Jayaprakashan.N vs State Of Kerala
2024 Latest Caselaw 5026 Ker

Kerala High Court

Jayaprakashan.N vs State Of Kerala on 15 February, 2024

Author: Murali Purushothaman

Bench: Murali Purushothaman

              IN THE HIGH COURT OF KERALA AT ERNAKULAM
                              PRESENT
        THE HONOURABLE MR.JUSTICE MURALI PURUSHOTHAMAN
  THURSDAY, THE 15TH DAY OF FEBRUARY 2024 / 26TH MAGHA, 1945
                       WP(C) NO. 452 OF 2024
PETITIONER:

          JAYAPRAKASHAN.N
          AGED 49 YEARS
          S/O. NARAYANAN PULTHANKALAM, VELLARAKODE,
          CHITTILANCHERY PO, PALAKKAD DISTRICT -,
          PIN - 678 704.

          BY ADVS.
          K.MOHANAKANNAN
          D.S.THUSHARA.



RESPONDENTS:

    1     STATE OF KERALA
          REPRESENTED BY ITS SECRETARY TO GOVERNMENT, REVENUE
          DEPARTMENT, GOVERNMENT SECRETARIAT,
          THIRUVANANTHAPURAM, PIN - 682 031.

    2     THE DISTRICT COLLECTOR,
          PALAKKAD CIVIL STATION, PALAKKAD DISTRICT -,
          PIN - 678 001.

    3     REVENUE DIVISIONAL OFFICER,
          OFFICE OF THE REVENUE DIVISIONAL OFFICER PALAKKAD,
          PALAKKAD HEAD POST OFFICE, PALAKKAD DISTRICT -,
          PIN - 678 001.

    4     LOCAL LEVEL MONITORING COMMITTEE
          VANDAZHI, REPRESENTED BY ITS CONVENER - AGRICULTURAL
          OFFICER, VANDAZHI, PALAKKAD DISTRICT -,
          PIN - 678 706.

    5     THE VILLAGE OFFICER,
          VANDAZHI-II VILLAGE OFFICE, MUDAPPALLUR, PALAKKAD
          DISTRICT -, PIN - 678 705.
 WP(C) NO. 452 OF 2024           2




OTHER PRESENT:

          SMT.R.DEVI SHRI, GP


     THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION
ON 15.02.2024, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
 WP(C) NO. 452 OF 2024                3



                              JUDGMENT

The petitioner has approached this Court aggrieved by

Ext.P8 porceedings 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 0.0810 Hectares of land comprised in Survey

No.182/7 of Vandazhi-II Village in Alathur Taluk, Palakkad

District.

3. According to the petitioner, the aforesaid property

will not come within the definition of paddy land or wet

land. However, it has been wrongly included in the Data

Bank prepared under the Kerala Conservation of Paddy land

and Wetland Rules, 2008. The petitioner, filed Ext.P4

application in Form 5 under the provisions of the Kerala

Conservation of Paddy Land and Wetland Act, 2008

(hereinafter referred to as 'the Act, 2008') to remove the

property from the Data Bank. The said application was

rejected by the Revenue Divisional Officer as per Ext.P5

order. According to the petitioner, in view of the Ext.P6

order issued by the Revenue Divisional Officer under the

Kerala Land Utilissation Order, 1967, in respect of the very

same property prior to the publication of the Data Bank,

wherein it was observed that the land was converted 50

years back and lying fallow, the Revenue Divisional Officer

ought not have rejected his application. The petitioner

challenged Ext.P5 order before this Court in W.P.(C) No.

6129 of 2023. By Ext.P7 judgment, this Court set aside

Ext.P5 order directing the Revenue Divisional Officer to take

up Form 5 application submitted by the petitioner and to

pass afresh orders after obtaining report from the KSRSEC,

if found necessary and in the light of Ext.P6 order passed in

respect of the very same property.

4. The 3rd respondent reconsidered the application of

the petitioner and rejected the same by Ext.P8 order. In

Ext.P8 order, the Revenue Divisional Officer has stated that

as per the report of the Agricultural Officer, site inspection

and KSRSEC report, the property is found to be not

converted before 2008 and that the land is lying fallow in

the KSRSEC data of 2008 and is water logged and suitable

for Agricultural cultivation and the Agricultural Officer has

recommended not to remove the land from the Data Bank.

The petitioner states that, Ext.P8 order has been passed

disregarding the direction of this Court in Ext.P7 judgment

whereby the Revenue Divisional Officer was directed to

reconsider the application taking into the account Ext.P6

order passed in respect of the very same property.

5. The petitioner impugns Ext.P8 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 Revenue Divisional Officer has misquoted the report of

the Kerala State Remote Sensing and Environment Centre

(for short, the KSRSEC') to ascertain the status of land as

on 12.08.2008, the date of coming into force of the Act,

2008.

6. It is true that the Revenue Divisional Officer has

not taken into account in Ext.P6 order passed in respect of

the very same property as directed by this Court in Ext.P7

judgment. Accordingly, the said order cannot be sustained.

Further, 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 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

the date of coming into force of the Act, 2008, the Revenue

Divisional Officer has refused to remove the property from

the Data Bank.

7. 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.

8. 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 the 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."

10. 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."

12. In spite of the categorical declarations by this

Court in the decisions cited above, the petitioner's

application has been rejected on untenable grounds.

Accordingly, I find that Ext.P8 order cannot be sustained

and I set aside the same with direction to the 3rd

respondent, Revenue Divisional Officer to reconsider Ext.P4

application of the petitioner in the light of the directions in

Ext.P7 judgment and taking into account Ext.P6 order and

the KSRSEC report as expeditiously as possible, at any rate,

within a period of two months from the date of receipt of a

copy of this judgment. The petitioner shall produce a copy

of the writ petition along with a copy of the judgment

before the 3rd respondent.

The writ petition is disposed of with the above

directions.

Sd/-

MURALI PURUSHOTHAMAN

JUDGE SRJ

APPENDIX OF WP(C) 452/2024

PETITIONER EXHIBITS Exhibit P1 TRUE COPY OF THE SALE DEED NO. 2992/2022 DATED 24/08/2012 OF SRO, NENMARA EXECUTED IN FAVOUR OF THE PETITIONER.

Exhibit P2 TRUE COPY OF THE ANTERIOR TITLE DEED NO.

305/1991 OF SRO, NENMARA DATED 09/01/1991.

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/4647/2022-J5 DATED 25/12/2022.

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 IN             WRIT

PETITION(C) 6129/2023 DATED 15-3-2023.

Exhibit P8 TRUE COPY OF THE PROCEEDINGS NO.

RDOPKD/729/2023/ A5 DATED 17-10-2023 OF THE 3RD RESPONDENT