Renjith George v. State of Kerala and Others

# **`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. 42789 OF 2023 ``` ## **`PETITIONER:`** ``` RENJITH GEORGE AGED 42 YEARS S/O. GEORGE, PARAKKATTEL HOUSE, AVOLY P. O, MUVATTUPUZHA, ERNAKULAM, PIN – 686 670. ``` ``` BY ADVS. ENOCH DAVID SIMON JOEL S.SREEDEV RONY JOSE LEO LUKOSE KAROL MATHEWS SEBASTIAN ALENCHERRY DERICK MATHAI SAJI KARAN SCARIA ABRAHAM ``` ## **`RESPONDENTS:`** - **`1 STATE OF KERALA REPRESENTED BY THE SECRETARY, DEPARTMENT OF REVENUE, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM, PIN – 682 031.`** - **`2 REVENUE DIVISIONAL OFFICER REVENUE DIVISIONAL OFFICE, MUVATTUPUZHA, ERNAKULAM, PIN – 686 673.`** - **`3 THE AGRICULTURAL OFFICER KRISHI BHAVAN, MANJALLOOR, VAZHAKULAM P.O, MUVATTUPUZHA, ERNAKULAM, PIN – 686 670.`** ``` WP(C).No.42789 OF 2023 ``` ``` 2 ``` ``` 4THE LOCAL LEVEL MONITORING COMMITTEE MANJALLOOR GRAMA PANCHAYAT, REPRESENTED BY ITS CONVENER, THE AGRICULTURAL OFFICER, KRISHI BHAVAN, MANJALLOOR, VAZHAKULAM P. O, MUVATTUPUZHA, ERNAKULAM, PIN – 686 670. SR. GP - SRI. E.G. GORDEN ``` ``` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 13.03.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` WP(C).No.42789 OF 2023 ``` ``` 3 ``` ## **`JUDGMENT`** The petitioner has approached this Court aggrieved by Ext.P5 order whereby Form 5 application submitted by the petitioner has been rejected by the Revenue Divisional Officer solely relying on the report of the Agricultural Officer. 2. The petitioner is the owner in possession of an extent of 18.21 Ares of land comprised in Sy. Nos.158/11A1-2 and 158/11B of Manjalloor Village, 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 (for short, ‘the Act, 2008’). It is a converted land and so recorded in the Data Bank. Though such land ought not to have been included in the Data ``` WP(C).No.42789 OF 2023 ``` ``` 4 ``` Bank, the same was included by mistake. Though in the light of the decision in **Habeeb Rahman v. RDO** [2020 (5) KLT 434], the subject land falls under the category of notified land, as of abundant caut ion, the petitioner filed an application in Form 5 of Rule 4 (d) of the Kerala Conservation of Paddy land and Wetland Rules, 2008 (for short, ‘the Rules’) 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.P5 stating that as per the report of the Agricultural Officer, the land has been planted with coconuts, arecanuts and nutmeg and there are neerchals and no land conversion has taken place and only price conversion has taken place and the LLMC has decided to retain the land in the Data Bank. 4. The petitioner has filed this writ petition challenging Ext.P5 contending, inter alia that the ``` WP(C).No.42789 OF 2023 ``` ``` 5 ``` same is vitiated by non application of mind and is against the provisions of the Act, 2008 and the binding precedents of this Court. 5. The relevant consideration for inclusion of a property as 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. Rule 4 (4E) of the Rules 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 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 property ``` WP(C).No.42789 OF 2023 ``` ``` 6 ``` as on the date of coming into force of the Act, 2008, the Revenue Divisional Officer has solely relied upon the report of the Agricultural Officer 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 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. 7. 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 ``` WP(C).No.42789 OF 2023 ``` ``` 7 ``` decided not to remove the land from the 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 the 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. In **Aparna Sasi Menon v. Revenue Divisional Officer** [2023 (6) KHC 83], this Court has held that the predominant factor for consideration while considering Form 5 application should be whether the land which is sought to be excluded from the Data Bank is one where paddy cultivation is possible and feasible and existence of ‘neerchals’ in a property should never be a prime consideration in deciding whether the land is to be retained in the Data Bank. ``` WP(C).No.42789 OF 2023 ``` ``` 8 ``` 8. This Court in **Jessy Abraham v. Land Revenue Commissioner, Thiruvananthapuram** [2021 (6) KHC 316] has held that merely for the reason that the land is lying low and is waterlogged, the same cannot be included as paddy land in the Data Bank. 9. 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.” ``` WP(C).No.42789 OF 2023 ``` **==> picture [8 x 10] intentionally omitted <==** 10. Thus it is trite law that existence of neerchal cannot be the prime consideration to retain the property in the Data Bank. In spite of the categorical declarations by 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. Accordingly, I find that Ext.P5 order cannot be sustained and I set aside the same, with a direction to the 2[nd] respondent, the Revenue Divisional Officer to reconsider the application of the petitioner in Form 5 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 report within a period of two weeks from the date of ``` WP(C).No.42789 OF 2023 ``` ``` 10 ``` receipt of a copy of this judgment. The petitioner shall produce a copy of the writ petition along with a copy of this judgment before the 1[st] respondent for compliance. The writ petition is disposed of with the above directions. Sd/- ``` MURALI PURUSHOTHAMAN JUDGE ``` SPR ``` WP(C).No.42789 OF 2023 ``` ``` 11 ``` ## **`APPENDIX`** ## **`PETITIONER’S EXHIBITS:-`** ``` EXHIBIT P1TRUE COPY OF SALE DEED NO. 293/2023 OF MUVATTUPUZHA SRO. ``` ``` EXHIBIT P1(a)TRUE COPY OF THE TAX RECEIPT DATED 20.03.2023 ISSUED BY THE VILLAGE OFFICER, MANJALLOOR. ``` ``` EXHIBIT P2TRUE PHOTOGRAPHS OF THE LAND SHOWING ITS LIE AND NATURE. ``` ``` EXHIBIT P3TRUE COPY OF THE ABSTRACT OF THE DATA BANK RELATING TO THE PROPERTY. EXHIBIT P4TRUE COPY OF THE REPORT DATED 17.05.2023 SUBMITTED BY THE 3RD RESPONDENT TO THE 2ND RESPONDENT. ``` ``` EXHIBIT P5TRUE COPY OF THE ORDER DATED 24.05.2023 WITH FILE NO. 5723/2023 ISSUED BY THE 2ND RESPONDENT. EXHIBIT P6TRUE COPY OF THE LETTER DATED 04.12.2023 ISSUED BY THE 3RD RESPONDENT TO THE PETITIONER ALONG WITH A COPY OF THE MINUTES OF THE MEETING OF THE 4TH RESPONDENT HELD ON 04.05.2023. ``` ## **`RESPONDENTS EXHIBITS: NIL.`**