Sanoop K. v. State of Kerala and others

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR.JUSTICE MURALI PURUSHOTHAMAN`** # **`TUESDAY, THE 27[TH] DAY OF FEBRUARY 2024 / 8TH PHALGUNA, 1945 WP(C) NO. 12942 OF 2023`** ## **`PETITIONER:`** ``` SANOOP K., AGED 37 YEARS S/O. JAYAPALAN, KACHERIKUNNU HOUSE, KRISHNAGIRI POST, MEENANGADY TALUK, WAYANAD DISTRICT, PIN – 673 591. ``` ## **`BY ADV JESWIN P.VARGHESE`** ## **`RESPONDENTS:`** - **`1 THE STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, DEPARTMENT OF REVENUE, SECRETARIAT, TRIVANDRUM, PIN – 695 001.`** - **`2 THE DISTRICT COLLECTOR, CIVIL STATION, KALPETTA (POST), WAYANADU DISTRICT, PIN – 673 122.`** - **`3 THE REVENUE DIVISIONAL OFFICER, MANATHAVADY, WAYANAD DISTRICT, PIN – 670 645.`** - **`4 THE VILLAGE OFFICER, KRISHNAGIRI VILLAGE, KRISHNAGIRI POST, MEENANGADY TALUK, WAYANAD DISTRICT, PIN – 673 591.`** - **`5 THE AGRICULTURAL OFFICER, KRISHI BHAWAN, KRISHNAGIRI, KRISHNAGIRI POST, MEENANGADY TALUK, WAYANAD DISTRICT, PIN – 673 591.`** - **`6 THE DIRECTOR, KERALA STATE REMOTE SENSING AND ENVIRONMENT CENTER, FIRST FLOOR, VIKAS BHAVAN, NEAR TO LEGISLATIVE ASSEMBLY BUILDING, TRIVANDRUM, PIN – 695 033.`** ## **`SMT. SHEEBA - GP`** ``` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 27.02.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` WP(C).No.12942 OF 2023 ``` ``` 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 2.02 Ares of land comprised in Re.Sy. No.270/8 of Krishnagiri Village, Sulthan Bathery Taluk in Wayanad District. 3. According to the petitioner, the aforesaid property is a garden land and will not come within the definition of paddy land or wet land. However, it has been wrongly included in the Data Bank prepared under the Kerala Conservation of Paddy land and Wetland Rules, 2008 (for short, ‘the Rules’). The petitioner, therefore, filed Ext.P7 application in Form 5 under the provisions of the Kerala ``` WP(C).No.12942 OF 2023 ``` ``` 3 ``` Conservation of Paddy Land and Wetland Act, 2008 (hereinafter referred to as 'the Act, 2008’) to remove the property from the Data Bank. The Revenue Divisional Officer, by Ext.P10, order rejected the application on the ground that the Agricultural Officer has reported that the LLMC had conducted a site inspection and found that the property is not converted before 2008 and if converted, that would affect the ‘neerchals’ nearby and would affect the nearby paddy fields and the environment. 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. It is also contended that the Revenue Divisional Officer should have called for a report from the Kerala State Remote Sensing and Environment Centre (for short, ‘the KSRSEC’) before disposing Form 5 application to ascertain the exact nature of the land as on ``` WP(C).No.12942 OF 2023 ``` ``` 4 ``` 12.08.2008, the date of coming into force of the Act, 2008. 5. A counter affidavit is filed by the 3[rd] respondent reiterating the stand taken in Ext.P10. 6. 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. 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 has relied upon the report of the Agricultural Officer and LLMC to refuse to remove the property from the Data Bank. 7. 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 ``` WP(C).No.12942 OF 2023 ``` ``` 5 ``` paddy land on the date of coming into force of the Act and also whether the land is suitable for paddy cultivation or not. 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 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. 8. Further, it is trite law that, merely by reason of existence of neerchal, it cannot be termed as ``` WP(C).No.12942 OF 2023 ``` ``` 6 ``` 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.” 9. In **Aparna Sasi Menon v. Revenue Divisional Officer, Irinjalakuda** [2023 (6) KHC 83], this Court has held that existence of neerchals in a property should never be a prime consideration in deciding whether the land is to be retained in the ``` WP(C).No.12942 OF 2023 ``` ``` 7 ``` Data Bank. Instead, the prime consideration should be whether paddy cultivation is possible in the property in question. 10. 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 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.” 11. In spite of the categorical declarations by this Court in the decisions cited above, the petitioner's application has been rejected, relying on the report of the Agricultural Officer, who recommended not to remove the land from the Data Bank. I find that there is total non application of mind on the part of the RDO in passing Ext.P10 order. ``` WP(C).No.12942 OF 2023 ``` ``` 8 ``` Accordingly, I find that Ext.P10 order cannot be sustained and I set aside the same with a direction to the 3[rd] respondent, the Revenue Divisional Officer to reconsider Ext.P7 application of the petitioner in Form 5 in accordance with law and take a decision in the matter after obtaining the 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 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 3[rd] respondent for compliance. The writ petition is disposed of with the above directions. Sd/- ``` MURALI PURUSHOTHAMAN JUDGE ``` SPR ``` WP(C).No.12942 OF 2023 ``` ``` 9 ``` ## **`APPENDIX`** ## **`PETITIONER’S EXHIBITS:-`** - **`EXHIBIT P1 A TRUE COPY OF SALE DEED REGISTERED AS DOCUMENT NO. 2576/2012 DATED 25.05.2012`** - **`EXHIBIT P2 A TRUE COPY OF SALE DEED REGISTERED AS DOCUMENT NO. 2575/2012 DATED 25.05.2012`** - **`EXHIBIT P3 A TRUE COPY OF CERTIFICATE ISSUED UNDER FILE NO. MGDY 47/17-18 BY 5TH RESPONDENT DATED 08.01.2018`** - **`EXHIBIT P4 A TRUE COPY OF THE REPORT SUBMITTED BY THE 4TH RESPONDENT UNDER FILE NO. C.R NO. 117/18 DATED 01.03.2018`** - **`EXHIBIT P5 A TRUE COPY OF THE SETTLEMENT DEED REGISTERED AS DOCUMENT NO. 3491/2021 DATED 30.09.2021`** - **`EXHIBIT P6 A TRUE COPY OF POSSESSION CERTIFICATE ISSUED BY THE 4TH RESPONDENT DATED 13.06.2022`** - **`EXHIBIT P7 A TRUE COPY OF THE APPLICATION SUBMITTED BY WRIT PETITIONER IN FORM 5 BEFORE THE 3RD RESPONDENT DATED 12.11.2021`** - **`EXHIBIT P8 A TRUE COPY OF REPORT SUBMITTED BY LLMC BEFORE THE 3RD RESPONDENT`** - **`EXHIBIT P9 A TRUE COPY OF THE REPORT SUBMITTED BY THE 5TH RESPONDENT BEFORE THE 3RD RESPONDENT`** - **`EXHIBIT P10 A TRUE COPY OF THE ORDER PASSED BY THE 1ST RESPONDENT UNDER PROCEEDINGS NO. RDOMDY/2687/2021-J1 DATED 16.05.2022`** - **`EXHIBIT P11 A TRUE COPY OF THE PHOTOGRAPHS SHOWING THE NATURE OF PROPERTY DESCRIBED IN EXT.P7`** ## **`RESPONDENTS EXHIBITS: NIL.`**