Farooq Usman alias Muhammed Farooq v. State of Kerala and 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. 33972 OF 2023** ## **PETITIONER/S:** **FAROOQ USMAN @ MUHAMMED FAROOQ AGED 57 YEARS S/O NARIKKODAN USMAN, BUSHARA MAHAL, KOYYAPPARA, KUNHIMANGALAM, KANNUR DISTRICT,, PIN - 670309** **BY ADVS. M.ANUROOP MURSHID ALI M.** ## **RESPONDENTS:** - **1 STATE OF KERALA REPRESENTED BY PRINCIPAL SECRETARY, REVENUE DEPARTMENT, THIRUVANANTHAPURAM, PIN - 695001** - **2 REVENUE DIVISIONAL OFFICER REVENUE TOWER, COURT ROAD, THALIPARAMBA, KANNUR DISTRICT, PIN - 670141** - **3 VILLAGE OFFICER VILLAGE OFFICE, KUNHIMANGALAM, KANNUR DISTRICT, PIN - 670309** ## **OTHER PRESENT:** ## **SMT.R.DEVI SHRI, GP** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 19.03.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ``` WPC No.33972/2023 ``` ``` 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 absolute owner and in possession of an extent of 35.92 Ares of property comprised in Re-Survey No. 456/106 (old Survey No. 204/1) of Kunhimangalam Amsom in Kannur Taluk by virtue of Ext.P1 sale deed. 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, ``` WPC No.33972/2023 ``` ``` 3 ``` 2008 (hereinafter referred to as ‘Act, 2008’). However, the property is wrongly included in the Data Bank. The petitioner, therefore, filed an application in Form 5 of Rule 4(d) of the Kerala Conservation of Paddy Land and Wetland Rules, 2008 (hereinafter referred to as ‘the Rules, 2008’) before the Revenue Divisional Officer to remove the said land from the Data Bank. The application has been rejected by the Revenue Divisional officer vide Ext.P2 on the basis of the report of the Agricultural Officer who has reported that the LLMC has recommended to retain the property in the Data Bank and shall not be removed from the Data Bank. 4. Heard the learned counsel for the petitioner and the learned Government Pleader. 5. The petitioner has filed this writ petition ``` WPC No.33972/2023 ``` ``` 4 ``` challenging 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. 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) 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 ``` WPC No.33972/2023 ``` ``` 5 ``` Scientific Technological institutions and pass appropriate orders on the application. On a perusal of Ext.P2, it is evident that, without any independent assessment of the nature of property as on the date coming into force of the Act, 2008, the the Revenue Divisional Officer has relied solely upon the report of the Agricultural Officer to refuse to remove the property from the Data Bank. 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 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 ``` WPC No.33972/2023 ``` ``` 6 ``` or not. In **Muraleedharan Nair** v. **Revenue Divisional Officer** [2023 (4) KLT 270], this Court 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. In **Aparna Sasi Menon** v. **Revenue Divisional Officer** ``` WPC No.33972/2023 ``` ``` 7 ``` [2023 (6) KHC 83], this Court has held that the predominant factor for consideration 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. 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 a Form 5 application has been taken into account while passing the impugned order. Accordingly, I find that Ext.P2 order cannot be sustained and I set aside the same, with a direction to the 1[st] respondent, the Revenue ``` WPC No.33972/2023 ``` ``` 8 ``` 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 report from 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 the judgment before the Revenue Divisional Officer. The writ petition is disposed of. Sd/- **MURALI PURUSHOTHAMAN JUDGE** al/-. ``` WPC No.33972/2023 ``` ``` 9 ``` ## **A PPENDIX OF WP(C) 33972/2023** **PETITIONER EXHIBITS Exhibit P1 THE COPY OF THE SALE DEED NO. 3189/1998 OF SRO PAYYANUR DATED 24-09-1998 Exhibit P2 THE TRUE COPY OF THE REJECTION ORDER OF THE RDO (SUB COLLECTOR) TALIPARAMBA DATED 12-03-2021**