerala Conservation of Paddy Land ``` 4 W.P.(C) No.41882 of 2023 ``` and Wetland Rules, 2008 [for brevity, ‘the 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 Agricultural Officer, the property appears to be suitable for paddy cultivation and the Local Level Monitoring Committee [LLMC] has recommended not to remove the property from the Data Bank. ``` ``` 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 Environment Centre [for short, ‘the KSRSEC’] ``` W.P.(C) No.41882 of 2023 5 ``` 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 Bank by direct inspection or with the help of satellite images prepared by Central/State ``` W.P.(C) No.41882 of 2023 6 ``` 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 force of the Act and also whether the land is suitable for paddy cultivation or not. In Muraleedharan Nair v. Revenue Divisional Officer ``` W.P.(C) No.41882 of 2023 7 ``` [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 the absence of such findings, the impugned order is unsustainable. InAparna Sasi Menon v. Revenue Divisional Officer [2023 (6) KHC 83], this Court has held that the predominant factor for ``` W.P.(C) No.41882 of 2023 8 ``` determination 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 categorical declarations by this Court in the decisions cited above, the petitioner’s application has been rejected, relying on the report of the Agricultural Officer and LLMC, which 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 Ext.P3 application in Form 5 in accordance with law and take a decision in the ``` W.P.(C) No.41882 of 2023 9 ``` 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 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 ``` ``` sp/19/03/2024 ``` W.P.(C) No.41882 of 2023 10 ## **`APPENDIX`** ## **`PETITIONER'S EXHIBITS:-`** ``` Exhibit. P1TRUE COPY OF THE TAX RECEIPT NO.KL09043901136/2022 DATED 14.03.2022 Exhibit. P2TRUE COPY OF THE EXTRACT OF THE DRAFT DATABANK PREPARED BY THE 5TH RESPONDENT Exhibit. P3TRUE COPY OF THE FORM 5 APPLICATION DATED 15.03.2022 PREFERRED BY THE PETITIONER Exhibit. P4TRUE COPY OF THE MINUTES BEARING REFERENCENO.II(1)VKM18ADATED 03.06.2022 ALONG WITH THE REPORT OF THE 5TH RESPONDENT Exhibit. P5TRUE COPY OF THE ORDER DATED 31.01.2023 ISSUED BY THE 3RD RESPONDENT TO THE PETITIONER Exhibit. P6TRUE COPY OF THE ORDER DATED 25.08.2023 ISSUED BY THE DEPUTY COLLECTOR ON BEHALF OF THE 2ND RESPONDENT ``` ``` Exhibit. P7TRUE COPY OF THE CERTIFICATE DATED 08.03.2012 ISSUED BY THE 4TH RESPONDENT ```