JAMAL A.S v. REVENUE DIVISIONAL OFFICER

SMT. DEVISREE - GP THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 22.01.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No.1484 OF 2024 2 JUDGMENT The petitioner has approached this Court aggrieved by Ext.P5 order whereby Form 5 application submitted by him has been rejected by the Revenue Divisional Officer on the ground that, on the basis of the report of the KSRSEC that the land is indicated as ‘fallow land’ as in the year 2008, the Agricultural Officer and the Local Level Monitoring Committee have recommended to retain the land in the Data Bank.

2. The petitioner is the owner in possession of an extent of 9.25 Ares of land comprised in Sy. Nos.42/14 and 42/14-2 of Aluva East Village in Ernakulam District.

3. According to the petitioner, the said property will not come within the definition of paddy WP(C).No.1484 OF 2024 3 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 as converted land. The petitioner, therefore, filed an application in Form 5 under the provisions of Kerala Conservation of Paddy Land and Wetland Act, 2008 (for short, ‘the Act, 2008’) to remove the property from the Data Bank. The Revenue Divisional Officer, by Ext.P5 order, rejected the application on the ground that, on the basis of the report of the KSRSEC, the land is indicated as ‘fallow land’ as in the year 2008, the Agricultural Officer and the Local Level Monitoring Committee have recommended to retain the land in the Data Bank.

4. Ext.P3 report of the Agricultural Officer shows that the property is included as ‘paddy land’ in the Data Bank and there are panchayat roads on the eastern and northern sides of the property and thodu on the southern side and after that situates house, WP(C).No.1484 OF 2024 4 and on the western side, it is paddy field without paddy cultivation and there are small coconut trees. In Ext.P4 KSRSEC report, it is stated that the land was observed as paddy land as per the topo sheet of 1967 and fallow in the data of 24.01.2008 with scattered plantation.

5. It is trite law that, 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. 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 KSREC, the nodal agency of State Government, that the properties in question is a fallow land. Fallow WP(C).No.1484 OF 2024 5 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.”

6. 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.P5, it is evident that, without any independent assessment of the nature of property as on the date coming into force of the Act, 2008, the Revenue Divisional Officer has relied solely upon the report of the Agricultural Officer and LLMC to refuse to remove the property from the Data Bank.

7. This Court has held in the decision in WP(C).No.1484 OF 2024 6 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 did not consider whether the subject property was lying as paddy land as on the date of commencement of the Act,

2008. WP(C).No.1484 OF 2024 7

6. 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. Accordingly, I set aside Ext.P5, with a direction to the Revenue Divisional Officer to reconsider the application of the petitioner in Form 5 and take a decision in the matter on the basis of the KSRSEC report and the observation of this Court and the binding precedents within a period of two months from the date of receipt of a copy of this judgment. The writ petition is disposed of with the above direction. SPR Sd/- MURALI PURUSHOTHAMAN JUDGE WP(C).No.1484 OF 2024 8 APPENDIX PETITIONER’ S EXHIBITS :- EXHIBIT P1 EXHIBIT P2 EXHIBIT P3 EXHIBIT P4 EXHIBIT P5 TRUE COPY OF THE LAND TAX RECEIPT DATED 12.10.2023 ISSUED BY THE ALUVA EAST VILLAGE. THE TRUE COPY OF THE REPORT DATED 18.09.2023 SUBMITTED BY THE 3RD RESPONDENT BEFORE THE 1ST RESPONDENT. THE TRUE COPY OF THE REPORT DATED 28.03.2023. THE TRUE COPY OF THE KSREC REPORT DATED 11.10.2021. THE TRUE COPY OF THE ORDER DATED 11.10.2023 PASSED BY THE 1ST RESPONDENT THEREBY REJECTING THE FORM 5 APPLICATION OF THE PETITIONER. RESPONDENTS EXHIBITS: NIL.