Ashraf Ali v. Revenue Divisional Officer, Palakkad and Agricultural Officer, Ayilur

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR.JUSTICE MURALI PURUSHOTHAMAN`** ``` FRIDAY, THE 9[TH] DAY OF FEBRUARY 2024 / 20TH MAGHA, 1945 ``` ## **`WP(C) NO. 5221 OF 2024`** ## **`PETITIONER:`** ``` ASHRAF ALI AGED 39 YEARS S/O. ASSAN MUHAMMAD RAWTHER, THIRINJAKODE HOUSE, AYLUR, PALAKKAD DISTRICT, PIN – 678 510. ``` ``` BY ADVS. RAJESH SIVARAMANKUTTY MAYA C.P. K.V.ANTONY VIJINA K. ARUL MURALIDHARAN ``` ## **`RESPONDENTS:`** ``` 1THE REVENUE DIVISIONAL OFFICER, PALAKKAD, OFFICE OF THE REVENUE DIVISIONAL OFFICER, PALAKKAD (DISTRICT LEVEL AUTHORIZED COMMITTEE UNDER THE KERALA CONSERVATION OF PADDY LAND AND WETLAND ACT, 2008), PIN – 678 001. 2THE AGRICULTURAL OFFICER, AYILUR OFFICE OF THE AGRICULTURAL OFFICER, AYILUR PALAKKAD DISTRICT, (LOCAL LEVEL MONITORING COMMITTEE UNDER THE KERALA CONSERVATION OF PADDY LAND AND WETLAND ACT, 2008), PIN – 678 510. ``` ``` SR.GP. - SMT.K.AMMINIKUTTY ``` ``` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 09.02.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` WP(C).No.5221 OF 2024 ``` ``` 2 ``` ## **`JUDGMENT`** The petitioner has approached this Court aggrieved by Ext.P6 whereby Form 5 application submitted by him has been rejected by the Revenue Divisional Officer. 2. The petitioner is the absolute owner in possession of an extent of 0.0800 Hectares of land in Block No.50, Re.Sy.No.221/5-5 of Ayilur Panchayat and Village, Chittur Taluk in Palakkad District. 3. According to the petitioner, the aforesaid property will not come within the ambit of paddy land or wet land. However, it has been wrongly included in the Data Bank prepared under the Kerala Conservation of Paddy Land and Wetland Rules, 2008. The petitioner, therefore, filed an application in Form 5 under the provisions of the Kerala Conservation of ``` WP(C).No.5221 OF 2024 ``` ``` 3 ``` Paddy Land and Wetland Act, 2008 (for short, ‘the Act, 2008’) to remove the property from the Data Bank. The Revenue Divisional Officer by Ext.P6 order rejected the application on the ground that the LLMC had examined the application in detail and reported that the land is presently water logged and there are paddy fields nearby and the land is fit for paddy cultivation. 4. The petitioner impugns Ext.P6 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. It is also contended that the KSRSEC report was not called for. 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. On a perusal of Ext.P6, 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 relied solely ``` WP(C).No.5221 OF 2024 ``` ``` 4 ``` upon the report of the Agricultural Officer and LLMC to refuse to remove the property from the Data Bank. 6. 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 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 because the land is waterlogged, it cannot be termed as ``` WP(C).No.5221 OF 2024 ``` ``` 5 ``` wetland or paddy land in contemplation of the Act, 2008. 8. 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:- “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 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.” 9. In **Aparna Sasi Menon v. Revenue** **Divisional Officer** [2023 (6) KHC 83], this Court has held that the existence of neerchals in a property ``` WP(C).No.5221 OF 2024 ``` ``` 6 ``` should never be a prime consideration in deciding the land is to be retained in the Data Bank. Instead, the prime consideration should be whether paddy cultivation is possible in the property in question. 10. 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 LLMC, which recommended not to remove the land from the Data Bank. I find that there is total non application of mind on the part of the RDO in passing Ext.P6 order. 11. Accordingly, Ext.P6 order is set aside with a direction to the 1[st] respondent, the Revenue Divisional Officer to reconsider Ext.P5 application in accordance with law and take a decision in the matter after obtaining KSRSEC report at the expense of the petitioner, 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 ``` WP(C).No.5221 OF 2024 ``` ``` 7 ``` KSRSEC report within a period of two weeks from the date of receipt of a copy of this judgment. The writ petition is disposed of with the above directions. Sd/- ``` MURALI PURUSHOTHAMAN JUDGE ``` SPR ``` WP(C).No.5221 OF 2024 ``` ``` 8 ``` ## **`APPENDIX`** ## **`PETITIONER’S EXHIBITS:-`** ``` EXHIBIT P1A TRUE COPY OF THE REGISTERED GIFT DEED NO.1134/2016 OF SRO, NENMARA DATED 18-4- 2016 EXECUTED IN FAVOUR OF PETITIONER. EXHIBIT P2A TRUE COPY OF THE POSSESSION CERTIFICATE DATED 15-12-2021 ISSUED TO PETITIONER FROM AYILUR VILLAGE OFFICE. ``` - **`EXHIBIT P3 A TRUE COPY OF THE THANDAPPER ACCOUNT NO.5055 ISSUED FROM THE AYILUR VILLAGE OFFICE DATED 17-12-2021 TO PETITIONER.`** - **`EXHIBIT P4 A TRUE COPY OF THE LAND TAX RECEIPT DATED 17-12-2021 ISSUED TO PETITIONER FROM VILLAGE OFFICE, AYILUR.`** ``` EXHIBIT P5TRUE COPY OF THE FORM 5 APPLICATION DATED 28-1-2022 SUBMITTED BEFORE THE 1ST RESPONDENT BY PETITIONER. EXHIBIT P6A TRUE COPY OF THE ORDER DATED 12-7-2022 IN FILE NO. RDOPKD/3890/2022-M2 DATED 12-7-2022 PASSED BY THE 1 ST RESPONDENT. EXHIBIT P7A TRUE COPY OF THE PHOTOGRAPH OF THE PROPERTY COVERED BY EXHIBIT P-1. ``` ## **`RESPONDENTS EXHIBITS: NIL.`**