Sudheer G v. Revenue Divisional Officer, Local Level Monitoring Committee and Agricultural Officer, Kerala

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** # **THE HONOURABLE MR.JUSTICE MURALI PURUSHOTHAMAN FRIDAY, THE 9[TH] DAY OF FEBRUARY 2024 / 20TH MAGHA,** # **1945** ## **WP(C) NO. 5080 OF 2024** ## **PETITIONER/S:** SUDHEER G AGED 50 YEARS VARIYATHPARAMBIL VEEDU, KOTTAPURAM ROAD, POONKUNNAM P.O. THRISSUR DISTRICT, PIN - 680002 BY ADVS. ASOK KUMAR K.P. RAKESH S MENON ALEXANDER K.C. ABDUL HAMEED RAFI ## **RESPONDENTS:** - 1 THE REVENUE DIVISIONAL OFFICER FIRST FLOOR,COLLECTORATE, CIVIL STATION, AYYANTHOLE, THRISSUR, PIN - 680003 - 2 LOCAL LEVEL MONITORING COMMITTEE THRISSUR MUNCIPAL CORPORATION, REPRESENTED BY ITS CONVENER & AGRICULTURAL OFFICER, AYYANTHOLE KRISHI BHAVAN, THRISSUR DISTRICT, PIN - 680003 - 3 THE AGRICULTURAL OFFICER KRISHI BHAVAN, AYYANTHOLE AYYANTHOLE P.O., THRISSUR DISTRICT, PIN - 680003 ## **OTHER PRESENT:** SMT.R.DEVI SHRI, GP THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 09.02.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WPC 5080/2024 ``` 2 ``` Dated this the 9[th] day of February, 2024 ## **JUDGMENT** The petitioner has approached this Court aggrieved by Ext.P6 whereby Form 5 application submitted by him has been rejected by the Revenue Divisional Officer solely relying on the report of the Agricultural Officer. 2. The petitioner is the absolute owner and in possession of a total extent of 3.90 Ares of converted and uncultivable paddy land comprised in survey No.787/P in Ayyanthole Village, Thrissur Taluk, Thrissur District by virtue of Document No. 1306/2000 dated 08.03.2000 of Sub Registry Office, Ayyanthole, Thrissur. 3. According to the petitioner, the said property will not come within the ambit of paddy land or wetland as defined under the Kerala Conservation of Paddy Land and Wetland Act, 2008 (hereinafter referred to as ‘Act,2008’). WPC 5080/2024 ``` 3 ``` However, it is stated that the property is wrongly included in the Data Bank. The petitioner, therefore, filed Ext.P5 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. The application has been rejected by the Revenue Divisional officer on the basis of the report of the Agricultural Officer that the land is not seen converted prior to 12.8.2008 and is seen surrounded by fallow paddy lands and KSRSEC had directed to include the land in Data Bank and the LLMC has recommended to retain the land in the Data Bank. 4. Heard the learned counsel for the petitioner and the learned Government Pleader. 5. The petitioner impugns Ext.P6 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 contended that WPC 5080/2024 ``` 4 ``` the RDO should have called for a report from the KSREC to ascertain the status of the land as on 12.08.2008, the date of coming into force of the Act, 2008. 6. The relevant consideration for inclusion of the property as paddy land or wetland 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.P6, it is evident that, without any independent assessment of the nature of the 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 to refuse to remove the property from the Data Bank. 7. 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 WPC 5080/2024 ``` 5 ``` 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 in the absence of such findings, the impugned order is unsustainable. 8. Further it is trite law that, merely because the property is lying fallow or that it is surrounded by fallow lands it cannot be termed as wetland or paddy land in contemplation of Act, 2008. 9. 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, WPC 5080/2024 ``` 6 ``` 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.” 10 . 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 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 WPC 5080/2024 ``` 7 ``` ## paddy land. ## 11. 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."_ 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.P6 order cannot be sustained and I set aside the same, with a direction to the 1[st] respondent, the Revenue Divisional Officer to reconsider Ext.P5 application in accordance WPC 5080/2024 ``` 8 ``` with law and take a decision in the matter after obtaining the KSRSEC report at the expense of the petitioner, within a period of two months from the date of receipt of the report from 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. **MURALI PURUSHOTHAMAN JUDGE** al/-.16.02.2024. WPC 5080/2024 ``` 9 ``` ## **APPENDIX OF WP(C) 5080/2024** - PETITIONER EXHIBITS - Exhibit P-1 - TRUE COPY OF THE DOCUMENT NO. 1306/2000 DATED 08.03.2000 OF SUB REGISTRY OFFICE, AYYANTHOLE, THRISSUR - Exhibit P-2 TRUE COPY OF THE LAND TAX RECEIPT DATED 05.12.2023 ISSUED BY THE VILLAGE OFFICER, - AYYANTHOLE - Exhibit P-3 TRUE COPY OF THE RELEVANT PAGES OF THE NOTIFIED DATA BANK IN RESPECT OF AYYANTHOLE VILLAGE - Exhibit P-4 TRUE COPY OF THE PHOTOGRAPHS SHOWING THE GROUND REALITY OF THE LAND - Exhibit P-5 TRUE COPY OF THE APPLICATION IN FORM 5 DATED 04.08.2021 PREFERRED TO THE 1ST RESPONDENT - Exhibit P-6 TRUE COPY OF THE ORDER NO. D713147/2021 DATED 27.06.2022 - Exhibit P-7 TRUE COPY OF THE JUDGMENT OF THIS HON'BLE COURT IN NIYAS V. DISTRICT COLLECTOR [2023 (2) KLT 411] - Exhibit P-8 TRUE COPY OF THE JUDGMENT OF THIS HON'BLE COURT IN JAFFARKHAN V. KUNJUMARAKKAR [2012(1)KHC 523]. - Exhibit P-9 TRUE COPY OF THE JUDGMENT OF THIS HON'BLE COURT IN APARANA SASI MENON VS RDO, IRINJALAKUDA [2023(6) KHC 83]