Kerala High Court
P. K. Varghese vs The Revenue Divisional Officer/Sub ... on 6 February, 2024
Author: Murali Purushothaman
Bench: Murali Purushothaman
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE MURALI PURUSHOTHAMAN
TUESDAY, THE 6TH DAY OF FEBRUARY 2024 / 17TH MAGHA, 1945
WP(C) NO. 4282 OF 2024
PETITIONER:
P. K. VARGHESE
AGED 70 YEARS
S/O. LATE. KURUVILA P.V., PALATHINKAL HOUSE,
METRO PILLAR NO.956, POONITHURA P.O.,
KANAYANNUR TALUK ERNAKULAM, PIN - 682038
BY ADVS.
K.J.MOHAMMED ANZAR
P.K.MINIMOLE
A.RADHAKRISHNAN NAIR
BAPPU GALIB SALAM
MUHAMMED ASHIQUE
G.MOTILAL
RESPONDENTS:
1 THE REVENUE DIVISIONAL OFFICER/
SUB COLLECTOR, FORT KOCHI
FIRST FLOOR, KB JACOB ROAD,
FORT KOCHI, KOCHI, PIN - 682001
2 THE LOCAL LEVEL MONITORING COMMITTEE
REPRESENTED BY THE AGRICULTURAL OFFICER,
MINI CIVIL STATION, MAIN ROAD,
THRIPPUNITHURA, KOCHI, KERALA, PIN - 682301
OTHER PRESENT:
SMT.R.DEVI SHRI, GP
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
06.02.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C) NO. 4282 OF 2024 : 2 :
JUDGMENT
The petitioner has approached this Court
aggrieved by Ext.P6 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 15.89 Ares of property in Re.Sy.No.41/2
(old Sy.No.437) of Nadama Village, Kanayannur
Taluk, Ernakulam District, by virtue of Ext.P1 sale
deed.
3. According to the petitioner, the aforesaid
property will not come within the ambit of paddy
land or wet land as defined under the Kerala
Conservation of Paddy Land and Wetland Act, 2008
(hereinafter referred to as 'the Act, 2008' for short).
However, it is stated that the property is wrongly
included in the Data Bank as 'converted land'. The
petitioner filed an application in Form 5 under Rule
4(d) of the Kerala Conservation of Paddy Land and
Wetland Rules, 2008 before the Revenue Divisional
Officer to remove the said land from the Data Bank.
The same has been rejected by the Revenue
Divisional Officer vide Ext.P6 stating that as per site
inspection the land is seen as paddy land. It is
shown in the Data Bank as converted land. In the
report of the Kerala State Remote Sensing and
Environment Centre (for short, 'the KSRSEC), the
land is shown as fallow land with scattered
plantations and in the circumstances, the LLMC has
recommended not to remove the land from Data
Bank.
4. The petitioner has filed this writ petition
challenging 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. It is also
contended that the KSRSEC report was wrongly
appreciated by the Revenue Divisional Officer and
on the basis of the report of the Agricultural Officer,
the application has been rejected.
5. 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 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
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."
6. In Adani Infrastructures & Developers
Pvt. Ltd, Mumbai & Others Vs. State of Kerala
& Others reported in [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.
7. The relevant consideration for inclusion of
the property as a 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.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 Revenue Divisional
Officer has passed the said order refusing to remove
the property from the Data Bank.
8. 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.
9. I find that there is total non application of
mind on the part of the RDO while interpreting the
reports of the Agricultural Officer as well as the
KSRSEC. Accordingly, I set aside Ext.P6 with a
direction to the Revenue Divisional Officer to
reconsider the application of the petitioner in Form
No.5 and take a decision in the matter on the basis
of Ext.P7 KSRSEC report and the observation of this
Court and the binding precedents, within a period of
two months from the date of receipt of a copy of this
judgment.
The writ petition is disposed with the above
direction.
Sd/-
MURALI PURUSHOTHAMAN
JUDGE
SB
APPENDIX
PETITIONER EXHIBITS
Exhibit P1 TRUE COPY OF THE SALE DEED NO. 9169/83 DATED
25.08.1983 OF SRO THRIPPUNITHARA
Exhibit P2 TRUE COPY OF THE SETTLEMENT DEED NO. 2247/1
DATED 08.04.2005
Exhibit P3 TRUE COPY OF THE DEED NO. 3344/1/11 DATED
24.10.2011 OF SRO THRIPPUNITHARA
Exhibit P4 TRUE COPY OF PHOTOGRAPHS SHOWING THE
PETITIONER'S LAND
Exhibit P5 TRUE COPY OF THE DATA BANK ISSUED BY THE
THRIPPUNITHARA KRISHI BHAVAN DATED 22.12.2017
Exhibit P6 TRUE COPY OF ORDER NO. RDOCHN/3681/2020-K3
DATED 25.03.2023
Exhibit P7 TRUE COPY OF THE KSREC REPORT NO. A-
172/2015/KSREC/005401/20
