Abdul Gafoor M. v. The District Collector Kannur and Others

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE MURALI PURUSHOTHAMAN ``` ``` MONDAY, THE 19[TH] DAY OF FEBRUARY 2024 / 30TH MAGHA, 1945 ``` ``` WP(C) NO. 6236 OF 2024 ``` ## **`PETITIONER:`** ``` ABDUL GAFOOR M. AGED 42 YEARS S/O. MOIDU P.M, SEENATH MANZIL, PURATHEL P.O, VARAM, KANNUR, KERALA, PRESIDENT, SAMASTHA KERALA SUNNI YUVAJANA SANGAM, PURATHEEL UNIT COMMITTEE, PIN – 670 594. ``` ``` BY ADVS. SHERRY J. THOMAS JOEMON ANTONY ANTONY NILTON REMELO E.K.AVINASH ``` ## **`RESPONDENTS:`** - **`1 THE DISTRICT COLLECTOR KANNUR CIVIL STATION, COLLECTORATE ROAD, THAVAKKARA, KANNUR, PIN – 670 002.`** - **`2 THE REVENUE DIVISIONAL OFFICER REVENUE DIVISIONAL OFFICE, NATIONAL HIGHWAY-17, PALISSEY, THALASSERY, KERALA, PIN – 670 101.`** - **`3 THE TAHSILDAR KANNUR TALUK OFFICE, NEAR GANDHI CIRCLE, SOUTH BAZAR, KANNUR, KERALA, PIN – 670 002.`** - **`4 THE VILLAGE OFFICER VALIYANNUR VILLAGE OFFICE, KANNUR-MATTANNUR ROAD, VALIYANNUR, KERALA, PIN – 670 594.`** - **`5 THE AGRICULTURAL OFFICER KRISHIBHAVAN KUTTYATTOOR, VALIYANNUR, NAYATTUPARA ROAD, VELLUVAYAL, KERALA, PIN – 670 592.`** ``` WP(C).No.6236 OF 2024 ``` ``` 2 ``` ``` 6THE LOCAL LEVEL MONITORING COMMITTEE REPRESENTED BY THE AGRICULTURAL OFFICER, KRISHIBHAVAN KUTTYATTOOR, VALIYANNUR, NAYATTUPARA ROAD, VELLUVAYAL, KERALA, PIN – 670 592. ``` ``` SMT. - R.DEVISHRI - GP ``` ``` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 19.02.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` WP(C).No.6236 OF 2024 ``` ``` 3 ``` ## **`JUDGMENT`** The petitioner has approached this Court aggrieved by Ext.P2 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 7.79 Ares of land comprised in Re.Sy. No.22/137 of Valiyannur Village, Kannur Taluk in Kannur 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 ``` WP(C).No.6236 OF 2024 ``` ``` 4 ``` the property from the Data Bank. The application has been rejected by the Revenue Divisional Officer stating that the Agricultural Officer has reported that the land is lying as fallow paddy field. 4. The petitioner impugns Ext.P2 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. It is also contended that the Revenue Divisional Officer should have called for a report from the Kerala State Remote Sensing and Environment Centre (for short, ‘the KSRSEC’) to ascertain the status of the land as on 12.08.2008, the date of coming into force of the Act, 2008. 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.P2, it is evident that, without any independent assessment of the ``` WP(C).No.6236 OF 2024 ``` ``` 5 ``` nature of property as on the date of coming into force of the Act, 2008, the Revenue Divisional Officer has relied solely upon the report of the Agricultural Officer to refuse to remove the property from the Data Bank. 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. ``` WP(C).No.6236 OF 2024 ``` ``` 6 ``` 7. Further, it is trite law that, merely because the property is lying fallow, it cannot be termed as wetland or paddy land in contemplation of the 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 **Sudheesh v. Revenue Divisional** **Officer** [2023 (2) KLT 386], this Court held that just ``` WP(C).No.6236 OF 2024 ``` ``` 7 ``` for the reason that the property is left fallow, the land cannot be brought within the definition of Paddy Land. This Court observed 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.” 9. In spite of the categorical declarations by this Court in the decisions cited above, the petitioner's application has been rejected on untenable grounds. Accordingly, I find that Ext.P2 order cannot be sustained and set aside the same, with a direction to the 2[nd] respondent, the Revenue Divisional Officer to reconsider the application of the petitioner in Form 5 in accordance with law and take a decision in the matter after obtaining KSRSEC ``` WP(C).No.6236 OF 2024 ``` ``` 8 ``` report at the expense of the petitioner, within a period of two months from the date of receipt of the report of the KSRSEC. The petitioner shall apply for KSRSEC report before the Agricultural Officer concerned, within a period of two weeks from the date of receipt of a copy of this judgment. The petitioner shall produce a copy of the writ petition along with a copy of this judgment before the 2[nd] respondent for compliance. The writ petition is disposed of with the above directions. Sd/- ## **`MURALI PURUSHOTHAMAN`** ``` JUDGE ``` SPR ``` WP(C).No.6236 OF 2024 ``` ``` 9 ``` ## **`APPENDIX`** ## **`PETITIONER’S EXHIBITS:-`** ``` EXHIBIT P1THE TRUE COPY OF THE JUDGMENT IN WPC NO.21183/2022 DATED 29/06/2022. EXHIBIT P2THE TRUE COPY OF THE PROCEEDINGS OF THE 3RD RESPONDENT DATED 28/10/2022. ``` ## **`RESPONDENTS EXHIBITS: NIL.`**