Kerala High Court

Jayasankar R.P vs The Revenue Divisional Officer on 23 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 23RD DAY OF FEBRUARY 2024 / 4TH PHALGUNA, 1945
                        WP(C) NO. 7098 OF 2024
PETITIONER:

          JAYASANKAR R.P, AGED 56 YEARS
          S/O CHANDRASEKHARAN NAIR,
          RESIDING AT ARADHANA, WEST YAKKARA,
          NEAR VISHNU TEMPLE, PALAKKAD, PIN - 678001

          BY ADVS.
          T.C.SURESH MENON
          B.DEEPAK



RESPONDENTS:

    1     THE REVENUE DIVISIONAL OFFICER
          REVENUE DIVISIONAL OFFICE, PARAKKUNNAM,
          VIDYUT NAGAR, PALAKKAD, PIN - 678001

    2     THE AGRICULTURAL OFFICER
          KRISHI BHAVAN, KANNADI P.O.,
          PALAKKAD, PIN - 678701

    3     THE VILLAGE OFFICER
          KANNADI-2 VILLAGE, KANNADI P.O.,
          PALAKKAD, PIN - 678701
          R BY GP SMT.DEVISREE


     THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
23.02.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 WP(C) NO. 7098 OF 2024   : 2 :




                    JUDGMENT

The petitioner has approached this Court

aggrieved by Ext.P3 whereby Form 5 application

submitted by him has been rejected by the

Revenue Divisional Officer.

2. The petitioner along with two sons are the

owners of a parcel of land for an extent of 0.0405

Hectares (10 cents) in R.S.No.87/11 of Kannadi 2

Village in Palakkad Taluk, Palakkad District.

3. According to the petitioner, the said

property will not come within the definition of

paddy land or wetland as defined under the Kerala

Conservation of Paddy Land and Wetland Act,

2008 (hereinafter referred to as 'the Act, 2008' for

short). However, it has been wrongly included in

the Data Bank prepared under the Kerala

Conservation of Paddy Land and Wetland Rules,

2008 (hereinafter referred to as 'the Rules, 2008'

for short) as 'paddy land'. The petitioner therefore

filed an application in Form 5 under Rule 4(d) of

the Rules, 2008 before the Revenue Divisional

Officer to remove the said land from the Data

Bank. The application has been rejected by the

Revenue Divisional Officer stating that the

Agricultural Officer has reported that the subject

land is cultivable fallow land which is not

converted before 2008 and need not be removed

from the Data Bank.

4. The petitioner impugns Ext.P3 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 RDO ought to

have called for a report from the Kerala State

Remote Sensing and Environment Centre (for

short 'the KSRSEC') to ascertain the status of the

land as on 12.08.2008, the date of coming into

force of the Act, 2008. It is further contended that

the subject property is covered by buildings on all

sides and not suitable for paddy cultivation.

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

into force of the Act, 2008. On a perusal of

Ext.P3, 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. This Court has held 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 and also

whether the land is suitable for paddy cultivation

or not.

8. Further, it is trite law that, merely because

the property is lying with 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 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."

9. In Adani Infrastructures &

Developers Pvt. Ltd, Mumbai & Others Vs.

State of Kerala & Others [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, 2008, such

land cannot be said as suitable for cultivation and

may come outside the definition of paddy land.

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."

11. 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.P3

order cannot be sustained and I set aside the

same, with a direction to the 1st respondent, the

Revenue Divisional Officer to reconsider the

application of the petitioner in Form 5 in

accordance with law 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 the report of