Haris C v. District Collector, Kozhikode and Others

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR.JUSTICE MURALI PURUSHOTHAMAN`** ## **`WEDNESDAY, THE 24[TH] DAY OF JANUARY 2024 / 4TH MAGHA, 1945`** ## **`WP(C) NO. 2771 OF 2024`** ## **`PETITIONER:`** ``` HARIS C AGED 33 YEARS S/O.AHAMED KOYA HAJI, THAZHAYIL, PALOZHITHAZHAM, NARIKKUNI, PARANNUR, KOZHIKODE DISTRICT, PIN - 673585 ``` ``` BY ADV BINIYAMIN K.S. ``` ## **`RESPONDENTS:`** - `1 THE DISTRICT COLLECTOR CIVIL STATION KOZHIKODE, WAYANAD ROAD, ERANHIPPALAM, KOZHIKODE DISTRICT, PIN - 673020` - `2 THE REVENUE DIVISIONAL OFFICER KOZHIKODE REVENUE DIVISIONAL OFFICE, CIVIL STATION KOZHIKODE, WAYANAD ROAD, ERANHIPPALAM, KOZHIKODE DISTRICT, PIN - 673020` - `3 THE TAHSILDAR THAMARASSERY TALUK OFFICE, THAMARASSERY, KOZHIKODE DISTRICT, PIN - 673573` - `4 THE VILLAGE OFFICER KODUVALLY VILLAGE OFFICE, KODUVALLY, KODUVALLY P.O, KOZHIKODE DISTRICT., PIN - 673572` - `5 THE AGRICULTURAL OFFICER KODUVALLY KRISHI BHAVAN, KODUVALLY, KODUVALLY P.O, KOZHIKODE DISTRICT, PIN - 673572` ## **`OTHER PRESENT:`** ## `SR.GP.SMT.K.AMMINIKUTTY` ``` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 24.01.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` W.P.(c) No. 2771 of 2024 2 ## **J UDGMENT** 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 owner in possession of 15 ares 27.02 sq. mtrs of land comprised in Sy. No. 30/11 in Koduvally Village, Thamarassery Taluk of Kozhikode District. 3. According to the petitioner, the aforesaid 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 ‘Act, 2008’). The petitioner filed Ext. P3 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’) before the Revenue Divisional Officer to remove the said land from the Data Bank. The same has been rejected by the Revenue Divisional Officer vide Ext. P6 on the basis of Ext. P5 report of the Village Officer and stating that the property is converted and its removed from the Data Bank may affect the adjoining W.P.(c) No. 2771 of 2024 3 properties and will have adverse impact on the environment. In Ext. P5 report, the Village Officer has stated that the property is converted before 2008. The report further stated that, there are 7 coconut trees (bordering paddy fields) aged 22 years, 220 areca nut trees aged 26 years, 6 jack fruit trees aged 15 years and 3 jack fruit trees aged 15 years in the subject property. It further states that even though there are trees at boundaries of the subject property, there is water logging and water channels in the subject property and conversion of property may cause water flow 4. The petitioner has filed this writ petition challenging 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. The petitioner states that the property was converted prior to 2008 and the report of the Village Officer was misread by the RDO. It is also contended that there is no standing water or water logging in the property. W.P.(c) No. 2771 of 2024 4 5. It is trite law that, 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. In **Mather Nagar Residents Association and Another v. District Collector, Ernakulam and 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 KSREC, the nodal agency of State Government, that the properties in question is 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 KSREC 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”_ 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 W.P.(c) No. 2771 of 2024 5 perusal of Ext.P6, 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 Revenue Divisional Officer has relied solely upon the report of the Village Officer 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 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 W.P.(c) No. 2771 of 2024 6 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 [2023 (6) KHC 83],** 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. 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, which recommended not to remove the land from the data bank. Accordingly, I find that Ext. P6 order cannot be sustained and I set aside the same, with a direction to the 2[nd] respondent, the Revenue Divisional Officer to reconsider Ext. W.P.(c) No. 2771 of 2024 7 P3 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 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/-** bnu **MURALI PURUSHOTHAMAN JUDGE** W.P.(c) No. 2771 of 2024 8 ## **`APPENDIX`** ## `PETITIONER’S EXHIBITS` ``` Exhibit-P1 ``` ``` TRUE COPY OF THE BASIC TAX RECEIPT NO.KL11040601759/2023 DATED 18.03.2023 ``` ``` Exhibit-P2TRUE COPY OF THE RELEVANT EXTRACT OF PUBLISHED DATA BANK OF KODUVALLY GRAMA PANCHAYAT ``` ``` Exhibit-P3TRUE COPY OF THE FORM 5 APPLICATION SUBMITTED BY THE PETITIONER BEFORE THE 2ND RESPONDENT DATED 03.04.2023 ``` ``` Exhibit-P4TRUE COPY OF JUDGEMENT DATED 07.06.2023 IN WP(C) NO. 18430/2023 ISSUED BY THIS HON'BLE COURT ``` ``` Exhibit-P5TRUE COPY OF THE REPORT SUBMITTED BY THE 4TH RESPONDENT BEFORE THE 2ND RESPONDENT DATED 26.07.2023 Exhibit-P6TRUE COPY OF ORDER DATED 06.10.2023 BEARING FILE NO.4461/2023 ISSUED BY THE 2ND RESPONDENT TO THE PETITIONER Exhibit-P7TRUE COPY OF THE PHOTOGRAPHS OF THE SUBJECT PROPERTY ```