Satheesh Kumar D.S v. Revenue Divisional Officer, Palakkad; Agricultural Officer, Akathethara Grama Panchayat; Village Officer, Akathethara Village

## IN THE HIGH COURT OF KERALA AT ERNAKULAM ## PRESENT THE HONOURABLE MR.JUSTICE MURALI PURUSHOTHAMAN MONDAY, THE 11[TH] DAY OF MARCH 2024 / 21ST PHALGUNA, 1945 ## WP(C) NO. 36056 OF 2023 ## PETITIONER: SATHEESH KUMAR D.S AGED 46 YEARS S/O. D.DIVAKARAN, SIVAGANGA, PEZHUMMOD KUTTICHAL, THIRUVANANTHAPURAM DISTRICT PIN - 695 574 PRESENTLY RESIDING AT HOUSE NO.17, PRASANTHI NAGAR, KALLEKULANGARA, OLAVAKKODE (PO) PALAKKAD, PIN – 678 002. ## BY ADVS. BINOY VASUDEVAN SREEJITH SREENATH RINCY KHADER ## RESPONDENTS: - 1 THE REVENUE DIVISIONAL OFFICER OFFICE OF THE RDO, VIDYUT NAGAR, PARAKKUNNAM, PALAKKAD, PIN – 678 001. - 2 THE AGRICULTURAL OFFICER KRISHI BHAVAN, AKATHETHARA GRAMA PANCHAYAT, AKATHETHARA P.O., PALAKKAD DISTRICT, PIN – 678 008. - 3 THE VILLAGE OFFICER AKATHETHARA VILLAGE, AKATHETHARA P.O., PALAKKAD DISTRICT, PIN – 678 008. ## BY ADV. SMT.G.SHEEBA, GOVERNMENT PLEADER. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 11.03.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W. P.(C) No. 36056 of 2023 : 2 : ## JUDGMENT Petitioner has approached this Court aggrieved by Ext.P7 whereby Form 5 application submitted by him has been rejected by the Revenue Divisional Officer relying on the report of the Agricultural Officer. 2. Petitioner is the absolute owner and in possession of 2 Ares and 17 Sq. meter of land in Re. Survey No.141/79 of Akathethara Village, Palakkad Taluk in Palakkad 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 W. P.(C) No. 36056 of 2023 : 3 : referred to as 'Act, 2008'). However, it is stated that, the property is wrongly included in the Data Bank. The petitioner filed an application in Form 5 of Rule 4(d) of the Kerala Conservation of Paddy land and Wetland Rules, 2008 (hereinafter referred to as 'the 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.P7 stating that on enquiry conducted through the Agricultural Officer, it has been reported that the subject land which comprises of 1-[1/] 2[ acres is found] unfilled and waterlogged with a ‘chal’ and there are no buildings or trees in the area to infer that the land was converted prior to 2008 and the LLMC has recommended not to remove the land from Data Bank. W. P.(C) No. 36056 of 2023 : 4 : 4. The petitioner has filed this writ petition challenging Ext.P7 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. 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, 2008 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 W. P.(C) No. 36056 of 2023 : 5 : 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.P7, it is evident that, without any independent assessment of the nature of property as on the date coming into force of the Act, 2008, the Revenue Divisional Officer has 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 W. P.(C) No. 36056 of 2023 : 6 : 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 LIMC has decided not to remove the land from 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 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 W. P.(C) No. 36056 of 2023 : 7 : 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 the Form-5 application should be whether the land which is sought to be excluded from Data Bank is one where paddy cultivation is possible and feasible and existence of neerchal in the property shall never be the prime consideration. 7. 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. 8. In Mather Nagar Residents Association and W. P.(C) No. 36056 of 2023 : 8 : ## 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.” 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 W. P.(C) No. 36056 of 2023 : 9 : report of the Agricultural Officer, who recommended not to remove the land from the Data Bank. Accordingly, I find that Ext.P7 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 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 receipt of a copy of this judgment. The petitioner shall produce a copy of the writ petition along with the copy of the judgment W. P.(C) No. 36056 of 2023 : 10 : before the Revenue Divisional Officer. The writ petition is disposed of with the above directions. Sd/- MURALI PURUSHOTHAMAN JUDGE SRJ W. P.(C) No. 36056 of 2023 : 11 : ## APPENDIX OF WP(C) 36056/2023 PETITIONER’S EXHIBITS - EXHIBIT P1 TRUE COPY OF THE DOCUMENT NO.1908 OF 2019 DATED 18.09.2019 OF S.R.O. OLAVAKKODE. - EXHIBIT P 2 - TRUE COPY OF THE POSSESSION CERTIFICATE DATED 12.03.2020 ISSUED BY THE 3RD RESPONDENT. - EXHIBIT P 3 TRUE COPY OF THE LAND TAX RECEIPT DATED 19.09.2023 ISSUED BY THE 3RD RESPONDENT. - EXHIBIT P 4 - TRUE COPY OF THE PHOTOGRAPHS OF THE PETITIONER'S PROPERTY. - EXHIBIT P5 TRUE COPY OF THE ORDER NO.T.A(7)9923/2017 DATED 02.02.2019 OF THE DISTRICT LEVEL AUTHORIZED COMMITTEE IN RESPECT OF ONE ATHIRA RAJ, W/O.RAMESH KUMAR IN SY.NO.141/5. - EXHIBIT P6 TRUE COPY OF THE ORDER NO.T.A(7)2429/2018 DATED 12.07.2019 OF THE DISTRICT LEVEL AUTHORIZED COMMITTEE IN RESPECT OF ONE K.SIVADASAN IN SY.NO.141/5. - EXHIBIT P 7 TRUE COPY OF THE ORDER NO.RDOPKD/2251/2021-J3 DATED 03.09.2021. - EXHIBIT P 8 TRUE COPY OF THE LETTER NO.DCPKD/2078/22LRG3 DATED 16.02.2022