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2025 DIGILAW 1619 (KER)

Satheeshsankarannamboothiri v. State Of Kerala

2025-06-09

C.S.DIAS

body2025
JUDGMENT : C.S.DIAS, J. The petitioner and her late sister are the co-owners of 4.71 ares of land comprised in Re-Survey No.109/1 (old Survey No.237/3) of Ettumanoor Village, covered under Ext.P1 sale deed. The property lies approximately 250 meters east of the Ettumanoor junction. Originally, the property had an extent of 32.77 ares, out of which the 1 st respondent had acquired 43 cents for the Ettumanoor–Erattupetta State Highway and subsequently 12 ares for the Ettumanoor bypass project. Although the property is a converted land, the respondents have erroneously classified the property as paddy land and included it in the data bank. Consequently, the petitioner had submitted Ext.P9 application in Form 5 under Rule 4 (4d) of the Kerala Conservation of Paddy Land and Wetland Act and Rules, 2008 ('Act and Rules', for brevity), to exclude the property from the data bank. However, the 2 nd respondent rejected the application by Ext.P11 order, which was challenged before this Court. By Ext.P13 judgment, the 2 nd respondent was directed to reconsider the application, taking into account the legal principles in the decisions referred in the judgment and the satellite images of the property. Contrary to the explicit directions, the 2 nd respondent has passed the impugned Ext.P15 order without due application of mind. The impugned order is ex facie illegal and is liable to be quashed. 2. The 2 nd respondent in his statement has contended that, as per the site inspection conducted by the Agricultural Officer, the applied property is situated at the signal point of the Ettumanoor –Pala and Peroor– Pattithanam roads. The land lies at a lower elevation than the adjoining roads and is characterised as barren land filled with grass, colocasia, and without trees. Based on the Local Level Monitoring Committee (LLMC’) recommendations, the Form 5 application was rejected. In compliance with the directions in Ext.P13 judgment, the Agricultural Officer obtained a report from the Kerala State Remote Sensing and Environment Centre (‘KSREC’, for brevity). There is no illegality in the impugned order. 3. Heard, Sri. P. Haridas, the learned counsel for the petitioner and Smt. K.K. Preetha, the learned Senior Government Pleader. 4. In compliance with the directions in Ext.P13 judgment, the Agricultural Officer obtained a report from the Kerala State Remote Sensing and Environment Centre (‘KSREC’, for brevity). There is no illegality in the impugned order. 3. Heard, Sri. P. Haridas, the learned counsel for the petitioner and Smt. K.K. Preetha, the learned Senior Government Pleader. 4. By Ext.P11 order the 2 nd respondent had rejected the Form 5 application on the finding that the property is low-lying and fallow, and there is no material evidence to establish that the property was converted prior to 12.08.2008, i.e., the date of coming into force of the Act. By Ext.P13 judgment, this Court quashed Ext.P11 order in the following lines: “5. Petitioner’s application in Form 5 of the Rules was rejected, relying on the Agricultural Officer’s report. The said report stated that petitioner’s land need not be excluded from the data bank. Petitioner asserted that the surrounding areas are well- developed with multiple buildings and also that the impugned order has not referred to the suitability for cultivation as a paddy land. 6. In the decision in Arthasasthra Ventures (India) LLP v. State of Kerala [ 2022 (7) KHC 591 ] and in Muraleedharan Nair R. v. Revenue Divisional Officer [ 2023 (4) KHC 524 ], this Court had observed that the RDO cannot merely follow the report of the Agricultural Officer or the LLMC without any independent assessment of the status of the land. This Court had also observed that while considering an application filed under Form 5, the Authority must consider whether the removal of the property from the data bank will affect paddy cultivation in the land and also whether it will affect the nearby paddy fields. Similarly, in the decision in Aparna Sasi Menon v. Revenue Divisional Officer [2023 KHC Online 592] it has been observed that when the competent authority considers a Form-5 application, the predominant consideration should be whether the land which is sought to be excluded from data bank is one where paddy cultivation is possible and feasible including the existence of irrigation facilities. 7. A perusal of the impugned order reveals that the aforementioned specific aspects have not been adverted to, and instead, the application has been rejected solely on the basis of the report of the Agricultural Officer. 7. A perusal of the impugned order reveals that the aforementioned specific aspects have not been adverted to, and instead, the application has been rejected solely on the basis of the report of the Agricultural Officer. Evidently, there is no independent application of mind to the relevant circumstances, and hence, the impugned order is liable to be set aside and a fresh consideration be made. 8. In view of the above, Ext.10 order is quashed and I direct the 3 rd respondent to reconsider Form 5 application filed by the petitioner and issue fresh orders, after considering the report of KSREC, if applied and obtained, and other relevant factors stipulated in Rule 4 (4f) of the Rules. The order, as directed above, shall be issued within a period of three months from the date of receipt of a copy of this judgment.” 5. Pursuant to Ext.P13 judgment, the 2 nd respondent called for the KSREC report, which reaffirmed that the property was originally a paddy land. But as per the data of 2008, the property has remained fallow with scattered vegetation. The same pattern has continued in the subsequent years. According to the 2024 data, a road is visible near the property. In the site inspection conducted by the 2 nd respondent’s office, it was revealed that currently the property is divided by two roads. The property is 12 feet below road level, is swampy and waterlogged. The conversion of the land will affect the ecosystem. Therefore, the Form 5 application was rejected. 6. The impugned Ext.P15 order shows that the 2 nd respondent has essentially reiterated the very same findings as in Ext.P11 order, other than for incorporating the observations in the KSREC report. The 2 nd respondent has failed to adhere to the specific directions in Ext.P13 judgment ? to independently evaluate the nature and character of the property as on 12.08.2008 and the law laid down in the decisions referred to in the judgment. 7. The Agricultural Officer has reported that the property is situated at the Ettumanoor–Pala and Peroor– Pattithanam roads junction, but is at a lower elevation than the roads and is a barren land. Similarly, the KSREC report confirms that the property is lying fallow with scattered vegetation as per the data of 2008. It is also undisputed that the property has been injuriously severed in the two land acquisitions. 8. Similarly, the KSREC report confirms that the property is lying fallow with scattered vegetation as per the data of 2008. It is also undisputed that the property has been injuriously severed in the two land acquisitions. 8. In addition to the precedents referred to in Ext.P13 judgment, in Mather Nagar Residents Association and Another v. District Collector, Ernakulam and others ( 2020 (2) KHC 94 ), a Division Bench of this Court has held that, mere fallowness or seasonal waterlogging of a low- lying land does not classify the property as a paddy/wetland in contemplation of the Act. 9. Rule 4(4f) of the Rules vests the Revenue Divisional Officer with the discretion to either conduct a direct inspection of the property or to rely on satellite imagery generated by the Central/State Institute of Science and Technology. The object of the provision is apparently to aid the authorised officer to form an independent opinion regarding the nature and character of the land, if he is unable to directly inspect the property. The Rule is analogous to Section 75 read with Order XXVI of the Code of Civil Procedure, 1908, conferring powers on a Court to issue a commission to make a local investigation. Therefore, if the authorised officer does not directly inspect the property but calls for the satellite data, then it is incumbent upon him to accord due weightage to the imagery. In the absence of any other reliable or corroborative material, the findings derived from the satellite images have to be treated as substantial evidence and cannot be disregarded without cogent justification. 10. Admittedly, the 2 nd respondent has not directly inspected the property; instead, he called for the KSREC report. The report does not prove that the property is a paddy land and is suitable for paddy cultivation; rather, it establishes that the property is fallow with scattered vegetation and is land-locked. 11. In Niyas v. District Collector, Palakkad (2023 KHC 9342), this Court has held that a property landlocked by roads is inherently unsuitable for paddy cultivation. 12. The law has crystallised that for a land to qualify as a paddy/wetland, it must not only be a paddy/wetland, but also be cultivable as of 12.08.2008, and its removal from the data bank must adversely affect the paddy cultivation in the adjoining properties. 13. 12. The law has crystallised that for a land to qualify as a paddy/wetland, it must not only be a paddy/wetland, but also be cultivable as of 12.08.2008, and its removal from the data bank must adversely affect the paddy cultivation in the adjoining properties. 13. In Aishabeevi and another v. Superintendent of Police, Ernakulam and others ( 2014 (3) KHC 678 ), this Court has emphatically held that the determination of land classification must be based on ground reality and not merely on revenue records or the deeds. 14. In the case at hand, the property has been irreparably fragmented by the acquisition and is currently situated in the heart of a major junction in Ettumanoor. The reports mentioned above show that the property is fallow and is landlocked, and is not cultivable. Despite this Court specifically directing the 2 nd respondent to independently reconsider the matter, he has failed to do so. Therefore, I don’t find any valid ground or justification to remit the matter again to the authorised officer, which will prolong the miseries of the petitioner, who has agonisingly been waiting for a decision on his application since 20.07.2022. 15. In Comptroller and Auditor General of India Gian Prakash, New Delhi & Another V. K.S. Jagannathan & Another [ (1986) 2 SCC 679 ], the Honourable Supreme Court has affirmed that to prevent injustice, the court may pass directions which the Government or public authority should have passed at its level. In the aforesaid circumstances, I allow the writ petition in the following manner: (i) Ext.P15 order is quashed. (ii) Ext.P9 application is allowed. The aforementioned property is declared unsuitable for paddy cultivation. (iii) The authorised officer is directed to remove the petitioner’s property from the data bank and issue a consequential notification. (iv) The petitioner is at liberty to get the nature of his property changed in the revenue records as per the Act and the Rules.