Sunitha Pramod v. Revenue Divisional Officer, Thrissur and Others

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** # **THE HONOURABLE MR.JUSTICE MURALI PURUSHOTHAMAN THURSDAY, THE 7[TH] DAY OF MARCH 2024 / 17TH PHALGUNA, 1945** # **WP(C) NO. 9207 OF 2024** ## **PETITIONER:** **SUNITHA PRAMOD, AGED 53 YEARS W/O PRAMOD PORATHUR HOUSE, POONKUNNAM P.O., THRISSUR DISTRICT - 680002** **BY ADVS. ASOK KUMAR K.P. ALEXANDER K.C. ABDUL HAMEED RAFI RAKESH S MENON** ## **RESPONDENTS:** - **1 THE REVENUE DIVISIONAL OFFICER FIRST FLOOR,COLLECTORATE, CIVIL STATION, AYYANTHOLE, THRISSUR, PIN - 680003** - **2 LOCAL LEVEL MONITORING COMMITTEE THRISSUR MUNICIPAL CORPORATION, REPRESENTED BY ITS CONVENER & AGRICULTURAL OFFICER ,THRISSUR KRISHI BHAVAN, THRISSUR DISTRICT- 680001** - **3 THE AGRICULTURAL OFFICER KRISHI BHAVAN, THRISSUR P.O., THRISSUR DISTRICT, PIN - 680001** ## **OTHER PRESENT:** ## **SR.GP.SMT.PREETHA K.K.** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 07.03.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ``` WP(C) NO. 9207 OF 2024 : 2 : ``` ## **JUDGMENT** The petitioner has approached this Court aggrieved by Ext.P7 whereby Form 5 application submitted by her has been rejected by the Revenue Divisional Officer. 2. The petitioner is the owner in possession of an extent of 0.0222 Hectares of property comprised in Sy.No.1735/1/1 of Thrissur Village, Thrissur Taluk, Thrissur District, by virtue of Ext.P1 document. 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, it has been wrongly included in 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.P6 application in Form - 5 under Rule 4(d) of the Rules, 2008 before the Revenue ``` WP(C) NO. 9207 OF 2024 : 3 : ``` Divisional Officer to remove the said land from the Data Bank. The application has been rejected by the Revenue Divisional Officer vide Ext.P7 stating that as per the report of the Agricultural Officer, the subject land is low lying and surrounded by fallow paddy land and if permission is granted for conversion, there are chances that nearby properties may also be converted and the LLMC has recommended to retain the land in the Data Bank. 4. The petitioner impugns Ext.P7 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. Rule 4(4E) of the Rules, 2008 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 ``` WP(C) NO. 9207 OF 2024 : 4 : ``` 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 appropriate orders on the application. On a perusal of Ext.P7, 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 Officer and the recommendation of the 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 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 ``` WP(C) NO. 9207 OF 2024 : 5 : ``` 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 property is lying low or fallow, it cannot be termed as wetland or paddy land in contemplation of Act, 2008. In **Aparna Sasi Menon** v. **Revenue Divisional Officer** [2023 (6) KHC 83], this Court has held that the prime consideration in deciding whether the land is to be retained in the Data Bank should be whether paddy cultivation is possible in property in question. 8. In **Mather Nagar Residents Association and** **Another v. District Collector, Ernakulam others** ``` WP(C) NO. 9207 OF 2024 : 6 : ``` [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 ``` WP(C) NO. 9207 OF 2024 : 7 : ``` otherwise due to the low lying nature of the property, it cannot be termed as wetland or paddy land in contemplation of Act, 2008.” 9. 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 paddy land. ## 10. 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 ``` WP(C) NO. 9207 OF 2024 : 8 : ``` 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.” 11. 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. None of the parameters for consideration of a Form 5 application has been taken into account while passing the impugned order. I find that there is total non application of mind ``` WP(C) NO. 9207 OF 2024 : 9 : ``` on the part of the RDO in issuing Ext.P7. Accordingly, I set aside Ext.P7, with a direction to the 1[st] respondent, the Revenue Divisional Officer to reconsider Ext.P6 application in Form 5 in accordance with law and take a decision after considering the KSRSEC report to be obtained at the expense of the petitioner and other relevant factors mentioned in Rule 4(4F), 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 this writ petition along with the copy of the judgment before the RDO. The writ petition is disposed of. Sd/- **MURALI PURUSHOTHAMAN JUDGE** al. ``` WP(C) NO. 9207 OF 2024 : 10 : ``` ## **APPENDIX** ## **PETITIONER EXHIBITS** ## **Exhibit P-1** **TRUE COPY OF THE SALE DEED NO. 3186/2014 DATED 17.07.2014 OF SUB REGISTRY OFFICE, THRISSUR** ## **Exhibit P-2** **TRUE COPY OF THE LAND TAX RECEIPT BEARING NO.KL08016007571 DATED 14.12.2023** ## **Exhibit P-3** **TRUE COPY OF THE RELEVANT PAGES OF THE NOTIFIED DATA BANK IN RESPECT OF THRISSUR VILLAGE** ## **Exhibit P-4** - **TRUE COPIES OF THE PHOTOGRAPHS SHOWING THE GROUND REALITY OF THE LAND** ## **Exhibit P-5** - **TRUE COPY OF THE RELEVANT PAGE OF FAIR VALUE NOTIFICATION DATED 25.03.2023** ## **Exhibit P- 6** **TRUE COPY OF THE APPLICATION IN FORM 5 DATED 23.05.2022 PREFERRED TO THE 1ST RESPONDENT** - **Exhibit P-7** **TRUE COPY OF THE ORDER NO. 4572/2023 DATED 24/10/2023**