Stephan T.P vs Revenue Divisional Officer, Mini Civil Station, Pala and Local Level Monitoring Committee represented by its Convenor, Agricultural Officer, Veliyanore, Kottayam

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR.JUSTICE MURALI PURUSHOTHAMAN`** ``` MONDAY, THE 18[TH] DAY OF MARCH 2024 / 28TH PHALGUNA, 1945 ``` ``` WP(C) NO. 43225 OF 2023 ``` ## **`PETITIONER:`** ``` STEPHAN T.P AGED 66 YEARS S/O. POTHEN, THOTTUKATTU (H), PUTHUVELI P. O, KOTTAYAM, PIN – 686 636. ``` ``` BY ADVS. ELIZEBATH GEORGE EMMANUEL CYRIAC CYRIAC KURIAN ``` ## **`RESPONDENTS:`** - **`1 REVENUE DIVISIONAL OFFICER MINI CIVIL STATION, PALA BYPASS RD, PALA, KOTTAYAM, PIN – 686 575.`** - **`2 LOCAL LEVEL MONITIRING COMMITTEE REPRESENTED BY ITS CONVENOR, THE AGRICULTURAL OFFICER, VELIYANNOR, KOTTAYAM, PIN – 686 63.`** ``` SRI. E. G. GORDEN – SR. GP ``` ``` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 18.03.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` WP(C).No.43225 OF 2023 ``` ``` 2 ``` ## **`JUDGMENT`** The petitioner has approached this Court aggrieved by Ext.P1 order whereby Form 5 application submitted by him has been rejected by the Revenue Divisional Officer. 2. The petitioner is the absolute owner in possession of an extent of 37.68 Ares of land comprised in Sy. No.278/9 of Velyannur Village, Meenachil Taluk in Kottayam 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 (for short, ‘the Rules’) as paddy land. The petitioner, therefore, filed an application in Form 5 under the provisions of the ``` WP(C).No.43225 OF 2023 ``` ``` 3 ``` 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 Revenue Divisional Officer, by Ext.P1, rejected the application stating that as per the report of the Agricultural Officer, the subject land is cultivated with tapioca, arcanuts and that there is a thodu on the northern side of the property and the property is lying close to Padashekharam and the LLMC has recommended that the land should not be removed from the Data Bank. 4. The petitioner impugns Ext.P1 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 ``` WP(C).No.43225 OF 2023 ``` ``` 4 ``` 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 orders on the On a appropriate application. perusal of Ext.P1, 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 solely relied upon the report of the Agricultural Officer to ``` WP(C).No.43225 OF 2023 ``` ``` 5 ``` refuse to remove the property from the Data Bank. 6. This Court had 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, 2008 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 ``` WP(C).No.43225 OF 2023 ``` ``` 6 ``` 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. 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 be termed as wetland or paddy land in contemplation of Act, 2008. In **Aparna Sasi Menon v. Revenue Divisional Officer, Irinjalakuda** [2023 (6) KHC 83], this Court has held that existence of neerchals in a property ``` WP(C).No.43225 OF 2023 ``` ``` 7 ``` 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 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.” ``` WP(C).No.43225 OF 2023 ``` ``` 8 ``` 9. 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. 10. 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 Bank. Accordingly, I find that Ext.P1 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 the KSRSEC report at the ``` WP(C).No.43225 OF 2023 ``` ``` 9 ``` 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 1[st] respondent for compliance. The writ petition is disposed of with the above directions. Sd/- ``` MURALI PURUSHOTHAMAN JUDGE ``` SPR ``` WP(C).No.43225 OF 2023 ``` ``` 10 ``` ## **`APPENDIX`** ## **`PETITIONER’S EXHIBITS:-`** ``` EXHIBIT P1TRUE COPY OF THE PROCEEDINGS NO. L3- 2139/2021(A-D) ISSUED BY THE 1ST RESPONDENT DATED 30-03-2022. EXHIBIT P2TRUE COPY OF MINUTES OF THE LOCAL LEVEL MONITORING COMMITTEE DATED 28-02-2022. ``` ## **`RESPONDENTS EXHIBITS: NIL.`**