Hussain v. District Collector, Malappuram District & Others

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** # **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE MURALI PURUSHOTHAMAN ``` ``` THURSDAY, THE 7[TH] DAY OF MARCH 2024 / 17TH PHALGUNA, 1945 WP(C) NO.8886 OF 2024 ``` ## **`PETITIONER:`** ``` HUSSAIN, AGED 41 YEARS S/O.KUNJU MUHAMMED, KAPPAKUNNAM HOUSE,KARUMALAYAPPADI, WANDOOR POST,MALAPPURAM DIST, PIN - 679328 ``` ``` BY ADVS. P.K.MOHAMED JAMEEL N.RAGHUNATH SUHARABI KANNETH SMRITHI HARRIS ``` ## **`RESPONDENTS:`** - **`1 THE DISTRICT COLLECTOR COLLECTORATE, MALAPPURAM DISTRICT, PIN - 676505`** - **`2 REVENUE DIVISIONAL OFFICER PERITHALMANNA, MALPPURAM DISTRICT, PIN - 679322`** - **`3 AGRICULTURAL OFFICER KRISHI BHAVAN, WANDOOR POST, WANDOOR, MALAPPURAM DISTRICT, PIN - 679328`** ## **`BY SMT.R.DEVISREE, GP`** ``` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 07.03.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` W.P.(C) No.8886 of 2024 2 ## **`JUDGMENT`** ``` Petitioner has approached this Court aggrieved by Ext.P5 order, whereby Form 5 application submitted by him has been rejected by the 2[nd] respondent/Revenue Divisional Officer [RDO]. ``` ``` 2. Petitioner is the owner in possession of 6.2 Ares of land comprised in Sy.Nos.377/4-7 and 377/5-4 in Block No.78 of Wandoor Village, Nilambur Taluk, Malappuram 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 (for brevity, ‘the Act, 2008’). However, the property is wrongly included in the Data Bank. The ``` 3 W.P.(C) No.8886 of 2024 ``` petitioner filed Ext.P3 application in Form 5 of Rule 4(d) of the Kerala Conservation of Paddy Land and Wetland Rules, 2008 [for brevity, ‘the Rules, 2008’] before the RDO to remove the said land from the Data Bank. The same has been rejected by the RDO vide Ext.P5 stating that as per the report of the Agricultural Officer, the subject land is not converted before 2008 and is suitable for paddy cultivation. The land is filled with earth unauthorisedly and if the land is converted, that will lead to serious environmental issues and waterlogging and has recommended not to remove the subject land from the Data Bank. ``` ``` 4. The petitioner has filed this writ petition challenging Ext.P5 contending,inter alia, that the same is vitiated by non application of mind ``` 4 W.P.(C) No.8886 of 2024 ``` and is against the provisions of the Act, 2008 and the binding precedents of this Court. It is also contended that the RDO should have called for a report from the Kerala State Remote Sensing and Environment Centre [for short, ‘the KSRSEC’] before disposing of the Form 5 application to ascertain the exact nature of the land as on 12.08.2008, the date of coming into force of the Act, 2008. ``` ``` 5. 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 ``` 5 W.P.(C) No.8886 of 2024 ``` 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.P5, it is evident that, without any independent assessment of the nature of the property as on the date of coming into force of the Act, 2008, the RDO has relied solely upon the report of the Agricultural Officer to refuse to remove the property from the Data Bank. ``` ``` 6. This Court has held in the decision in Arthasasthra Ventures (India) LLP v. State of ``` W.P.(C) No.8886 of 2024 6 ``` 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 as on the date of coming into force of the Act and also whether the land is suitable for paddy cultivation 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 ``` 7 W.P.(C) No.8886 of 2024 ``` 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. ``` ``` In spite of the categorical declarations by this Court in the decisions cited above, the petitioner’s application has been rejected, solely ``` W.P.(C) No.8886 of 2024 8 ``` 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.P5 order cannot be sustained and I set aside the same, with a direction to the 2[nd] respondent, the RDO, to reconsider Ext.P3 application in Form 5 in accordance with law and take a decision in the matter 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 of the KSRSEC. The petitioner shall apply before the Agricultural ``` W.P.(C) No.8886 of 2024 9 ``` 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 2[nd] respondent for due compliance. ``` ``` The writ petition is disposed of with the above directions. ``` ``` Sd/- ``` ``` MURALI PURUSHOTHAMAN JUDGE sp/07/03/2024 ``` W.P.(C) No.8886 of 2024 10 ## **`APPENDIX`** ## **`PETITIONER'S EXHIBITS:-`** ``` Exhibit P1 ``` ``` A TRUE COPY OF DOCUMENT NO. 2151/2022 DATED IN 26.03.2022 OF S.R.O WANDOOR ``` ``` Exhibit P2A TRUE COPY OF THE BASIC LAND TAX RECEIPT DATED 06.06.2023 ISSUED BY VILLAGE OFFICER WANDOOR ``` ``` Exhibit P3A TRUE COPY OF THE APPLICATION IN FORM NO.5 DATED 09.06.2023 ``` ``` Exhibit P4A TRUE COPY OF REPORT DATED 25.07.2023 OF AGRICULTURAL OFFICER WANDOOR ``` ``` Exhibit P5A TRUE COPY OF THE ORDER DATED 05.12.2023 PASSED BY 2ND RESPONDENT ```