Abdul Khaboor v. District Collector, Palakkad & Others

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** # **`PRESENT`** ## **`THE HONOURABLE MR.JUSTICE MURALI PURUSHOTHAMAN`** ``` FRIDAY, THE 23[RD] DAY OF FEBRUARY 2024 / 4TH PHALGUNA, 1945 WP(C) NO.6553 OF 2024 ``` ## **`PETITIONER:`** ``` ABDUL KHABOOR, AGED 43 YEARS S/O.HAMSA, KULATHINGAL HOUSE, CHENGANIYUR, MATHUR AGRAHARAM, ALATHUR, PALAKKAD, PIN - 678571 BY ADV V.A.JOHNSON (VARIKKAPPALLIL) ``` ## **`RESPONDENTS:`** - **`1 THE DISTRICT COLLECTOR, PALAKKAD CIVIL STATION, PALAKKAD, PIN - 678001`** - **`2 REVENUE DIVISIONAL OFFICER CIVIL STATION, PALAKKAD, PIN - 678001`** - **`3 THE PRINCIPAL AGRICULTURAL OFFICER OFFICE OF THE PRINCIPAL AGRICULTURAL OFFICER, CIVIL STATION, PALAKKAD, PIN - 678001`** - **`4 THE VILLAGE OFFICER, MATHUR-II VILLAGE, MATHUR, ALATHUR TALUK, PALAKKAD, PIN - 678571`** - **`5 THE AGRICULTURAL OFFICER, KRISHIBHAVAN, MATHUR.P.O, ALATHUR, PALAKKAD, PIN - 678571`** - **`6 LOCAL LEVEL MONITORING COMMITTEE MATHUR GRAMA PANCHAYAT, MATHUR.P.O, ALATHUR TALUK, PALAKKAD, REP.BY ITS CONVENER, PIN - 678571`** ## **`BY SMT.DEVISHREE, GP`** ``` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ``` ``` ON 23.02.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` W.P.(C) No.6553 of 2024 2 ## **`JUDGMENT`** ``` Petitioner has approached this Court aggrieved by Ext.P8 order whereby Form 5 application submitted by him has been rejected by the 2[nd] respondent/Revenue Divisional Officer [RDO]. ``` ``` 2. Petitioner is the owner in possession of 0.0223 Hectares of land comprised in Re-Survey No.402/38 in Block No.14 of Mathur-II Village, Alathur Taluk, Palakkad District. ``` ``` 3. According to the petitioner, the aforesaid property is converted prior to 2008 and is a rubber plantation and will not come within the ambit of paddy land or wetland as defined under the Kerala Conservation of Paddy Land and Wetland Act, 2008 (for brevity, ‘the Act, 2008’). However, it is stated that the property is wrongly included ``` W.P.(C) No.6553 of 2024 3 ``` in the Data Bank. The petitioner filed Ext.P7 application in Form 5 of Rule 4(d) of the Kerala Conservation of Paddy Land and Wetland Rules, 2008 before the RDO to remove the said land from the Data Bank. The same has been rejected by the RDO vide Ext.P8 order stating that the Agricultural Officer has reported that the land is lying three meter lower than the nearby Malampuzha Canal and there will be water logging during rainy season and is part of padasekharam and recommended not to remove the property from the Data Bank. ``` ``` 4. The petitioner has filed this writ petition challenging Ext.P8 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 low lying of land is not a ground ``` W.P.(C) No.6553 of 2024 4 ``` to reject Form 5 application of the petitioner. ``` ``` 5. It is trite law that, merely because the property is water 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. 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,itshouldhavethe characteristic features and requirement as is provided under the 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 ``` W.P.(C) No.6553 of 2024 5 ``` 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 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." ``` ``` 6. The relevant consideration for inclusion of a 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. This Court has held in the decision in Arthasasthra Ventures (India) LLP v. State of Kerala [2022 (7) KHC 591] that, ``` 6 W.P.(C) No.6553 of 2024 ``` the Revenue Divisional Officer must, while considering an application for removal of a property from the Data Bank, consider the question whether the land was a paddy land as on the date of coming into force of the Act, 2008 and also whether the land is suitable for paddy cultivation or not. This Court, inMuraleedharan Nair v. Revenue Divisional Officer [2023 (4) KLT 270], has held that 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. InAparna Sasi ``` W.P.(C) No.6553 of 2024 7 ## _**`Menon v. Revenue Divisional Officer [2023 (6) KHC`**_ ``` 83], this Court has held that the predominant factor for consideration while considering the Form-5 application should be whether the land which is sought to be excluded from Data Bank is one where paddy cultivation is possible and feasible. ``` ``` Ext.P8 order has been passed without application of mind and without adherence to the categorical declarations by this Court in the decisions cited above. Accordingly, I find that Ext.P8 order cannot be sustained and I set aside the same, with a direction to the 2[nd] respondent, the RDO, to reconsider Ext.P7 application in accordance with law and take a decision in the matter after obtaining KSRSEC report at the expense of the petitioner, within a period of two ``` W.P.(C) No.6553 of 2024 8 ``` months from the date of receipt 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 petitioner shall produce a copy of the writ petition along with a copy of the judgment before the 2[nd] respondent for due compliance. ``` ``` The writ petition is disposed of with the above directions. ``` ``` Sd/- ``` ``` MURALI PURUSHOTHAMAN JUDGE ``` ``` sp/23/02/2024 ``` W.P.(C) No.6553 of 2024 9 ## **`APPENDIX`** ## **`PETITIONER'S EXHIBITS:-`** ``` Exhibit P1 ``` ``` TRUE COPY OF THE BASIC TAX RECEIPT DATED 29.09.2023 ISSUED FROM THE OFFICE OF THE 4TH RESPONDENT ``` ``` Exhibit P2 ``` ``` TRUE COPY OF THE LOCATION CERTIFICATE DATED 26.02.2019 ISSUED BY 4TH RESPONDENT ``` - **`Exhibit P3 TRUE COPY OF THE POSSESSION CERTIFICATE DATED 04.10.2023 ISSUED BY THE 4TH RESPONDENT`** ``` Exhibit P4TRUE COPY OF THE ORDER NO.T.A(7) 6001/19 DATED 09.08.2019 ``` - **`Exhibit P5`** ``` TRUE COPY OF THE RELEVANT PAGE OF THE DATA BANK OF PETITIONER'S PROPERTY ISSUED FROM THE OFFICE OF 4TH RESPONDENT ``` - **`Exhibit P6 PHOTOGRAPH OF THE PETITIONER'S PROPERTY`** - **`Exhibit P7`** ``` TRUE COPY OF THE FORM-5 APPLICATION DATED 03.11.2022 ``` - **`Exhibit P8`** ``` TRUE COPY OF THE ORDER IN FILE NO.1453/2023 DATED 25.10.2023 ISSUED BY THE 2ND RESPONDENT ```