Thomas v. State of Kerala & Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE MURALI PURUSHOTHAMAN FRIDAY, THE 1[ST] DAY OF MARCH 2024 / 11TH PHALGUNA, 1945** ## **WP(C) NO. 8339 OF 2024** ## **PETITIONER:** **THOMAS, AGED 56 YEARS S/O VAREETH.C.D, CHERUVATHOOR HOUSE, NOW RESIDING AT DINESH APARTMENTS, NEAR SHIVA TEMPLE, WADAKKANCHERY.P.O, THRISSUR DISTRICT, PIN - 680582** **BY ADVS. K.R.ARUN KRISHNAN DEEPA K.RADHAKRISHNAN JISSMON A KURIAKOSE SANAL C.S SIDHARTHAN M.T.** ## **RESPONDENTS:** |**1**|**STATE OF KERALA**| |---|---| ||**REPRESENTED BY ITS SECRETARY,**| ||**REVENUE DEPARTMENT, GOVERNMENT SECRETARIAT,**| ||**THIRUVANANTHAPURAM, PIN - 695001**| |**2**|**DISTRICT COLLECTOR**| ||**THRISSUR, HAVING ITS OFFICE AS COLLECTORATE,**| ||**AYYANTHOLE, THRISSUR DISTRICT, PIN - 680003**| |**3**|**REVENUE DIVISIONAL OFFICER**| ||**THRISSUR, HAVING ITS OFFICE AS COLLECTORATE,**| ||**AYYANTHOLE, THRISSUR DISTRICT, PIN - 680003**| |**4**|**LOCAL LEVEL MONITORING COMMITTEE**| ||**(REPRESENTED BY ITS CONVENOR, AGRICULTURAL OFFICER),**| ||**KRISHIBHAVAN, WADAKKANCHERY MUNICIPALITY,**| ||**KUMARANELLOOR.P. O, THRISSUR, PIN - 680590**| |**5**|**AGRICULTURAL OFFICER**| ||**KRISHIBHAVAN, WADAKKANCHERY MUNICIPALITY,**| ||**KUMARANELLOOR.P. O, THRISSUR, PIN - 680590**| **OTHER PRESENT:** **WP(C) NO. 8339 OF 2024 : 2 :** **SR.GP.SMT.K.AMMINIKUTTY** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 01.03.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C) NO. 8339 OF 2024 : 3 :** ## **JUDGMENT** The petitioner has approached this Court aggrieved by Ext.P5 whereby Form 5 application submitted by him has been rejected by the Revenue Divisional Officer. 2. The petitioner is the owner in possession of an extent of 6 Ares and 7 square metres of land situated in Wadakkanchery Village, Thalappilly Taluk, Thrissur District. 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 **WP(C) NO. 8339 OF 2024 : 4 :** 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.P4 application in Form 5 under Rule 4(d) of the Rules, 2008 before the Revenue Divisional Officer to remove the said land from the Data Bank. The application has been rejected by the Revenue Divisional Officer stating that the Agricultural Officer has reported that there are no trees or constructions in the subject land and the property was not converted before 2008 and that the land need not be removed from the Data Bank. 4. The petitioner impugns Ext.P5 contending, _inter alia,_ that the same is vitiated by non application of mind and is against the provisions of **WP(C) NO. 8339 OF 2024 : 5 :** 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 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 **WP(C) NO. 8339 OF 2024 : 6 :** perusal of Ext.P5, 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 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 Revenue Divisional Officer being the competent authority, has to independently assess the status of the land and come to a conclusion that removal of **WP(C) NO. 8339 OF 2024 : 7 :** 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. This Court has held 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 cultivation or not. 8. Further, it is trite law that, merely because the property is lying fallow, it cannot be termed as **WP(C) NO. 8339 OF 2024 : 8 :** wetland or paddy land in contemplation of Act, 2008. 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. 9. In **Mather Nagar Residents Association and Another v. District Collector, Ernakulam others** [2020 (2) KLT 192], a Division Bench of this Court held as follows:- **WP(C) NO. 8339 OF 2024 : 9 :** “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 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. 8339 OF 2024 : 10 :** 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 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.P5 order cannot be sustained and I set aside the same, with a direction **WP(C) NO. 8339 OF 2024 : 11 :** to the 3[rd] respondent, the Revenue Divisional Officer to reconsider Ext.P4 application of the petitioner in Form 5 in accordance with law 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 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** SB **WP(C) NO. 8339 OF 2024 : 12 :** ## **APPENDIX** ## **PETITIONER EXHIBITS** **Exhibit-P1 A TRUE COPY OF SALE DEED NO. 75/2012 OF SRO WADAKKANCHERY DATED 06-01-2012** **Exhibit-P2 TRUE COPY OF TAX RECEIPT DATED 17-92022 IN THE NAME OF PETITIONER** **Exhibit-P3** **TRUE COPY OF THE RELEVANT PAGE OF THE DATA BANK PUBLISHED IN THE GAZETTE ISSUED BY THE AGRICULTURAL OFFICER, WADAKKANCHERY KRISHI BHAVAN** **Exhibit-P4 TRUE COPY OF APPLICATION DATED 22-102022 SUBMITTED BY THE PETITIONER** **Exhibit-P5** **A TRUE COPY OF ORDER DATED 25/10/2023 OF THE SUB COLLECTOR, THRISSUR**