REJI JOSEPH v. STATE OF KERALA & ORS

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE MURALI PURUSHOTHAMAN MONDAY, THE 5[TH] DAY OF FEBRUARY 2024 / 16TH MAGHA, 1945 WP(C) NO. 1569 OF 2024 ``` ## **`PETITIONER:`** ``` REJI JOSEPH, AGED 48 YEARS S/O. JOSEPH, KOOTTUNKAL HOUSE, VELLARAPPILLY SOUTH P O., ERNAKULAM DISTRICT, PIN – 683 580. ``` ``` BY ADV MEREENA.J.JOSEPH ``` ## **`RESPONDENTS:`** |**`1`**|**`STATE OF KERALA,`**| |---|---| ||**`REPRESENTED BY THE SECRETARY,`**| ||**`REVENUE DEPARTMENT, GOVERNMENT SECRETARIAT,`**| ||**`THIRUVANANTHAPURAM, PIN – 695 001.`**| |**`2`**|**`THE LAND REVENUE COMMISSIONER,`**| ||**`COMMISSIONERATE OF LAND REVENUE,`**| ||**`PUBLIC OFFICE BUILDING, MUSEUM JUNCTION,`**| ||**`THIRUVANANTHAPURAM, PIN – 695 001.`**| |**`3`**|**`THE DISTRICT COLLECTOR,`**| ||**`CIVIL STATION, KAKKANAD,`**| ||**`ERNAKULAM, PIN – 682 030.`**| |**`4`**|**`THE REVENUE DIVISIONAL OFFICER,`**| ||**`OFFICE OF THE REVENUE DIVISIONAL OFFICER,`**| ||**`PATTIMATTOM, MUVATTUPUZHA ROAD,`**| ||**`MUVATTUPUZHA, ERNAKULAM, PIN – 686 673.`**| |**`5`**|**`THE AGRICULTURAL OFFICER,`**| ||**`KRISHIBHAVAN, VADAVUCODE,`**| ||**`PUTHENKURIZ, ERNAKULAM,`**| ||**`PIN – 682 310.`**| ||**`SR.GP. - SRI.E.G.GORDEN`**| ``` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 05.02.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` WP(C).No.1569 OF 2024 ``` ``` 2 ``` ## **`JUDGMENT`** The petitioner has approached this Court aggrieved by Ext.P6 order whereby Form 5 application submitted by him has been rejected by the Revenue Divisional Officer. 2. The petitioner is the absolute owner in possession of an extent of 14.03 Ares of land comprised in Re.Sy. No.158/9-2 in Block No.37 of Puthenkuriz Village, Kunnathunad Taluk in Ernakulam District. 3. According to the petitioner, the aforesaid property will not come within the ambit of paddy land or wet land as defined under the Kerala Conservation of Paddy Land and Wetland Act, 2008 (hereinafter referred to as 'the Act, 2008’). However, it is stated that 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 ``` WP(C).No.1569 OF 2024 ``` ``` 3 ``` Paddy land and Wetland Rules, 2008 before the Revenue Divisional Officer to remove the said land from the Data Bank. The same has been rejected by the Revenue Divisional Officer vide Ext.P6 stating that the property is lying at low level and is not seen converted before 2008, though stated in Data Bank as converted land. 4. The petitioner has filed this writ petition challenging Ext.P6 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 Revenue Divisional Officer 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 land as on 12.08.2008, the date of coming into force of the Act, 2008. 5. It is trite law that, merely because the ``` WP(C).No.1569 OF 2024 ``` ``` 4 ``` 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. In **Mather Nagar Residents Association and Another v. District Collector, Ernakulam 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, it should have the characteristic features and requirement as is provided under Act, 2008. It is clear from the report submitted by the Sub Collector before the Apex Court as well as report of KSRSEC, 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 KSRSEC 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.” 6. In **Adani Infrastructures & Developers Pvt. Ltd, Mumbai & Others Vs. State of Kerala &** ``` WP(C).No.1569 OF 2024 ``` ``` 5 ``` **Others** [2014 (1) KHC 685] this Court 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, 2008 such lands cannot be said as suitable for cultivation and may come outside the definition of paddy land. 7. The relevant consideration for inclusion of property as a paddy land or wet land 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.P6, it is evident that, without any independent assessment of the nature of property as on the date of coming into force of the Act, 2008, the Revenue Divisional Officer has passed Ext.P6 refusing to remove the property from the Data Bank. This Court had held in the decision in **Arthasasthra Ventures (India) LLP v.** ``` WP(C).No.1569 OF 2024 ``` ## **`6`** **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 on the date of coming into force of the Act, 2008 and also whether the land is suitable for paddy cultivation or not. 8. In spite of the categorical declarations by this Court in the decisions cited above, the petitioner’s application has been rejected. Accordingly, I find that Ext.P6 order cannot be sustained and I set aside the same, with a direction to the 4[th] respondent Revenue Divisional Officer to reconsider Ext.P3 application in accordance with law and take a decision in the matter after obtaining KSRSEC report at the expense of the petitioner, 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 ``` WP(C).No.1569 OF 2024 ``` ``` 7 ``` 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 ``` SPR ``` WP(C).No.1569 OF 2024 ``` ``` 8 ``` ## **`APPENDIX`** ## **`PETITIONER’S EXHIBITS:-`** ``` EXHIBIT P1TRUE COPY OF THE TITLE DEED IN RESPECT OF PROPERTY COVERED BY SY.NO:158/9-2 IN BLOCK NO:37 OF PUTHENKURIZ VILLAGE COVERED BY DOCUMENT NO.6758/2005 OF KOLENCHERY SUB REGISTRY DATED 10/10/2005. EXHIBIT P2TRUE COPY OF THE RELEVANT PAGES OF THE DATA BANK IN RESPECT OF THE PROPERTY COVERED BYRE-SY.NO:158/9-2 IN BLOCK NO:37 OF PUTHENKURIZ VILLAGE THE DATED NIL. EXHIBIT P3TRUE COPY OF THE FORM 5 APPLICATION FILED BY THE PETITIONER DATED 18/7/2022. EXHIBIT P4TRUE COPY OF THE REPORT SUBMITTED BY THE 5TH RESPONDENT BEFORE THE 4TH RESPONDENT DATED NIL. ``` ``` EXHIBIT P5TRUE COPY OF THE APPLICATION SUBMITTED BY THE PETITIONER BEFORE THE 4TH RESPONDENT DATED 30/9/2023. ``` ``` EXHIBIT P6TRUE COPY OF THE ORDER PASSED BY THE 4TH RESPONDENT REJECTING THE FORM 5 APPLICATION SUBMITTED BY THE PETITIONER DATED 16/10/2023. ``` ## **`RESPONDENTS EXHIBITS: NIL.`**