SEBI P.L. v. Revenue Divisional Officer, Office of the Revenue Divisional Officer, Vidyuth Nagar, Parakkunnam, Palakkad; Agricultural Officer, Krishi Bhavan, Kannambra (PO), Palakkad District; Village Officer, Kannambra Village, Kannambra (PO), Palakkad District.

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE MURALI PURUSHOTHAMAN MONDAY, THE 12[TH] DAY OF FEBRUARY 2024 / 23RD MAGHA, 1945 ``` ## **`WP(C) NO. 13838 OF 2023`** ## **`PETITIONER:`** ``` SEBI P.L., AGED 52 YEARS S/O. P.C. LONAYI, PANIKKULANGARA HOUSE, MISSION QUARTERS, EAST FORT (PO), THRISSUR, PIN – 680 005. ``` ``` BY ADVS. BINOY VASUDEVAN JOSEPH FREEMAN ``` ## **`RESPONDENTS:`** - **`1 THE REVENUE DIVISIONAL OFFICER, OFFICE OF THE REVENUE DIVISIONAL OFFICER, VIDYUTH NAGAR, PARAKKUNNAM, PALAKKAD, PIN – 678 001.`** - **`2 THE AGRICULTURAL OFFICER, KRISHI BHAVAN, KANNAMBRA (PO), PALAKKAD DISTRICT, PIN – 678 686.`** - **`3 THE VILLAGE OFFICER, KANNAMBRA VILLAGE, KANNAMBRA (PO), PALAKKAD DISTRICT, PIN – 678 686. SRI. E. G GORDEN – SR. GP`** ``` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 12.02.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` WP(C).No.13838 OF 2023 ``` ``` 2 ``` ## **`JUDGMENT`** The petitioner has approached this Court aggrieved by Ext.P14 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 0.1410 Hectares of land comprised in Re.Sy. No.829/10 (old Sy.No.18/2D) of Kannambra 2 Village, Alathur Taluk in Palakkad District. 3. According to the petitioner, the aforesaid property 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 as paddy land. The petitioner, therefore, filed an application in Form 5 under the provisions of the Kerala Conservation of Paddy Land and Wetland Act, 2008 (hereinafter referred to as 'the Act, 2008’) to remove the property from the Data Bank. The ``` WP(C).No.13838 OF 2023 ``` ``` 3 ``` application has been rejected by the Revenue Divisional Officer stating that the Agricultural Officer has reported that the property is lying as a fallow land and the conversion of the property will affect the flow of water and the property had not been reclaimed before 2008 and the Local Level Monitoring Committee had decided at its meeting held on 04.02.2023 not to exclude the property from the Data Bank. 4. The petitioner impugns Ext.P14 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’) to ascertain the status of land as on 12.08.2008, the date of coming into force of the Act, 2008. ``` WP(C).No.13838 OF 2023 ``` ``` 4 ``` 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. On a perusal of Ext.P14, 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. 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 Data Bank. The Revenue Divisional Officer being the competent authority, has to independently assess the status of the land and ``` WP(C).No.13838 OF 2023 ``` ``` 5 ``` 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 in the absence of such findings, the impugned order is unsustainable. 7. Further, it is trite law that, 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 by itself be termed as wetland or paddy land in contemplation of Act, 2008. In **Aparna Sasi Menon v. Revenue Divisional Officer** [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 Data Bank. Instead, the prime consideration should be whether paddy cultivation is possible in the property in question. 8. In **Mather Nagar Residents Association** ``` WP(C).No.13838 OF 2023 ``` ``` 6 ``` ## **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 **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 ``` WP(C).No.13838 OF 2023 ``` **==> picture [8 x 9] intentionally omitted <==** is locked on all four sides with lands which were reclaimed before the coming into force of the Act, 2008, such land cannot be said as suitable for cultivation and may come outside the definition of paddy land. 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, solely relying on the report of the Agricultural Officer, who recommended not to remove the land from the Data ``` WP(C).No.13838 OF 2023 ``` ``` 8 ``` Bank. Accordingly, I find that Ext.P14 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 a copy of the judgment before the 1[st] respondent. The writ petition is disposed of with the above directions. Sd/- ## **`MURALI PURUSHOTHAMAN`** ## **`JUDGE`** SPR ``` WP(C).No.13838 OF 2023 ``` ``` 9 ``` ## **`APPENDIX`** ## **`PETITIONER’S EXHIBITS:-`** ``` EXHIBIT P1TRUE COPY OF THE DOCUMENT NO.1031/2021 DATED 09.04.2021 OF S.R.O VADAKKANCHERY. EXHIBIT P2TRUE COPY OF THE POSSESSION CERTIFICATE DATED 01.08.2022 ISSUED BY THE 3RD RESPONDENT. EXHIBIT P3TRUE COPY OF THE LAND TAX RECEIPT DATED 23.05.2022 ISSUED BY THE 3RD RESPONDENT. EXHIBIT P4TRUE COPY OF THE PROCEEDINGS OF THE 1ST RESPONDENT VIDE ORDER NO.D.DIS.M-2790/04 DATED 08.07.2004. EXHIBIT P5TRUE COPY OF THE RELEVANT PAGES OF THE DATA BANK. EXHIBIT P6TRUE COPY OF THE JUDGMENT DATED 22.10.2020 IN W.P.(C)NO.27187 OF 2018. EXHIBIT P7TRUE COPY OF THE BUILDING PERMIT NO.A3- 4439/20 DATED 14.12.2020 OF THE SECRETARY OF KANNAMBRA GRAMA PANCHAYAT. EXHIBIT P8TRUE COPY OF THE OWNERSHIP CERTIFICATE ISSUED BY THE SECRETARY OF KANNAMBRA GRAMA PANCHAYAT DATED 01.03.2021. EXHIBIT P9TRUE COPY OF THE PROPERTY TAX RECEIPT DATED 01.03.2021. EXHIBIT P10TRUE COPY OF THE OWNERSHIP CERTIFICATE VIDENO.5088501/2659/2021DATED 31.12.2021. EXHIBIT P11TRUE COPY OF THE PROPERTY TAX RECEIPT DATED 31.12.2021 (FOR THE YEAR 21-22) ISSUED BY THE KANNAMBRA GRAMA PANCHAYAT. EXHIBIT P12TRUE COPY OF THE PROPERTY TAX RECEIPT DATED 01.02.2023 (FOR THE YEAR 22-23) ISSUED BY THE KANNAMBRA GRAMA PANCHAYAT. EXHIBIT P13TRUE COPY OF THE REPORT FORWARDED BY THE 2ND RESPONDENT TO THE 1ST RESPONDENT. EXHIBIT P14TRUE COPY OF THE PROCEEDINGS VIDE ORDER NO.1897/2023 DATED 12.03.2023 OF THE 1ST RESPONDENT REFUSING TO EXCLUDE THE PROPERTY OF THE PETITIONER FROM THE DATA BANK. ``` ``` WP(C).No.13838 OF 2023 ``` ``` 10 ``` ``` EXHIBIT P15TRUE COPY OF THE REPORT OF VILLAGE OFFICER DATED 02-05-2023 OBTAINED UNDER RIGHT TO INFORMATION ACT,2005. ``` ``` RESPONDENTS EXHIBITS: NIL. ```