Surayya @ Surayya Aboobacker v. District Collector, Thrissur & Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE MURALI PURUSHOTHAMAN** ## **FRIDAY, THE 23[RD] DAY OF FEBRUARY 2024 / 4TH PHALGUNA, 1945** ## **WP(C) NO. 29366 OF 2023** ## **PETITIONER:** **SURAYYA @ SURAYYA ABOOBACKER AGED 72 YEARS W/O. MUHAMEDALI AND D/O.ABOOBACKER, ARVADI HOUSE, MALA.P.O, VADAMA VILLAGE, CHALAKKUDY TALUK, THRISSUR DISTRICT - 680732** **BY ADVS. PRABHU K.N. MANUMON A.** ## **RESPONDENTS:** |**1**|**THE DISTRICT COLLECTOR THRISSUR**| |---|---| ||**COLLECTORATE THRISSUR, PIN - 680003**| |**2**|**THE REVENUE DIVISIONAL OFFICER**| ||**IRINJALAKUDA**| ||**MINI CIVIL STATION CHEMMANDA ROAD,**| ||**IRINJALAKUDA NORTH, THRISSUR DISTRICT 680125**| |**3**|**THE TAHASILDAR CHALAKUDY TALUK**| ||**THIRD FLOOR, MUNICIPAL TOWN HALL COMPLEX,**| ||**CHALAKUDY, THRISSUR DISTRICT, PIN - 680307**| |**4**|**THE VILLAGE OFFICER VADAMA VILLAGE**| ||**VADAMA, MALA, CHALAKUDY TALUK**| ||**THRISSUR DISTRICT, PIN - 680732**| |**5**|**THE AGRICULTURAL OFFICER MALA**| ||**CHALAKUDY TALUK, THRISSUR DISTRICT - 680732**| |**6**|**THE LOCAL LEVEL MONITORING COMMITTEE**| ||**(CONSTITUTED UNDER THE KERALA CONSERVATION OF PADDY**| ||**LAND AND WETLAND ACT 2008)**| ||**REPRESENTED BY ITS CONVENOR**| ||**THE AGRICULTURAL OFFICER MALA,**| ||**CHALAKUDY TALUK,**| ||**THRISSUR DISTRICT - 680732**| **WP(C) NO. 29366 OF 2023 : 2 :** ## **OTHER PRESENT:** **GP - SMT. G SHEEBA** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 23.02.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C) NO. 29366 OF 2023 : 3 :** ## **JUDGMENT** The petitioner is the owner in possession of an extent of 0.1983 Hectares of land comprised in Re. Sy. No. 606 of Vadama Village, Chalakkudy Taluk, Thrissur District, by virtue of Ext. P1 partition deed. According to the petitioner, the property is a dry land converted prior to 1979 and it has been wrongly included in the Data Bank as paddy land. The petitioner filed Ext. P4 application before the 6[th] respondent Local Level Monitoring Committee (LLMC) under Rule 4(6) of the Kerala Conservation of Paddy Land and Wetland Rules, 2008 (hereinafter referred to as ‘the Rules, 2008‘ for short) for removal of the property from the Data Bank. Since the 6[th] respondent did not act upon Ext. P4, the petitioner preferred W.P.(C) No.7375 of 2019 and **WP(C) NO. 29366 OF 2023 : 4 :** this Court, by Ext. P5 judgment, directed the 6[th] respondent to consider and pass orders on Ext. P4 application in accordance with law, after giving an opportunity of hearing to the petitioner. Pursuant thereto, the 6[th] respondent as per decision No.2 recorded in Ext. P11 minutes dated 26.11.2019 decided to retain the land in the Data Bank. 2. In Ext.P11, it is stated that the members of the LLMC conducted field inspection of the subject land and also studied Ext.P7 KSRSEC map and report. It is further stated that the subject land is lying close to wetland and has tidal influence. The property is lying on either side of K.K. road and low lying and to avoid water logging during rainy season, the land has to be retained in the Data Bank. 3. According to the petitioner, the lands similarly situated have been removed from the Data **WP(C) NO. 29366 OF 2023 : 5 :** Bank. The KSRSEC report indicates a linear feature/road passing through the plot under plantations with fallow land towards the central part and a water body in the data of 2007 and mixed vegetation/trees and buildings observed in the data of 2010 and the site inspection report reveals that there are 12 coconut trees in the property which are more than 25 years old. The petitioner impugns Ext.P11 contending, _inter alia,_ that the same is vitiated by non application of mind and is against the provisions of the Act and the binding precedents of this Court. It is also contended that the KSRSEC report has been misinterpreted by the LLMC. 3. Heard the learned counsel for the petitioner and the learned Government Pleader. 4. The relevant consideration for inclusion of a property as paddy land or wet land is as to the **WP(C) NO. 29366 OF 2023 : 6 :** nature of the property as on the date of coming into force of the Act, 2008. Rule 4(8) of Rules, 2008 provides that, on receipt of an application under Rule 4(6), the LLMC shall consider the same and make appropriate corrections therein, after causing an inspection to be made and after perusing the satellite picture of the property as on 12.08.2008 and after that date. On a perusal of Ext.P11, it can be seen that the LLMC has not considered the actual nature of the property as on 12.08.2008, the date of commencement of the Act, 2008 and whether the land is suitable for paddy cultivation or not. The KSRSEC report and the report of the Agricultural Officer have not been properly appreciated by the LLMC. I find that there is no proper appreciation of the nature of the land as on the date of commencement of the Act, 2008. Further, low lying **WP(C) NO. 29366 OF 2023 : 7 :** nature of the land cannot be a criteria for not excluding the land from the Data Bank. There is no independent assessment of the nature of the property as on the date of coming into force of the Act, 2008. The LLMC has not taken into consideration the binding precedents of this Court while considering the application for removal of property from the Data Bank, which are also applicable to the LLMC while considering applications under Rule 4 (6). 5. 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 **WP(C) NO. 29366 OF 2023 : 8 :** 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. 6. This Court has 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 paddy land on the date of coming into force of the Act and also whether the land is suitable for paddy **WP(C) NO. 29366 OF 2023 : 9 :** cultivation or not. 7. Further, it is trite law that, merely because the property is lying at a low level, it cannot be termed as wetland or paddy land in contemplation of Act, 2008. In **Adani Infrastructures & Developers Pvt. Ltd, Mumbai & Others Vs. State of Kerala & Others reported in [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, such lands cannot be said as suitable for cultivation and may come outside the definition of paddy land. 8. In **Mather Nagar Residents Association** **and Another** _**v.**_ **District Collector, Ernakulam** **WP(C) NO. 29366 OF 2023 : 10 :** ## **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 KSREC, 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 KSREC 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.” **WP(C) NO. 29366 OF 2023 : 11 :** 10. In **Sudheesh** _**v**_ **. Revenue Divisional Officer, [2023 (2) KLT 386]** , this Court held that just for the reason that the property is left fallow, the land cannot be brought within the definition of Paddy Land. This Court observed 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 **WP(C) NO. 29366 OF 2023 : 12 :** application has been rejected on untenable grounds. Ext.P11 decision has been taken by the 6[th] respondent without any application of mind and in disregard to law and binding precedents. Accordingly, the same is set aside. There will be a direction to the 6[th] respondent to consider Ext.P4 application of the petitioner in the light of Ext.P7 report of the KSRSEC and in the light of the observations as above and after site inspection, within a period of one month from the date of receipt of a copy of this judgment. The writ petition is disposed of as above. **Sd/MURALI PURUSHOTHAMAN JUDGE** SB ## **WP(C) NO. 29366 OF 2023 : 13 :** ## **APPENDIX** ## **PETITIONER EXHIBITS** - **Exhibit P1 TRUE COPY OF THE PARTITION DEED NO.1423/1979 OF SRO MALA DATED 11.04.1979** - **Exhibit P2 TTRUE COPY OF THE LAND TAX RECEIPT ISSUED BY VADAMA VILLAGE CHALAKUDY TALUK THRISSUR DISTRICT DATED 30.06.2022** - **Exhibit P3 TRUE COPY OF THE RELEVANT PAGE OF THE DRAFT DATA BANK OF VADAMA VILLAGE, MALA GRAMA PANCHAYAT** - **Exhibit P4 TRUE COPY OF THE APPLICATION UNDER RULE 4(6) OF KERALA CONSERVATION OF PADDY LAND AND WETLAND RULES, 2008 PREFERRED BY THE PETITIONER BEFORE THE 6TH RESPONDENT ALONG WITH RECEIPT DATED 14/09/2017** - **Exhibit P5 TTRUE COPY OF THE ORDER IN WP(C).NO.7375 OF 2019 DATED 30.04.2019** - **Exhibit P6 TRUE COPY OF THE APPLICATION UNDER SECTION 6 (1) OF RIGHT TO INFORMATION ACT 2005 PREFERRED BY THE PETITIONER BEFORE THE 6TH RESPONDENT DATED 20.04.2023** - **Exhibit P7 TRUE COPY OF THE REPLY OF THE 6TH RESPONDENT TO THE EXHIBIT P6 APPLICATION DATED 20.05.2023** - **Exhibit P8 TRUE COPY OF THE MINUTES OF THE MEETING OF THE 6TH RESPONDENT DATED 15.12.2015** - **Exhibit P9 TRUE COPY OF THE MINUTES OF THE MEETING OF THE 6TH RESPONDENT DATED 03.04.2017** - **Exhibit P10 TRUE COPY OF THE MINUTES OF THE MEETING OF THE 6TH RESPONDENT DATED 07.01.2019** **Exhibit P11 TRUE COPY OF THE MINUTES OF THE MEETING OF THE 6TH RESPONDENT DATED 26.11.2019** **Exhibit P12 TRUE COPY OF THE MINUTES OF THE MEETING OF** **WP(C) NO. 29366 OF 2023 : 14 :** ## **THE 6TH RESPONDENT DATED 23.02.2021** **Exhibit P13 TRUE COPY OF THE RELEVANT PAGE OF THE FINAL DATA BANK OF VADAMA VILLAGE, MALA GRAMA PANCHAYAT**