K.S SHAMSUDHEEN v. Revenue Divisional Officer, Palakkad; Agricultural Officer, Thattamangalam Village; Village Officer, Thattamangalam Village

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR.JUSTICE MURALI PURUSHOTHAMAN WEDNESDAY, THE 13[TH] DAY OF MARCH 2024 / 23RD PHALGUNA, 1945 WP(C) NO. 34265 OF 2023`** ## **`PETITIONER:`** ``` K.S SHAMSUDHEEN AGED 52 YEARS S/O. K. SAID, AL HIBA, PARALI P.O, PALAKKAD DISTRICT, PIN – 678 612. ``` ``` BY ADVS. JACOB SEBASTIAN ANU JACOB WINSTON K.V KEERTHY RAJ ``` ## **`RESPONDENTS:`** - **`1 THE REVENUE DIVISIONAL OFFICER PALAKKAD OFFICE OF THE REVENUE DIVISIONAL OFFICER PALAKKAD, PALAKKAD HEAD POST OFFICE, PALAKKAD DISTRICT, PIN – 678 001.`** - **`2 THE AGRICULTURAL OFFICER FOR THE THATTAMANGALAM VILLAGE THATTAMANGALAM P.O, PALAKKAD DISTRICT, PIN – 678 102.`** - **`3 THE VILLAGE OFFICER THATTAMANGALAM VILLAGE, THATTAMANGALAM P. O, PALAKKAD DISTRICT, PIN – 678 102. SR. GP - SRI. E. G. GORDEN`** ``` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 13.03.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` WP(C).No.34265 OF 2023 ``` ``` 2 ``` ## **`JUDGMENT`** The petitioner has approached this Court aggrieved by Ext.P4 order whereby Form 5 application submitted by the petitioner has been rejected by the Revenue Divisional Officer solely relying on the report of the Agricultural Officer. 2. The petitioner is the absolute owner in possession of an extent of 0.3784 Hectors of land comprised in Re.Sy. Nos.2/1-1 and 2/2, Block No.17 of Thattamangalam Village, Chittur Taluk in Palakkad District. 3. According to the petitioner, the aforesaid property is a pucca garden land and is surrounded by houses and roads and will not come within the ambit of paddy land or wet land as defined under the Kerala Conservation of Paddy Land and Wetland Act, 2008 (for short, ‘the Act, 2008’). However, it is stated that the property is wrongly included in the Data Bank. The petitioner filed Ext.P3 application in Form 5 of ``` WP(C).No.34265 OF 2023 ``` ``` 3 ``` Rule 4 (d) of the Kerala Conservation of Paddy land and Wetland Rules, 2008 (for short, ‘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.P4 stating that on enquiry conducted by the Agricultural Officer, the Agricultural Officer has reported that the subject land is part of ‘padasekharam’ and waterlogged, and the LLMC has recommended not to remove the land from the Data Bank. 4. 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. It is also contended that the Revenue Divisional Officer should have called for a report from the KSRSEC before disposing of 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. ``` WP(C).No.34265 OF 2023 ``` ``` 4 ``` 5. 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. Rule 4 (4E) of the Rules 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 property as on the date of coming into force of the Act, 2008, the Revenue Divisional Officer has solely relied upon the report of the Agricultural Officer to refuse to remove the property from the Data Bank. ``` WP(C).No.34265 OF 2023 ``` ## **`5`** 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 on the date of coming into force of the Act and also whether the land is suitable for paddy cultivation or not. 7. 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 the 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 the Data Bank will adversely affect ``` WP(C).No.34265 OF 2023 ``` ``` 6 ``` 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 Form 5 application should be whether the land which is sought to be excluded from the Data Bank is one where paddy cultivation is possible and feasible. 8. This Court in **Jessy Abraham v. Land Revenue Commissioner, Thiruvananthapuram** [2021 (6) KHC 316] has held that merely for the reason that the land is lying low and is waterlogged, the same cannot be included as paddy land in the Data Bank. 9. In **Mather Nagar Residents Association and Another v. District Collector, Ernakulam others** (2020 (2) KLT 192), a Division Bench of this ``` WP(C).No.34265 OF 2023 ``` ``` 7 ``` ## 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 KSRSEC, the nodal agency of State Government, that the properties in question is a 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 KSRSEC 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.” 10. 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 Agricultural Officer, who recommended not to remove the land from the Data Bank. 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 Ext.P3 application of the petitioner in Form ``` WP(C).No.34265 OF 2023 ``` ``` 8 ``` 5 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 petitioner shall produce a copy of the writ petition along with a copy of this judgment before the 1[st] respondent for compliance. The writ petition is disposed of with the above directions. Sd/- ## **`MURALI PURUSHOTHAMAN JUDGE`** SPR ``` WP(C).No.34265 OF 2023 ``` ``` 9 ``` ## **`APPENDIX`** ## **`PETITIONER’S EXHIBITS:-`** |**`EXHIBIT P1`**|**`A TRUE COPY OF THE LAND TAX RECEIPT DATED`**| |---|---| ||**`01.08.2022 OF THE LAND ISSUED BY THE`**| ||**`VILLAGE OFFICER, THATTAMANGALAM VILLAGE.`**| |**`EXHIBIT P2`**|**`A TRUE COPY OF THE PHOTOGRAPHS RELATING`**| ||**`TO THE PETITIONER'S PLOT AND THE`**| ||**`ADJOINING PLOTS.`**| |**`EXHIBIT P3`**|**`A TRUE COPY OF THE FORM 5 APPLICATION`**| ||**`DATED 13.09.2022 SUBMITTED BY THE`**| ||**`PETITIONER.`**| |**`EXHIBIT P4`**|**`A TRUE COPY OF THE ORDER DATED 04.09.2023`**| ||**`ISSUED BY THE FIRST RESPONDENT.`**| ## **`RESPONDENTS EXHIBITS: NIL.`**