Thomas P.V vs The Revenue Divisional Officer/ Sub ...
2024 Latest Caselaw 4768 Ker

Kerala High Court

Thomas P.V vs The Revenue Divisional Officer/ Sub ... on 7 February, 2024

Author: Murali Purushothaman

Bench: Murali Purushothaman

           IN THE HIGH COURT OF KERALA AT ERNAKULAM
                           PRESENT
        THE HONOURABLE MR.JUSTICE MURALI PURUSHOTHAMAN
 WEDNESDAY, THE 7TH DAY OF FEBRUARY 2024 / 18TH MAGHA, 1945
                    WP(C) NO.4686 OF 2024
PETITIONER:

          THOMAS P.V, AGED 63 YEARS,
          S/O.VARGHESE, PLAVILAKANDATHIL HOUSE, NETTIKULAM,
          BHOODANAM P.O, MALAPPURAM, PIN - 679334
          BY ADVS.P.MOHAMED SABAH
          LIBIN STANLEY
          SAIPOOJA
          SADIK ISMAYIL
          R.GAYATHRI
          M.MAHIN HAMZA
          ALWIN JOSEPH

RESPONDENTS:

    1     THE REVENUE DIVISIONAL OFFICER/ SUB COLLECTOR
          PERINTHALMANNA, RDO OFFICE, SHORNUR-PERINTHALMANNA
          ROAD, PERINTALMANNA, MALAPPURAM, PIN - 679322
    2     THE LOCAL LEVEL MONITORING COMMITTEE
          POTHUKAL, REPRESENTED BY ITS CONVENOR, AGRICULTURAL
          OFFICER, KRISHI BHAVAN, POTHUKAL, NILAMBUR KERALA,
          PIN - 679329
    3     THE AGRICULTURAL OFFICER, KRISHI BHAVAN, POTHUKAL,
          NILAMBUR, MALAPPURAM DISTRICT, PIN - 679329
    4     THE DIRECTOR, KERALA STATE REMOTE SENSING AND
          ENVIRONMENT CENTRE, 1ST FLOOR, VIKASBHAVAN,
          UNIVERSITY OF KERALA SENATE HOUSE CAMPUS, PMG,
          THIRUVANANTHAPURAM, KERALA, PIN - 695033
           BY SMT.R.DEVISREE, GP
              SRI.VISHNU S.CHEMPAZHANTHIYIL, SC, KSREC
     THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION
ON 07.02.2024, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
 W.P.(C) No.4686 of 2024                     2



                                   JUDGMENT

Petitioner has approached this Court aggrieved

by Ext.P9 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 1.24 Hectares of land comprised in

Sy.No.85/2-2 in Block No.99 of Pothukal Village,

Nilambur Taluk, Malappuram District.

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. The petitioner states that as per the

KSRSEC report the land is indicated as "boarded by

a road on the north-east side was observed under

thick mixed vegetation/plantation towards the

east, partially under crops towards west and

north-west side along with building structures

towards south-east side". The petitioner,

therefore, filed an 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.P9 order, rejected

the application on the ground that, as per the

report of the Agricultural Officer and the KSRSEC

report, since the land ins lying low in nature, it

gets waterlogged during rainy season accumulating

the entire water of the locality. It was also

directed to change the nature of 2.1 Acres of land

in the said property as wetland.

4. The petitioner impugns Ext.P9 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 report

of the KSRSEC has been misinterpreted.

5. The relevant consideration for inclusion of

a property as paddy land or wet land is as to the

nature of the property as on the date of coming in

to force of the Act, 2008. On a perusal of Ext.P9,

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

Revenue Divisional Officer has relied solely upon

the report of the Agricultural Officer to refuse

to remove the property from the Data Bank.

6. This Court, in Muraleedharan 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

is unsustainable.

7. Further, 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 and Others [2020 (2) KLT

192], the Division Bench of 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 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 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 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 in to force of the Act, such

lands cannot be said as suitable for cultivation

and may come outside the definition of paddy land.

9. 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 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."

I find that there is total non application of mind

on the part of the RDO while interpreting the

report of the KSRSEC and also in passing Ext.P9

order.

Accordingly, I set aside Ext.P9 with a

direction to the 1st respondent/RDO 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 of with the

above directions.

Sd/-

MURALI PURUSHOTHAMAN JUDGE

sp/07/02/2024

APPENDIX PETITIONER'S EXHIBITS:-

Exhibit P1 TRUE COPY OF THE LAND TAX RECEIPT DATED 20.01.2022 ISSUED FROM THE VILLAGE OFFICE, POTHUKAL TO THE PETITIONER Exhibit P2 TRUE COPY OF THE RELEVANT PAGE OF THE DATA BANK PUBLISHED ON 23.03.2012 Exhibit P3 TRUE COPY OF THE ORDER DATED 23.02.2023 PASSED BY THE 1ST RESPONDENT Exhibit P4 TRUE COPY OF THE APPEAL DATED 21.03.2023 FILED BY THE PETITIONER BEFORE THE DISTRICT COLLECTOR Exhibit P5 TRUE COPY OF THE APPLICATION DATED 05.04.2023 SUBMITTED BY PETITIONER BEFORE THE DISTRICT COLLECTOR APPELLATE AUTHORITY Exhibit P6 TRUE COPY OF THE JUDGEMENT DATED 16.10.2023 IN W.P. (C) NO. 15412/2022 PASSED BY THIS HONOURABLE COURT Exhibit P7 TRUE COPY OF THE REPORT DATED 23.11.2023 ON LAND USE CHANGE PREPARED BY THE RESPONDENT NO.4 PERTAINING TO THE PROPERTY OF THE PETITIONER Exhibit P8 TRUE COPY OF THE REPORT SUBMITTED BY RESPONDENT NO.3 BEFORE THE RESPONDENT NO.1 Exhibit P9 TRUE COPY OF THE ORDER DATED 18.01.2024 PASSED BY RESPONDENT NO. 1 REJECTING THE FORM 5 APPLICATION OF THE PETITIONER