MANOJ KUMAR P v. THE SUB COLLECTOR AND RDO CIVIL STATION ERNHIPPALAM KOZHIKODE; THE AGRICULTURAL OFFICER KRISHIBHAVAN CHATHAMANGALAM KOZHIKODE DISTRICT; THE COMMISSIONER OF LAND REVENUE

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** # **THE HONOURABLE MR.JUSTICE MURALI PURUSHOTHAMAN MONDAY, THE 26[TH] DAY OF FEBRUARY 2024 / 7TH** # **PHALGUNA, 1945** # **WP(C) NO. 7311 OF 2024** ## **PETITIONER/S:** **MANOJ KUMAR P AGED 52 YEARS** **S/O CHOYI RESIDING AT POOTHAKKUZHIYIL HOUSE VELLANNUR CHOOLUR P.O KOZHIKODE TALUK KOZHIKODE DISTRICT, PIN - 673601** BY ADV M.KRISHNAKUMAR ## **RESPONDENTS:** - **1 THE SUB COLLECTOR AND RDO CIVIL STATION ERNHIPPALAM KOZHIKODE, PIN - 673020** - **2 THE AGRICULTURAL OFFICER KRISHIBHAVAN CHATHAMANGALAM KOZHIKODE DISTRICT, PIN - 673601** - **3 THE COMMISSIONER OF LAND REVENUE PUBLIC OFFICE BUILDING MUSEUM ROAD OPPOSITE ZOO VIKHAS BHAVAN P.O THIRUVANANTHAPURAM, PIN - 695033** ## **OTHER PRESENT:** ## **SR.GP.SMT.K.AMMINIKUTTY** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 26.02.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ``` WPC No.7311/2024 ``` ``` 2 ``` ## **JUDGMENT** The petitioner has approached this Court aggrieved by Ext.P8 whereby Form 5 application submitted by him has been rejected by the Revenue Divisional Officer. 2. The petitioner is the absolute owner in possession of an extent of 0.3008 hectares of land (about 76 cents of land) comprised in Sy.No.85/1 of Block-011, Chathamangalam Village in Kozhikode Taluk. 3. According to the petitioner, the aforesaid property 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 (hereinafter referred to as 'the Act, 2008' for short). However, it is stated that the property is wrongly included in the Data Bank. The petitioner filed an application in Form 5 under Rule 4(d) of the Kerala Conservation of Paddy Land and Wetland ``` WPC No.7311/2024 ``` ``` 3 ``` Rules, 2008 before the Revenue Divisional Officer to remove the said land from the Data Bank. The Revenue Divisional Officer by Ext.P8 order rejected the application on the ground that though a report of the Agicultural Officer was called for, the Agricultural Officer was not convinced whether the property was converted before 2008 and therefore, site inspection was conducted through Junior Superintendent and it is reported that the land is filled with fresh soil and there is waterchal in the land, and both sides of the property look like paddy lands with plantain cultivation. 4. The petitioner impugns Ext.P8 contending _inter alia_ that the same is vitiated by non application of mind and is against the provisions of the Act and the binding precedents of this Court. It is also contended that the KSRSEC report was misquoted. - 5.Rule 4 (4E) of the Rules, 2008 provides that, on - receipt of the application in Form 5, the RDO shall call for ``` WPC No.7311/2024 ``` ``` 4 ``` 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 reading of the above Rules, it can be seen that it is not mandatory for the RDO to call for report from the KSRSEC (nodel agency of the State Government) in all Form 5 applications received. If the RDO deems it appropriate, he may conduct a local inspection or call for satellite images in respect of the land and take appropriate decision on the application. If he opt to conduct local inspection, the Rules provides for direct inspection by the RDO and he cannot assign the same to the Junior Superintendent or any subordinate officers. 6. Further, the relevant consideration for inclusion of ``` WPC No.7311/2024 ``` ``` 5 ``` the property as a paddy land or wetland is as to the nature of the property as on the date of coming into force of the Act, 2008. On a perusal of Ext.P8, 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 Revenue Divisional Officer has relied solely upon the site inspection report of the Junior Superintendent to refuse to remove the property from the Data Bank. 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 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 ``` WPC No.7311/2024 ``` ``` 6 ``` 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. 8. Further, it is trite law that, merely because there is waterchal in the land, it cannot be termed as wetland or paddy land in contemplation of Act, 2008. 9. In **Aparna Sasi Menon** v. **Revenue Divisional Officer** [2023 (6) KHC 83], this Court has held that existence of neerchals in a property should never be a prime consideration in deciding whether the land is to be retained in data bank. Instead, the prime consideration should be whether paddy cultivation is possible in the property in question. ## 10. **In Sudheesh v.Revenue Divisional Officer, [2023 (2) KLT 386],** this Court held as follows;. _"Going by the definition in S.2(xii) of "paddy land" in the Act, 2008, to bring in a land within the definition of paddy land, it should be suitable for_ ``` WPC No.7311/2024 ``` ``` 7 ``` _paddy cultivation, but uncultivated and left fallow. Just for the reason that the property is left fallow, the land cannot be brought within the definition of paddy land but the Revenue Divisional Officer should be satisfied that the land is suitable for paddy cultivation and left fallow and therefore only on satisfaction of the said twin conditions that a land could be treated as paddy land coming under the definition of S.2(xii) of the Act, 2008."_ 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 site inspection report of the Junior Superintendent, I find that there is total non-application of mind on the part of the RDO in passing Ext.P8 order. Accordingly, Ext.P8 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 of the petitioner in Form 5 in accordance with law and take a decision in the matter after considering Ext.P5 KSRSEC report and direct site inspection, if necessary, within a period of two ``` WPC No.7311/2024 ``` **==> picture [8 x 9] intentionally omitted <==** months from the date of receipt of a copy of this judgment. The writ petition is disposed of with the above direction. Sd/- **MURALI PURUSHOTHAMAN JUDGE** al/-.27.02.2024. ``` WPC No.7311/2024 ``` ``` 9 ``` ## APPENDIX OF WP(C) 7311/2024 ## PETITIONER EXHIBITS - Exhibit P1 TRUE COPY OF THE BUILDING PERMIT ISSUED TO THE PETITIONER BY THE CHATHAMANGALAM GRAMA PANCHAYAT DATED 3-03-2005 - Exhibit P2 TRUE COPY OF THE APPLICATION SUBMITTED BY THE PETITIONER TO THE 1ST RESPONDENT ON 3- 08-2021 - Exhibit P3 TRUE COPY OF THE COMMUNICATION DATED 22-1 1-2021 THE FROM THE 1ST RESPONDENT TO THE 2ND RESPONDENT - Exhibit P4 TRUE COPY OF THE PHOTOGRAPHS TAKEN BY THE 2ND RESPONDENT AND COMMUNICATED TO THE 1ST RESPONDENT ALONG WITH A REPORT - Exhibit P5 TRUE COPY OF THE REPORT DATED 16-03-2022 OBTAINED FROM THE KERALA STATE REMOTE SENSING & ENVIRONMENT CENTRE, THIRUVANANTHAPURAM - Exhibit P6 TRUE COPY OF THE FILE RELATING TO THE PETITIONER'S CASE MAINTAINED BY THE 1ST RESPONDENT OBTAINED BY THE PETITIONER UNDER THE RTI ACT - Exhibit P7 TRUE COPY OF THE REPORT DATED 5-04- 2022 OF THE 2ND RESPONDENT TO THE 1ST RESPONDENT - Exhibit P8 TRUE COPY OF THE ORDER DATED 18- 06-2023 PASSED BY THE I RESPONDENT REJECTING THE PETITIONER'S APPLICATION - Exhibit P9 TRUE COPY OF THE MEMORANDUM OF APPEAL DATED 1-09-2023 FILED BY THE PETITIONER BEFORE THE DISTRICT COLLECTOR, KOZHIKODE - Exhibit P10 TRUE COPY OF THE ORDER DATED 13.12.2023 PASSED BY THE DISTRICT COLLECTOR KOZHIKODE REJECTING THE PETITIONERS APPEAL