Rani Xavier v. State of Kerala & Others

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** # **`PRESENT`** ## **`THE HONOURABLE MR.JUSTICE MURALI PURUSHOTHAMAN`** ``` WEDNESDAY, THE 7[TH] DAY OF FEBRUARY 2024 / 18TH MAGHA, 1945 WP(C) NO.4679 OF 2024 ``` ## **`PETITIONER:`** ``` RANI XAVIER, AGED 56 YEARS, W/O. XAVIER MATHEW, NELLIPPILLIL HOUSE, ADOOPARAMBU, MUVATTUPUZHA P.O., ERNAKULAM, PIN - 686661 ``` ``` BY ADVS. DONA PAUL ANIL SEBASTIAN PULICKEL PAUL MATHEW DAYANA PAUL ``` ## **`RESPONDENTS:`** - **`1 STATE OF KERALA REPRESENTED BY THE SECRETARY TO THE GOVERNMENT, DEPARTMENT OF AGRICULTURE, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM, PIN - 695001`** - **`2 REVENUE DIVISIONAL OFFICER, MUVATTUPUZHA OFFICE OF THE REVENUE DIVISIONAL OFFICE, MUVATTUPUZHA, ERNAKULAM DISTRICT, PIN - 686662`** - **`3 LOCAL LEVEL MONITORING COMMITTEE OF AVOLY GRAMA PANCHAYAT REPRESENTED BY THE CONVENER/AGRICULTURAL OFFICER, LOCAL LEVEL MONITORING COMMITTEE, AVOLY GRAMA PANCHAYAT, AVOLY, PIN - 686670`** - **`4 AGRICULTURAL OFFICER, KRISHI BHAVAN, AVOLY GRAMA PANCHAYAT, AVOLY, ANICADU, MUVATTUPUZHA, PIN - 686670`** - **`5 VILLAGE OFFICER, MUVATTUPUZHA VILLAGE OFFICE, ERNAKULAM DISTRICT, PIN - 686670`** ``` BY SR.GP.SMT.K.AMMINIKUTTY ``` ``` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 07.02.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` W.P.(C) No.4679 of 2024 2 ## **`JUDGMENT`** ``` Petitioner has approached this Court aggrieved by Ext.P7 order whereby Form 5 application submitted by her has been rejected by the 2[nd] respondent/Revenue Divisional Officer [RDO]. ``` ``` 2. Petitioner is the owner in possession of an extent of 34.40 Ares of land comprised in Sy.Nos.233/12-2-3, 230/1-3, 233/12-11-2, 233/12-1- 3, 233/12-4-2 and 233/12-8 of Muvattupuzha Village, Muvattupuzha Taluk, Ernakulam District by virtue of Sale Deed No.2770/07. ``` ``` 3. According to the petitioner, the said property will not come within the definition of paddy land or wetland. However, it has been wrongly included in the Data Bank prepared under Kerala Conservation of Paddy Land and Wetland Rules, 2008 as paddy land with the remark ``` W.P.(C) No.4679 of 2024 3 ``` ‘fallow’. The petitioner, therefore, filed an application in Form 5 under the provisions of the Kerala Conservation of Paddy Land and Wetland Act, 2008 [for brevity, ‘the Act,2008’] to remove the said property from the Data Bank. The RDO, by Ext.P7 order, rejected the application on the basis of the report of the Agricultural Officer that the property is lying as marshy with a depth of 10 feet from the road level and is part of padasekharam and there is water channel on the eastern side of the land and ‘chembu’, ‘kulavazha’ etc. are seen. ``` ``` 4. The petitioner impugns 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 has ``` W.P.(C) No.4679 of 2024 4 ``` not obtained any scientific data before rejecting the application. ``` ``` 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 property as on the date of coming in to force of the Act, 2008, the Revenue Divisional Officer has relied solely upon the report of the Agricultural Officer to refuse to remove the property from the Data Bank. ``` ``` 6. This Court, inMuraleedharan 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 ``` W.P.(C) No.4679 of 2024 5 ``` 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. ``` ``` 7. Further, it is trite law that, merely because the property is lying fallow, it cannot be termed as wetland or paddy land in contemplation of Act, 2008. InMather Nagar Residents Association and Another v. District Collector, ``` W.P.(C) No.4679 of 2024 6 ## _**`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 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 ``` W.P.(C) No.4679 of 2024 7 ``` termed as wetland or paddy land in contemplation of Act, 2008." ``` ``` 8. 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, such land cannot be said as suitable for cultivation and may come outside the definition of paddy land. ``` ``` 9. In Sudheesh v.Revenue Divisional Officer, ``` ``` [2023 (2) KLT 386], this Court held as follows;. ``` ``` "Going by the definition in S.2(xii) of "paddy land" in the Act, 2008, to bring in a land within the definition of paddy land, ``` 8 W.P.(C) No.4679 of 2024 ``` it should be suitable for paddy cultivation, but uncultivated and left fallow. Just for the reason that the property is left fallow, the land cannot be brought within the definition of paddy land but the Revenue Divisional Officer should be satisfied that the land is suitable for paddy cultivation and left fallow and therefore only on satisfaction of the said twin conditions that a land could be treated as paddy land coming under the definition of S.2(xii) of the Act, 2008." ``` ``` I find that there is total non application of mind on the part of the RDO in passing the impugned order. ``` ``` Accordingly, I set aside Ext.P7 with a direction to the 2[nd] respondent/RDO to reconsider the application of the petitioner in Form No.5 and take a decision in the matter on the basis of the observation of this Court and after obtaining the ``` W.P.(C) No.4679 of 2024 9 ``` KSRSEC report. The petitioner shall apply for KSRSEC report before the Agricultural Officer within a period of two weeks from the date of receipt of a copy of this judgment. Fresh orders on Form 5 application shall be passed within two months from the date of receipt of the report of the KSRSEC. ``` ``` The writ petition is disposed of. ``` ``` Sd/- ``` ``` MURALI PURUSHOTHAMAN JUDGE ``` ``` sp/07/02/2024 ``` W.P.(C) No.4679 of 2024 10 ## **`APPENDIX`** ## **`PETITIONER'S EXHIBITS:-`** ## **`Exhibit P1`** ``` TRUE COPY OF THE POSSESSION CERTIFICATE DATED 10.04.2023 ISSUED BY THE MUVATTUPUZHA VILLAGE OFFICE SHOWING THE PROPERTY WHICH THE PETITIONER IS IN POSSESSION OF ``` ``` Exhibit P2 ``` ``` TRUE COPY OF THE TAX RECEIPT NO. KL07071202423/2023 DATED 10.04.2023 SHOWING THE LAND TAX PAID BY THE PETITIONER FOR THE 2023-2024 PERIOD ``` ``` Exhibit P3 ``` ``` TRUE COPY OF THE RELEVANT PAGES OF THE DATA BANK ``` ``` Exhibit P4 ``` ``` TRUE COPY OF THE FORM-5 APPLICATION DATED 16.07.2022 SUBMITTED ONLINE BEFORE THE 2ND RESPONDENT BY THE PETITIONER ``` ``` Exhibit P5TRUE COPY OF THE JUDGEMENT DATED 27.06.2023 IN W.P.(C) 20923/23 OF THIS HON'BLE COURT ``` ``` Exhibit P6 ``` ``` TRUE COPY OF THE REPORT DATED 28.10.2023 SUBMITTED BY THE 4TH RESPONDENT TO THE 2ND RESPONDENT ``` - **`Exhibit P7 TRUE COPY OF THE ORDER DATED 06.11.2023 OF THE 2ND RESPONDENT REJECTING THE FORM-5 APPLICATION OF THE PETITIONER`** ``` Exhibit P8TRUE COPY OF PHOTOGRAPHS OF THE PROPERTY OF THE PETITIONER ```