Ullas Kumar v. Revenue Divisional Officer, Palakkad and Agricultural Officer, Alathur

## **`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.8158 OF 2024 ``` ## **`PETITIONER:`** ``` ULLAS KUMAR, AGED 32 YEARS S/O UNNIKRISHNAN, PARAYANCODE, VENGANUR ALATHUR, PALAKKAD DISTRICT, PIN - 678541 ``` ``` BY ADVS. RAJESH SIVARAMANKUTTY K.V.ANTONY 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`** - **`2 THE AGRICULTURAL OFFICER, ALATHUR OFFICE OF THE AGRICULTURAL OFFICER, ALATHUR PALAKKAD DISTRICT,.( LOCAL LEVEL MONITORING COMMITTEE UNDER THE KERALA CONSERVATION OF PADDY LAND AND WETLAND ACT, 2008, PIN - 678541`** ``` BY SMT.R.DEVISREE, GP ``` ``` 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.8158 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 0.0203 Hectares of land comprised in Re- Sy.No.184/17 in Block No.28 of Alathur Village, Palakkad District by virtue of Sale Deed No.2870/2020 of the SRO, Palakkad. ``` ``` 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 as paddy land with the remark ‘fallow’. The petitioner, therefore, filed Ext.P5 ``` W.P.(C) No.8158 of 2024 3 ``` 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.P6 order, rejected the application stating that as per the report of the Agricultural Officer, the property is part of ‘padasekharam’ and lying fallow and coming within the definition of paddy field as per the Act, 2008 and that the land 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. ``` ``` 5. The relevant consideration for inclusion of a property as paddy land or wetland is as to the ``` W.P.(C) No.8158 of 2024 4 ``` 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 Centre/State Scientific Technological Institutions and pass appropriate orders on the application. On a 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 ``` W.P.(C) No.8158 of 2024 5 ``` 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 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 ``` W.P.(C) No.8158 of 2024 6 ``` 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 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, ``` W.P.(C) No.8158 of 2024 7 ``` 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." ``` ## **`8. 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 ``` W.P.(C) No.8158 of 2024 8 ``` 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 set aside Ext.P6 with a direction to the 1[st] respondent/RDO to reconsider the application of the petitioner in Form No.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 2[nd]respondent/Agricultural Officer for KSRSEC report within a period of two ``` W.P.(C) No.8158 of 2024 9 ``` 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 RDO for due compliance. ``` ``` The writ petition is disposed of with the above directions. ``` ``` Sd/- ``` ``` MURALI PURUSHOTHAMAN JUDGE ``` ``` sp/29/02/2024 ``` W.P.(C) No.8158 of 2024 10 ## **`APPENDIX`** ## **`PETITIONER'S EXHIBITS:-`** ``` Exhibit P1 ``` ``` TRUE COPY OF THE REGISTERED SALE DEED NO. 2870/2020 OF SRO, PALAKKAD DATED 2- 12-2020EXECUTEDINFAVOUROF PETITIONER ``` ``` Exhibit P2 ``` ``` TRUE COPY OF THE POSSESSION CERTIFICATE DATED 08.01.2021 ISSUED TO PETITIONER FROM-ALATHUR VILLAGE OFFICE.. ``` ``` Exhibit P3 ``` - **`TRUE COPY OF THE LAND TAX RECEIPT DATED 5-10-2023 ISSUED FROM THE ALATHUR VILLAGE OFFICE TO PETITIONER`** - **`Exhibit P4`** - **`TRUE COPY OF THE PHOTOGRAPHS OF THE PROPERTY INCLUDING ITS NEIGHBOURHOOD`** - **`Exhibit P5`** - **`TRUE COPY OF THE FORM 5 APPLICATION DATED NIL SUBMITTED BEFORE THE 1ST RESPONDENT BY PETITIONER`** - **`Exhibit P6 TRUE COPY OF THE ORDER DATED 28-9-2021 IN FILE NO.RDOPKD/1843/202L/J2 PASSED BY THE1ST RESPONDENT`**