Tomy Isac v. Revenue Divisional Officer, Kanhangad; Local Level Monitoring Committee, Kanhangad Municipality; Village Officer, Kanhangad Village; Kerala State Remote Sensing and Environment Centre

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR.JUSTICE MURALI PURUSHOTHAMAN`** ``` MONDAY, THE 18[TH] DAY OF MARCH 2024 / 28TH PHALGUNA, 1945 ``` ## **`WP(C) NO. 38454 OF 2023`** ## **`PETITIONER:`** ``` TOMY ISAC AGED 57 YEARS S/O. A.C. ISAC, OZHUKAYIL HOUSE, VELLARIKUNDU P.O., KASARAGOD DISTRICT, PIN – 671 533. ``` ``` BY ADVS. BABU JOSEPH KURUVATHAZHA ARCHANA K.S. MOHAMMED SHAFI.K NOEL EALIAS ``` ## **`RESPONDENTS:`** - **`1 REVENUE DIVISIONAL OFFICER KANHANGAD, KANHANGAD P.O., KASARAGOD DISTRICT, PIN – 671 315.`** - **`2 LOCAL LEVEL MONITORING COMMITTEE KANHANGAD MUNICIPALITY, KASARAGOD DISTRICT, REPRESENTED BY ITS CONVENOR, THE AGRICULTURAL OFFICER, KRISHI BHAVAN, KANHANGAD, KASARAGOD DISTRICT, PIN – 671 315.`** - **`3 VILLAGE OFFICER KANHANGAD VILLAGE, KANHANGAD P.O., KASARAGOD DISTRICT, PIN – 671 315.`** - **`4 KERALA STATE REMOTE SENSING AND ENVIRONMENT CENTRE, 1ST FLOOR, VIKAS BHAVAN, NEAR LEGISLATIVE ASSEMBLY, UNIVERSITY OF KERALA SENATE HOUSE CAMPUS, PMG, THIRUVANANTHAPURAM, KERALA, REPRESENTED BY ITS DIRECTOR, PIN – 695 033.`** ``` SRI. VISHNU S. CHEMPAZHANTHIYIL – SC SMT. SHEEBA - GP ``` ``` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 18.03.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` WP(C).No.38454 OF 2023 ``` ``` 2 ``` ## **`JUDGMENT`** The petitioner has approached this Court aggrieved by Ext.P8 order whereby Form 5 application submitted by him has been rejected by the Revenue Divisional Officer. 2. absolute owner in The petitioner is the possession of an extent of 25.06 Ares of land comprised in Re.Sy. No.508/3 (old Sy.No.385/2) of Kanhangad Village, Hosdurg Taluk in Kasaragod District. 3. According to the petitioner, the aforesaid property will not come within the definition of paddy land or wet land. However, it has been wrongly included in the Data Bank prepared under the Kerala Conservation of Paddy land and Wetland Rules, 2008 (for short, ‘the Rules’) as paddy land. The petitioner, therefore, filed an application in Form 5 under the provisions of the Kerala ``` WP(C).No.38454 OF 2023 ``` ``` 3 ``` Conservation of Paddy Land and Wetland Act, 2008 (hereinafter referred to as 'the Act, 2008’) to remove the property from the Data Bank before the RDO which was rejected by Ext.P5. After rejection of form 5 application, the petitioner filed another Form 5 application viz; Ext.P6, which was rejected by the RDO by Ext.P8 order. Vide Ext.P8, the RDO, after referring to Ext.P5 order, has passed a fresh order rejecting the application of the petitioner in Form 5. In Ext.P8, it is stated that as per the report of the Agricultural Officer, the property is situated in between the river and thodu and is marshy and the property need not be removed from the Data Bank. 4. The petitioner impugns Ext.P8 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. ``` WP(C).No.38454 OF 2023 ``` ``` 4 ``` 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 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 perusal of Ext.P8, 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 solely relied ``` WP(C).No.38454 OF 2023 ``` ``` 5 ``` upon the report of the Agricultural Officer to refuse to remove the property from the Data Bank. 6. This Court had 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. 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 the Data Bank. The Revenue Divisional Officer being the competent authority, ``` WP(C).No.38454 OF 2023 ``` ## **`6`** has to independently assess the status of the land and come to a conclusion that removal of the land from the 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 to the low lying nature of the property, it cannot be termed as wetland or paddy land in contemplation of Act, 2008. In **Aparna Sasi Menon v. Revenue Divisional Officer, Irinjalakuda** [2023 (6) KHC 83], this Court has held that existence of neerchals in a property should never be a prime consideration in deciding whether the land is to be retained in the Data Bank. Instead, the prime consideration should ``` WP(C).No.38454 OF 2023 ``` **==> picture [8 x 9] intentionally omitted <==** be whether paddy cultivation is possible in the property in question. 8. In **Adani Infrastructures & Developers Pvt. Ltd, Mumbai & Others Vs. State of Kerala** **& Others** [2014 (1) KHC 685], this Court 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 lands cannot be said as suitable for cultivation and may come outside the definition of paddy land. 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:- “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 ``` WP(C).No.38454 OF 2023 ``` ``` 8 ``` 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.” 9. This Court in **Jessy Abraham v. Land Revenue Commissioner, Thiruvananthapuram** [2021 (6) KHC 316] has held that merely for the reason that the land is lying low and is waterlogged, the same cannot be included as paddy land in the Data Bank. 10. In spite of the categorical declarations by this Court in the decisions cited above, the petitioner's application has been rejected, solely relying on the report of the Agricultural Officer, who recommended not to remove the land from the Data Bank. Accordingly, I find that Ext.P8 order ``` WP(C).No.38454 OF 2023 ``` ``` 9 ``` cannot be sustained and I set aside the same with a direction to the 1[st] respondent, the Revenue Divisional Officer to reconsider Ext.P6 application of the petitioner in Form 5 in accordance with law 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 the writ petition along with a copy of this judgment before the 1[st] respondent for compliance. The writ petition is disposed of with the above directions. Sd/- ## **`MURALI PURUSHOTHAMAN JUDGE`** SPR ``` WP(C).No.38454 OF 2023 ``` ``` 10 ``` ## **`APPENDIX`** ## **`PETITIONER’S EXHIBITS:-`** ``` EXHIBIT P1TRUE COPY OF DOCUMENT NO.3970/2013 DATED 11.10.2013 OF THE SUB REGISTRY, KANHANGAD. EXHIBIT P2ORIGINAL PHOTOGRAPHS EVIDENCING THE GROWTH OF THE COCONUT TREES HAVING THE AGE OF MORE THAN 42 YEARS GROWN IN THE PROPERTY COMPRISED IN EXT.P1. EXHIBIT P3TRUE COPY OF THE RECEIPT NO.872 DATED 26.8.2017 ISSUED FROM THE OFFICE OF THE 2ND RESPONDENT. EXHIBIT P4TRUE COPY OF THE REPORT NO.F 2100/2020 OF THE 2ND RESPONDENT ISSUED TO THE PETITIONER UNDER THE RIGHT TO INFORMATION ACT, ON 5.11.2021. EXHIBIT P5TRUECOPYOFTHEORDER NO.F.2100/2020/K.DISDATED 15.3.2021 ISSUED BY THE 1ST RESPONDENT. EXHIBIT P6TRUE COPY OF THE APPLICATION DATED 4.3.2022 IN FORM 5 SUBMITTED BY THE PETITIONER BEFORE THE 1ST RESPONDENT. EXHIBIT P7TRUE COPY OF THE REPORT BEARING REF.NO.KBKHDDB/13/2023-24DATED 20.5.2023SUBMITTEDBYTHE2ND RESPONDENT. EXHIBIT P8TRUE COPY OF THE ORDER NO.2467/2023 DATED 26.10.2023 ISSUED BY THE 1ST RESPONDENT. EXHIBIT P9TRUE COPY OF THE JUDGMENT OF THIS HON'BLE COURT IN APARNA SASI MENON V. REVENUE DIVISIONAL OFFICER (ILR 2023 (4) KERALA 382). ``` ## **`RESPONDENTS EXHIBITS: NIL.`**