Kerala High Court
Syja vs Revenue Divisional Officer 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. 12858 OF 2023
PETITIONER:
SYJA,
AGED 44 YEARS
W/O.JOSE, KAVUNGAL HOUE, CHIYYARAM,
CHIYYARAM.P.O., THRISSUR, PIN - 680 026.
BY ADVS.
C.A.CHACKO
C.M.CHARISMA
BABU V.P.
SALMA DILEEP
REMYA V.A.
RESPONDENTS:
1 REVENUE DIVISIONAL OFFICER,
THRISSUR, FIRST FLOOR, CIVIL STATION, CIVIL
LINES ROAD, AYYANTHOLE, THRISSUR DISTRICT, PIN
- 680 003.
2 LOCAL LEVEL MONITORING COMMITTEE,
REPRESENTED BY ITS CONVENOR, KRISHI BHAVAN,
KOORKKANCHERY, THRISSUR DISTRICT, PIN - 680
007.
3 AGRICULTURAL OFFICER,
KOORKKANCHERY, KRISHI BHAVAN, KOORKKANCHERY,
THRISSUR DISTRICT, PIN - 680 007.
BY ADV
SMT.SHEEBA,GOVERNMENT PLEADER
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION
ON 16.02.2024, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
WP(C) NO. 12858 OF 2023 2
JUDGMENT
The petitioner has approached this Court
aggrieved by Ext.P3 whereby Form 5 application
submitted by her has been rejected by the Revenue
Divisional Officer solely relying on the report of the
Agricultural Officer.
2. The petitioner is the absolute owner and in
possession of 7.15 Ares(17.66 cents) of property in
Survey No.98/PT-25 of Chiyyaram Village in Thrissur
Taluk. In Ext.P3, it is stated that as per the report of
the Agricultural Officer, the property is low lying and
marshy, and there is a 'chal' passing through one side
of the property.
3. This writ petition has been filed contending
that Ext.P3 is vitiated by non-application of mind and
is against the provisions of the Kerala Conservation of
Paddy Land and Wetland Act, (for short 'Act, 2008')
and the binding precedents of this Court.
4. This Court has 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.
5. 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. Reliance upon the
report of the Agricultural Officer and LLMC alone will
not be sufficient while taking a decision on an
application under Form 5. In Aparna Sasi Menon v.
Revenue Divisional Officer [2023 (6) KHC 83], this
Court has held that the predominant factor for
consideration while considering the Form 5 application
should be whether the land which is sought to be
excluded from Data Bank is one where paddy
cultivation is possible and feasible, it was further held
that, presence of a 'Neerchal' in the property cannot
be a prime consideration in deciding whether the land
is to be retained in the Data Bank.
6. Further, it is trite law that, merely because
the land is marshy or low lying, 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 others (2020
(2) KLT 192), the 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 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".
There is total non-application of mind on the
part of the 1st respondent in considering Form No.5
application. Accordingly, I set aside Ext.P3, with a
direction to the 1st respondent, the Revenue Divisional
Officer to reconsider Ext.P2 application in Form 5 and
take a decision in the matter after obtaining KSRSEC
report at the expense of the petitioner, within a
period of two months from the date of receipt of a
copy of the report of the KSRSEC. The petitioner
shall apply before the Agricultural Officer concerned
for KSRSEC report within a period of two weeks 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 this judgment before the 1 st
respondent.
The writ petition is disposed of with the above
directions.
Sd/-
MURALI PURUSHOTHAMAN
JUDGE
SRJ
APPENDIX OF WP(C)No. 12858 OF 2023
PETITIONER EXHIBITS
Exhibit P1 TRUE COPY OF LAND TAX RECEIPT DATED
10/8/2021 ISSUED FROM CHIYYARAM
VILLAGE OFFICE
Exhibit P2 TRUE COPY OF FORM-5 APPLICATION DATED
31/8/2021 SUBMITTED BEFORE THE 1ST
RESPONDENT
Exhibit P3 TRUE COPY OF ORDER NO.D8-15059/
2021/EC DATED 26/4/2022 OF 1ST
RESPONDENT
