Shibu Thomas vs The Revenue Divisional Officer/Sub ...
2024 Latest Caselaw 6419 Ker

Kerala High Court

Shibu Thomas vs The Revenue Divisional Officer/Sub ... on 6 March, 2024

Author: Murali Purushothaman

Bench: Murali Purushothaman

               IN THE HIGH COURT OF KERALA AT ERNAKULAM
                               PRESENT
          THE HONOURABLE MR.JUSTICE MURALI PURUSHOTHAMAN
    WEDNESDAY, THE 6TH DAY OF MARCH 2024 / 16TH PHALGUNA, 1945
                        WP(C) NO. 6627 OF 2024
PETITIONER:

          SHIBU THOMAS, AGED 52 YEARS
          S/O P.J. THOMAS VADAKKUMTHALA POOVELIL HOUSE,
          ARANGATH CROSS ROAD. PULLEPADY ,
          ERNAKULAM NORTH P.O, ERNAKULAM DISTRICT - 682018
          REPRESENTED BY HIS POWER OF ATTORNEY P.J. THOMAS,
          AGED 82 YEARS , S/O JOSEPH VADAKKUMTHALA
          POOVELIL HOUSE, ARANGATH CROSS ROAD. PULLEPADY
          ERNAKULAM NORTH P.O, ERNAKULAM DISTRICT, PIN - 682018

          BY ADVS.
          P.K.SOYUZ
          E.V.BABYCHAN



RESPONDENTS:

    1     THE REVENUE DIVISIONAL OFFICER/SUB COLLECTOR
          RDO OFFICE, FORT KOCHI P.O ERNAKULAM, PIN - 682001

    2     AGRICULTURAL FIELD OFFICER
          KRISHI BHAVAN MINI CIVIL STATION,
          THRIPUNITHURA ERNAKULAM DISTRICT - 682301

    3     THE VILLAGE OFFICER
          NADAMAVILLAGE, KANAYANOOR TALUK
          ERNAKULAM DISTRICT - 682301
          R BY GP SMT.DEVISHREE


     THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
06.03.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 WP(C) NO. 6627 OF 2024   : 2 :




                      JUDGMENT

The petitioner has approached this Court

aggrieved by Ext.P7 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 4.36 Ares of land (10.77 cents)

comprised in Re.Sy.Nos.52 and 54 (Old Sy.Nos.

52/1 and 52/3) of Block No.28 of Nadama Village,

Kanayannoor Taluk, Ernakulam District.

3. According to the petitioner, the said property

will not come within the ambit 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 states that as per Ext.P9 KSRSEC report,

the land is indicated as fallow land with exposed soil

and boundary walls in the side of the plot in 2008

data. The petitioner states that the land is

surrounded by road on one side and converted land

on other three sides and is not suitable for paddy

cultivation. It was converted prior to 2008. The

petitioner therefore filed Ext.P6 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 same has been rejected by

the Revenue Divisional Officer vide Ext.P7 stating

that the Agricultural Officer has reported that on

inspection by LLMC, the subject land was found to

be paddy land and the LLMC has recommended not

to remove the land from the Data Bank.

4. The petitioner impugns Ext.P7 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 Ext.P9 KSRSEC

report was ignored and not considered.

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. Rule 4(4E) of the Rules,

2008 provides that, on receipt of the application in

Form 5, the RDO shall call for a report from the

Agricultural Officer in the case of paddy land and

that of the Village Officer in the case of wetland.

Rule 4(4F) provides that, on receipt of the report as

above, the RDO shall, if deems necessary, verify the

contents of the Data Bank by direct inspection or

with the help of satellite images prepared by

Central/State Scientific Technological institutions

and pass appropriate orders on the application. On

a perusal of Ext.P7, 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 upon the

report of the Agricultural Officer to refuse to

remove the property from the Data Bank.

6. 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. 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. Further, this Court in Aparna Sasi Menon

v. Revenue Divisional Officer [2023 (6) KHC 83]

has held that the predominant factor for

determination 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.

8. 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.

9. 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 spite of the categorical declarations by

this Court in the decisions cited above, the

petitioner's application has been rejected, solely

relying on the report of the Agricultural Officer,

who recommended not to remove the land from the

Data Bank. None of the parameters for

consideration of a Form 5 application has been

taken into account while passing the impugned

order. I find that there is total non application of

mind on the part of the RDO in issuing Ext.P7.

Accordingly, I set aside Ext.P7, with a direction to

the 1st respondent, the Revenue Divisional Officer to

reconsider Ext.P6 application in Form 5 and take a

decision in the matter on the basis of Ext.P9

KSRSEC report, the observation of this Court, the

binding precedents and other relevant factors

mentioned in Rule 4(4F), within a period of two

months from the date of receipt of a copy of this

judgment. The petitioner shall produce a copy of

this writ petition along with the copy of the

judgment before the RDO.

The writ petition is disposed of.

Sd/-

MURALI PURUSHOTHAMAN JUDGE SB

APPENDIX PETITIONER EXHIBITS

Exhibit P1 A TRUE COPY OF THE NO. DDIS - S7 -

17552/15, S7 - 2714/16 DATED 21.10.2021 OF THE TAHSILDAR (LR) KANAYANNOOR

Exhibit P 2 A TRUE COPY OF THE LAND TAX RECEIPT DATED 12.01.2024 ISSUED BY THE 3 RD RESPONDENT VILLAGE OFFICER

Exhibit P3 A TRUE COPY OF THE RELEVANT PAGE OF DRAFT DATA BANK

Exhibit P 4 A TRUE COPY OF THE LETTER SENT BY THE 2 ND RESPONDENT AGRICULTURAL OFFICER TO THE DIRECTOR, KSREC DATED 01.02.2019

Exhibit P5 A TRUE COPY OF THE RELEVANT PAGES OF THE NOTIFIED DATA BANK OF THRIPUNITHURA MUNICIPALITY DATED 10.02.2021

Exhibit P6 A TRUE COPY OF THE APPLICATION DATED 22.12.2021 SUBMITTED BY THE PETITIONER

Exhibit P7 A TRUE COPY OF THE ORDER NO. NO.

K11/14023/2022 DATED 12.04.2023 THE 1 ST RESPONDENT

Exhibit P8 A TRUE COPY OF THE LETTER NO. K3- 12994/2019 DATED 11.08.2023 ISSUED BY THE 1ST RESPONDENT TO THE PETITIONER Exhibit P9 A TRUE COPY OF THE REPORT NO. A-

172/2015/KSREC/004476/004477/19 OF THE KSREC DATED NIL

Exhibit P 10 A TRUE PHOTOGRAPH OF THE PROPERTY OWNED BY THE PETITIONER

Exhibit P11 A TRUE COPY OF THE CERTIFICATE ISSUED BY THE 2 ND RESPONDENT TO MR. T JAMES & ANNIE JAMES DATED 22.09.2018