Kadeeja v. Revenue Divisional Officer, Kanjangad, Kasaragod District & Pallikkara Grama Panchayat

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** # **THE HONOURABLE MR.JUSTICE MURALI PURUSHOTHAMAN WEDNESDAY, THE 20[TH] DAY OF MARCH 2024 / 30TH** # **PHALGUNA, 1945** # **WP(C) NO. 11105 OF 2024** ## **PETITIONER/S:** **KADEEJA AGED 54 YEARS** **W/O IBRAHIM, THAYAL MAVVAL, MAVVAL P.O, KASARAGOD DISTRICT,KERALA, PIN - 671316** **BY ADVS. V.SHYAM P.ARUN SAHEERA K.** ## **RESPONDENTS:** - **1 THE REVENUE DIVISIONAL OFFICER KANJANGAD,KASARAGOD DISTRICT,KERALA., PIN - 671315** - **2 PALLIKKARA GRAMA PANCHAYAT REPRESENTED BY ITS SECRETARY,PALLIKARA,P.O, KASARAGOD,DISTRICT,KERALA., PIN - 671316** ## **OTHER PRESENT:** ## **SR.GP.SMT.K.AMMINIKUTTY** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 20.03.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ``` WPC No.11105 /2024 ``` ``` 2 ``` ## **JUDGMENT** The petitioner has approached this Court aggrieved by Ext.P4 whereby Form 5 application submitted by her has been rejected by the Revenue Divisional Officer. 2. The petitioner is the absolute owner and in possession of 0.0243 hector of land comprised in ReSurvey No.166/21-1 in Pallikkra village, Kasaragod District by virtue of Ext.P1 sale deed. 3. According to the petitioner, 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 ‘Act, 2008’). However, the property is wrongly included in the Data Bank. The petitioner, ``` WPC No.11105 /2024 ``` ``` 3 ``` therefore, filed an 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, 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 vide Ext.P4 stating that as per the report of the Agricultural Officer, if the property of the petitioner is removed from the Data Bank, it will affect the nearby paddy lands and the environment and therefore need not be removed from the Data Bank. 4. Heard the learned counsel for the petitioner and the learned Government Pleader. 5. The petitioner has filed this writ petition challenging Ext.P4 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 refers ``` WPC No.11105 /2024 ``` ``` 4 ``` to Ext.P5 order of the RDO whereby adjacent property similarly situated has been removed from the Data Bank. 6. 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 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.P4, it is evident that, without any independent assessment of the nature of ``` WPC No.11105 /2024 ``` ``` 5 ``` property as on the date coming into force of the Act, 2008, the Revenue Divisional Officer has relied solely upon the report of the Agricultural Officer and LLMC to refuse to remove the property from the Data Bank. 7. 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. 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 ``` WPC No.11105 /2024 ``` ``` 6 ``` 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. 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. 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 ``` WPC No.11105 /2024 ``` ``` 7 ``` 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 consideration while passing the impugned order. Accordingly, I find that Ext.P4 order cannot be sustained and I set aside the same, with a direction to the 1[st] respondent, the Revenue Divisional Officer to reconsider the 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 from 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 petitioner shall produce a copy of the writ petition ``` WPC No.11105 /2024 ``` ``` 8 ``` along with a copy of the judgment before the Revenue Divisional Officer. The writ petition is disposed of. Sd/- **MURALI PURUSHOTHAMAN JUDGE** al/-. ``` WPC No.11105 /2024 ``` ``` 9 ``` ## **APPENDIX OF WP(C) 11105/2024** **PETITIONER EXHIBITS Exhibit-P1 A** **A TRUE COPY OF THE SALE DEED NO.3489/I/2018 OF THE SUB REGISTRAR OFFICE UDUMA DATED 31.12.2018** **Exhibit-P2 A TRUE COPY OF THE POSSESSION CERTIFICATE ISSUED TO THE PETITIONER DATED 20.01.2024 Exhibit-P3 A COPY OF THE BT RECEIPT ISSUED BY THE LAND REVENUE DEPARTMENT DATED 23.01.2024 Exhibit-P4 A TRUE COPY OF THE ORDER OF THE 1ST RESPONDENT DATED 23.01.2021 Exhibit-P5 A COPY OF THE ORDER OF THE 1ST RESPONDENT DATED 01.10.2022**