Subaida P. v. District Collector, Malappuram; Sub Collector and Sub Divisional Magistrate, Tirur; Convener and Agricultural Officer Local Level Monitoring Committee, Krishi Bhavan, Cheriyamundam P.O, Tirur, Malappuram

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR.JUSTICE MURALI PURUSHOTHAMAN`** ``` MONDAY, THE 5[TH] DAY OF FEBRUARY 2024 / 16TH MAGHA, 1945 ``` ## **`WP(C) NO. 4297 OF 2024`** ## **`PETITIONER:`** ``` SUBAIDA P. AGED 50 YEARS W/O. HAMSAKUTTY, PARAMBATT HOUSE, IRINGAVOOR P.O, TIRUR, MALAPPURAM, PIN – 676 103. ``` ``` BY ADVS. D.KISHORE MEERA GOPINATH R.MURALEEKRISHNAN (MALAKKARA) ``` ## **`RESPONDENTS:`** - **`1 THE DISTRICT COLLECTOR COLLECTORATE, MALAPPURAM, PIN – 676 505.`** - **`2 THE SUB COLLECTOR AND SUB DIVISIONAL MAGISTRATE CIVIL STATION, TIRUR, MALAPPURAM, PIN – 676 101.`** - **`3 THE CONVENER AND AGRICULTURAL OFFICER LOCAL LEVEL MONITORING COMMITTEE, KRISHI BHAVAN, CHERIYAMUNDAM P.O, TIRUR, MALAPPURAM, PIN – 676 106.`** ## **`SR.GP. - SMT.K.AMMINIKUTTY`** ``` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 05.02.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` WP(C).No.4297 OF 2024 ``` ``` 2 ``` ## **`JUDGMENT`** The petitioner has approached this Court aggrieved by Ext.P5 order whereby Form 5 application submitted by her has been rejected by the Revenue Divisional Officer. 2. The petitioner is the absolute owner in possession of an extent of 2.21 Ares of land comprised in Sy. No.83/7-7 of Cheriyamundam Village in Malappuram 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 referred to as 'the Act, 2008’). It is stated that the property is surrounded by commercial buildings on all sides and the Tirur-Iringavoor Major District Road is passing through the eastern side of the said property and has been converted decades back. However, it is ``` WP(C).No.4297 OF 2024 ``` ``` 3 ``` stated that the property is wrongly included as 'nilam' in the Data Bank. The petitioner filed Ext.P2 application in Form 5 of Rule 4(d) of the Kerala Conservation of Paddy land and Wetland Rules, 2008 before the Revenue Divisional Officer to remove the said land from the Data Bank. A report was called for from the Agricultural officer and in Ext. P3 report, it is stated that on the northern and southern sides of the petitioner’s property, there are commercial buildings and on the eastern and western sides, there is a PWD road and Juma Masjid respectively. It is further reported that there are no coconut trees or other fruit bearing trees in the said property and that the property is lying at a low level than the remaining properties. It is further mentioned that even though the property seems to have been converted after the year 2008, the actual state of affairs could be identified only after the report of the Kerala State Remote Sensing and Environment Centre (KSRSEC), ``` WP(C).No.4297 OF 2024 ``` ``` 4 ``` and recommended not to remove the property from data bank. A report was also called for from the KSRSEC which shows that the property is lying as a partially fallow land with mixed vegetation/ plantation/trees with buildings and structures on its neighbourhood. The Revenue Divisional Officer rejected Form 5 application of the petitioner vide Ext.P5 order. According to the petitioner, the reasons stated in Ext.P5 are untenable. It is stated by the petitioner that the 2[nd] respondent has relied on Ext.P3 report to conclude that the property lies at a lower level and that the same was converted after the year 2008. The petitioner contends that said finding is totally erroneous as the 3[rd] respondent has in Ext.P3 only stated that there is a prima facie view that the property was converted after 2008 and the actual fact could be ascertained only after getting a report from KSRSEC. However, the KSRSEC report was mistakenly appreciated by the 2[nd] respondent while ``` WP(C).No.4297 OF 2024 ``` ## **`5`** passing the impugned order. The petitioner states that the second reason stated in Ext.P5 that the property is lying as a fallow land and that on physical inspection, it was found that the property is lying at a lower level and was converted after 2008 is also incorrect. The petitioner states that on a perusal of Ext.P4 KSRSEC report, it would reveal that the property is surrounded with buildings and structures and under mixed vegetation/plantation/trees with partially fallow land towards western side. According to the petitioner, fallow land can never be treated as wetland as per the Act, 2008. Accordingly, the petitioner has filed this writ petition challenging Ext.P5. 4. 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 **Mather** ``` WP(C).No.4297 OF 2024 ``` ``` 6 ``` **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.” 5. In **Adani Infrastructures & Developers Pvt. Ltd, Mumbai & Others Vs. State of Kerala & Others** [2014 (1) KHC 685], this Court 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 ``` WP(C).No.4297 OF 2024 ``` ``` 7 ``` locked on all four sides with lands which were reclaimed before the coming into force of the Act, 2008, such lands cannot be said as suitable for cultivation and may come outside the definition of paddy land. 6. The relevant consideration for inclusion of property as a 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.P5, 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 passed Ext.P5 refusing to remove the property from the data bank. 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 ``` WP(C).No.4297 OF 2024 ``` ``` 8 ``` 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. I find that there is total non application of mind on the part of the RDO while interpreting the reports of the Agricultural officer as well as the KSRSEC. Accordingly, I set aside Ext.P5, with a direction to the Revenue Divisional Officer to reconsider Ext.P2 application of the petitioner in Form No.5 and take a decision in the matter on the basis of Ext.P4 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`** SPR ``` WP(C).No.4297 OF 2024 ``` ``` 9 ``` ## **`APPENDIX`** ## **`PETITIONER’S EXHIBITS:-`** ``` EXHIBIT P1TRUE COPY OF THE PROPERTY TAX RECEIPT DATED 19.5.2023 ISSUED BY THE VILLAGE FIELD ASSISTANT, CHERIYAMUNDAM PERTAINING TO THE PROPERTY OF THE PETITIONER. EXHIBIT P2TRUE COPY OF THE APPLICATION DATED 21.9.2022 SUBMITTED BY THE PETITIONER IN FORM 5 BEFORE THE 2ND RESPONDENT. EXHIBIT P3TRUE COPY OF THE REPORT DATED 23.12.2022 SUBMITTED BY THE 3RD RESPONDENT BEFORE THE 2ND RESPONDENT. EXHIBIT P4TRUECOPYOFTHEREPORT NO.A-172/2015/KSREC/005271/23DATED 21.8.2023 OF THE DIRECTOR, KSRSEC SUBMITTED BEFORE THE 3RD RESPONDENT. EXHIBIT P5TRUE COPY OF THE ORDER NO. 3245/2023 DATED 11.12.2023 ISSUED BY THE 2ND RESPONDENT. ``` ``` RESPONDENTS EXHIBITS: NIL. ```