Kerala High Court
Ajmal Roshan M.S vs State Of Kerala 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.4690 OF 2024
PETITIONER:
AJMAL ROSHAN M.S., AGED 26 YEARS
S/O.M.S.SALAM, MURINGASSERY HOUSE, WEST CHELAKULAM,
PATTIMATTOM, VENGOLA, ERNAKULAM, PIN - 683556
BY ADV.K.C.VINCENT
RESPONDENTS:
1 STATE OF KERALA
REPRESENTED BY THE SECRETARY DEPARTMENT OF REVENUE,
SECRETARIAT, THIRUVANANTHAPURAM, PIN - 695001
2 THE REVENUE DIVISIONAL OFFICER
OFFICE OF THE REVENUE DIVISIONAL OFFICER,
MUVATTUPUZHA, ERNAKULAM, PIN - 686669
3 THE VILLAGE OFFICER
VILLAGE OFFICE, PATTIMATTOM, PATTIMATTOM P.O,
ERNAKULAM, PIN - 683543
4 THE AGRICULTURAL OFFICER
KRISHI BHAVAN, KIZHAKAMBALAM, ERNAKULAM, PIN -
683562
SMT.R.DEVISREE, GOVERNMENT PLEADER
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.4690 of 2024 2
JUDGMENT
Petitioner has approached this Court aggrieved
by Ext.P2 order, whereby Form 5 application
submitted by him has been rejected by the 2 nd
respondent/Revenue Divisional Officer [RDO].
2. Petitioner is the owner in possession of an
extent of 05.75 Ares of land comprised in Re-
Sy.No.17/12-2 in Block No.27 of Pattimattom
Village, Kunnathunadu Taluk.
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 in the
KSRSEC report, the land is indicated as 'fallow
land with mixed vegetation' in the date of 2008.
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.P2
order, rejected the application on the ground that
as per the report of the KSRSEC and the report of
the Agricultural Officer, the land has to be
retained in the Data Bank. The Agricultural
Officer reported that the LLMC has recommended to
retain the land in the Data Bank.
4. The petitioner impugns Ext.P2 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 misquoted.
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.P2,
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 and LLMC to
refuse to remove the property from the Data Bank.
6. 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. In Mather 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, 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."
7. 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.
8. 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 in passing the impugned
order.
Accordingly, I set aside Ext.P2 with a
direction to the RDO to reconsider the application
of the petitioner in Form No.5 and take a decision
in the matter on the basis of Ext.P1 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
sp/07/02/2024
APPENDIX
PETITIONER'S EXHIBITS:-
Exhibit P1 A TRUE COPY OF THE REPORT DATED
24.08.2023 RECEIVED FROM KERALA STATE
REMOTE SENSING AND ENVIRONMENT CENTER
Exhibit P2 A TRUE COPY OF THE PROCEEDINGS NO.A13-
4105/2023/K DIS DATED 14.11.2023 ISSUED
BY THE 2ND RESPONDENT
