Kerala High Court
Marykutty Joseph 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. 7335 OF 2024
PETITIONER:
MARYKUTTY JOSEPH, AGED 70 YEARS
W/O JOY JOHN NO. 5 , BISHOP NAGAR,
KALAMASSERY NORTH P.O,
ERNAKULAM DISTRICT - 683104
BY ADVS.
P.K.SOYUZ
E.V.BABYCHAN
RESPONDENTS:
1 THE REVENUE DIVISIONAL OFFICER/SUB COLLECTOR
RDO OFFICE, FORT KOCHI P.O ERNAKULAM - 682001
2 AGRICULTURAL FIELD OFFICER
KRISHI BHAVAN MINI CIVIL STATION,
THRIPUNITHURA ERNAKULAM DISTRICT., PIN - 682301
3 THE VILLAGE OFFICER
NADAMA VILLAGE, KANAYANOORTALUK
ERNAKULAM DISTRICT., PIN - 682301
OTHER PRESENT:
SMT.R.DEVI SHRI, GP
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. 7335 OF 2024 : 2 :
JUDGMENT
The petitioner has approached this Court
aggrieved by Ext.P7 whereby Form 5 application
submitted by her has been rejected by the Revenue
Divisional Officer.
2. The petitioner is the owner in possession of an
extent of 4.69 Ares of land (11.58 cents) comprised in
Re.Sy.Nos.53, 55 and 56 (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.P8 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 three sides and the property is 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.P8 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.P8 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 P2 A TRUE COPY OF THE LAND TAX RECEIPT
DATED 14.12.2023 ISSUED BY THE 3 RD
RESPONDENT VILLAGE OFFICER
Exhibit P3 A TRUE COPY OF THE RELEVANT PAGE OF
DRAFT DATA BANK
Exhibit P4 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 24.12.2021 SUBMITTED BY THE
PETITIONER BEFORE THE 1 ST
Exhibit P7 A TRUE COPY OF THE ORDER NO. NO.
K11/12464/2022 DATED 02.03.2023 OF
THE 1 ST RESPONDENT
Exhibit P8 A TRUE COPY OF THE REPORT NO. A-
172/2015/KSREC/004476/004477/19 OF
THE KSREC DATED NIL
Exhibit P9 A TRUE PHOTOGRAPH OF THE PROPERTY
OWNED BY THE PETITIONER
Exhibit P10 A TRUE COPY OF THE CERTIFICATE
ISSUED BY THE 2 ND RESPONDENT TO
MR. T JAMES & ANNIE JAMES DATED
22.09.2018
