Anvar Sadath & Suneera v. Revenue Divisional Officer, Perinthalmanna & 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.12534 OF 2023 ``` ## **`PETITIONERS:`** - **`1 ANVAR SADATH, AGED 51 YEARS SON OF VALLANCHIRA MUHAMMED ABDU RAHIMAN, VALLANCHIRA, CALICUT ROAD, MANJERI, MALAPPURAM DISTRICT, PIN - 676121`** - **`2 SUNEERA, AGED 44 YEARS WIFE OF ANVAR SADATH, VALLANCHIRA, CALICUT ROAD, MANJERI, MALAPPURAM DISTRICT, PIN - 676121`** - **`BY ADV.R.RAJESH KORMATH`** ## **`RESPONDENTS:`** - **`1 REVENUE DIVISIONAL OFFICER, PERINTHALMANNA, OFFICE OF THE REVENUE DIVISIONAL OFFICER, SHORNUR-PERINTHALMANNA ROAD, SHANTI NAGAR, PERINTHALMANNA, MALAPPURAM DISTRICT, PIN - 679322`** - **`2 LOCAL LEVEL MONITORING COMMITTEE, MANJERI MUNICIPALITY, REPRESENTED BY ITS CONVENORAGRICULTURAL OFFICER, KRISHI BHAVAN, MANJERI, MANJERI (P.O.), MALAPPURAM DISTRICT, PIN - 676121`** - **`3 AGRICULTURAL OFFICER, KRISHI BHAVAN, MANJERI, MANJERI (P.O.), MALAPPURAM DISTRICT, PIN - 676121`** ``` BY SMT.G.SHEEBA, GP ``` ``` 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.12534 of 2023 2 ## **`JUDGMENT`** ``` Petitioners have approached this Court aggrieved by Ext.P8 order, whereby Form 5 application submitted by them has been rejected by the 1[st]respondent/Revenue Divisional Officer [RDO]. ``` ``` 2. Petitioners are the owners in possession of 8.10 Ares of land comprised in Sy.No.25/1-1 in Block No.52 of Manjeri Village, Eranad Taluk, Malappuram District. ``` ``` 3. According to the petitioners, 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 ``` W.P.(C) No.12534 of 2023 3 ``` petitioners filed Ext.P5 application in Form 5 of Rule 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. On the application the RDO called for the report from the Agricultural Officer and the Agricultural Officer, vide Ext.P6 report recommended to remove the property from the Data Bank. Thereafter, the Head Clerk attached to the Office of the RDO inspected the property and submitted Ext.P7 report. Ignoring Ext.P6 report, the RDO passed Ext.P8 order rejecting the application of the petitioners. In Ext.P7 report of the Head Clerk it is reported that the property is seen lying 1.5 meters below the road level and that there are trees on the side of the property, which are more than 20-25 years old and the land ``` W.P.(C) No.12534 of 2023 4 ``` is found to be marshy and not converted before 2008. ``` ``` 4. The petitioners have 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. ``` ``` 5. It is contended by the petitioners that the RDO has not relied on the report of the Agricultural Officer and on the contrary, relied on the report of the Head Clerk of the Office of the RDO. Rule 4(4E) of the Rules, 2008 provides that the RDO shall conduct a direct site inspection or rely on the satellite images obtained from the nodal agency of the State, viz:, Kerala State Remote Sensing and Environment Centre [for short, ‘the KSRSEC’] and take a decision. ``` W.P.(C) No.12534 of 2023 5 ``` When the Rules, 2008 provides that the RDO shall conduct direct site inspection and take a decision, the site inspection cannot be entrusted to a staff in the Office of the RDO. ``` ``` 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. 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) of the Rules, 2008 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 ``` W.P.(C) No.12534 of 2023 6 ``` Central/StateScientificTechnological Institutions and pass appropriate orders on the application. On a perusal of Ext.P8, 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. ``` ``` 7. 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. ``` ``` 8. InMather Nagar Residents Association and ``` W.P.(C) No.12534 of 2023 7 ``` 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 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 ``` W.P.(C) No.12534 of 2023 8 ``` 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." ``` ``` 9. 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. ``` ``` 10. This Court inJessy Abraham v. Land Revenue Commissioner, Thiruvananthapuram [2021 (6) KHC 316] has also that merely for the reason that ``` W.P.(C) No.12534 of 2023 9 ``` the land is lying low and is waterlogged, same cannot be included as paddy land in the data bank. ``` ``` In spite of the categorical declarations by this Court in the decisions cited above, the petitioners’ application has been rejected, solely relying on the report of the Head Clerk, 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.P8 order cannot be sustained and I set aside the same, with a direction to the 1[st] 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 petitioners and other relevant factors mentioned ``` W.P.(C) No.12534 of 2023 10 ``` in Rule 4(4F) of the Rules, 2008, within a period of two months from the date of receipt of the report of the KSRSEC. The petitioners 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 petitioners shall produce a copy of the writ petition along with a copy of the judgment before the 1[st] 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.12534 of 2023 11 ## **`APPENDIX`** ## **`PETITIONER'S EXHIBITS:-`** ## **`Exhibit P1`** ``` TRUE COPY OF THE ASSIGNMENT DEED NO.4851 OF 2022 DATED 21.10.2022 OF SUB REGISTRY OFFICE, MANJERI ``` ``` Exhibit P2TRUE COPY OF THE BASIC-TAX-RECEIPT DATED 3.11.2022. ``` ``` Exhibit P3TRUE COPY OF THE PLAN DATED 28.2.2023. ``` ``` Exhibit P4 ``` ``` Exhibit P5 ``` ``` TRUE COPY OF THE NOTIFICATION DATED 19.1.2021 OF MANJERI MUNICIPALITY NOTIFIED UNDER SUB RULE 4(4) OF THE- KERALA CONSERVATION OF PADDY LAND AND WET LAND RULES 2008,. ``` - **`TRUE COPY OF FORM NO.5 APPLICATION DATED 3.11.2022 PREFERRED BY THE PETITIONERS BEFORE THE FIRST RESPONDENT- REVENUE DIVISIONAL OFFICER`** ``` Exhibit P6 ``` ``` Exhibit P7 ``` ``` TRUE COPY OF THE REPORT DATED 10.11.2022SUBMITTEDBYTHE AGRICULTURAL FIELD OFFICER, KRISHI BHAVAN, MANJERI. ``` ``` TRUE COPY OF THE REPORT DATED 13.12.2022 OF THE HEAD CLERK, REVENUE DIVISIONAL OFFICE, PERINTHALMANNA ``` ``` Exhibit P8TRUE COPY OF THE ORDER DATED 19.1.2023 PASSED BY THE FIRST-RESPONDENT-REVENUE DIVISIONAL OFFICER (SUB- COLLECTOR, PERINTHALMANNA). ```