W.P.(C) No.5567 of 2024

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR.JUSTICE MURALI PURUSHOTHAMAN`** ``` TUESDAY, THE 13[TH] DAY OF FEBRUARY 2024 / 24TH MAGHA, 1945 WP(C) NO.5567 OF 2024 ``` ## **`PETITIONERS:`** - **`1 C.A.SHANEER AGED 47 YEARS S/O.C.K.ALIYAR, CHIRAPPILLIYIL HOUSE, MARKET P.O, KAVUNGARA, MUVATTUPUZHA, PIN - 686673`** - **`2 HAFIS HAMEED AGED 48 YEARS S/O.ABDUL HAMEED, MAROTTICKAL HOUSE, NELLIKKUZHY P O, KOTHAMANGALAM, PIN - 686691`** ``` BY ADV MANOJ P.KUNJACHAN ``` ## **`RESPONDENTS:`** - **`1 THE REVENUE DIVISIONAL OFFICER REVENUE DIVISIONAL OFFICE, MINI CIVIL STATION, MUVATTUPUZHA, PIN - 686669`** - **`2 AGRICULTURAL OFFICER KRISHI BHAVAN MUVATTUPUZHA, MINI CIVIL STATION, MUDAVOOR P O, MUVATTUPUZHA, PIN - 686669`** - **`3 VILLAGE OFFICER VILLAGE OFFICE VELLOORKUNNAM, MUVATTUPUZHA P O, MUVATTUPUZHA, PIN – 686673`** ``` BY SMT.K.AMMINIKUTTY, SR.GOVERNMENT PLEADER ``` ``` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 13.02.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` W.P.(C) No.5567 of 2024 2 ## **`JUDGMENT`** ``` Petitioners have approached this Court aggrieved by Ext.P4 order whereby Form 5 application submitted by them has been rejected by the 1[st]respondent/Revenue Divisional Officer [RDO]. ``` ``` 2. Petitioners are the owners in possession of an extent of 47.39 Ares of land comprised in Sy.Nos.943/4-1-4, 943/4-2-3 and 943/5-4 of Velloorkunnam Village, Muvattupuzha Taluk by virtue of Sale Deed No.5787/1/2012 of the SRO, Muvattupuzha. ``` ``` 3. According to the petitioners, 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 the Kerala Conservation of Paddy Land and Wetland ``` W.P.(C) No.5567 of 2024 3 ``` Rules, 2008 as ‘nilam’. The petitioners, therefore, filed Ext.P3 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.P4 order, rejected the application stating that the Agricultural Officer has reported that the property is part of larger extent of fallow land and is suitable for paddy cultivation and is waterlogged. It is further stated that the RDO has initiated proceedings under Section 13 of the Act, 2008 in respect of the said land and the Local Level Monitoring Committee [LLMC] has recommended not to remove the land from the Data Bank. ``` ``` 4. The petitioner impugns Ext.P4 contending, inter alia, that the same is vitiated by non ``` W.P.(C) No.5567 of 2024 4 ``` 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 RDO should have called for a report from the Kerala State Remote Sensing and Environment Centre [for short, ‘the KSRSEC’] to ascertain the status of the land as on 12.08.2008, the date of coming into force of the Act, 2008. ``` ``` 5. The relevant consideration for inclusion of a property as paddy land or wetland is as to the nature of the property as on the date of coming into force of the Act, 2008. On a perusal of Ext.P4, 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 RDO has relied solely upon the report of the Agricultural Officer and recommendation of the ``` W.P.(C) No.5567 of 2024 5 ``` LLMC 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.5567 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 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 ``` W.P.(C) No.5567 of 2024 7 ``` 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 contemplation of Act, 2008." ``` ``` 8. In Sudheesh v. Revenue Divisional Officer, [2023 (2) KLT 386], this Court held that just for the reason that the property is left fallow, the land cannot be brought within the definition of paddy land. This Court observed 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 ``` W.P.(C) No.5567 of 2024 8 ``` 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." ``` ``` 9. This Court, inBharathan Ramanathan v. State of kerala [2022 (7) KHC 541], has held that pendency of proceedings under Section 13 of the Act, 2008 is not a ground to consider an application in Form 5. ``` ``` 10. In Devanand v. State of Kerala [2023 (1) KHC 123], this Court has held that even if the proceedings under Section 13 of the Act, 2008 are concluded, the petitioner has a right to get his Form 5 application considered by the RDO. ``` W.P.(C) No.5567 of 2024 9 ``` Therefore, pendency of proceedings under Section 13 of the Act, 2008 is not a ground to reject the application of the petitioners. ``` ``` In spite of the categorical declarations by this Court in the decisions cited above, the petitioners’ application has been rejected on untenable grounds.Accordingly, I find that Ext.P4 order cannot be sustained and I set aside the same, with a direction to the 1[st] respondent/ RDO to reconsider Ext.P3 application of the petitioners in Form No.5 and take a decision in the matter after obtaining the KSRSEC report at the expense of the petitioners, within a period of two months from the date of receipt of the report of the KSRSEC. The petitioners shall apply before the Agricultural Officer concerned for KSRSEC report within a period of two weeks from the date ``` W.P.(C) No.5567 of 2024 10 ``` of receipt of a copy of this judgment. The petitioner shall produce a copy of the judgment along with a copy of the writ petition before the 1[st] respondent for due compliance. ``` ``` The writ petition is disposed of with the above directions. ``` ``` Sd/- ``` ``` MURALI PURUSHOTHAMAN JUDGE ``` ``` sp/13/02/2024 ``` W.P.(C) No.5567 of 2024 11 ## **`APPENDIX`** ## **`PETITIONER'S EXHIBITS:-`** ``` Exhibit P1 ``` ``` TRUE COPY OF THE TAX RECEIPT ISSUED BY THE 3RD RESPONDENT BEARING NO. KL07071404936/2023 DATED 20/05/2023 ``` ``` Exhibit P2TRUE COPY OF THE PHOTOGRAPHS SHOWING THE PRESENT STATUS OF THE PROPERTY AND SURROUNDINGS Exhibit P3TRUE COPY OF THE APPLICATION NO. 1/2023/1586629 DATED 10/06/2023 Exhibit P4TRUE COPY OF THE ORDER NO. 12294/2023 DATED 30/11/2023 ```