PRITHEERAJAN M.J v. THE REVENUE DIVISIONAL OFFICER

GP.SMT.DEVISREE THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON

22.01.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(c) No. 2534 of 2024 2 J UDGMENT The petitioner states that he has been allotted C schedule with four items of properties to Ext. P1 registered partition deed No. 188/2013 of SRO, Kuzhalmannam. Among the four items of the properties scheduled to Ext. P1, Item Nos. 1 and 2 admeasuring 19.84 ares in Sy. Nos. 54/7 and 54/8 situate adjoining and abutting the NH 544 as eastern boundary and PWD Road as western boundary. Though the property is shown as ‘Nilam’ in the revenue records, it is not cultivated with paddy since 2000, being incapable of agricultural operations. The petitioner, therefore, submitted Ext. P5 application in Form-5 before the 1st respondent, RDO for removal of the property from the Data Bank. The 2nd respondent, the Agricultural Officer filed a report stating that the conversion of the land is not seen made before 2008 and that the land is lying fallow and presently, it is capable of agricultural operations and the land need not be removed from the Data Bank. Based W.P.(c) No. 2534 of 2024 3 on the report of the Agricultural Officer, the 1st respondent dismissed Ext. P5 application as per Ext. P6 order. The petitioner challenges Ext. P6 order in this writ petition.

3. Heard the learned counsel for the petitioner and the learned Government Pleader.

4. It is trite law that, merely because the property is lying fallow and water gets logged during rainy season or otherwise due to low lying nature of the property, it cannot be termed as Wetland or Paddy Land in contemplation of the Kerala Conservation of Paddy Land and Wetland Act, 2008 (for short ‘the Act, 2008’). In Mather Nagar Residents Association and another v. District Collector, Ernakulam and 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 W.P.(c) No. 2534 of 2024 4 question is 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”

5. The relevant consideration for inclusion of property as paddy land or wetland 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. P6, 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.

6. 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 W.P.(c) No. 2534 of 2024 5 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. W.P.(c) No. 2534 of 2024 6

7. 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, Ext. P6 is set aside, with a direction to the 1st respondent, Revenue Divisional Officer to reconsider Ext. P5 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 certified 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 writ petition is disposed of with the above direction. MURALI PURUSHOTHAMAN JUDGE Sd/- W.P.(c) No. 2534 of 2024 7 APPENDIX PETITIONER’S EXHIBITS Exhibit P1 Exhibit P2 Exhibit P3 Exhibit P4 Exhibit P5 Exhibit P6 A TRUE COPY OF THE REGISTERED PARTITION DEED NO. 188/2013 OF SRO, KUZHALMANNAM REGISTERED ON 23-1-2013 A TRUE COPY OF THE LAND TAX DATED 26-5- 2023 ISSUED TO PETITIONER FROM KUZHALMANNAM-I VILLAGE A TRUE COPY OF THE POSSESSION CERTIFICATE DATED 12-1-2024 ISSUED TO THE PETITIONER FROM KUZHALMANNAM-I VILLAGE OFFICE A TRUE COPY OF THE LOCATION SKETCH OF THE PROPERTY IN SY. NOS. 54/7, 54/8 ISSUED BY VILLAGE OFFICER, KUZHALMANNAM-I VILLAGE TO PETITIONER A TRUE COPY OF THE FORM 5 APPLICATION DATED 24-6-2022 ALONG WITH RECEIPT FOR PAYMENT SUBMITTED BY PETITIONER BEFORE THE 1 ST RESPONDENT A TRUE COPY OF THE ORDER DATED 30-12-2022 IN FILE NO. 1605/2022 PASSED BY THE 1 ST RESPONDENT