Thomas P.V. v. Revenue Divisional Officer, Perinthalmanna and Others

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** # **`PRESENT`** ## **`THE HONOURABLE MR.JUSTICE MURALI PURUSHOTHAMAN`** ``` WEDNESDAY, THE 7[TH] DAY OF FEBRUARY 2024 / 18TH MAGHA, 1945 WP(C) NO.4686 OF 2024 ``` ## **`PETITIONER:`** ``` THOMAS P.V, AGED 63 YEARS, S/O.VARGHESE, PLAVILAKANDATHIL HOUSE, NETTIKULAM, BHOODANAM P.O, MALAPPURAM, PIN - 679334 ``` ``` BY ADVS.P.MOHAMED SABAH LIBIN STANLEY SAIPOOJA SADIK ISMAYIL R.GAYATHRI M.MAHIN HAMZA ALWIN JOSEPH ``` ## **`RESPONDENTS:`** - **`1 THE REVENUE DIVISIONAL OFFICER/ SUB COLLECTOR PERINTHALMANNA, RDO OFFICE, SHORNUR-PERINTHALMANNA ROAD, PERINTALMANNA, MALAPPURAM, PIN - 679322`** - **`2 THE LOCAL LEVEL MONITORING COMMITTEE POTHUKAL, REPRESENTED BY ITS CONVENOR, AGRICULTURAL OFFICER, KRISHI BHAVAN, POTHUKAL, NILAMBUR KERALA, PIN - 679329`** - **`3 THE AGRICULTURAL OFFICER, KRISHI BHAVAN, POTHUKAL, NILAMBUR, MALAPPURAM DISTRICT, PIN - 679329`** - **`4 THE DIRECTOR, KERALA STATE REMOTE SENSING AND ENVIRONMENT CENTRE, 1ST FLOOR, VIKASBHAVAN, UNIVERSITY OF KERALA SENATE HOUSE CAMPUS, PMG, THIRUVANANTHAPURAM, KERALA, PIN - 695033`** ``` BY SMT.R.DEVISREE, GP SRI.VISHNU S.CHEMPAZHANTHIYIL, SC, KSREC ``` ``` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 07.02.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` W.P.(C) No.4686 of 2024 2 ## **`JUDGMENT`** ``` Petitioner has approached this Court aggrieved by Ext.P9 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 1.24 Hectares of land comprised in Sy.No.85/2-2 in Block No.99 of Pothukal Village, Nilambur Taluk, Malappuram District. ``` ``` 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 Kerala Conservation of Paddy Land and Wetland Rules, 2008. The petitioner states that as per the KSRSEC report the land is indicated as “boarded by a road on the north-east side was observed under ``` W.P.(C) No.4686 of 2024 3 ``` thick mixed vegetation/plantation towards the east, partially under crops towards west and north-west side along with building structures towards south-east side”.The petitioner, therefore, filed an application in Form 5 under the provisions of the Kerala 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.P9 order, rejected the application on the ground that, as per the report of the Agricultural Officer and the KSRSEC report, since the land ins lying low in nature, it gets waterlogged during rainy season accumulating the entire water of the locality. It was also directed to change the nature of 2.1 Acres of land in the said property as wetland. ``` **`4. The petitioner impugns Ext.P9 contending`** W.P.(C) No.4686 of 2024 4 ``` 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 report of the KSRSEC has been misinterpreted. ``` ``` 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 in to force of the Act, 2008. On a perusal of Ext.P9, 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 to refuse to remove the property from the Data Bank. ``` ``` 6. This Court, inMuraleedharan Nair v. Revenue Divisional Officer [2023 (4) KLT 270], has ``` W.P.(C) No.4686 of 2024 5 ``` 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 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 and water gets logged during rainy season or otherwise due ``` W.P.(C) No.4686 of 2024 6 ``` to the low lying nature of the property, 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], the Division Bench of 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 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 ``` W.P.(C) No.4686 of 2024 7 ``` 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 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 in to force of the Act, such lands cannot be said as suitable for cultivation and may come outside the definition of paddy land. ``` W.P.(C) No.4686 of 2024 8 ## **`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 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." ``` ``` I find that there is total non application of mind on the part of the RDO while interpreting the report of the KSRSEC and also in passing Ext.P9 order. ``` W.P.(C) No.4686 of 2024 9 ``` Accordingly, I set aside Ext.P9 with a direction to the 1[st] respondent/RDO to reconsider the 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. ``` ``` The writ petition is disposed of with the above directions. ``` ``` Sd/- ``` ``` MURALI PURUSHOTHAMAN JUDGE ``` ``` sp/07/02/2024 ``` W.P.(C) No.4686 of 2024 10 ## **`APPENDIX`** ## **`PETITIONER'S EXHIBITS:-`** ``` Exhibit P1 ``` ``` TRUE COPY OF THE LAND TAX RECEIPT DATED 20.01.2022 ISSUED FROM THE VILLAGE OFFICE, POTHUKAL TO THE PETITIONER ``` ``` Exhibit P2TRUE COPY OF THE RELEVANT PAGE OF THE DATA BANK PUBLISHED ON 23.03.2012 ``` ``` Exhibit P3 ``` ``` TRUE COPY OF THE ORDER DATED 23.02.2023 PASSED BY THE 1ST RESPONDENT ``` - **`Exhibit P4 TRUE COPY OF THE APPEAL DATED 21.03.2023 FILED BY THE PETITIONER BEFORE THE DISTRICT COLLECTOR`** ``` Exhibit P5TRUE COPY OF THE APPLICATION DATED 05.04.2023 SUBMITTED BY PETITIONER BEFORE THE DISTRICT COLLECTOR APPELLATE AUTHORITY ``` ``` Exhibit P6TRUE COPY OF THE JUDGEMENT DATED 16.10.2023 IN W.P. (C) NO. 15412/2022 PASSED BY THIS HONOURABLE COURT ``` ``` Exhibit P7TRUE COPY OF THE REPORT DATED 23.11.2023 ON LAND USE CHANGE PREPARED BY THE RESPONDENT NO.4 PERTAINING TO THE PROPERTY OF THE PETITIONER ``` ``` Exhibit P8TRUE COPY OF THE REPORT SUBMITTED BY RESPONDENT NO.3 BEFORE THE RESPONDENT NO.1 ``` ``` Exhibit P9TRUE COPY OF THE ORDER DATED 18.01.2024 PASSED BY RESPONDENT NO. 1 REJECTING THE FORM 5 APPLICATION OF THE PETITIONER ```