Muhammed Mustaafa Athakka and Shiyas C.H. v. State of Kerala and others

## IN THE HIGH COURT OF KERALA AT ERNAKULAM ## PRESENT ## **THE HONOURABLE MR.JUSTICE MURALI PURUSHOTHAMAN** MONDAY, THE 11[TH] DAY OF MARCH 2024 / 21ST PHALGUNA, 1945 ## WP(C) NO. 9443 OF 2024 ## PETITIONERS: - 1 MUHAMMED MUSTAFA ATHAKKA AGED 41 YEARS - S/O MOHAMMED, ZABEEL PALACE, DHARMADAM P.O., KANNUR DISTRICT, PIN – 670101 - 2 SHIYAS C.H. AGED 39 YEARS - S/O P.K.HASSAN, ZABEEL PALACE, DHARMADAM P.O., KANNUR DISTRICT, PIN – 670101 BY ADVS. V.P.MOHAMMED NIYAZ M.P.MUHAMMAD FAZIL SHEREEF J. AUGNES LOVELY FRANCIS ## RESPONDENTS: - 1 STATE OF KERALA REPRESENTED BY SECRETARY TO GOVERNMENT, DEPARTMENT OF REVENUE, GOVERNMENT SECRETARIAT THIRUVANANTHAPURAM, PIN – 695001 - 2 THE REVENUE DIVISIONAL OFFICER REVENUE DIVISIONAL OFFICE, THALIPARAMPA P.O., KANNUR DISTRICT, PIN – 670141 - 3 THE VILLAGE OFFICER CHEMBILODE VILLAGE, SH38, CHALA EAST P.O., KANNUR DISTRICT, PIN – 670621 - 4 THE AGRICULTURAL OFFICER KRISHIBHAVAN, CHALA EAST P.O., KANNUR DISTRICT, PIN – 670621 ``` WPC No.9443/2024 ``` ``` 2 ``` ## OTHER PRESENT: ## SR.GP.SMT.K.AMMINIKUTTY THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 11.03.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` WPC No.9443/2024 ``` ``` 3 ``` ## **JUDGMENT** 1. The petitioners are the absolute owners and in possession of an extent of 13.72 Ares of land comprised in Sy.Nos.51/110 and 51/136, Block No.252 of Chembilode Village, Kannur Taluk in Kannur District. 2. The petitioners have approached this Court aggrieved by Ext.P3, whereby Form 5 application submitted by them, has been rejected by the 2[nd] respondent, Revenue Divisional Officer. 3. According to the petitioners, the said property will not come within the definition of paddy land or wetland. However, it has been wrongly included in the Data Bank prepared under the Kerala Conservation of Paddy land and Wetland Rules, 2008 (hereinafter referred to as ‘the Rules, 2008’). The ``` WPC No.9443/2024 ``` ``` 4 ``` petitioners therefore filed an application in Form 5 under the provisions of Kerala Conservation of Paddy land and Wetland Act, 2008 (hereinafter referred to as ‘the Act, 2008’) to remove the property from the Data Bank. The Revenue Divisional Officer by Ext.P3 order rejected the application on the ground that, as per the report of the Agricultural Officer, the subject land is lying as fallow paddy land and the removal from Data Bank will adversely affect the cultivation in the nearby land and the environment. 4. The petitioners impugn Ext.P3 order 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. 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, ``` WPC No.9443/2024 ``` ``` 5 ``` 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.P3, it is evident that, without any independent assessment of the nature of 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. 6. This Court has held in the decision in **Arthasasthra Ventures (India) LLP v. State of** ``` WPC No.9443/2024 ``` ``` 6 ``` **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 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.9443/2024 ``` ``` 7 ``` 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 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 the Act, 2008. In **Mather Nagar Residents Association and Another v. District Collector, Ernakulam others** (2020 (2) KLT 192), a Division Bench of this 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_ ``` WPC No.9443/2024 ``` ``` 8 ``` _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.”_ 9. In **Adani Infrastructure & Developers Pvt. Ltd, Mumbai & Others Vs. State of Kerala & Others** [2014 (1) KHC 685], this Court has held that if the land suitable for paddy cultivation is uncultivated and left fallow and if the said land is included as paddy land in the village records and if the property is locked on all four sides with lands which were reclaimed before the coming into force of the Act, such land cannot be said as suitable for ``` WPC No.9443/2024 ``` ``` 9 ``` cultivation and may come outside the definition of paddy land. 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 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.”_ 11. In spite of the categorical declarations by this Court in the decisions cited above, the petitioners’ application has been rejected, solely relying on the report of the Agricultural Officer, who recommended not to remove the land from the data ``` WPC No.9443/2024 ``` ``` 10 ``` bank. None of the parameters for consideration of a Form 5 application has been taken into account while passing the impugned order. 12. Accordingly, I find that Ext.P3 order cannot be sustained and I set aside the same, with a direction to the 2[nd] respondent, the Revenue Divisional Officer to reconsider Ext.P2 application in Form 5 in accordance with law and take a decision after considering the KSRSEC report to be obtained at the expense of the petitioners, and other relevant factors mentioned in Rule 4(4F), within a period of two months from the date of receipt of the report of the KSRSEC. The petitioners 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 petitioners shall produce a copy of the writ petition along with a copy of this judgment before ``` WPC No.9443/2024 ``` ``` 11 ``` the 2[nd] respondent, Revenue Divisional Officer. This writ petition is disposed of with the above directions. Sd/- **MURALI PURUSHOTHAMAN JUDGE** al/-.12.03.2024. ``` WPC No.9443/2024 ``` ``` 12 ``` ## APPENDIX OF WP(C) 9443/2024 ## PETITIONER EXHIBITS - Exhibit P1 TRUE COPY OF THE BASIC TAX RECEIPT NO.KL13021605778/2023 DATED 12-072023 ISSUED TO THE PETITIONER FROM VILLAGE OFFICE, CHEMBILODE WITH RESPECT TO THE PROPERTY FOR THE PERIOD 2023-24 - Exhibit P2 TRUE COPY OF THE APPLICATION IN FORM-5 DATED 31-07-2023 SUBMITTED BY THE PETITIONERS BEFORE THE 2ND RESPONDENT - Exhibit P3 TRUE COPY OF THE ORDER NO.2039/2024 DATED 09-02-2024 PASSED BY THE 2ND RESPONDENT - Exhibit P4 PHOTOGRAPHS OF PETITIONERS PROPERTY Exhibit P5 TRUE COPY OF THE REPORT OF THE LOCAL LEVEL MONITORING COMMITTEE DATED 09-10-2023 WITH RESPECT TO THE PROPERTY OF PETITIONER HAVING AN EXTENT OF 06.07 ARES COMPRISED IN SY. NO. 51/110 IN BLOCK NO.252 OF THE CHEMBILODE VILLAGE, KANNUR TALUK, KANNUR DISTRICT Exhibit TRUE COPY OF THE REPORT OF THE P5(a) LOCAL LEVEL MONITORING COMMITTEE DATED 09-10-2023 WITH RESPECT TO THE PROPERTY OF PETITIONER HAVING AN EXTENT OF 07.65 COMPRISED IN ``` WPC No.9443/2024 ``` ``` 13 ``` SY.NO. 51/36 IN BLOCK NO.252 OF THE CHEMBILODE VILLAGE, KANNUR TALUK, KANNUR DISTRICT Exhibit P6 TRUE COPY OF THE REPORT OF THE 4TH RESPONDENT DATED 08-11-2023