Faijas K.V v. The District Collector Kozhikode and The Revenue Divisional Officer, Kozhikode

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR.JUSTICE MURALI PURUSHOTHAMAN WEDNESDAY, THE 13[TH] DAY OF MARCH 2024 / 23RD PHALGUNA, 1945 WP(C) NO. 9678 OF 2024`** ## **`PETITIONER:`** ``` FAIJAS K.V AGED 48 YEARS S/O. K.V. ABDULRAHIMAN VELLAYIL BEACH P.O., KOZHIKODE, PIN – 673 032. ``` ``` BY ADVS. ANISH ANTONY ANATHAZHATH SUNILKUMAR M. ``` ## **`RESPONDENTS:`** - **`1 THE DISTRICT COLLECTOR KOZHIKODE KOZHIKODE COLLECTORATE CIVIL STATION P.O. KOZHIKODE, PIN – 673 020.`** - **`2 THE REVENUE DIVISIONAL OFFICER KOZHIKODE COLLECTORATE CIVIL STATION P.O. KOZHIKODE, PIN – 673 020.`** ## **`GP - SMT. DEVISREE`** ``` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 13.03.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` WP(C).No.9678 OF 2024 ``` ``` 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 2.023 Ares of land comprised in Sy. No.78/69 of Chevayur Village, Kozhikode Taluk in Kozhikode District. 3. According to the petitioner, the aforesaid property will not come within the definition 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 (for short, ‘the Rules’) as wet land. The petitioner, therefore, filed an application in Form 5 under the provisions of the Kerala Conservation of Paddy Land and Wetland Act, 2008 (hereinafter referred to as 'the Act, 2008’) to remove the property from the Data ``` WP(C).No.9678 OF 2024 ``` ``` 3 ``` Bank. The Revenue Divisional Officer by Ext.P3 order rejected the application on the ground that, as per the report of the Village Officer, there are two coconut trees and two trees which are 10-15 years old and the western side of the subject land is seen filled up at a width of 3 mtrs. and in the remaining portion there is water logging and the property is not converted before 2008 and if the property is removed from the Data Bank that will adversely affect the cultivation in the nearby land and the environment. 4. The petitioner impugns 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 ``` WP(C).No.9678 OF 2024 ``` ``` 4 ``` 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.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 relied solely upon the report of the Village Officer 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 the Revenue Divisional Officer being the competent authority, has to independently assess the status of the land and come to a conclusion that ``` WP(C).No.9678 OF 2024 ``` ``` 5 ``` 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. 7. Further, it is trite law that, merely because water gets logged during rainy season, it cannot be termed as wetland or paddy land in contemplation of Act, 2008. 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 ``` WP(C).No.9678 OF 2024 ``` ``` 6 ``` 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.” 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 Village 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 consideration while passing the impugned order. Accordingly, I find that Ext.P3 order cannot be sustained and I set aside the same 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 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 ``` WP(C).No.9678 OF 2024 ``` ``` 7 ``` report of the KSRSEC. The petitioner shall apply 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 2[nd] respondent for compliance. The writ petition is disposed of with the above directions. Sd/- ## **`MURALI PURUSHOTHAMAN`** ``` JUDGE ``` SPR ``` WP(C).No.9678 OF 2024 ``` ``` 8 ``` ## **`APPENDIX`** ## **`PETITIONER’S EXHIBITS:-`** ``` EXHIBIT P1A TRUE COPY OF DEED DATED 11.12.2020. EXHIBIT P2A TRUE COPY OF THE APPLICATION DATED 16.07.2022 SUBMITTED BY THE PETITIONER. EXHIBIT P3A TRUE COPY OF THE ORDER DATED 12.12.2023 BY THE 2ND RESPONDENT. EXHIBIT P4A TRUE COPY OF PHOTOGRAPHS OF PETITIONERS LAND. ``` ## **`RESPONDENTS EXHIBITS: NIL.`**