Salam M.S. v. State of Kerala and 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.4668 OF 2024`** ## **`PETITIONER:`** ``` SALAM M.S. AGED 53 YEARS S/O.SAID MUHAMMED, MURINGASSERY HOUSE, WEST CHELAKULAM, KAVUNGALPARAMBU, PATTIMATTOM, VENGOLA, ERNAKULAM, PIN - 683556 ``` ``` BY ADV K.C.VINCENT ``` ## **`RESPONDENTS:`** - **`1 STATE OF KERALA REPRESENTED BY THE SECRETARY DEPARTMENT OF REVENUE, SECRETARIAT, THIRUVANANTHAPURAM, PIN - 695001`** - **`2 THE REVENUE DIVISIONAL OFFICER OFFICE OF THE REVENUE DIVISIONAL OFFICER, MUVATTUPUZHA, ERNAKULAM, PIN - 686669`** - **`3 THE VILLAGE OFFICER VILLAGE OFFICE, PATTIMATTOM, PATTIMATTOM P.O, ERNAKULAM, PIN - 683543`** - **`4 THE AGRICULTURAL OFFICER KRISHI BHAVAN, KIZHAKAMBALAM, ERNAKULAM, PIN - 683562`** ## **`SMT.R.DEVISREE, GP`** ``` 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.4668 of 2024 2 ## **`JUDGMENT`** ``` Petitioner has approached this Court aggrieved by Ext.P2 order, whereby Form 5 application submitted by him has been rejected by the 2[nd] respondent/Revenue Divisional Officer [RDO] on the basis of the report of the 4[th]respondent/ Agricultural Officer and the recommendation of the Local Level Monitoring Committee to retain the land in the Data Bank. ``` ``` 2. Petitioner is the owner in possession of an extent of 04.05 Ares of land comprised in Re- Sy.No.18/1-3 in Block No.27 of Pattimattom Village, Kunnathunadu Taluk. ``` ``` 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 ``` W.P.(C) No.4668 of 2024 3 ``` Kerala Conservation of Paddy Land and Wetland Rules, 2008 (for brevity, ‘the Rules, 2008’). The petitioner states that as per the KSRSEC report, the land is indicated as ‘fallow land with mixed vegitation’ in the date of 2008. 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.P2 order, rejected the application on the ground that as per the report of the KSRSEC and the report of the Agricultural Officer, the land has to be retained in the Data Bank. The Agricultural Officer reported that the LLMC has recommended to retain the land in the Data Bank. ``` ``` 4. The petitioner impugns Ext.P2 contending ``` W.P.(C) No.4668 of 2024 4 ``` 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 Ext.P1 report of KSRSEC was misquoted by the RDO. ``` ``` 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 in to force of the Act, 2008. On a perusal of Ext.P2, 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 relied solely upon the report of the Agricultural Officer and LLMC to refuse to remove the property from the Data Bank. ``` **`6. Further, it is trite law that, merely`** **`because the property is lying fallow, it cannot be`** W.P.(C) No.4668 of 2024 5 ``` termed as wetland or paddy land in contemplation of Act, 2008. InMather Nagar Residents Association and Another v. District Collector, Ernakulam and Others [2020 (2) KLT 192], the Division Bench of 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. ``` W.P.(C) No.4668 of 2024 6 ``` 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." ``` ``` 7. 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 in to force of the Act, such lands cannot be said as suitable for cultivation and may come outside the definition of paddy land. 8. In Sudheesh v.Revenue Divisional Officer, ``` W.P.(C) No.4668 of 2024 7 ## _**`[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 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 while interpreting the report of the KSRSEC and in passing the impugned order. ``` ``` Accordingly, I set aside Ext.P2 with a ``` W.P.(C) No.4668 of 2024 8 ``` direction to the RDO to reconsider the application of the petitioner in Form No.5 and take a decision in the matter on the basis of Ext.P1 KSRSEC report and the observation of this Court and the binding precedents within a period of two months 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 ``` ``` sp/07/02/2024 ``` W.P.(C) No.4668 of 2024 9 ## **`APPENDIX`** ## **`PETITIONER'S EXHIBITS:-`** ``` Exhibit P1 ``` ``` A TRUE COPY OF THE REPORT DATED 24.08.2023 RECEIVED FROM KSRSEC ``` ``` Exhibit P2 ``` ``` A TRUE COPY OF THE PROCEEDINGS NO. A13- 4105/2023/K DIS DATED 14.11.2023 ISSUED BY THE 2ND RESPONDENT ```