Ibrahim and Sainul Abideen v. State of Kerala and Others

WP(C) Nos. 26143 & 26172 of 2022 1 # **`IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT`** ``` THE HONOURABLE MR.JUSTICE VIJU ABRAHAM ``` ``` THURSDAY, THE 20[TH] DAY OF APRIL 2023 / 30TH CHAITHRA, 1945 WP(C) NO. 26143 OF 2022 ``` ## **`PETITIONER:`** ``` IBRAHIM AGED 49 YEARS S/O. ABDU RAHIMAN ATHIMANNIL HOUSE, PAPPINIPPARA, PAPPINIPPARA P.O., MALAPPURAM DIST., PIN - 676122 BY ADVS. K.SHIBILI NAHA A.LOWSY ``` ## **`RESPONDENTS:`** - `1 STATE OF KERALA REPRESENTED BY ITS SECRETARY DEPARTMENT OF REVENUE, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM, PIN - 695001` - `2 THE REVENUE DIVISIONAL OFFICER/SUB COLLECTOR PERINTHALMANNA MALAPPURAM DISTRICT, PIN - 679322` - `3 THE AGRICULTURAL OFFICER ANAKKAYAM GRAMA PANCHAYATH ANAKKAYAM P.O., MALAPPURAM DISTRICT, PIN - 676509` - `4 KERALA STATE REMOTE SENSING AND ENVIRONMENT CENTRE(KSREC)` - `NEAR LEGISLATIVE ASSEMBLY THIRUVANANTHAPURAM, PIN - 695033` - `5 THE LOCAL LEVEL MONITORING COMMITTEE (LLMC) ANAKKAYAM GRAMA PANCHAYATH REPRESENTED BY ITS CONVENER ANAKKAYAM P.O., MALAPPURAM DISTRICT, PIN - 676509` ``` GP SRI.SYAMANTHAK ``` ``` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 20.04.2023, ALONG WITH WP(C).26172/2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` WP(C) Nos. 26143 & 26172 of 2022 2 ## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT`** ## **`THE HONOURABLE MR.JUSTICE VIJU ABRAHAM`** ``` THURSDAY, THE 20[TH] DAY OF APRIL 2023 / 30TH CHAITHRA, 1945 ``` ## **`WP(C) NO. 26172 OF 2022`** ## **`PETITIONER:`** ``` SAINUL ABIDEEN AGED 47 YEARS S/O. ABDU RAHIMAN HAJI MECHERI HOUSE, PAPPINIPPARA, PAPPINIPPARA P.O., MALAPPURAM DIST, PIN - 676122 BY ADVS. K.SHIBILI NAHA A.LOWSY ``` ## **`RESPONDENTS:`** - `1 STATE OF KERALA REPRESENTED BY ITS SECRETARY DEPARTMENT OF REVENUE, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM, PIN - 695001` - `2 THE REVENUE DIVISIONAL OFFICER/SUB COLLECTOR PERINTHALMANNA MALAPPURAM DISTRICT, PIN - 679322` - `3 THE AGRICULTURAL OFFICER ANAKKAYAM GRAMA PANCHAYATH ANAKKAYAM P.O., MALAPPURAM DISTRICT, PIN - 676509` - `4 KERALA STATE REMOTE SENSING AND ENVIRONMENT CENTRE(KSREC)` - `NEAR LEGISLATIVE ASSEMBLY THIRUVANANTHAPURAM, PIN - 695033` - `5 THE LOCAL LEVEL MONITORING COMMITTEE (LLMC) ANAKKAYAM GRAMA PANCHAYATH REPRESENTED BY ITS CONVENER ANAKKAYAM P.O., MALAPPURAM DISTRICT, PIN - 676509 BY G.P., SRI. SYAMANTHAK B.S.` ``` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 20.04.2023, ALONG WITH WP(C).26143/2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` WP(C) Nos. 26143 & 26172 of 2022 3 ## **VIJU ABRAHAM , J. =========================== WP(C) Nos. 26143 & 26172 of 2022 ============================ Dated this the 20[th] day of April, 2023** ## **J U D G M E N T** WP(C) Nos. 26143/2022 and 26172/2022 are filed challenging Ext P8 order whereby Form-5 applications submitted by the petitioners in both the writ petitions were rejected. 2. Petitioners are in absolute ownership of the properties and the same was reclaimed long before the commencement of the Kerala Conservation of Paddy Land and Wet Land Act 2008 (hereinafter referred to as the Act of 2008). The property is situated on the side of Manjeri-Malappuram PWD Road and there are several commercial as well as residential buildings in its close vicinity as is evident from Exts P3 and P4. 3. The property has been wrongly included as paddy land in the Data Bank. Ext P5 is the satellite images and the report from the 4[th] respondent KSRSEC which specifically states that as per the Toposheet of 1967, the plot was observed as Paddy land and the plot bordered by a road on the southern side was observed under fallow land with partial mixed vegetation/plantation on the eastern side in the data of the year 2006. The same land use pattern was continued in the data of the year 2011 and that the entire plot was observed under mixed vegetation/plantation with prominent building/structure WP(C) Nos. 26143 & 26172 of 2022 4 on the eastern side in the data of 2019. By Ext P6 order, the application submitted by the petitioner was rejected for the reason that in the Data Bank, the property is included as paddy land and the same was paddy land on the date of coming into force of the Act of 2008. 4. Challenging the same petitioners approached this court filing WP(C) Nos. 764 and 834 of 2021 and this court as per Ext P7 common judgment set aside Ext P6 and directed to reconsider the same on the basis of the findings of the KSRSEC and on the basis of the judgment in _**Salim C.K. and another v. State of Kerala and others [2017 (1) KHC 394]**_ and _**Joy K.K. v. RDO/Sub Collector, Ernakulam and Others [2021 (1) KHC 540]**_ . 5. Even without adverting to the directions in Ext P7 common judgment, the application under Form-5 for deletion of the subject property from the Data Bank was rejected as per Ext P8, which is impugned in both the writ petitions. The reason stated in Ext P8 order is that in the KSRSEC report a portion of the property is shown as partial mixed vegetation/plantation and the balance property is lying fallow and in the inspection conducted, though the property was found to be filled up, no ‘Kuzhikoor’ that was in existence before 2008 was found in the property. Further reason stated was that action has been initiated under Section 13 of the Act of 2008 for illegally filling up the land and that in the KSRSEC report WP(C) Nos. 26143 & 26172 of 2022 5 the property is termed as fallow land and the same was not converted before 2008. Petitioners submit that none of these reasons are relevant for rejecting an application under Form-5 and that none of the directions in Ext P7 has been considered while issuing Ext P8 order. 6. The learned Government pleader has filed detailed counter affidavits in both cases mainly contending that the agricultural officer as per Ext R3(a) report has stated that the land has not been converted as on 2008 and that the land is suitable for paddy cultivation. In the site inspection, it is revealed that there is no vegetation/plantation in the applied land and that the petitioner is facing legal action as mandated in Section 13 of the Act of 2008 for carrying out the illegal conversion. In Ext R3(a) report, the agricultural officer has reported that in the site inspection conducted, the property was a paddy land during 2008 and has the features of the paddy land and in the KSRSEC report also the property is a paddy land as on 2008. 7. I have heard the rival contentions of both sides. This court as per Ext P7 common judgment set aside Ext P6 order and directed reconsideration of the matter taking into consideration the KSRSEC report and the judgment in _**Salim**_ and _**Joy’s**_ case cited supra. This court in _**Joy’s**_ case supra has laid down the parameters WP(C) Nos. 26143 & 26172 of 2022 6 for consideration of the Form 5 application. Paragraph 11 of the said judgment reads as follows: _“In the light of the above, the reason given by the LLMC that after removal of coconut trees land can be made available for cultivation of paddy is legally unsustainable. The LLMC totally misguided or misdirected themselves in adverting to the nature of the land. Admittedly, there are grown up coconut trees spread over the entire property. The physical nature of the property as revealed on 12/08/2008 the date on which Act 28/2008 came into force does not attract the natural features of the land for cultivation of paddy and the LLMC cannot include such land as a paddy land. It is not the capability of using the land that matters to treat one land as a paddy land or not. It is only the character and fitness of the land, as available on 12/08/2008, that matters, to include or exclude a land. The LLMC is the competent body to give expert opinion as to the capability of using the land after removing the coconut trees in the land. Their functions and duties are ordained with the statutory provisions.”_ 8. In _**Salim’s**_ case supra, the court observed that the object of the enactment of the Act of 2008 is the preservation of paddy land as existed on the date of coming into force of the Act. Section 3 of the Act also prohibits conversion or reclamation of lands which were paddy lands as on the date of commencement of the Act of 2008 except as provided in the Act. So it is indisputable and well settled that the nature of the land as on the date of coming into force of the Act of 2008, which is relevant for consideration of a land as a paddy land or not. Ext P5 is the KSREC report. The relevant portion of which is extracted below: ## _**“Observation and conclusion**_ WP(C) Nos. 26143 & 26172 of 2022 7 _As per the toposheet of 1967, the survey plot 167/16-2 was observed as paddy land. The plot bordered by a road on southern side was observed under fallow land with partial mixed vegetation/plantation on eastern side in the data of year 2006. The same land use pattern was continued in the data of year 2011. From the data of year 2016 exposed soil was observed on western side. The entire plot was observed under mixed vegetation/plantation with prominent building/structure eastern side in the data of year 2019.”_ 9. A perusal of Ext P5 report would clearly show that in the data of the year 2006, the plot is bordered by a road on the southern side and observed under fallow land which also had partial mixed vegetation/plantation on the eastern side and that same land use pattern was continued in the data of the year 2011. Even in the data of the year 2019, the entire plot was observed under mixed vegetation/plantation with prominent building/structure in the eastern side. So a perusal of Ext P5 report will indisputably prove that from the year 2006-2019, the plot was observed under mixed vegetation/plantation and building/structures was also observed during 2019. 10. The findings in Ext R2(a) report submitted by the agricultural officer which was relied on by the 2nd respondent for issuing Ext P7 order, that in the KSRSEC report also the property has been noted as paddy land is totally contrary to the finding in Ext P5 report. Further reason for rejecting the application as per Ext P8 is that in the KSRSEC report, the property was observed as fallow land WP(C) Nos. 26143 & 26172 of 2022 8 and therefore it should be treated as paddy land. Another reason stated for rejecting the application is that, in the site inspection even though it was found that the property has been converted, there is no ‘Kuzhikoor’ found in the said property and further that proceedings under Section 13 of the Act of 2008 have been initiated for illegal conversion of land. I am afraid, none of these reasons are valid and sustainable for rejecting the application in Form 5. What is relevant for consideration of an application going by _**Joy’s**_ case supra and Section 3 of the Act of 2008 is the nature and fitness of the land as available on 12.08.2008, i.e. the date of coming into force of the Act to include or exclude the land from the Data Bank. The nature of the land has been clearly found to be fallow land with partial mixed vegetation/plantation in the data of the year 2006 and in the data of the year 2019, the entire plot was observed under mixed vegetation/plantation with prominent building/structure. So as on the date of coming into force of the Act of 2008, it can be clearly found that the property was not lying as a paddy land so as to include the same in the Data Bank. 11. The 2nd respondent has not considered the KSRSEC report in full but only took certain portions like the land is lying as fallow so as to reject the application submitted by the petitioner. If the report has been considered in full, the 2[nd] respondent will not have arrived at such a conclusion. It is settled law that for a mere WP(C) Nos. 26143 & 26172 of 2022 9 reason that property is lying fallow is not a reason to treat it as paddy land. The Division Bench of this court in _**Mather Nagar Residents Association and another v. District Collector, Ernakulam and others [2020 (2) KHC 94]**_ has held that merely for the reason that the property is lying as fallow, it cannot be termed as a wetland or paddy land under the Act. This court in _**Sudheesh v. RDO [2023 (2) KLT 386]**_ has also held that only for the reason that property is left fallow, the land cannot be brought within the definition of paddy land in as much as going by the definition of paddy land in Section 2(xii) of the Act, to bring a property within the said definition, the land should be cultivated with paddy at least once in a year or suitable for paddy cultivation but uncultivated and left fallow, and therefore the RDO should be satisfied that the land is fit for paddy cultivation but left fallow. Yet another reason stated for rejecting the application is that proceedings under Section 13 of the Act are initiated against the petitioner, but I am of the view that it is not a valid ground for not entertaining the application, as held by this court in _**Bharathan Ramanathan v. State of Kerala [2022 (6) KLT Online 1068]**_ . This court in **Salim’s** case supra has upheld the power of this court to declare based on the materials produced before it that the entry of any particular property in the data bank is erroneous and that the said property should be excluded from the Data Bank. Ext P5 WP(C) Nos. 26143 & 26172 of 2022 10 KSRSEC report specifically state about the nature and fitness of the land before the coming into force of the Act of 2008, which was not considered by the 2nd respondent while rejecting the application. Further, none of the directions in Ext P7 judgment has been looked into while issuing the impugned order. Ext P3 sketch and the photographs produced will show that the property is by the side of a main road and there are various commercial buildings nearby. Therefore, considering the facts and circumstances of the case and taking into consideration Ext P5 KSRSEC report and on a finding that none of the reasons stated in Ext P8 is valid for rejecting an application under Form 5, I am inclined to set aside Ext P8 order in both the writ petitions with a consequential declaration that the property has been reclaimed before the commencement of the Act of 2008 and hence liable to be deleted/excluded from the Data Bank. Both the writ petitions are allowed as above. **Sd/-** **VIJU ABRAHAM JUDGE** sbk/- WP(C) Nos. 26143 & 26172 of 2022 11 ## **`APPENDIX OF WP(C) 26172/2022`** |`PETITIONER EXHIBITS`|| |---|---| |`Exhibit P1`|`TRUE COPY OF THE POSSESSION CERTIFICATE`| ||`ISSUED BY THE VILLAGE OFFICER CONCERNED.`| |`Exhibit P2`|`TRUE COPY OF THE BASIC TAX RECEIPT`| ||`EVIDENCING PAYMENT OF LAND TAX DATED`| ||`30.7.2022.`| |`Exhibit P3`|`TRUE COPY OF THE LOCATION MAP PREPARED BY`| ||`THE VILLAGE OFFICER ANAKKAYAM .`| |`Exhibit P4`|`TRUE COPY OF THE PHOTOGRAPHS.`| |`Exhibit P5`|`TRUE COPY OF THE REPORT OF THE KSREC DATED`| ||`6.12.2019.`| |`Exhibit P6`|`TRUE COPY OF THE PROCEEDINGS OF THE 2ND`| ||`RESPONDENT (FILE NO. RDOPTM/2056/2020-S3)`| ||`DATED 6.10.2020.`| |`Exhibit P7`|`TRUE COPY OF THE JUDGMENT IN WP(C)`| ||`NO.834/2021 DATED 25.8.2021.`| |`Exhibit8`|`TRUE COPY OF THE PROCEEDINGS OF THE 2ND`| ||`RESPONDENT DATED 13.01.2022.`| |`Exhibit P9`|`TRUE COPY OF THE INFORMATION DATED`| ||`25.01.2022 RECEIVED UNDER THE RIGHT TO`| ||`INFORMATION ACT.`| |`RESPONDENT EXHIBITS`|| |`Exhibit R2(a)`|`True copy of the report of the Agriculture`| ||`Officer dated 23.09.2020`| WP(C) Nos. 26143 & 26172 of 2022 12 ## **`APPENDIX OF WP(C) 26143/2022`** |`PETITIONER EXHIBITS`|| |---|---| |`Exhibit P1`|`TRUE COPY OF THE POSSESSION CERTIFICATE`| ||`ISSUED BY THE VILLAGE OFFICER CONCERNED.`| |`Exhibit P2`|`TRUE COPY OF THE BASIC TAX RECEIPT`| ||`EVIDENCING PAYMENT OF LAND TAX DATED`| ||`22.12.2020.`| |`Exhibit P3`|`TRUE COPY OF THE LOCATION MAP PREPARED BY`| ||`THE VILLAGE OFFICER ANAKKAYAM.`| |`Exhibit P4`|`TRUE COPY OF THE PHOTOGRAPHS.`| |`Exhibit P5`|`TRUE COPY OF THE REPORT OF THE KSREC DATED`| ||`6.12.2019.`| |`Exhibit P6`|`TRUE COPY OF THE PROCEEDINGS OF THE 2ND`| ||`RESPONDENT (FILE NO. RDOPTM/2056/2020-S3)`| ||`DATED 6.10.2020.`| |`Exhibit P7`|`TRUE COPY OF THE JUDGMENT IN WP(C)`| ||`NO.764/2021 DATED 25.8.2021.`| |`Exhibit P8`|`TRUE COPY OF THE PROCEEDINGS OF THE 2ND`| ||`RESPONDENT DATED 13.01.2022.`| |`Exhibit P9`|`TRUE COPY OF THE INFORMATION DATED`| ||`25.01.2022 RECEIVED UNDER THE RIGHT TO`| ||`INFORMATION ACT.`| |`RESPONDENT EXHIBITS`|| |`EXHIBIT R2(a)`|`TRUE COPY OF THE REPORT OF THE AGRICULTURE`| ||`OFFICER DATED 23-09-2020`|