W.P.(C) No.7598 of 2024

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** # **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE MURALI PURUSHOTHAMAN TUESDAY, THE 27[TH] DAY OF FEBRUARY 2024 / 8TH PHALGUNA, 1945 WP(C) NO.7598 OF 2024 ``` ## **`PETITIONERS:`** - **`1 V.M.USMAN, AGED 51 YEARS, EARIYAKKATTMOOLAYIL HOUSE, KAKKANAD, THRIKKAKARA P.O, ERNAKULAM, PIN - 682018`** - **`2 ATHIKA MOHAMMED, AGED 52 YEARS, MANATH HOUSE, KAKKANAD, THRIKKAKARA PO,ERNAKULAM, PIN - 682018`** - **`3 RAMLATH UMMER, AGED 45 YEARS EARIYAKKATTMOOLAYIL HOUSE, KAKKANAD, THRIKKAKARA PO, ERNAKULAM, PIN - 682018`** ``` BY ADVS. V.PREMCHAND HALIYA T.P. MAHADEV M.J. ``` ## **`RESPONDENTS:`** - **`1 THE REVENUE DIVISIONAL OFFICER, MUVATTUPUZHA, ERNAKULAM DISTRICT, PIN- 686661`** - **`ADDRESS OF THE R1 IS CORRECTED AS PER ORDER DATED 13.03.2024 IN I.A.NO.1 OF 2024`** - **`2 THE AGRICULTURE OFFICER & CONVENOR, LOCAL LEVEL MONITORING COMMITTEE, KRISHI BHAVAN, KUNNATHUNADU, ERNAKULAM, PIN - 683565`** - **`3 THE TAHSILDAR (LR), KUNNATHUNADU TALUK, ERNAKULAM, PIN - 683565`** - **`4 THE VILLAGE OFFICER, KUNNATHUNADU VILLAGE, KUNNATHUNADU TALUK, ERNAKULAM, PIN - 683565 SMT.R.DEVISREE, GP`** ``` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ``` W.P.(C) No.7598 of 2024 2 ``` ON 27.02.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` W.P.(C) No.7598 of 2024 3 ## **`JUDGMENT`** ``` Petitioners have approached this Court aggrieved by Exts.P7, P8 & P9 orders, whereby Exts.P4,P5 & P6 Form 5 applications submitted by them have been rejected by the 1[st] respondent/ Revenue Divisional Officer [RDO] solely relying on the report of the Agricultural Officer. ``` ``` 2. The 1[st]petitioner is the owner in possession of an extent of 15 Ares of land comprised in Re-Sy.No.280/3-2 of Kunnathunadu Village, Kunnathunadu Taluk, Ernakulam District, 2[nd] petitioner is the owner in possession of an extent of 10 Ares of land comprised in Re- Sy.No.280/3-3,ofKunnathunaduVillage, Kunnathunadu Taluk, Ernakulam District and the 3[rd] petitioner is the owner in possession of an extent of 19.30 Ares of land comprised in Re-Sy.No.280/3, ``` W.P.(C) No.7598 of 2024 4 ``` of Kunnathunadu Village, Kunnathunadu Taluk, Ernakulam District. The said properties are lying contiguously. ``` ``` 3. According to the petitioners, the aforesaid property will not come within the ambit of paddy land or wetland as defined under the Kerala Conservation of Paddy Land and Wetland Act, 2008 (for brevity, ‘the Act, 2008’). However, it is stated that the property is wrongly included in the Data Bank. The petitioners filed Exts.P4,P5 & P6 applications in Form 5 of Rule 4(d) of the Kerala Conservation of Paddy Land and Wetland Rules, 2008 before the RDO to remove the said land from the Data Bank. The same have been rejected by the RDO vide Exts.P7,P8 & P9 orders stating that as per the report of the Agricultural Officer, the subject lands were converted prior to 2008 and ``` W.P.(C) No.7598 of 2024 5 ``` will come within the ambit of the Act, 2008 and not to remove the properties from the Data Bank. ``` ``` 4. The petitioners have filed this writ petition challenging Exts.P7,P8 & P9 contending, inter alia, that the same are 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 RDO should have called for a report from the Kerala State Remote Sensing and Environment Centre [for short, ‘the KSRSEC’] before disposing of the Form 5 applications 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 ``` W.P.(C) No.7598 of 2024 6 ``` 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 perusal of Exts.P7,P8 & P9, 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 report of the Agricultural Officer to ``` W.P.(C) No.7598 of 2024 7 ``` refuse to remove the property from the Data Bank. ``` ``` 6. This Court has 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 as on the date of coming into force of the Act and also whether the land is suitable for paddy cultivation or not. 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 ``` W.P.(C) No.7598 of 2024 8 ``` 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. In Aparna Sasi Menon v. Revenue Divisional Officer [2023 (6) KHC 83], this Court has held that the predominant factor for consideration while considering the Form-5 application should be whether the land which is sought to be excluded from Data Bank is one where paddy cultivation is possible and feasible. ``` ``` In spite of the categorical declarations by this Court in the decisions cited above, the ``` W.P.(C) No.7598 of 2024 9 ``` petitioners’ applications have been rejected, solely relying on the report of the Agricultural Officer who recommended not to remove the land from the Data Bank. Accordingly, Exts.P7,P8 & P9 orders cannot be sustained and I set aside the same, with a direction to the 1[st] respondent, the RDO, to reconsider Exts.P4,P5 & P6 applications in accordance with law and take a decision in the matter after obtaining 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 of receipt of a copy of this judgment. The petitioners shall produce a copy of the writ petition along with a copy of the judgment before ``` W.P.(C) No.7598 of 2024 10 ``` the Revenue Divisional Officer. ``` ``` The writ petition is disposed of with the above directions. ``` ``` Sd/- ``` ``` MURALI PURUSHOTHAMAN JUDGE ``` ``` sp/27/02/2024 ``` W.P.(C) No.7598 of 2024 11 ## **`APPENDIX`** ## **`PETITIONER'S EXHIBITS:-`** - **`Exhibit-P1 A TRUE COPY OF THE TAX RECEIPT DATED 27.01.2024 ISSUED TO THE 1ST PETITIONER`** - **`Exhibit-P2 A TRUE COPY OF THE TAX RECEIPT DATED 27.01.2024 ISSUED TO THE 2ND PETITIONER`** - **`Exhibit-P3 A TRUE COPY OF THE TAX RECEIPT DATED 27.01.2024 ISSUED TO HUSBAND OF THE 3RD PETITIONER`** - **`Exhibit-P4 A TRUE COPY OF THE FORM 5 APPLICATION DATED 21.04.2022 SUBMITTED BY THE 1ST PETITIONER`** - **`Exhibit-P5 A TRUE COPY OF THE FORM 5 APPLICATION DATED 21.04.2022 SUBMITTED BY THE 2ND PETITIONER`** - **`Exhibit-P6 A TRUE COPY OF THE FORM 5 APPLICATION DATED 21.04.2022 SUBMITTED BY THE HUSBAND OF THE 3RD PETITIONER`** - **`Exhibit-P7 A TRUE COPY OF THE ORDER DATED 28.12.2022 ISSUED BY THE 1ST RESPONDENT IN RESPECT OF THE 1ST PETITIONER`** - **`Exhibit-P8`** - **`A TRUE COPY OF THE ORDER DATED 28.12.2022 ISSUED BY THE 1ST RESPONDENT IN RESPECT OF THE 2ND PETITIONER`** - **`Exhibit-P9`** - **`A TRUE COPY OF THE ORDER DATED 28.12.2022 ISSUED BY THE 1ST RESPONDENT IN RESPECT OF THE HUSBAND OF THE 3RD PETITIONER`**