Kerala High Court
N.M Ajith vs The District Collector on 16 February, 2024
Author: Murali Purushothaman
Bench: Murali Purushothaman
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE MURALI PURUSHOTHAMAN
FRIDAY, THE 16TH DAY OF FEBRUARY 2024 / 27TH MAGHA, 1945
WP(C) NO.6088 OF 2024
PETITIONERS:
1 N.M AJITH, AGED 55 YEARS
S/O.PERAVAKKUTTY, MEYANAMEETHAL HOUSE, KOTTOOLI,
KOZHIKODE DISTRICT, PIN - 673016
2 GEETHA. P, AGED 50 YEARS
W/O.N.M AJITH, MEYANAMEETHAL HOUSE, KOTTOOLI,
KOZHIKODE DISTRICT, PIN - 673016
BY ADV.BINIYAMIN K.S.
RESPONDENTS:
1 THE DISTRICT COLLECTOR
CIVIL STATION KOZHIKODE, WAYANAD ROAD,
ERANHIPPALAM, KOZHIKODE DISTRICT, PIN - 673020
2 THE REVENUE DIVISIONAL OFFICER
KOZHIKODE REVENUE DIVISIONAL OFFICE,
CIVIL STATION KOZHIKODE, WAYANAD ROAD,
ERANHIPPALAM, KOZHIKODE DISTRICT, PIN - 673020
3 THE TAHSILDAR, KOZHIKODE TALUK OFFICE, CIVIL
STATION KOZHIKODE, WAYANAD ROAD, ERANHIPPALAM,
KOZHIKODE DISTRICT, PIN - 673020
4 THE VILLAGE OFFICER, KOTTOOLI VILLAGE OFFICE,
KUTHIRAVATTOM, KOZHIKODE DISTRICT, PIN - 673016
5 THE AGRICULTURAL OFFICER, PUTHIYARA KRISHI BHAVAN,
PUTHIYARA, KOZHIKODE DISTRICT, PIN - 673004
SMT.R.DEVI SHRI, GP
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION
ON 16.02.2024, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
W.P.(C) No.6088 of 2024 2
JUDGMENT
Petitioners have approached this Court
aggrieved by Ext.P5 order whereby Form 5
application submitted by them has been rejected by
the 2nd respondent/Revenue Divisional Officer
[RDO].
2. Petitioners are the owners in possession of
an extent of 1 Are 214 Sq.Meters of land comprised
in Sy.No.58/71 in Kottooli Village, Kozhikode
Taluk, Kozhikode District.
3. According to the petitioners, 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
the Kerala Conservation of Paddy Land and Wetland
Rules, 2008. The petitioners, 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.P5 order, rejected the application on the
ground that the Village Officer has reported that
there are two coconut trees in the property which
are 20 years old and the land is seen waterlogged
and cannot be removed from the Data Bank and on
perusing the report of the Village Officer, the
report of the Kerala State Remote Sensing and
Environment Centre [for short, 'the KSRSEC'] and
other documents, the land has to be retained in
the Data Bank.
4. The petitioners impugn Ext.P5 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 which shows as per 2007 data the land is
observed as mixed vegetation/plantation was
misread.
5. The relevant consideration for inclusion of
a property as 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.P5, 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 RDO has relied solely upon the report of
the Village 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 Village
Officer has reported 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 waterlogged 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."
8. In Aparna Sasi v. RDO, Irinjalakuda [2023
(6) KHC 83], this Court held that existence of
neerchals in a property should never be a prime
consideration in deciding whether the land is to
be retained in Data Bank. Instead, the prime
consideration should be whether paddy cultivation
is possible in the property in question.
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."
In spite of the categorical declarations by
this Court in the decisions cited above, the
petitioners' application has been rejected solely
relying on the report of the Village Officer who
recommended not to remove the land from the Data
Bank. The KSRSEC report is not properly
appreciated. I find that there is total non
application of mind on the part of the RDO in
passing Ext.P5 order. Accordingly, Ext.P5 order
cannot be sustained and I set aside the same, with
a direction to the 2nd respondent/RDO to reconsider
the application of the petitioners in Form No.5 in
accordance with law and take a decision in the
matter on the basis of Ext.P4 KSRSEC report within
a period of two months from the date of a copy of
this judgment. The petitioners shall produce a
copy of this writ petition, along with a copy of
the judgment, before the 2nd respondent/RDO for due
compliance.
The writ petition is disposed of with the
above directions.
Sd/-
MURALI PURUSHOTHAMAN
JUDGE
sp/17/02/2024
APPENDIX
PETITIONER'S EXHIBITS:-
Exhibit-P1 TRUE COPY OF THE TAX RECEIPT BEARING
NO. KL11012400101/2024 FOR THE PERIOD
OF 2023-2024 DATED 08-01-2024
Exhibit-P2 TRUE COPY OF THE RELEVANT EXTRACT OF
THE DRAFT DATA BANK
Exhibit-P3 TRUE COPY OF REPORT SUBMITTED BY THE
4TH RESPONDENT BEFORE THE 2ND
RESPONDENT DATED 01.02.2022
Exhibit-P4 TRUE COPY OF THE KSREC REPORT DATED
08.11.2021
Exhibit-P5 TRUE COPY OF THE ORDER NO.RDOKKDC2-
539/21 DATED 11.10.2022 ISSUED BY THE
2ND RESPONDENT
