Sadanandan v. Revenue Divisional Officer, Pala and Local Level Monitoring Committee

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR.JUSTICE MURALI PURUSHOTHAMAN`** ``` FRIDAY, THE 23[RD] DAY OF FEBRUARY 2024 / 4TH PHALGUNA, 1945 ``` ## **`WP(C) NO. 3460 OF 2022`** ## **`PETITIONER:`** ``` SADANANDAN, AGED 55 YEARS S/O. VASU, MOOLAYIL HOUSE, KALLARA SOUTH P.O., KOTTAYAM - 686 611. ``` ## **`BY ADV V.M.KRISHNAKUMAR`** ## **`RESPONDENTS:`** - **`1 REVENUE DIVISIONAL OFFICER, PALA, KOTTAYAM DISTRICT - 686 575.`** - **`2 LOCAL LEVEL MONITORING COMMITTEE, REPRESENTED BY ITS CONVENER, AGRICULTURAL OFFICER, KALLARA KRISHI BHAVAN, KALLARA SOUTH P.O., KOTTAYAM DISTRICT - 686 611.`** ## **`SMT.SHEEBA - GP`** ``` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 23.02.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` WP(C).No.3460 OF 2022 ``` ``` 2 ``` ## **`JUDGMENT`** The petitioner has approached this Court aggrieved by Ext.P10 order whereby Form 5 application submitted by him has been rejected by the Revenue Divisional Officer. 2. The petitioner is the owner in possession of an extent of 13.77 Ares of land comprised in Sy. Nos.599/3A and 599/3A1 of Kallara Village. The petitioner is also the owner in possession of an extent on 4.96 Ares of land comprised in Sy. No.599/3A2 of the same Village. According to the petitioner, the aforesaid properties are pucca residential properties having usufructs of more than 40 years old. 3. According to the petitioner, the aforesaid properties will not come within the definition of paddy land or wet land. However, the said properties have been wrongly included in the Data Bank prepared under the Kerala Conservation of Paddy Land and ``` WP(C).No.3460 OF 2022 ``` ## **`3`** Wetland Rules, 2008 (for short, ‘the Rules’). The petitioner, therefore, filed Exts.P5 and P5(a) applications in Form 5 of Rule 4 (d) of the Kerala Conservation of Paddy land and Wetland Act, 2008 (for short, ‘the Act, 2008’) before the Revenue Divisional Officer to remove the property from the Data Bank. The applications have been rejected by the RDO, by Ext.P10 order, stating that as per the report of the Agricultural Officer, the property is paddy land coming within the ambit of Section 2(xii) of the Act, 2008 and the property has been filled with earth after the commencement of the Act, 2008 and the District Collector has already initiated the proceedings under Sections 13 and 23 of the Act, 2008 directing the petitioner to restore the property and that the LLMC has recommended not to remove the property from the Data Bank as conversion would seriously affect the flow of water and the environment. ``` WP(C).No.3460 OF 2022 ``` ``` 4 ``` 4. The petitioner impugns Ext.P10 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. 5. According to the petitioner, though Ext.P6 KSRSEC report was available, the 1[st] respondent did not advert to the same. As per Ext.P6 KSRSEC report, the subject land was observed under plantation even in 2003 data and the aforesaid land use pattern continued in 2011. 6. A counter affidavit has been filed by the 2[nd] respondent reiterating the stand taken by the 1[st] respondent in Ext.P10. It is stated therein that the area is genuine paddy field which has been cultivated with paddy crops for years and the land is coming within the definition of paddy land under the Act, 2008. It is further stated that the LLMC verified the KSRSEC report and the land was observed under plantation/vegetation in the data of the year 07.07.2003. It is further stated that, on field ``` WP(C).No.3460 OF 2022 ``` ## **`5`** verification, it is understood that the subject land is paddy land converted with soil after the commencement of the Act, 2008. 7. 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.P10, 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 ``` WP(C).No.3460 OF 2022 ``` ``` 6 ``` has relied upon the report of the Agricultural Officer and LLMC to refuse to remove the property from the Data Bank. 8. 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. 9. 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 the Data Bank. The Revenue Divisional Officer being the competent ``` WP(C).No.3460 OF 2022 ``` ``` 7 ``` 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. 10. In **Adani Infrastructures & Developers Pvt. Ltd, Mumbai & Others Vs. State of Kerala & Others** [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, 2008 such lands cannot be said as suitable for cultivation and may come outside the definition of paddy land. 11. In **Mather Nagar Residents Association** ``` WP(C).No.3460 OF 2022 ``` ``` 8 ``` ## **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.” ## 12. 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, 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 ``` WP(C).No.3460 OF 2022 ``` ``` 9 ``` 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.” 13. This Court in **Bharathan Ramanathan v State of Kerala** [2022 (7) KHC 541], has held that pendency of proceedings under Section 13 of the Kerala Conservation of Paddy Land and Wetland Rules, 2008 is not a ground to consider an application in Form 5. In **Devanand v. State of Kerala** [2023 (1) KHC 123], this Court has held that even if Section 13 Proceedings are concluded, the petitioner has a right to get his Form 5 application considered by the RDO. Therefore pendency of proceedings under Section 13 of the Kerala Conservation of Paddy Land and Wetland Rules, 2008 is not a ground to reject the application of the petitioner. 14. In spite of the categorical declarations by this Court in the decisions cited above, the petitioner's application has been rejected on untenable grounds. The 1[st] respondent has not ``` WP(C).No.3460 OF 2022 ``` ## **`10`** considered Ext.P6 KSRSEC report in the proper perspective. Accordingly, I find that Ext.P10 order cannot be sustained and I set aside the same, with a direction to the 1[st] respondent, the Revenue Divisional Officer to reconsider the application in Form 5 in accordance with law and take a decision in the matter after considering Ext.P6 KSRSEC report, the binding precedents and other relevant factors mentioned in Rule 4(4F) of the Rules, within a period of two months 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 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.3460 OF 2022 ``` ``` 11 ``` ## **`APPENDIX`** ## **`PETITIONER’S EXHIBITS:-`** ``` EXHIBIT P1TRUE COPY OF THE BASIC TAX RECEIPT ISSUED TO THE PETITIONER BY THE VILLAGE OFFICE KALLARA DATED 19.10.2020. ``` ``` EXHIBIT P2TRUE COPY OF THE BUILDING TAX RECEIPT ISSUED TO THE PETITIONERS BUILDING DATED 07.07.2020. EXHIBIT P3PHOTOGRAPH SHOWING THE OLD RESIDENTIAL BUILDING AS WELL AS THE PETITIONERS PROPERTY HAVING USUFRUCTS. ``` ``` EXHIBIT P4PHOTOGRAPH SHOWING THE OLD BUILDING AND THE NEW RESIDENTIAL BUILDING UNDER CONSTRUCTION. ``` ``` EXHIBIT P5TRUE COPY OF THE APPLICATION FILED BY THE PETITIONER BEFORE THE IST RESPONDENT DATED 24.07.2017 S REGARDS PROPERTY IN SY. NO. 599/3A. ``` ``` EXHIBIT P5 (a)TRUE COPY OF THE APPLICATION FILED BY THE PETITIONER BEFORE THE IST RESPONDENT DATED 24.07.2017 AS REGARDS PROPERTY IN SY.NO. 599/3A2. EXHIBIT P6TRUE COPY OF THE REPORT OF THE KERALA STATE REMOTE SENSING AND ENVIRONMENT CENTRE ALONG WITH COVERING LETTER DATED 11.06.2018. EXHIBIT P7TRUE COPY OF THE ORDER OF THE DISTRICT COLLECTOR DATED 02.11.2017. EXHIBIT P8TRUE COPY OF THE JUDGMENT IN WPC NO. 39832/2017 DATED 14.12.2017. EXHIBIT P9TRUE COPY OF THE JUDGMENT IN WPC NO. 4082/2021 DATED 31.08.2021. EXHIBIT P10TRUE COPY OF THE ORDER DATED 11.01.2022 OF THE IST RESPONDENT. ``` ## **`RESPONDENTS EXHIBITS:-`** ``` EXHIBIT R2(a)TRUE COPY OF THE PHOTOGRAPHS OF LAND CONVERSION IN SY. NOS.599/3A.599/3AI. 599/3A2. ``` ``` WP(C).No.3460 OF 2022 ``` ## **`12`** |**`EXHIBIT R2(b)`**|**`TRUE COPY OF`**|**`THE`**|**`PHOTOGRAPHS OF LAND`**|**`PHOTOGRAPHS OF LAND`**| |---|---|---|---|---| ||**`CONVERSION`**|**`IN`**|**`SY.NOS.`**|**`599/3A.599/`**| ||**`3A1.599/3A2.`**|||| |**`EXHIBIT R2(c)`**|**`TRUE COPY OF`**|**`THE`**|**`PHOTOGRAPHS OF LAND`**|| ||**`CONVERSION`**|**`IN`**|**`SY.NOS.599/3A.599/3`**|| ||**`A1.599/3A2.`**|||| |**`EXHIBIT R2(d)`**|**`TRUE COPY OF`**|**`THE`**|**`PHOTOGRAPHS OF LAND`**|| ||**`CONVERSION`**|**`IN`**|**`SY.`**|**`NOS.599/`**| ||**`3A.599/3A1.599/3A2.`**|||| |**`EXHIBIT R2 (e) `**|**`A TRUE COPY OF `**||**`THE `**|**`REPORT DATED`**| ||**`23.12.2021`**|**`OF`**|**`THE`**|**`AGRICULTURAL`**| ||**`OFFICER,KRISHIBHAVAN, KALLARA.`**|||| |**`EXHIBIT R2(f)`**|**`TRUE COPY OF`**|**`THE`**|**`MINUTES`**|**`OF THE LLMC`**| ||**`MEETING DATED`**|**`23.12.2021`**|||