High Court of KeralaSingle JudgeWrit petition disposed of with directions

Subeer V.H.

Case / Petition Number:WP(C) NO. 6383 OF 2024

Case Details & Bench

Court
High Court of Kerala
Hon'ble Judges
  • Murali Purushothaman
Judgment Date
2024-02-19
Court Decision / Holding
Ext.P5 order set aside; RDO directed to reconsider Ext.P4 in Form 5 in accordance with law, after obtaining KSRSEC report at petitioner’s expense within two months; petitioner to apply for KSRSEC report; writ petition disposed of.
Final Disposition
Writ petition disposed of with directions

Parties to the Case

Appellants / Petitioners

  • Subeer V.H.

Respondents

  • State of Kerala represented by Secretary to Government, Department of Revenue
  • Revenue Divisional Officer, Revenue Divisional Office, Irinjalakuda
  • Local Level Monitoring Committee, Sreenarayanapuram Grama Panchayat
  • Village Officer, West Vembaloor Village

Legal Representation & Advocates

Counsels for Petitioners

  • • C.K. Sherin

Case Synopsis & Summary

Subeer V.H., the petitioner, challenges Ext.P5, an order by the Revenue Divisional Officer refusing Form 5 relief to remove 27.32 ares of land in Sy.No.97/8D-1 from the Data Bank under the Kerala Conservation of Paddy Land and Wetland Act, 2008 and the accompanying Rules. He asserts that his 37.35 ares parcel, purchased by deed Ext.P1, is not paddy land or wetlands as defined by the Act, and that the Data Bank entry wrongly includes a portion that is garden land with coconut trees more than 25 years old. The RDO’s Ext.P5 rejection relied on a report from the Agricultural Officer and LLMC’s recommendation, but the petitioner contends there was no independent assessment of the land’s status as of the Act’s date, and that KSRSEC verification was not sought. The court notes the controlling principle that removal from the Data Bank requires an independent, land-status-based assessment, particularly when the land’s classification could affect paddy cultivation or wetland sustenance in the area. It cites several decisions emphasizing that mere lodging of a LLMC decision cannot sustain a refusal; the true test is whether removal would adversely affect paddy cultivation or wetlands. The judge ultimately sets aside Ext.P5, directing reconsideration with KSRSEC report and a fresh decision within two months, and orders the petitioner to obtain the KSRSEC report and file copies for the court. The judgment clarifies that merely because the land sits in a thodu or chira area does not automatically classify it as wetland; the dates of enforcement of the Act and the nature of the land at that time must guide classification. The decision anchors on preexisting precedents including Muraleedharan Nair, Mather Nagar, Adani, Sudheesh, and Aparna Sasi Menon, which collectively require an independent assessment by the RDO and consideration of paddy potential and water connections to nearby fields. The final order disposes of the writ petition while mandating procedural steps, ensuring accountability in the data bank process and protecting the petitioner’s rights to challenge erroneous entries.

Provisions of Law Cited

Kerala Conservation of Paddy Land and Wetland Act, 2008 (S.2(xii))Kerala Conservation of Paddy Land and Wetland Rules, 2008, Rule 4(d)

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioner contends Ext.P5 is vitiated by non–application of mind and violates the Act, 2008 and binding precedents. He claims the RDO should independently assess the land’s status as of the Act’s effective date and obtain a KSRSEC report to verify the Data Bank entry. He asserts the land is garden land with coconut trees older than 25 years, surrounded by buildings and roads, and not wetland or paddy land; Ext.P5 should be set aside and the land removed from the Data Bank.

Contentions of Respondents

The respondents contend the land lies within thodu/chira, with coconut trees; the LLMC recommended retention in the Data Bank; the RDO’s order is valid under the Act and Rules, and the Data Bank reflects the land’s status as per current records; independent verification is not mandated.

Cited Precedents (5)

Case NameCitationTreatmentExplanation
Muraleedharan Nair v. Revenue Divisional Officer2023 (4) KLT 270PositiveCited to hold that removal from Data Bank requires independent assessment by the RDO and cannot be based solely on LLMC’s recommendation; supports need for findings on potential impact on paddy cultivation.
Mather Nagar Residents Association and Another v. District Collector, Ernakulam & Others2020 (2) KLT 192PositiveDivision Bench held that fallow land is not wetland under Act, reinforcing that physical state alone does not define wetland/paddy land; informs interpretation of data bank entries.
Adani Infrastructures & Developers Pvt. Ltd., Mumbai & Others v. State of Kerala & Others2014 (1) KHC 685PositiveHeld that land suitable for paddy cultivation but enclosed by reclaimed lands may fall outside the definition of paddy land; used to evaluate land classification in data bank.
Sudheesh v. Revenue Divisional Officer2023 (2) KLT 386PositiveDefinition requires land to be suitable for paddy cultivation; RDO must be satisfied on twin conditions; supports independent assessment.
Aparna Sasi Menon v. RDO, Irinjalakuda2023(6) KHC 83PositiveFound that neerchals not to be prime consideration; focus should be on whether paddy cultivation is possible and irrigation linkage; informs assessment of data bank entries.

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Extracted Judgment Text

Exact text extracted from official judgment records.

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE MURALI PURUSHOTHAMAN** **MONDAY, THE 19[TH] DAY OF FEBRUARY 2024 / 30TH MAGHA, 1945** ## **WP(C) NO. 6383 OF 2024** ## **PETITIONER:** **SUBEER V.H, AGED 70 YEARS S/O.V.P.HYDROSE., VADUKAPARAMBIL HOUSE, NEAR KERALESWARAMPURAM TEMPLE, MULAVUKAD,ERNAKULAM, PIN - 682504** **BY ADV C.K.SHERIN** ## **RESPONDENTS:** - **1 STATE OF KERALA REP. BY SECRETARY TO GOVERNMENT DEPARTMENT OF REVENUE, SECRETARIAT, THIRUVANANTHAPURAM, PIN - 695001** - **2 THE REVENUE DIVISIONAL OFFICER REVENUE DIVISIONAL OFFICE, IRINJALAKUDA, PIN - 680125** - **3 THE LOCAL LEVEL MONITORING COMMITTEE SREENARAYANAPURAM GRAMA PANCHAYAT, REPRESENTED BY ITS CONVENER THE AGRICULTURAL OFFICER, KRISHI BHAVAN, SREENARAYANAPURAM, KODUNGALLOOR, PIN - 680664** - **4 THE VILLAGE OFFICER WEST VEMBALLOOR VILLAGE, KODUNGALLOOR THALUK, THRISSUR, PIN - 680671** ## **OTHER PRESENT:** ## **SR.GP.SMT.K.AMMINIKUTTY** ## **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON** **19.02.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C) NO. 6383 OF 2024 : 2 :** ## **JUDGMENT** The petitioner has approached this Court aggrieved by Ext.P5 whereby Form 5 application submitted by him has been rejected by the Revenue Divisional Officer. 2. The petitioner is the owner in possession of a total extent of 37.35 Ares of property by virtue of Ext.P1 sale deed. 3. According to the petitioner, the said property will not come within the definition of paddy land or wetland as defined under the Kerala Conservation of Paddy Land and Wetland Act, 2008 (hereinafter referred to as 'the Act, 2008' for short). However, out of the total extent 37.35 Ares, an extent of 27.32 Ares in Sy.No.97/8D-1 has been wrongly included in **WP(C) NO. 6383 OF 2024 : 3 :** the Data Bank prepared under the Kerala Conservation of Paddy Land and Wetland Rules, 2008 (hereinafter referred to as 'the Rules, 2008' for short). The petitioner therefore filed Ext.P4 application in Form 5 under Rule 4(d) of the Rules, 2008 before the Revenue Divisional Officer to remove the said land from the Data Bank. The Revenue Divisional Officer, by Ext.P5 order, rejected the application on the ground that as per the report of the Agricultural Officer and the LLMC, the land is lying with 'thodu' and 'chira' with coconut trees and not fully converted and is suitable only for coconut cultivation and not for other construction activities and decided to retain it in the Data Bank. 4. The petitioner impugns Ext.P5 contending, _inter alia,_ that the same is vitiated by non application **WP(C) NO. 6383 OF 2024 : 4 :** of mind and is against the provisions of the Act, 2008 and the binding precedents of this Court. It is also contended that the RDO ought to have obtained the KSRSEC report to verify the entry in the Data Bank. It is further contended that the property is garden land with coconut trees more than 25 years old. It is also stated that the land is surrounded by buildings and roads. 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.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 relied solely upon the report of the Agricultural **WP(C) NO. 6383 OF 2024 : 5 :** Officer and the recommendation of the LLMC to refuse to remove the property from the Data Bank. There is no finding that the land is suitable for paddy cultivation. ## 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 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 **WP(C) NO. 6383 OF 2024 : 6 :** 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 with 'thodu' and 'chira', it cannot be termed as 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 **WP(C) NO. 6383 OF 2024 : 7 :** 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.” 8. 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 **WP(C) NO. 6383 OF 2024 : 8 :** the property 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. 9. 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 on only **WP(C) NO. 6383 OF 2024 : 9 :** 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.” 10. In **Aparna Sasi Menon** v. **RDO, Irinjalakuda [2023(6) KHC 83]** , this Court has held that existence of neerchals in property should never be a prime consideration in deciding whether the land is to be retained in data bank. Instead, the prime consideration should be whether paddy cultivation is possible in the property in question. This Court has held that there has to be a finding by the RDO that the water chals are connected to the nearby paddy fields or that the water chals in the petitioner's property is indispensable for irrigation of paddy fields in the nearby area. 11. In spite of the categorical declarations by **WP(C) NO. 6383 OF 2024 : 10 :** 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.P5 order cannot be sustained and I set aside the same, with a direction to the 2[nd] respondent, the Revenue Divisional Officer to reconsider Ext.P4 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 **WP(C) NO. 6383 OF 2024 : 11 :** produce a copy of this writ petition along with the copy of the judgment before the 2[nd] respondent. The writ petition is disposed of. **Sd/MURALI PURUSHOTHAMAN JUDGE** SB **WP(C) NO. 6383 OF 2024 : 12 :** ## **APPENDIX** ## **PETITIONER EXHIBITS** **Exhibit P1 A TRUE COPY OF THE SALE DEED NO. 1700/1/2011 DATED 18/05/2011 OF S.R.O. MATHILAKAM Exhibit P2 TRUE COPY OF THE TAX RECEIPT DATED 15.01.2024 FOR THE YEAR 2023-2024 Exhibit P3 TRUE COPY OF THE RELEVANT PAGES OF THE DATA BANK PUBLISHED ON 14.09.2020 Exhibit P4 TRUE COPY OF THE FORM 5 APPLICATION DATED 05.05.2022 Exhibit P5 A TRUE COPY OF THE ORDER NO. 4516/2023 DATED 14.07.2023 ISSUED BY THE 2ND RESPONDENT Exhibit P6 TRUE COPY OF THE PHOTOGRAPH SHOWING THE STATUS OF THE LAND**