Abdul Latheef v. State of Kerala and Others

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR.JUSTICE MURALI PURUSHOTHAMAN`** ``` MONDAY, THE 26[TH] DAY OF FEBRUARY 2024 / 7TH PHALGUNA, 1945 WP(C) NO.19904 OF 2023 ``` ## **`PETITIONER:`** ``` ABDUL LATHEEF, AGED 32 YEARS, S/O.MOHAMMED HAJI, AGED 32 YEARS, RESIDING AT THAZHATHIYIL HOUSE, MONGAM P.O, MALAPPURAM, PIN - 673642 ``` ``` BY ADVS. ASHIK K.MOHAMED ALI RAMSEENA N. MUHAMMED RIFA P.M. ``` ## **`RESPONDENTS:`** - **`1 STATE OF KERALA REPRESENTED BY THE PRINCIPAL SECRETARY, DEPARTMENT OF REVENUE, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM, PIN - 695001`** - **`2 THE REVENUE DIVISIONAL OFFICER PERINTHALMANNA, SHORNUR-PERINTHALMANNA ROAD, MALAPPURAM, PIN - 679322`** - **`3 THE LOCAL LEVEL MONITORING COMMITTEE OFFICE OF THE MORAYUR GRAMA PANCHAYAT, REPRESENTED BY ITS CONVENER-AGRICULTURAL OFFICER, KRISHI BHAVAN, MORAYUR, MALAPPURAM, PIN - 673642`** - **`4 THE VILLAGE OFFICER, MORAYUR VILLAGE OFFICE, MORAYUR, MALAPPURAM, PIN - 673642`** - **`BY SMT.G.SHEEBA, GP`** ``` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 26.02.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` W.P.(C) No.19904 of 2023 2 ## **`JUDGMENT`** ``` Petitioner has approached this Court aggrieved by Ext.P16 order, whereby Form 5 application submitted by him has been rejected by the 2[nd] respondent/Revenue Divisional Officer [RDO]. ``` ``` 2. Petitioner is the co-owner in possession of an extent of 0.1465 Hectares (36.085 cents) of land comprised in Re-Sy.No.478/12-3 in Block No.57 of Morayur Village, Malappuram District. ``` ``` 3. According to the petitioner, the said property will not come within the definition of paddy land or wetland. However, it has been wrongly included as paddy land in the Data Bank prepared under Kerala Conservation of Paddy Land and Wetland Rules, 2008. The petitioner states that in the KSRSEC report, the land is indicated as ‘fallow land’ as per 2003 data and with mixed ``` W.P.(C) No.19904 of 2023 3 ``` vegetation and buildings in the date of 2014. The petitioner, therefore, filed an application in Form 5 under the provisions of theKerala Conservation of Paddy Land and Wetland Act, 2008 [for brevity, ‘the Act,2008’] to remove the said property from the Data Bank. The RDO, by Ext.P16 order, rejected the application stating that on examining the reports of the KSRSEC and the Agricultural Officer the conversion of the subject land at the south-eastern corner has taken place only in 2014 and conversion of the land would affect the water flow of the nearby lands and the environment and the LLMC has recommended to retain the land in the Data Bank. ``` ``` 4. The petitioner impugns Ext.P16 contending, inter alia, that the same is vitiated by non application of mind and is against the provisions ``` W.P.(C) No.19904 of 2023 4 ``` of the Act, 2008 and the binding precedents of this Court. It is also contended that the KSRSEC report was misinterpreted. ``` ``` 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 in to force of the Act, 2008. Rule 4(4E) of the Rules, 2008 provides that, on receipt of the application in Form 5, the RDO shall call for a report from the Agricultural Officer in the case of paddy land and that of the Village Officer in the case of wetland. Rule 4(4F) provides that, on receipt of the report as above, the RDO shall, if deems necessary, verify the contents of the Data Bank by direct inspection or with the help of satellite images prepared by Central/State Scientific Technological Institutions and pass ``` W.P.(C) No.19904 of 2023 5 ``` appropriate orders on the application. On a perusal of Ext.P16, it is evident that, without any independent assessment of the nature of the property as on the date of coming into force of the Act, 2008, the RDO has relied upon the report of the Agricultural Officer to refuse to remove the property from the Data Bank. The KSRSEC report has been misinterpreted and misread. ``` ``` 6. This Court has held in the decision in Arthasasthra Ventures (India) LLP v. State of Kerala [2022 (7) KHC 591] that, 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 and also whether the land is suitable for paddy cultivation or not. This Court, ``` W.P.(C) No.19904 of 2023 6 ``` inMuraleedharan 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 ``` W.P.(C) No.19904 of 2023 7 ``` because the property is lying fallow, it cannot be termed as wetland or paddy land in contemplation of Act, 2008. InMather 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 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. ``` W.P.(C) No.19904 of 2023 8 ``` 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 Adani Infrastructures & Developers Pvt. Ltd, Mumbai & Others Vs. State of Kerala & Others reported in [2014 (1) KHC 685], this Court has held that if the land suitable for paddy cultivation is uncultivated and left fallow and if the said land is included as paddy land in the village records and if the property is locked on all four sides with lands which were reclaimed before the coming into force of the Act, such land cannot be said as suitable for cultivation and may come outside the definition of paddy land. ``` W.P.(C) No.19904 of 2023 9 ## **`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." ``` ``` I find that there is total non application of mind on the part of the RDO in considering the Form 5 application of the petitioner and in passing the impugned order. ``` W.P.(C) No.19904 of 2023 10 ``` Accordingly, I set aside Ext.P16 with a direction to the RDO to reconsider the application of the petitioner in Form No.5 and take a decision in the matter on the basis of Ext.P9 KSRSEC report and the observation of this Court and the binding precedents within a period of two months from the date of receipt of a copy of this judgment. ``` ``` The writ petition is disposed of with the above direction. ``` ``` Sd/- ``` ``` MURALI PURUSHOTHAMAN JUDGE ``` ``` sp/27/02/2024 ``` 11 W.P.(C) No.19904 of 2023 ## **`APPENDIX`** ## **`PETITIONER'S EXHIBITS:-`** ``` Exhibit P1 ``` ``` TRUE COPY OF THE LAND TAX RECEIPT DATED 27-06-2019 ISSUED IN RESPECT OF THE PROPERTY IN RE-SURVEY NO.478/12-3 IN BLOCK NO.57 IN MORAYUR VILLAGE. ``` - **`Exhibit P2 TRUE COPY OF THE POSSESSION CERTIFICATE DATED 26-02-2019 ISSUED BY THE MORAYUR VILLAGE OFFICE IN RESPECT OF THE PROPERTY IN RE-SURVEY NO.478/12-3 OF BLOCK NO.57.`** - **`Exhibit P3 TRUE COPY OF THE THANDAPPER ACCOUNT DATED 11-10-2021 IN RESPECT OF THE PROPERTY IN RE-SURVEY NO. 478/12-3 IN BLOCK NO. 57 OF MORAYUR VILLAGE.`** ``` Exhibit P4TRUE COPY OF THE DIGITAL SURVEY SKETCH WITH SPECIFIC REFERENCE TO THE PROPERTY IN RE-SURVEY NO.478/12-3 IN BLOCK NO.57 OF MORAYUR VILLAGE. ``` - **`Exhibit P5 TRUE COPY OF THE BUILDING TAX RECEIPT ISSUED BY THE MORAYUR GRAMA PANCHAYAT DATED 07-07-2022 IN RESPECT OF BUILDING NO.645.`** - **`Exhibit P6 TRUE COPY OF THE BUILDING TAX RECEIPT ISSUED BY THE MORAYUR GRAMA PANCHAYAT DATED 07-07-2022 IN RESPECT OF BUILDING NO.646.`** - **`Exhibit P7 TRUE COPY OF THE LAND TAX RECEIPT DATED 18-05-2022 ISSUED BY THE MORAYUR VILLAGE OFFICE.`** ``` Exhibit P8TRUE COPY OF THE APPLICATION SUBMITTED BY THE PETITIONER AND OTHER OWNERS OF THE PROPERTY TO THE LOCAL LEVEL MONITORING COMMITTEE OF THE MORAYUR GRAMA PANCHAYAT. ``` W.P.(C) No.19904 of 2023 12 ``` Exhibit P9TRUE COPY OF THE REPORT PREPARED BY THE KERALA STATE REMOTE SENSING AND ENVIRONMENT CENTRE DATED 29-10-2019. ``` - **`Exhibit P10 TRUE COPY OF THE JUDGMENT DATED 25-08-2021 IN WP (C) NO.16909 OF 2017 OF THIS HONOURABLE COURT.`** ``` Exhibit P11TRUE COPY OF THE JUDGMENT DATED 12-10-2022 IN WP (C) NO.22550 OF 2022. ``` - **`Exhibit P12 TRUE COPY OF THE PETITION DATED 28-10-2022 SUBMITTED BY THE PETITIONER BEFORE THE REVENUE DIVISIONAL OFFICER.`** - **`Exhibit P13 TRUE COPY OF THE PETITION DATED 17-02-2023 BEFORE THE REVENUE DIVISIONAL OFFICER.`** - **`Exhibit P14 TRUE COPY OF THE JUDGMENT DATED 05-04-2023 OF THIS HONOURABLE COURT IN WP (C) NO.7816 OF 2023.`** - **`Exhibit P15 TRUE COPY OF THE STATEMENT DATED 06-05-2023 SUBMITTED BY THE PETITIONER BEFORE THE 2ND RESPONDENT.`** ``` Exhibit P16TRUE COPY OF THE ORDER DATED 23-05-2023 ISSUED BY THE 2ND RESPONDENT. ```