Kerala High Court
Ratheesh.R vs State Of Kerala 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. 44107 OF 2023
PETITIONERS:
1 RATHEESH.R.,
AGED 45 YEARS
S/O. RAJAN, RESIDING AT KUNDUKAD HOUSE, MUDAPPALLUR,
ALATHUR TALUK, PALAKKAD DISTRICT, PIN - 678705
2 SANGEETHA VENUGOPAL,
AGED 40 YEARS
W/O. RATHEESH.R, RESIDING AT KUNDUKAD HOUSE,
MUDAPPALLUR, ALATHUR TALUK, PALAKKAD DISTRICT, PIN -
678705
BY ADV K.MOHANAKANNAN
RESPONDENTS:
1 STATE OF KERALA,
REPRESENTED BY ITS SECRETARY TO GOVERNMENT, REVENUE
DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM,
PIN - 695001
2 THE DISTRICT COLLECTOR,
PALAKKAD CIVIL STATION, PALAKKAD DISTRICT, PIN - 678001
3 REVENUE DIVISIONAL OFFICER,
OFFICE OF THE REVENUE DIVISIONAL OFFICER PALAKKAD,
PALAKKAD HEAD POST OFFICE, PALAKKAD DISTRICT, PIN -
67800
4 LOCAL LEVEL MONITORING COMMITTEE,
VANDAZHI, REPRESENTED BY ITS CONVENER - AGRICULTURAL
OFFICER, VANDAZHI, PALAKKAD DISTRICT, PIN - 678706
5 THE VILLAGE OFFICER,
VANDAZHI-II VILLAGE OFFICE, MUDAPPALLUR, PALAKKAD
DISTRICT, PIN - 678705
OTHER PRESENT:
SR.GP.SRI.E.G.GORDEN
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
06.02.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
W.P (C) No.44107 of 2023
2
JUDGMENT
The petitioners have approached this Court aggrieved
by Ext.P8 whereby Form 5 application submitted by them
has been rejected by the Revenue Divisional Officer solely
relying on the report of the Agricultural Officer.
2. The petitioners are the absolute owners and in
possession and enjoyment of 0.0405 Hectares of land in
Survey No.182/7 of Vandazhi-II Village in Alathur Taluk,
Palakkad District. The property is remaining as fallow and it
is included as nilam in the Basic Tax Register.
3. According to the petitioners, 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 'Act
2008'). However, it is stated that the property is wrongly
included in the Data Bank. The petitioners filed Ext.P4
application in Form 5 of 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.P8. In Ext.P8, the 3 rd respondent
has stated that, as per KSRSEC report of the adjoining plot,
it is seen that the subject land is fallow as on 2008. Further,
on site inspection, it is found that the property is lying about
10 feet below the road level and is suitable for paddy
cultivation and there will be water logging during rainy
season.
4. 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 by itself 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."
5. 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, such land cannot be said as suitable for
cultivation and may come outside the definition of paddy
land.
6. The relevant consideration for inclusion of
property as a 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. On a perusal of Ext.P8, it is evident that, without any
independent assessment of the nature of property as on
date of the 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. 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.
7. I find that there is total non application of mind on
the part of the RDO while interpreting the reports of the
Agricultural officer based on KSRSEC report. Accordingly, I
set aside Ext.P8, with a direction to the Revenue Divisional
Officer to reconsider Ext.P4 application of the petitioners in
Form No.5 and take a decision in the matter on the basis of
the 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 of with the above
direction.
Sd/-
MURALI PURUSHOTHAMAN
JUDGE
bng
APPENDIX OF WP(C) 44107/2023
PETITIONERS EXHIBITS
Exhibit P1 TRUE COPY OF THE SALE DEED NO. 3478/2013
DATED 25/11/2013 OF SRO, KOLLENGODE
EXECUTED IN FAVOUR OF THE PETITIONER
Exhibit P2 TRUE COPY OF THE ANTERIOR TITLE DEED NO.
2992/2012 OF SRO, NENMARA DATED
24/08/2012
Exhibit P3 TRUE COPY OF THE POSSESSION CERTIFICATE
OF THE PROPERTY DATED 27/10/2021
Exhibit P4 TRUE COPY OF THE APPLICATION SUBMITTED
BY THE PETITIONER BEFORE THE REVENUE
DIVISIONAL OFFICER IN FORM NO. 5 DATED
19/11/2021
Exhibit P5 TRUE COPY OF THE PROCEEDINGS OF THE
REVENUE DIVISIONAL OFFICER, NO.
RDOPKD/4646/2022-J5 DATED 16/01/2023
Exhibit P6 TRUE COPY OF THE PROCEEDINGS OF THE 3RD
RESPONDENT, NO. J-8493/2011 DATED
26/12/2011 ALONG WITH TYPED COPY
Exhibit P7 TRUE COPY OF THE JUDGMENT DATED 15-3-
2023 IN WRIT PETITION(C) NO.5911/2023
Exhibit P8 TRUE COPY OF THE PROCEEDINGS
NO.RDOPKD/4646/2022-J5 DATED 13-10-2023
OF THE 3RD RESPONDENT
