Two Authorities Empowered To Redress Same Grievance Via Two Different Procedures: Kerala High Court Points Lacuna In 2008 Wetland Conservation Rules

The Kerala High Court recently observed that in the Kerala Conservation of Paddy Land and Wetland Rules, 2008, where two authorities, the Revenue Divisional Officer (RDO) and the Local Level Monitoring Committee (LLMC) have been given the power to redress the same grievance, i.e., removal of a property erroneously included in the data bank as paddy land, the procedure laid out for both authorities are different. 

Pointing to this "lacuna" in the 2008 Rules, the court noted that while the LLMC is required to conduct a local inspection, it is not mandatory for the RDO to do so, even though the RDO has no specialized mechanism to ascertain the characteristic the land. 

A single bench of Justice Viju Abraham held that to address this issue, the RDO is to follow the same procedure prescribed to be followed by the LLMC under the Act.

While explaining the lacuna in the 2008 Rules, the court observed that for an application under Form 5, while the LLMC is required to conduct a local inspection under the Rules, the RDO may conduct a local inspection only if he deems fit, after calling for a report of the Agricultural Officer:

“It is quite strange to note that even though two authorities have been empowered for the redressal of the grievance, two different procedures have been laid down for consideration of an application under Form 5 by the two authorities. If the aggrieved person makes an application before the LLMC, it has to conduct a local inspection to find out the lie and nature of the land and shall also take steps to obtain the satellite images of the property as on 12.08.2008 and also after that date, and based on the same a decision has to be taken. On the contrary, if an application is filed before the Revenue Divisional Officer as provided under Rule 4(4d), he only has to call for a report from the Agricultural Officer and after receipt of the said report, if he deems fit, he may conduct a local inspection and call for a satellite imagery in respect of the property and take appropriate decision on the application," Court said.

However, the court was of the opinion, that it would be most appropriate for the RDO to follow the same procedure prescribed for the LLMC while deciding an application for removing dry land from the data bank:

“This appears to be a lacuna in the Rules and I am of the opinion that the procedure that has to be followed by the LLMC for deciding an application under Form 5 should be followed by the Revenue Divisional Officer also while considering a similar application. The Revenue Divisional Officer has no specialized mechanism to examine as to whether the property is a paddy land or not as on 12.08.2008, the date of which the Act, 2008 came into force. As per the Act, to determine a land as paddy land or not is based on the facts that existed at the time when Act 28 of 2008 came into force ie., on 12.08.2008.”

The court was considering two writ petitions where the petitioner was aggrieved by the erroneous inclusion of their property in the data bank as paddy land. Aggrieved by the non-consideration of their applications for removal the petitioners had earlier approached the court. The court had directed the RDO to take a decision on their applications. However, the RDO rejected the applications and the petitioners again challenged the rejection of their applications by the RDO.

The petitioners contended that similarly situated adjacent lands was removed from the data bank. Even building permits were issued to similarly situated lands.

It was also argued by the petitioners that they were not afforded an opportunity of hearing before their applications were disposed off and this amounted to violation of the principles of natural justice. However, the respondents contended that there was no statutory requirement for a hearing as the enquiry as to whether the land is dry land or paddy land is entirely factual. The Court rejected this contention of the petitioners in light of the decision in Sulekha Khader v. Kuzhimanna Grama Panchayat and others, 2022 (6) KHC 116.

The other contention raised by the petitioners was that in there was an entry in the remark column that there is a building on the property concerned and hence it must be treated as unnotified land under the 2008 Act, where an application under Form 5 was not even required. However, the court did not agree with this contention of the petitioner either as the entry was erroneous and in reality there was no building on the property.

However, the court was of the view that in the order rejecting the applications of the petitioners there was no finding that on the date of coming into force of the 2008 Act, the property was paddy land.

The petitioners also pointed that as per the minutes of the LLMC, there are similar properties around the petitioners’ property that have been removed from the data bank. Also, building permits have been issued to some of the properties around the area it was said.

The court observed that no local inspection was held by the RDO and no report of the KSREC (Kerala State Remote Sensing and Environment Centre) was called for to assess the property. The court set aside the orders issued by the RDO and directed the applications to be considered afresh, after considering reports from the Agricultural Officer and the LLMC.

The court also directed local inspection to be conducted and a report from the KSREC to be called for, before taking a decision on the petitioners’ applications.

Case Title: Niyas V The District Collector Palakkad

Citation: 2023 LiveLaw (Ker) 167

Click here to read/download judgement