Ashique v. Revenue Divisional Officer (RDO)/Sub Collector, Perinthalmanna, Malappuram District and Local Level Monitoring Committee, Agricultural Officer, Krishi Bhavan, Alipparamba

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE MURALI PURUSHOTHAMAN MONDAY, THE 18[TH] DAY OF MARCH 2024 / 28TH PHALGUNA, 1945 ``` ``` WP(C) NO. 25238 OF 2022 ``` ## **`PETITIONER:`** ``` ASHIQUE AGED 26 YEARS SON OF MUHAMMED MUSTHAFA, PANAKKADA HOUSE, VEZHENKADA P.O., ALIPARAMBU VILLAGE, PIN – 679 357, PERINTHALAMANNA TALUK, MALAPPURAM DISTRICT REPRESENTED BY HIS POWER OF ATTORNEY HOLDER MUHAMMED MUSTHAFA, SON OF MOIDU, AGED 52 YEARS, RESIDING AT PANAKKADA HOUSE, VEZHENKADA P.O., ALIPARAMBU VILLAGE, PERINTHALAMANNA TALUK, MALAPPURAM DISTRICT, PIN – 679 357. ``` ``` BY ADVS. P.M.ZIRAJ IRFAN ZIRAJ ``` ## **`RESPONDENTS:`** - **`1 THE REVENUE DIVISIONAL OFFICER (R.D.O.)/SUB COLLECTOR PERINTHALMANNA, MALAPPURAM DISTRICT, PIN – 679 322.`** - **`2 THE LOCAL LEVEL MONITORING COMMITTEE CONSTITUTED UNDER THE PROVISIONS OF KERALA CONSERVATION OF PADDY LAND AND WET LAND ACT 2008 ALIPARAMBA, MALAPPURAM DISTRICT, REPRESENTED BY ITS CONVENER, AGRICULTURAL OFFICER, KRISHI BHAVAN, ALIPARAMBA, MALAPPURAM DISTRICT, PIN – 679 357.`** - **`3 AGRICULTURAL OFFICER KRISHI BHAVAN, ALIPARAMBA, MALAPPURAM DISTRICT, PIN – 679 357. SMT.SHEEBA - GP`** ``` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 18.03.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` WP(C).No.25238 OF 2022 ``` ``` 2 ``` ## **`JUDGMENT`** The petitioner has approached this Court aggrieved by Ext.P3 order 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 11.16 Ares of land comprised in Sy.No.85/3-25 of Aliparamba Village, Perinthalmanna Taluk in Malappuram District. 3. According to the petitioner, the aforesaid property will not come within the ambit of paddy land or wet land as defined under the Kerala Conservation of Paddy Land and Wetland Act, 2008 (hereinafter referred to as 'the Act, 2008’). However, it is stated that the property is wrongly included in the Data Bank. The petitioner filed an application in Form 5 under Rule 4(d) of the Kerala Conservation of Paddy ``` WP(C).No.25238 OF 2022 ``` ``` 3 ``` Land and Wetland Rules, 2008 (for short, ‘the Rules’) 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.P3 stating that as per the report of the Agricultural Officer, the property is not converted before 2008 and the property need not be removed from the Data Bank. 4. The petitioner has filed this writ petition challenging Ext.P3 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 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 provides that, on receipt of the application in Form 5, the RDO shall call for a report from the Agricultural Officer in the ``` WP(C).No.25238 OF 2022 ``` ``` 4 ``` 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.P3, it is evident that, without any independent assessment of the nature of property as on the date of coming into force of the Act, 2008, the Revenue Divisional Officer has solely relied upon the report of the Agricultural Officer to refuse to remove the property from the Data Bank. 6. This Court had 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 ``` WP(C).No.25238 OF 2022 ``` ``` 5 ``` Bank consider the question whether the land was a paddy land 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, 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 the 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. ``` WP(C).No.25238 OF 2022 ``` ``` 6 ``` 7. In **Aparna Sasi Menon v. Revenue Divisional Officer** [2023 (6) KHC 83], this Court has held that the predominant factor for consideration while considering Form 5 application should be whether the land which is sought to be excluded from the Data Bank is one where paddy cultivation is possible and feasible. 8. In spite of the categorical declarations by this Court in the decisions cited above, the petitioner's application has been rejected, solely 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 Form 5 application has been taken into account while passing the impugned order. 9. Accordingly, I find that Ext.P3 order cannot be sustained and I set aside the same, with a direction to the 1[st] respondent, the Revenue Divisional Officer to reconsider the application in ``` WP(C).No.25238 OF 2022 ``` ``` 7 ``` Form 5 in accordance with law and take a decision 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 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 this judgment before the 1[st] respondent for compliance. The writ petition is disposed of with the above directions. Sd/- ## **`MURALI PURUSHOTHAMAN JUDGE`** SPR ``` WP(C).No.25238 OF 2022 ``` ``` 8 ``` ## **`APPENDIX`** ## **`PETITIONER’S EXHIBITS:-`** ``` EXHIBIT P1TRUE COPY OF THE TAX RECEIPT DATED 25.08.2021 ISSUED BY THE VILLAGE OFFICER, ALIPARAMBA VILLAGE. EXHIBIT P2TRUE COPY OF THE TITLE DEED NO.75/1/2015 OF SUB REGISTRAR OFFICE, PERINTHALMANNA. EXHIBIT P3TRUE COPY OF THE ORDER OF FIRST RESPONDENT DATED 12.11.2021. ``` ## **`RESPONDENTS EXHIBITS: NIL.`**