K. C. Babu v. Revenue Divisional Officer, Kozhikode District; Agricultural Officer, Elathur; District Collector, Kozhikode; State of Kerala

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** # **`PRESENT`** ## **`THE HONOURABLE MR.JUSTICE MURALI PURUSHOTHAMAN`** ``` THURSDAY, THE 29[TH] DAY OF FEBRUARY 2024 / 10TH PHALGUNA, 1945 WP(C) NO.8059 OF 2024 ``` ## **`PETITIONER:`** ``` K.C.BABU, AGED 72 YEARS S/O.GEEVARGHESE CHANDY, RESIDING AT KALLUVILA GALEELEE, CHEMANCHERY, VENGALAM, KOYILANDY, KOZHIKODE, PIN - 673303 ``` ``` BY ADVS. M.SASINDRAN P.K.SUBHASH ``` ## **`RESPONDENTS:`** - **`1 THE REVENUE DIVISIONAL OFFICER/SUB COLLECTOR KOZHIKODE DISTRICT, PIN - 673001`** - **`2 THE AGRICULTURAL OFFICER KRISHI BHAVAN, ELATHUR, PUTHIYANGADI.P.O., CALICUT, PIN - 673001`** - **`3 THE DISTRICT COLLECTOR, COLLECTORATE, KOZHIKODE, PIN - 673001`** - **`4 STATE OF KERALA REPRESENTED BY ITS SECRETARY TO GOVERNMENT, REVENUE DEPARTMENT, SECRETARIATE, THIRUVANANTHAPURAM, PIN - 695001`** ## **`SR.GP.SMT.K.AMMINIKUTTY`** ``` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 29.02.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` W.P.(C) No.8059 of 2024 2 ## **`JUDGMENT`** ``` Petitioner has approached this Court aggrieved by Ext.P6 order, whereby Form 5 application submitted by him has been rejected by the 1[st] respondent/Revenue Divisional Officer ``` ``` 2. Petitioner is the co-owner in possession of 22.83 Ares of land comprised in Sy.No.67/39 in Block No.3 of Elathur Village, Kozhikode Taluk, Kozhikode District. According to the petitioner, the property is a pucca garden land with wide tarred roads on two sides and within the Kozhikode City and the 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 prepared under the Kerala Conservation of Paddy Land and Wetland Rules, 2008 (for brevity, ‘the ``` W.P.(C) No.8059 of 2024 3 ``` Rules, 2008’). The petitioner states that as per the report of the Kerala State Remote Sensing and Environment Centre [for short, ‘the KSRSEC’], the land is indicated as bordered by a road on the southern side and observed under exposed red soil with scattered vegetation/ plantation towards eastern side in the data of 2008. The petitioner, therefore, filed Ext.P3 application in Form 5 under the provisions of the Act, 2008 to remove the property from the Data Bank. The RDO, by Ext.P6 order, rejected Ext.P3 on the ground that as per the report of the 2[nd]respondent/ Agricultural Officer, the property is seen as paddy land and is not converted before 2008 and if it is removed from the Data Bank, it will affect the cultivation in the nearby land and the ecology. It is further stated that, on examining the KSRSEC report, it is seen that exposed soil ``` 4 W.P.(C) No.8059 of 2024 ``` and vegetation is seen only on the eastern side and it is not recorded that the land was converted before 2008. ``` ``` 4. The petitioner impugns 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. It is also contended that the KSRSEC report was misinterpreted. ``` ``` 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 of paddy land and that of the Village Officer in the case of wetland. Rule 4(4F) provides that, on ``` W.P.(C) No.8059 of 2024 5 ``` 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.P6, 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 refused to remove the property from the Data Bank. ``` ``` 6. 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 as on the date of coming into ``` W.P.(C) No.8059 of 2024 6 ``` force of the Act and also whether the land is suitable for paddy cultivation or not. This Court, inMuraleedharan 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. ``` W.P.(C) No.8059 of 2024 7 ``` 7. In Aparna Sasi Menon v. Revenue Divisional Officer [2023 (6) KHC 83], this Court has held that the predominant factor for consideration 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 report of the KSRSEC. Relevant factors were not taken into account while considering Ext.P3 application. ``` ``` Accordingly, I set aside Ext.P6, with a direction to the 1[st] respondent, the RDO, to reconsider Ext.P3 application of the petitioner in Form 5 and take a decision in the matter on the basis of Ext.P5 KSRSEC report and the observation of this Court and the binding precedents within a ``` W.P.(C) No.8059 of 2024 8 ``` period of two months 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 1[st] respondent for due compliance. ``` ``` The writ petition is disposed of with the above directions. ``` ``` Sd/- ``` ``` MURALI PURUSHOTHAMAN JUDGE ``` ``` sp/16/02/2024 ``` W.P.(C) No.8059 of 2024 9 ## **`APPENDIX`** ## **`PETITIONER'S EXHIBITS:-`** ``` Exhibit P1 ``` ``` ATRUECOPYOFTHESALE DEED.NO.2384/1995 DATED 05.07.1995 OF SRO, WEST HILL, KOZHIKODE EXECUTED IN FAVOUR OF THE PETITIONER AND OTHERS ``` ``` Exhibit P1(a) ``` ``` A TRUE COPY OF THE PHOTOGRAPHS OF THE PROPERTY BOUNDED BY TARRED ROAD HOUSES, AND WELL CONSTRUCTED PUBLIC DRAINAGES ``` - **`Exhibit P2 A TRUE COPY OF THE TAX RECEIPT ISSUED BY THE VILLAGE OFFICER ELATHUR`** - **`Exhibit P3 A TRUE COPY OF THE APPLICATION DATED 30.12.2022 SUBMITTED BY THE PETITIONER IN FORM 5, BEFORE THE 1ST RESPONDENT`** ``` Exhibit P4 ``` ``` A TRUE COPY OF THE JUDGMENT DATED 16.03.2023 IN WP (C) NO.9228/2023 ``` ``` Exhibit P5A TRUE COPY OF THE REPORT OF THE KSREC DATED 25-07-2023 ``` ``` Exhibit P6A TRUE COPY OF THE ORDER DATED 11-10-2023 ISSUED BY THE FIRST RESPONDENT ```