Anvar Naushad v. State of Kerala and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE MURALI PURUSHOTHAMAN TUESDAY, THE 12[TH] DAY OF MARCH 2024 / 22ND PHALGUNA, 1945** **WP(C) NO. 23574 OF 2023** ## **PETITIONER:** **ANVAR NAUSHAD, AGED 44 YEARS S/O KARLIKADAN MOHAMMED KUTTY, KARLIKADAN HOUSE, KUHKALAMPAD, URGATTIRI, AREKODE, MALAPPURAM DISTRICT - 673639** **BY ADVS. K.M.ANEESH ADARSH KUMAR DILEEP CHANDRAN SHASHANK DEVAN** ## **RESPONDENTS:** |**1**|**STATE OF KERALA**| |---|---| ||**REPRESENTED BY ITS SECRETARY TO GOVERNMENT,**| ||**REVENUE DEPARTMENT, SECRETARIAT,**| ||**THIRUVANANTHAPURAM, PIN - 695001**| |**2**|**SUB COLLECTOR**| ||**PERINTHALMANNA, MINI CIVIL STATION,**| ||**PERTINTHALMANNA, MALAPPURAM DISTRICT, PIN - 679322**| |**3**|**AGRICULTURAL OFFICER**| ||**KRISHI BHAVAN, URGATTIRI P.O.,**| ||**MALAPPURAM DISTRICT, PIN - 673639**| |**4**|**VILLAGE OFFICER**| ||**URGATTIRI VILLAGE, URGATTIRI P.O.,**| ||**MALAPPURAM DISTRICT,, PIN - 673639**| ## **OTHER PRESENT:** ## **SMT.SHEEBA-GP** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON** **12.03.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C) NO. 23574 OF 2023 : 2 :** ## **JUDGMENT** The petitioner has approached this Court aggrieved by Ext.P2 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 4.90 Ares of property in Re.Sy.No.447/10-2 of Urgattiri Village, Ernad Taluk, Malappuram District. 3. According to the petitioner, the said 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 (hereinafter referred to as 'the Act, 2008' for short). **WP(C) NO. 23574 OF 2023 : 3 :** However, it has been wrongly included in the Data Bank prepared under the Kerala Conservation of Paddy Land and Wetland Rules, 2008 (hereinafter referred to as 'the Rules, 2008' for short). The petitioner therefore filed an application in Form 5 under Rule 4(d) of the Rules, 2008 before the Revenue Divisional Officer to remove the said land from the Data Bank. The same has been rejected by the Revenue Divisional Officer vide Ext.P2 stating that as per the report of the Agricultural Officer, the LLMC has recommended not to remove the property from the Data Bank, as construction of the building in the said property would affect the adjacent lands and may cause environmental problems. The LLMC has also observed that the conversion of the subject land will lead to **WP(C) NO. 23574 OF 2023 : 4 :** conversion of adjacent lands. It is also stated that as per the KSRSEC report, the land was not converted before 2008. 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. The petitioner states that in Ext.P3 minutes of the LLMC, the LLMC has recommended for deletion of only certain extent of property from the Data Bank. In Ext.P2, the RDO has proceeded on the basis that the LLMC has recommend not to remove the entire property from the Data Bank. It is contended that Ext.P2 has been issued contrary to the recommendation of the LLMC and without any application of mind. **WP(C) NO. 23574 OF 2023 : 5 :** 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. 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. 6. On a perusal of Ext.P2, it is evident that, without any independent assessment of the nature **WP(C) NO. 23574 OF 2023 : 6 :** of property as on the date of coming into force of the Act, 2008, the Revenue Divisional Officer has relied upon the report of the Agricultural Officer and the recommendation of the LLMC to refuse to remove the property from the Data Bank. Further, Ext.P3 report of the LLMC has been misinterpreted by the RDO. Further, going by the counter affidavit of the 2[nd] respondent, the KSRSEC report shows that the 2006 data indicates that the plot bordered by a road on North side was observed as fallow. The RDO has not appreciated the KSRSEC report in the proper perspective. 7. This Court has held 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 **WP(C) NO. 23574 OF 2023 : 7 :** of a property from the data bank consider the question whether the land was a paddy land on the date of coming into force of the Act and also whether the land is suitable for paddy cultivation or not. 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 **WP(C) NO. 23574 OF 2023 : 8 :** 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. 8. Further, this Court in **Aparna Sasi Menon** v. **Revenue Divisional Officer** [2023 (6) KHC 83] 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. 9. 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:- **WP(C) NO. 23574 OF 2023 : 9 :** “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 season or logged during rainy otherwise due to the low lying nature of the property, it cannot be termed as wetland or paddy land in **WP(C) NO. 23574 OF 2023 : 10 :** ## contemplation of Act, 2008.” 10. There is total non application of mind on the part of the 2[nd] respondent in passing Ext.P2 order. None of the parameters for consideration of a Form 5 application has been taken into account while passing the impugned order. Accordingly, I set aside Ext.P2, with a direction to the 2[nd] respondent, the Revenue Divisional Officer to reconsider the application in Form 5 in accordance with law and take a decision in the matter on the basis of the KSRSEC report referred to in Ext.P2 and other relevant factors mentioned in Rule 4(4F) 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 petitioner shall produce a copy of this writ petition **WP(C) NO. 23574 OF 2023 : 11 :** along with the copy of the judgment before the RDO. The writ petition is disposed of. ## **Sd/-** **MURALI PURUSHOTHAMAN JUDGE** SB **WP(C) NO. 23574 OF 2023 : 12 :** ## **APPENDIX** ## **PETITIONER EXHIBITS** |**Exhibit P1**|**TRUE COPY OF THE COMMUNICATION DATED**|**TRUE COPY OF THE COMMUNICATION DATED**| |---|---|---| ||**26.07.2022 ISSUED BY **|**THE 2RD**| ||**RESPONDENT**|| |**Exhibit P2**|**TRUE COPY OF THE ORDER **|**NO. RDO**| ||**PTM/849/2021-M2**<br>**DATED**|**29.11.2022**| ||**ISSUED BY THE 2ND RESPONDENT**|| |**Exhibit P3**|**TRUE COPY OF THE MINUTES OF THE**|| ||**MEETING OF LOCAL LEVEL **|**MONITORING**| ||**COMMITTEE DATED 8-7-2022**|| |**Exhibit P4**|**TRUE COPY OF THE SKETCH PREPARED BY**|| ||**THE**<br>**VILLAGE**<br>**OFFICER**|**URGATTIRI**| ||**IDENTIFYING THE PROPERTY TO**|**BE REMOVED**| ||**FROM THE DATA BANK DATED 08.07.2022**||