Suresh Kumar v. Revenue Divisional Officer, Palakkad

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** # **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE MURALI PURUSHOTHAMAN THURSDAY, THE 29[TH] DAY OF FEBRUARY 2024 / 10TH PHALGUNA, 1945 WP(C) NO.8143 OF 2024 ``` ## **`PETITIONER:`** ``` SURESH KUMAR, AGED 61 YEARS S/O.LATE GOPIKUTTAN PILLAI, GEETHANJALI, PERUNNA WEST, CHANGANASSERY, PANACHIKAVU, KOTTAYAM DISTRICT, REP. BY POWER OF ATTORNEY HOLDER, HARIKUMAR R S/O RAMAN PILLAI, RESIDING AT NEELAMBARAI, THARAVATHPADI, KODUNTHIRAPULLY, PALAKKAD, PIN - 678004 ``` ``` BY ADVS. RAJESH SIVARAMANKUTTY MAYA C.P. A.P.BEELAMMA VIJINA K. ARUL MURALIDHARAN ``` ## **`RESPONDENTS:`** - **`1 THE REVENUE DIVISIONAL OFFICER PALAKKAD, OFFICE OF THE REVENUE DIVISIONAL OFFICER, PALAKKAD. (DISTRICT LEVEL AUTHORIZED COMMITTEE UNDER THE KERALA CONSERVATION OF PADDY LAND AND WETLAND ACT, 2008), PIN - 678001`** ``` 2THE AGRICULTURAL OFFICER KODUMBU OFFICE OF THE AGRICULTURAL OFFICER, KODUMBU PALAKKAD DISTRICT, (LOCAL LEVEL MONITORING COMMITTEE UNDER THE KERALA CONSERVATION OF PADDY LAND AND WETLAND ACT, 2008), PIN - 678551 ``` ``` BY SR.GP.SMT.K.AMMINIKUTTY ``` ``` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ``` ``` ON 29.02.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` W.P.(C) No.8143 of 2024 2 ## **`JUDGMENT`** ``` Petitioner has approached this Court aggrieved by Ext.P6 order whereby Form 5 application submitted by him has been rejected by the 1[st] respondent/Revenue Divisional Officer [RDO]. ``` ``` 2. Petitioner is the owner in possession of an extent of 8 Ares 10 Sq.Meters of land comprised in Sy.No.160/27 in Block No.46 of Kodumbu Village, Palakkad Taluk, Palakkad District 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. However, it has been wrongly included in the Data Bank prepared under the Kerala Conservation of Paddy Land and Wetland Rules, 2008 [for brevity, ‘the Rules’]. The petitioner, therefore, filed Ext.P5 application in ``` W.P.(C) No.8143 of 2024 3 ``` Form 5 under the provisions of theKerala Conservation of Paddy Land and Wetland Act, 2008 [for brevity, ‘the Act,2008’] to remove the said property from the Data Bank. The RDO, by Ext.P6 order, rejected the application stating that the Agricultural Officer has reported that the property is not converted and is lying fallow and is suitable for paddy cultivation and need not be removed from the Data Bank. ``` ``` 4. 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 also contended that the RDO should have called for a report from the Kerala State Remote Sensing and Environment Centre [for short, ‘the KSRSEC’] to ascertain the status of ``` W.P.(C) No.8143 of 2024 4 ``` the land as on 12.08.2008, the date of coming into force of the Act, 2008. ``` ``` 5. The relevant consideration for inclusion of a 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. 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 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 ``` W.P.(C) No.8143 of 2024 5 ``` 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 RDO has relied solely upon the report of the Agricultural Officer to refuse to remove the property from the Data Bank. ``` ``` 6. This Court, inMuraleedharan 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 ``` W.P.(C) No.8143 of 2024 6 ``` 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 fallow, it cannot be termed as wetland or paddy land in contemplation of Act, 2008. InMather Nagar Residents Association and Another v. District Collector, Ernakulam and 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,itshouldhavethe characteristic features and requirement as is provided under the Act, 2008. It is clear from the report submitted by the ``` W.P.(C) No.8143 of 2024 7 ``` 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." ``` ``` 8. 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: ``` W.P.(C) No.8143 of 2024 8 ``` "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 on untenable grounds.Accordingly, I find that Ext.P6 order cannot be sustained and I set aside the same, with a direction to the 1[st] respondent/ ``` W.P.(C) No.8143 of 2024 9 ``` RDO to reconsider Ext.P5 application of the petitioner in Form No.5 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 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 judgment along with a copy of the writ petition before the 1[st] respondent for due compliance. ``` ``` The writ petition is disposed of with the above directions. ``` ``` Sd/- ``` ``` MURALI PURUSHOTHAMAN JUDGE ``` ``` sp/01/03/2024 ``` W.P.(C) No.8143 of 2024 10 ## **`APPENDIX`** ## **`PETITIONER'S EXHIBITS:-`** ``` Exhibit P1 ``` ``` A TRUE COPY OF THE REGISTERED SALE DEED NO.1545/2007 OF SRO, PALAKKAD DATED 21- 2-2007 EXECUTED IN FAVOUR OF PETITIONER ``` ``` Exhibit P2 ``` ``` A TRUE COPY OF THE POSSESSION CERTIFICATE DATED 30-1-2023 ISSUED TO PETITIONER FROM KODUMBU VILLAGE OFFICE ``` ``` Exhibit P3 ``` ``` A TRUE COPY OF THE LAND TAX RECEIPT DATED 16-1-2023 ISSUED FROM THE KODUMBU VILLAGE OFFICE TO PETITIONER ``` ``` Exhibit P4 ``` - **`A TRUE COPY OF THE PHOTOGRAPHS OF THE PROPERTY INCLUDING ITS NEIGHBOURHOOD`** - **`Exhibit P5`** - **`A TRUE COPY OF THE FORM 5 APPLICATION DATED 30-3-2023 SUBMITTED BEFORE THE 1 ST RESPONDENT BY PETITIONER`** ``` Exhibit P6 ``` ``` A TRUE COPY OF THE ORDER DATED 3-1-2024 IN FILE NO.10475/2023 PASSED BY THE 1 ST RESPONDENT ```