Firoz V.A. v. State of Kerala and others

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE MURALI PURUSHOTHAMAN** **WEDNESDAY, THE 14[TH] DAY OF FEBRUARY 2024 / 25TH MAGHA, 1945** ## **WP(C) NO. 5681 OF 2024** **PETITIONER:** **FIROZ V.A., AGED 38 YEARS S/O ABDUL LATHEEF, VARIKADAN HOUSE, PALLIKAVALA, PERUMBAVOOR P.O., ERNAKULAM, PIN - 683547** **BY ADV K.C.VINCENT** ## **RESPONDENTS:** **1 STATE OF KERALA REPRESENTED BY THE SECRETARY DEPARTMENT OF REVENUE, SECRETARIAT, THIRUVANANTHAPURAM, PIN - 695001 2 THE REVENUE DIVISIONAL OFFICER OFFICE OF THE REVENUE DIVISIONAL OFFICER, MUVATTUPUZHA, ERNAKULAM, PIN - 686669 3 THE VILLAGE OFFICER VILLAGE OFFICE, PERUMBAVOOR, PERUMBAVOOR P.O, ERNAKULAM, PIN - 683547 4 THE AGRICULTURAL OFFICER KRISHI BHAVAN, PERUMBAVOOR, PERUMBAVOOR P.O, ERNAKULAM, PIN - 683547 5 THE PERUMBAVOOR MUNICIPALITY PERUMBAVOOR, PERUMBAVOOR P.O., ERNAKULAM, REPRESENTED BY ITS SECRETARY., PIN - 683547 OTHER PRESENT: SR.GP.SMT.K.AMMINIKUTTY** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON** **14.02.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C) NO. 5681 OF 2024 : 2 :** ## **JUDGMENT** The petitioner has approached this Court aggrieved by Ext.P10 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 10.25 Ares of property in Re.Sy.No.97 of Block No.63 of Perumbavoor Village, in Kunnathunadu Taluk, by virtue of Ext.P2 settlement deed. 3. According to the petitioner, the aforesaid property will not come within the definition of paddy land or wetland as defined under the Kerala Conservation of Paddy Land and Wetland Act, 2008 **WP(C) NO. 5681 OF 2024 : 3 :** (hereinafter referred to as 'the Act, 2008' for short). However, it has been wrongly included in the Data Bank prepared under the Kerala Conservation of Paddy Land and Wetland Rules, 2008 (hereinafter referred to as 'the Rules,2008' for short) as paddy land. The petitioner states that as per Ext.P9 KSRSEC report, the land is bordered by a stream/water body, on the eastern side with building structures in the data of 2008. 4. The petitioner filed Ext.P7 application in Form 5 under Rule 4(d) of the Rules, 2008 before the Revenue Divisional Officer to remove the said land from the Data Bank. The Revenue Divisional Officer, by Ext.P10 order, rejected the application on the ground that the Agricultural Officer has **WP(C) NO. 5681 OF 2024 : 4 :** reported that as per Ext.P9 KSRSEC report, the land is not seen converted before 2008 and the LLMC has decided to retain the land in the Data Bank. 5. The petitioner impugns Ext.P10 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 misquoted and misappreciated. 6. 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.P10, it is evident that, without any independent **WP(C) NO. 5681 OF 2024 : 5 :** 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 Agricultural Officer and the recommendation of the LLMC to refuse 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 on the date of coming into force of the Act and also whether the land is suitable for paddy cultivation or not. This Court in **Muraleedharan** **WP(C) NO. 5681 OF 2024 : 6 :** **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. In v. **Aparna Sasi Menon Revenue Divisional Officer** [2023 (4) KLT 270], **WP(C) NO. 5681 OF 2024 : 7 :** this Court has held that the predominant factor for determination 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. 8. I find that there is total non application of mind on the part of the RDO while interpreting the reports of the Agricultural Officer as well as the KSRSEC. Accordingly, I set aside Ext.P10 with a direction to the Revenue Divisional Officer to reconsider the application of the petitioner in Form No.5 and take a decision in the matter on the basis of Ext.P9 KSRSEC report and the observation of this Court and the binding precedents, within a period of two months from the date of receipt of a **WP(C) NO. 5681 OF 2024 : 8 :** copy of this judgment. All other issues raised by the petitioner are left open. The petitioner shall produce a copy of this writ petition along with the copy of the judgment before the 2[nd] respondent. The writ petition is disposed of as above. **Sd/-** **MURALI PURUSHOTHAMAN JUDGE** SB ## **WP(C) NO. 5681 OF 2024 : 9 :** ## **APPENDIX** ## **PETITIONER EXHIBITS** **Exhibit P1 A TRUE COPY OF THE TAX RECEIPT DATED 13.04.2023** - **Exhibit P2 A TRUE COPY OF THE SETTLEMENT DEED NO. 2532 OF 2019 OF S.R.O. PERUMBAVOOR** - **Exhibit P3 A TRUE COPY OF THE CERTIFICATE ISSUED BY THE REVENUE OFFICER, PERUMBAVOOR MUNICIPALITY DATED 20.11.2023** **Exhibit P4 A TRUE PHOTOGRAPH OF THE BUILDING EXISTED IN THE SUBJECT PROPERTY** **Exhibit P5** - **A TRUE COPY OF THE REPORT SUBMITTED BY THE VILLAGE OFFICER, PERUMBAVOOR, BEFORE THE REVENUE DIVISIONAL OFFICER, DATED 15.05.2015, BEARING NO.147/15, IN RELATION TO APPLICATION UNDER KLU ORDER WITH A TYPED COPY** - **Exhibit P6 A TRUE COPY OF THE LETTER DATED 15.01.2020 SENT BY THE 5TH RESPONDENT TO THE 2ND RESPONDENT** - **Exhibit P7 A TRUE COPY OF THE APPLICATION DATED 12.10.2022 IN FORM 5 SUBMITTED BY THE PETITIONER ONLINE** - **Exhibit P8** - **A TRUE COPY OF THE MINUTES OF THE LOCAL LEVEL MONITORING COMMITTEE DATED 24.07.2023, THE ONLY RELEVANT PORTION IS ITS DECISION NO. 16** **Exhibit P9** - **A TRUE COPY OF THE REPORT OF THE KERALA STATE REMOTE SENSING AND ENVIRONMENT CENTER BEARING NO. A- 172/2015/KSREC/004449/23 DATED** **WP(C) NO. 5681 OF 2024 : 10 :** **14.07.2023** **Exhibit P10 A TRUE COPY OF THE PROCEEDINGS ISSUED BY THE 2ND RESPONDENT DATED 01.09.2023 BEARING FILE NO. 8988/2023**