Syja v. Revenue Divisional Officer, Thrissur; Local Level Monitoring Committee represented by its Convenor; Agricultural Officer

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE MURALI PURUSHOTHAMAN FRIDAY, THE 16[TH] DAY OF FEBRUARY 2024 / 27TH MAGHA, 1945 ``` ## **`WP(C) NO. 12858 OF 2023`** ## **`PETITIONER:`** ``` SYJA, AGED 44 YEARS W/O.JOSE, KAVUNGAL HOUE, CHIYYARAM, CHIYYARAM.P.O., THRISSUR, PIN – 680 026. ``` ``` BY ADVS. C.A.CHACKO C.M.CHARISMA BABU V.P. SALMA DILEEP REMYA V.A. ``` ## **`RESPONDENTS:`** ``` 1REVENUE DIVISIONAL OFFICER, THRISSUR, FIRST FLOOR, CIVIL STATION, CIVIL LINES ROAD, AYYANTHOLE, THRISSUR DISTRICT, PIN – 680 003. 2LOCAL LEVEL MONITORING COMMITTEE, REPRESENTED BY ITS CONVENOR, KRISHI BHAVAN, KOORKKANCHERY, THRISSUR DISTRICT, PIN – 680 007. 3AGRICULTURAL OFFICER, KOORKKANCHERY, KRISHI BHAVAN, KOORKKANCHERY, THRISSUR DISTRICT, PIN – 680 007. ``` ``` BY ADV SMT.SHEEBA,GOVERNMENT PLEADER ``` ``` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 16.02.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` WP(C) NO. 12858 OF 2023 ``` 2 ## JUDGMENT The petitioner has approached this Court aggrieved by Ext.P3 whereby Form 5 application submitted by her 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 7.15 Ares(17.66 cents) of property in Survey No.98/PT-25 of Chiyyaram Village in Thrissur Taluk. In Ext.P3, it is stated that as per the report of the Agricultural Officer, the property is low lying and marshy, and there is a ‘chal’ passing through one side of the property. 3. This writ petition has been filed contending that Ext.P3 is vitiated by non-application of mind and ``` WP(C) NO. 12858 OF 2023 ``` 3 is against the provisions of the Kerala Conservation of Paddy Land and Wetland Act, (for short ‘Act, 2008’) and the binding precedents of this Court. 4. 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, 2008 and also whether the land is suitable for paddy cultivation or not. 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 ``` WP(C) NO. 12858 OF 2023 ``` 4 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. Reliance upon the report of the Agricultural Officer and LLMC alone will not be sufficient while taking a decision on an application under Form 5. In Aparna Sasi Menon v. Revenue Divisional Officer [2023 (6) KHC 83], this Court has held that the predominant factor for ``` WP(C) NO. 12858 OF 2023 ``` 5 consideration while considering the Form 5 application should be whether the land which is sought to be excluded from Data Bank is one where paddy cultivation is possible and feasible, it was further held that, presence of a ‘Neerchal’ in the property cannot be a prime consideration in deciding whether the land is to be retained in the Data Bank. 6. Further, it is trite law that, merely because the land is marshy or low lying, 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), the Division Bench of this Court held as follows; “22. Going by the definition of wetland, we are of the view that, in ``` WP(C) NO. 12858 OF 2023 ``` 6 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 ``` WP(C) NO. 12858 OF 2023 ``` 7 ## contemplation of Act, 2008”. There is total non-application of mind on the part of the 1[st] respondent in considering Form No.5 application. Accordingly, I set aside Ext.P3, with a direction to the 1[st] respondent, the Revenue Divisional Officer to reconsider Ext.P2 application in Form 5 and take a decision in the matter after obtaining KSRSEC report at the expense of the petitioner, within a period of two months from the date of receipt of a copy 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 the writ petition along with a copy of this judgment before the 1[st] ``` WP(C) NO. 12858 OF 2023 ``` 8 respondent. The writ petition is disposed of with the above directions. Sd/- ## MURALI PURUSHOTHAMAN JUDGE SRJ `WP(C) NO. 12858 OF 2023` 9 ## **`APPENDIX OF WP(C)No. 12858 OF 2023`** ``` PETITIONER EXHIBITS ``` ``` Exhibit P1TRUE COPY OF LAND TAX RECEIPT DATED 10/8/2021 ISSUED FROM CHIYYARAM VILLAGE OFFICE Exhibit P2TRUE COPY OF FORM-5 APPLICATION DATED 31/8/2021 SUBMITTED BEFORE THE 1ST RESPONDENT Exhibit P3TRUE COPY OF ORDER NO.D8-15059/ 2021/EC DATED 26/4/2022 OF 1ST RESPONDENT ```