A. T. Arif v. Revenue Divisional Officer, Beypore; Village Officer, Beypore; Agricultural Officer, Beypore (WP(C) No. 5759 of 2024)

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE MURALI PURUSHOTHAMAN THURSDAY, THE 15[TH] DAY OF FEBRUARY 2024 / 26TH MAGHA, 1945 ``` ## **`WP(C) NO. 5759 OF 2024`** ## **`PETITIONER:`** ``` A.T. ARIF AGED 41 YEARS S/O. LATHEEF, RESIDING AT ASBEENA MANZIL, CHAKKERIPADU PARAMBA, P.O. ARAKKINAR, KOZHIKODE, PIN – 673 028. ``` ``` BY ADVS. V.V.SURENDRAN P.A.HARISH DONA PAUL DIVIN V.VIJAYAN ``` ## **`RESPONDENTS:`** - **`1 THE REVENUE DIVISIONAL OFFICER OFFICE OF THE REVENUE DIVISIONAL OFFICER COLLECTORATE BUILDING , P.O. CIVIL STATION, KOZHIKODE, PIN – 673 020.`** - **`2 THE VILLAGE OFFICER, BEYPORE OFFICE OF THE VILLAGE OFFICER, BEYPORE, P.O. BEYPORE, KOZHIKODE, PIN – 673 015.`** - **`3 THE AGRICULTURAL OFFICER, BEYPORE OFFICE OF THE AGRICULTURAL OFFICER, P.O. BEYPORE, KOZHIKODE, PIN – 673 015.`** ``` SR.GP. - SMT.K.AMMINIKUTTY ``` ``` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 15.02.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` WP(C).No.5759 OF 2024 ``` ``` 2 ``` ## **`JUDGMENT`** The petitioner has approached this Court aggrieved by Ext.P6 order whereby Form 5 application submitted by him has been rejected by the Revenue Divisional Officer. 2. The petitioner is the owner in possession of an extent of 2.311 Ares of land comprised in Re.Sy. No.192/2 (192/26) of Beypore Village, Kozhikode Taluk in Kozhikode District. 3. According to the petitioner, the aforesaid property will not come within the definition of paddy land or wet land. However, it has been wrongly included in the Data Bank prepared under the Kerala Conservation of Paddy land and Wetland Rules, 2008. The petitioner, therefore, filed an application in Form 5 under the provisions of the Kerala Conservation of Paddy Land and Wetland Act, 2008 (hereinafter referred to as 'the Act, 2008’) to remove the property ``` WP(C).No.5759 OF 2024 ``` ``` 3 ``` from the Data Bank. The Revenue Divisional Officer by Ext.P6 order rejected the application on the ground that, as per the report of the Agricultural Officer, the satellite report and on site inspection by her office, there are seven coconut trees in the land which are ten years old, there are residential buildings and road on all sides and the land is marshy and water logged and conversion will lead to environmental hazards. 4. The petitioner impugns Ext.P6 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. 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. On a perusal of Ext.P6, it is evident that, without any independent assessment of the ``` WP(C).No.5759 OF 2024 ``` ``` 4 ``` nature of property as on the date of coming into force of the Act, 2008. 6. 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, it is trite law that, merely because the land is marshy or water logged, it cannot be ``` WP(C).No.5759 OF 2024 ``` ``` 5 ``` 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 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.” 8. In **Aparna Sasi Menon v. Revenue Divisional Officer, Irinjalakuda** [2023 (6) KHC 83], this Court has held that existence of neerchals in a property should never be a prime consideration in ``` WP(C).No.5759 OF 2024 ``` ``` 6 ``` deciding whether the land is to be retained in the Data Bank. Instead, the prime consideration should be whether paddy cultivation is possible in the property in question. 9. In **Sudheesh v. Revenue Divisional Officer** [2023 (2) KLT 386], this Court held as follows:- “Going by the definition in S.2(xii) of “paddy land” in the Act, 2008, to bring in a land within the definition of paddy land, it should be suitable for paddy cultivation, but uncultivated and left fallow. Just for the reason that the property is left fallow, the land cannot be brought within the definition of paddy land but the Revenue Divisional Officer should be satisfied that the land is suitable for paddy cultivation and left fallow and therefore only on satisfaction of the said twin conditions that a land could be treated as paddy land coming under the definition of S.2(xii) of the Act, 2008.” 10. In spite of the categorical declarations by this Court in the decisions cited above, the petitioner's application has been rejected, without ascertaining the nature of the property as on the date of coming into force of the Act, 2008. Accordingly, I set aside Ext.P6 with a direction to the 1[st] respondent, ``` WP(C).No.5759 OF 2024 ``` ``` 7 ``` 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 KSRSEC report and the observations of this Court and the binding precedents. The petitioner shall apply for KSRSEC report before the Agricultural Officer within a period of two weeks from the date of receipt of a copy of this judgment. On receipt of KSRSEC report, the 1[st] respondent shall pass appropriate orders within a period of two months from the date of receipt of the report of the KSRSEC. The petitioner shall produce a copy of the writ petition along with a copy of this judgment before the 1[st] respondent for compliance. The writ petition is disposed of with the above directions. Sd/- ## **`MURALI PURUSHOTHAMAN JUDGE`** SPR ``` WP(C).No.5759 OF 2024 ``` ``` 8 ``` ## **`APPENDIX`** ## **`PETITIONER’S EXHIBITS:-`** ``` EXHIBIT P1A TRUE COPY OF DOCUMENT NO 2405/14 OF MEENCHANDA SUB REGISTRY DATED 05.09.2014 EXECUTED BY M/S SUBRAMANIAN AND HARIDASAN IN FAVOUR OF THE PETITIONER AND HIS BROTHER. EXHIBIT P2A TRUE COPY OF THE BASIC TAX RECEIPT DATED 04.02.2021 BY THE 2ND RESPONDENT TO THE PETITIONER AND HIS BROTHER. EXHIBIT P3A TRUE COPY OF THE POSSESSION CERTIFICATE ISSUED BY THE 2ND RESPONDENT DATED 18.03.2021 BY THE 2ND RESPONDENT TO THE PETITIONER AND HIS BROTHER. EXHIBIT P4TRUE PHOTOGRAPHS SHOWING THE LIE OF THE PROPERTY. EXHIBIT P5A TRUE COPY OF THE APPLICATION DATED 16.03.2021 MADE BY THE PETITIONER UNDER FORM 5 OF THE RULES. EXHIBIT P6A TRUE COPY OF THE ORDER DATED 28.05.2023, OF THE 1ST RESPONDENT. ``` ## **`RESPONDENTS EXHIBITS: NIL.`**