Abdulla K.P v. State of Kerala and Others

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR.JUSTICE MURALI PURUSHOTHAMAN`** ``` TUESDAY, THE 19[TH] DAY OF MARCH 2024 / 29TH PHALGUNA, 1945 ``` ``` WP(C) NO.16939 OF 2023 ``` ## **`PETITIONER:`** ``` ABDULLA K.P, AGED 44 YEARS S/O.KULUKKUMPARA MUHAMMEDALI, KULUKKUMPARA HOUSE, MANNARKKAD TALUK, THENKARA DESOM, THENKARA P.O, PALAKKAD DISTRICT, PIN - 678762 ``` ``` BY ADVS. JAMSHEED HAFIZ T.S.SREEKUTTY ``` ## **`RESPONDENTS:`** - **`1 THE STATE OF KERALA REPRESENTED BY THE SECRETARY TO THE REVENUE DEPARTMENT THIRUVANANTHAPURAM -, PIN - 695001`** - **`2 THE DISTRICT COLLECTOR MALAPPURAM MALAPPURAM DISTRICT, PIN - 676504`** - **`3 THE REVENUE DIVISIONAL OFFICER PERINTHALMANNA, MALAPPURAM DISTRICT, PIN - 673001`** - **`4 THE LOCAL LEVEL MONITORING COMMITTEE REPRESENTED BY ITS CONVENOR AGRICULTURAL OFFICER PERINTHALMANNA, PERINTHALMANNA. MALAPPURAM DISTRICT., PIN - 676102`** - **`5 THE AGRICULTURAL OFFICER PERINTHALMANNA PERINTHALMANNA, MALAPPURAM DISTRICT., PIN - 676102`** - **`6 THE PERINTHALMANNA MUNICIPALITY REPRESENTED BY ITS SECRETARY, PERINTHALMANNA, MALAPPURAM DISTRICT, PIN - 676322`** - **`BY SRI.SR.GP.SRI.E.G.GORDEN SRI.P.C.SASIDHARAN, SC`** ``` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 19.03.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` W.P.(C) No.16939 of 2023 2 ## **`JUDGMENT`** ``` Petitioner has approached this Court aggrieved by Ext.P1 order, whereby Form 5 application submitted by him has been rejected by the 3[rd] respondent/Revenue Divisional Officer [RDO]. ``` ``` 2. Petitioner is the owner in possession of 53.825Sq.Metersoflandcomprisedin Re.Sy.No.12/7-1 in Block No.2 of Perinthalmanna Village, Malappuram District. ``` ``` 3. According to the petitioner, the aforesaid property 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, the property is wrongly included in the Data Bank. The petitioner filed an application in Form 5 of Rule ``` W.P.(C) No.16939 of 2023 3 ``` 4(d) of the Kerala Conservation of Paddy Land and Wetland Rules, 2008 [for brevity, ‘the Rules, 2008’] before the RDO to remove the said land from the Data Bank. The same has been rejected by the RDO vide Ext.P1 order stating that as per the report of the Agricultural Officer, the property is not converted before 2008 and is suitable for paddy cultivation and need not be removed from the Data Bank. ``` ``` 4. The petitioner has filed this writ petition challenging Ext.P1 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 wetland is as to the nature of the property as on the date of coming ``` W.P.(C) No.16939 of 2023 4 ``` into 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 appropriate orders on the application. On a perusal of Ext.P1, 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 refused to remove the property from the Data Bank. ``` W.P.(C) No.16939 of 2023 5 ``` 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. In Muraleedharan Nair v. Revenue Divisional Officer [2023 (4) KLT 270], this Court 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 ``` W.P.(C) No.16939 of 2023 6 ``` 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. In Aparna Sasi Menon v. Revenue Divisional Officer [2023 (6) KHC 83], this Court has held that the predominant factor for determination 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. ``` ``` In spite of the categorical declarations by this Court in the decisions cited above, the petitioner’s application has been rejected, solely ``` W.P.(C) No.16939 of 2023 7 ``` relying on the report of the Agricultural Officer who recommended not to remove the land from the Data Bank. None of the parameters for consideration of a Form 5 application has been taken into account while passing the impugned order. Accordingly, I find that Ext.P1 order cannot be sustained and I set aside the same, with a direction to the 3[rd] respondent, the RDO, to reconsider the application in Form 5 in accordance with law and take a decision in the matter after considering the KSRSEC report to be obtained at the expense of the petitioner and other relevant factors mentioned in Rule 4(4F), within a period of two 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 ``` W.P.(C) No.16939 of 2023 8 ``` 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 3[rd] respondent for due compliance. ``` ``` The writ petition is disposed of with the above directions. ``` ``` Sd/- ``` ``` MURALI PURUSHOTHAMAN JUDGE ``` ``` sp/22/03/2024 ``` W.P.(C) No.16939 of 2023 9 ## **`APPENDIX`** ## **`PETITIONER'S EXHIBITS:-`** ``` Exhibit P1 ``` ``` TRUE COPY OF THE ORDER PASSED BY THE 3'D RESPONDENT DATED 20.08.2022 I ``` ``` Exhibit P2 Exhibit P3 ``` ``` TRUE COPY OF THE BUILDING PERMIT ISSUED BY THE 6TH RESPONDENT DATED 01.01.2014 ``` ``` TRUE COPY OF THE PHOTO GRAPH SHOWING THE CONSTRUCTION AFFECTED PURSUANT TO EXT.P2 BUILDING PERMIT ```