Hajira Shareefudheen & Sanju H. Shareef v. State of Kerala & Others

# **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. 2952 OF 2024** ## **PETITIONERS:** - **1 HAJIRA SHAREEFUDHEEN, AGED 66 YEARS W/O SHAREEFUDHEEN K, RESIDING AT KUNNIKKAL HOUSE, CHELAVOOR VILLAGE, MAYYANAD P.O., KOZHIKODE, PIN - 673008** - **2 SANJU H. SHAREEF, AGED 44 YEARS S/O SHAREEFUDHEEN K, RESIDING AT KUNNIKKAL HOUSE, CHELAVOOR VILLAGE, MAYYANAD P.O., KOZHIKODE, PIN - 673008** - **BY ADVS. K.SHIBILI NAHA A.LOWSY SRINATH C.V. GAYATHRI RAJAGOPAL** ## **RESPONDENTS:** - **1 STATE OF KERALA, REPRESENTED BY ITS SECRETARY, DEPARTMENT OF REVENUE, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM, PIN - 695001** - **2 THE SUB-DIVISIONAL MAGISTRATE & SUB COLLECTOR, KOZHIKODE DISTRICT, PIN - 673020** - **3 THE AGRICULTURAL OFFICER, KOZHIKODE DISTRICT, PIN - 673020** - **4 KERALA STATE REMOTE SENSING AND ENVIRONMENT CENTRE(KSREC),** - **NEAR LEGISLATIVE ASSEMBLY, THIRUVANANTHAPURAM, PIN - 695033** - **5 THE LOCAL LEVEL MONITORING COMMITTEE (LLMC), CHELAVOOR VILLAGE, KOZHIKODE CORPORATION, REPRESENTED BY ITS CONVENER/PRINCIPAL, AGRICULTURAL OFFICER, KOZHIKODE** **WP(C) NO. 2952 OF 2024** _**:**_ **2** _**:**_ **DISTRICT- 673008** **6 THE VILLAGE OFFICER, CHELAVOOR VILLAGE, KOZHIKODE, PIN - 673008** **SMT.R.DEVI SHRI, GP SRI.VISHNU S.CHEMPAZHANTHIYIL, SC** **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. 2952 OF 2024** _**:**_ **3** _**:**_ ## **JUDGMENT** The petitioners have approached this Court aggrieved by Ext.P10 whereby Form 5 application submitted by them has been rejected by the Revenue Divisional Officer. 2. The petitioners are the owners in possession of an extent of 18.6513 Ares (46 cents) of property comprised in Re.Sy.Nos.189/2, 193/6 (189/20, 193/27) of Chelavoor Village, Kozhikode Taluk. 3. According to the petitioners, 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, 2008 (hereinafter referred to as 'the Act, 2008' for short). However, it has been wrongly included in the Data **WP(C) NO. 2952 OF 2024** _**:**_ **4** _**:**_ Bank prepared under the Kerala Conservation of Paddy Land and Wetland Rules, 2008 (hereinafter referred to as 'the Rules, 2008' for short). The petitioners therefore filed an 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 application has been rejected by the Revenue Divisional Officer as per Ext.P5. The petitioner challenged Ext.P5 before this Court and this Court, by Ext.P8 judgment, quashed Ext.P5 and directed the 2[nd] respondent to reconsider the application after considering the report of the KSRSEC as well as taking note of the orders passed in respect of the adjacent property. 4. Pursuant to Ext.P8, the 2[nd] respondent passed Ext.P10 order rejecting the application of the **WP(C) NO. 2952 OF 2024** _**:**_ **5** _**:**_ petitioners in Form-5. The petitioners submit that the 2[nd] respondent has not considered the directions of this Court in Ext.P8 judgment. 5. The petitioners impugn 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 stated that Ext.P4 report of the KSRSEC has been misread by the 2[nd] respondent. In Ext.P4 KSRSEC report, it is stated that the plot was observed under paddy land with exposed soil towards south side in the data of 2002. The data of the year 2011 shows exposed soil in the entire area and in 2016 and 2022 data, the land is observed under scattered vegetation and plantation trees. The petitioners state that from the KSRSEC report, **WP(C) NO. 2952 OF 2024** _**:**_ **6** _**:**_ it is clear that from 2002 onwards, there was no paddy cultivation. 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. 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 Scientific Technological institutions and pass appropriate orders on the application. On a **WP(C) NO. 2952 OF 2024** _**:**_ **7** _**:**_ perusal of Ext.P10, 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 Agricultural Officer to refuse to remove the property from the Data Bank. 7. 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 **WP(C) NO. 2952 OF 2024** _**:**_ **8** _**:**_ 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. 8. 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 or not. 9. Further, it is trite law that, merely because the property is lying fallow, it cannot be termed as **WP(C) NO. 2952 OF 2024** _**:**_ **9** _**:**_ wetland or paddy land in contemplation of Act, 2008. In **Adani Infrastructures & Developers Pvt. Ltd, Mumbai & Others Vs. State of Kerala & Others** [2014 (1) KHC 685], this Court has held that if the land suitable for paddy cultivation is uncultivated and left fallow and if the said land is included as paddy land in the village records and if the property is locked on all four sides with lands which were reclaimed before the coming into force of the Act, 2008, such land cannot be said as suitable for cultivation and may come outside the definition of paddy land. 10. 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:- **WP(C) NO. 2952 OF 2024** _**:**_ **10** _**:**_ “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.” **WP(C) NO. 2952 OF 2024** _**:**_ **11** _**:**_ 11. In **Sudheesh v. Revenue Divisional Officer** [2023 (2) KLT 386], this Court held as follows: “Going by the definition in S.2(xii) of “paddy land” in the Act, 2008, to bring in a land within the definition of paddy land, it should be suitable for paddy cultivation, but uncultivated and left fallow. Just for the reason that the property is left fallow, the land cannot be brought within the definition of paddy land but the Revenue Divisional Officer should be satisfied that the land is suitable for paddy cultivation and left fallow and therefore only on satisfaction of the said twin conditions that a land could be treated as paddy land coming under the definition of S.2(xii) of the Act, 2008.” 12. In spite of the categorical declarations by this Court in the decisions cited above, the **WP(C) NO. 2952 OF 2024** _**:**_ **12** _**:**_ petitioners' 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. I find that there is total non application of mind on the part of the RDO in issuing Ext.P10. Accordingly, I set aside Ext.P10, with a direction to the 2[nd] respondent, the Revenue Divisional Officer to reconsider the application of the petitioners in Form 5 in accordance with law taking note of Ext.P4 KSRSEC report and the observations and directions of this Court in Ext.P8 judgment and other relevant factors mentioned in Rule 4(4F), within a period of two months from the date of receipt of a copy of this **WP(C) NO. 2952 OF 2024** _**:**_ **13** _**:**_ judgment. The petitioner shall produce a copy of this writ petition along with the copy of the judgment before the RDO. The writ petition is disposed of with the above directions. **Sd/MURALI PURUSHOTHAMAN JUDGE** SB ## **WP(C) NO. 2952 OF 2024** _**:**_ **14** _**:**_ ## **APPENDIX** ## **PETITIONER EXHIBITS** - **Exhibit P1 A TRUE COPY OF THE POSSESSION CERTIFICATE ISSUED BY THE VILLAGE OFFICER CONCERNED** - **Exhibit P2 A TRUE COPY OF THE BASIC TAX RECEIPT EVIDENCING PAYMENT OF LAND TAX DATED 29.09.2022** - **Exhibit P3 A TRUE COPY OF THE PHOTOGRAPHS** - **Exhibit P4 A TRUE COPY OF THE REPORT OF THE KSREC DATED 6/06/2022** - **Exhibit P5 A TRUE COPY OF THE PROCEEDINGS OF THE 2ND RESPONDENT (FILE NO. RDOKKD/149/2021-C6) DATED 17/03/2023** - **Exhibit P6 A TRUE COPY OF THE PROCEEDINGS OF THE 2ND RESPONDENT DATED 05/07/2022** - **Exhibit P7 A TRUE COPY OF THE NOTICE DATED 17/10/2022 ISSUED BY THE TALUK SURVEYOR TO THE 1ST PETITIONER HEREIN AND OTHERS** - **Exhibit P8 A TRUE COPY OF THE JUDGEMENT DATED 14/09/2023 IN W.P(C) NO. 30047/2023** - **Exhibit P9 A TRUE COPY OF THE REQUEST DATED 23/09/2023 SUBMITTED BY THE PETITIONERS ALONG WITH THE COVERING LETTER DATED 19/9/2023** - **Exhibit P10 A TRUE COPY OF THE PROCEEDINGS OF THE 2ND RESPONDENT DATED 11/12/2023** - **Exhibit P11 A TRUE COPY OF THE JUDGEMENT DATED 20/04/2023 IN W.P(C) 26143/2022 AND W.P(C) 26172/2022**