Suja Mol Santhama v. State of Kerala and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE MURALI PURUSHOTHAMAN WEDNESDAY, THE 14[TH] DAY OF FEBRUARY 2024 / 25TH MAGHA, 1945** ## **WP(C) NO. 3378 OF 2024** ## **PETITIONER:** SUJA MOL SANTHAMA AGED 49 YEARS W/O SANTHOSH MATHEW, THOTTUPATTU HOUSE AYAVANA P.O, PUTHOOR, MUVATTUPUZHA ERNAKULAM-, PIN - 686668 BY ADVS. M.KABANI DINESH DIVYA B.NAIR ## **RESPONDENTS:** 1 STATE OF KERALA REPRESENTED BY ITS SECRETARY TO GOVERNMENT DEPARTMENT OF REVENUE GOVERNMENT SECRETARIAT THIRUVANANTHAPURAM695001, PIN - 695001 2 THE REVENUE DIVISIONAL OFFICER THE REVENUE DIVISIONAL OFFICE MUVATTUPUZHA ERNAKULAM, PIN - 682308 3 TAHASILDAR MUVATTUPUZHA TALUK OFFICE ERNAKULAM-, PIN - 683542 4 VILLAGE OFFICER ENANALLOOR VILLAGE OFFICE ENANALLOOR, MUVATTUPUZHA ERNAKULAM-, PIN - 682308 5 THE AGRICULTURAL OFFICER KRISHIBHAVAN AYAVANA, MUVATTUPUZHA ERNAKULAM-, PIN - 686668 SMT.DEVI SHREE, GP THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 14.02.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P (C) No.3378 of 2024 2 ## **JUDGMENT** The petitioner has approached this Court aggrieved by Ext.P4 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 20.23 Ares (7.69+2.02+10.52 Ares) of land in Survey Nos.601/2-1-2, 601/2-2 and 601/2-3-2 in Enanalloor Village in Muvattupuzha Taluk, Ernakulam District. 3. According to the petitioner, the said property will not come within the definition of paddy land or wet land. However, it is stated that the property is wrongly included in the Data Bank prepared under the Kerala Conservation of Paddy Land and Wetland Rules, 2008. 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 'Act 2008') to remove the property from the Data Bank. The Revenue Divisional Officer, by Ext.P4 order, rejected the application on the ground that the Agricultural Officer has reported that W.P (C) No.3378 of 2024 3 the land is not converted before 2008 and that it is lying 6 feet below the road level and is seen like paddy land and there are neerchals in the area and LLMC has recommended not to remove the land from the data bank. 4. The petitioner impugnes Ext.P4 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 the nature of the property as on the date of coming into force of the Act 2008. On a perusal of Ext.P4, it is evident that, without any independent assessment of the nature of property as on the 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 W.P (C) No.3378 of 2024 **==> picture [8 x 10] intentionally omitted <==** 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 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 land is waterlogged, 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_ W.P (C) No.3378 of 2024 5 _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.”_ ## 8. In _**Aparna Sasi Menon v. Revenue Divisional**_ _**Officer [2023 (6) KHC 83]**_ , this Court has held that the existence of neerhcals in a 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. ## 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_ W.P (C) No.3378 of 2024 6 _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 referred as paddy land coming under the definition of S.2(xii) of the Act, 2008.”_ 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. I find that there is total non application of mind on the part of the RDO in passing Ext.P4 order. The learned Counsel for the petitioner submits that now a copy of KSRSEC report is available. Accordingly, I set aside Ext.P4 with a direction to the 2[nd] respondent, the Revenue Divisional Officer to reconsider application of the petitioner in Form No.5 and take a decision in the matter on the basis of Ext.P7 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. W.P (C) No.3378 of 2024 **==> picture [8 x 10] intentionally omitted <==** The petitioner shall produce a copy of the writ petition along with a certified copy of this judgment before the RDO for compliance. The writ petition is disposed of with the above directions. Sd/- **MURALI PURUSHOTHAMAN JUDGE** bng W.P (C) No.3378 of 2024 8 ## **APPENDIX OF WP(C) 3378/2024** PETITIONER EXHIBITS Exhibit P1 TRUE COPY OF THE SETTLEMENT DEED NO.1448/I/2022 OF THE KALLOORKKAD SRO EXECUTED IN FAVOUR OF THE PETITIONER Exhibit P2 TRUE COPY OF THE TAX RECEIPT DTD.24.4.2023 OF THE ENANELLOOR VILLAGE Exhibit P3 TRUE COPY OF THE FORM 5 APPLICATION DTD.2.5.2023 Exhibit P4 TRUE COPY OF THE PROCEEDINGS OF THE 2ND RESPONDENT DTD.20.6.2023 Exhibit P5 TRUE COPY OF THE EXTRACT OF THE RELEVANT PAGES OF THE DATA BANK CONTAINING THE PROPERTY DETAILS OF THE PETITIONER IN SY.NO.601/2 IN ENANALLOOR VILLAGE IN MUVATTUPUZHA TALUK DTD 20.8.2012 Exhibit P6 TRUE COPY OF THE RELEVANT EXTRACTS OF THE DATA BANK DTD.NIL ISSUED BY THE 5TH RESPONDENT Exhibit P7 TRUè COPY OF THE REPORT OF THE KERALA STATE REMOTE SENSING & ENVIRONMENT CENTRE DTD.10.4.2023