Muhammed Nabeel P.K v. State of Kerala and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE VIJU ABRAHAM** **MONDAY, THE 13[TH] DAY OF NOVEMBER 2023 / 22ND KARTHIKA, 1945** **WP(C) NO. 43041 OF 2022** ## **PETITIONER:** MUHAMMED NABEEL P.K AGED 34 YEARS KALATHILTHODY HOUSE (MADHURAGOTTU) PERINGAVU, PUTHUKODE P.O, MALAPPURAM DISTRICT, PIN - 673633 BY ADV T.M.ABDUL LATHEEF ## **RESPONDENTS:** 1 STATE OF KERALA REPRESENTED BY SECRETARY TO GOVERNMENT REVENUE DEPARTMENT SECRETARIAT P.O., THIRUVANANTHAPURAM, PIN - 695001 2 REVENUE DIVISIONAL OFFICER REVENUE DIVISIONAL OFFICE MANANDAVADY P.O., WAYANAD, PIN - 670645 3 AGRICULTURAL OFFICER AGRICULTURAL OFFICE KANIYAMBETTA, MANANDAVADY P.O, WAYANAD, PIN - 670645 4 VILLAGE OFFICER KANIYAMBETTA VILLAGE, VYTHIRI TALUK, WAYANAD, PIN - 673121 ## **OTHER PRESENT:** GP - RIYAL DEVASSY THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 13.11.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C). No. **43041/2022** : 2 : ## **VIJU ABRAHAM, J.** - - - - - - - - - - - - - - - - - - - - - - - - - - **W.P.(C) No.43041of 2022** - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 13[th] day of November, 2023 ## **JUDGMENT** The petitioner has approached this Court aggrieved by Ext.P4 order whereby the Form-5 application submitted by the petitioner has been rejected by the 2[nd] respondent. 2. The petitioner is having 0.0855 hectares of land in Sy. No.206/38 of Kaniyambetta Village which he obtained by virtue of sale deed No.818/1/21 of SRO Panavaram. The petitioner wanted to carry out construction in his property, wherein he was informed that the nature of the property as shown in the revenue records is to be corrected. Thereafter, the petitioner has filed Ext.P2 Form-5 application for removing the property from the data bank. The case of the petitioner is that his property is not cultivated with paddy and in the neighbourhood also, there is no paddy cultivation and arecanut trees are present in the property and the conversion took place prior to the coming into force of the Kerala Conservation of Paddy Land and Wetland Act, 2008(in short 'the Act, 2008'). It also submitted by the petitioner that the 2[nd] respondent has passed an order holding that the period of conversion of the property is not W.P.(C). No. **43041/2022** : 3 : clear as per the report of the 3[rd] respondent Agricultural Officer and rejected the same as per Ext.P4. The petitioner relying on Exts.P5 and P6 photographs contended that the property has been converted long back and there are buildings in the neighbouring property also. The petitioner further submits that the data bank, which form part of Ext.P9, would reveal that in the property comprised in Sy.No.206/3[Re. Sy. No.206/38] having total extent of 42.40 Ares, 20.24 Ares have been treated as 'Nilam', whereas 22.16 Ares have been treated as 'converted', which has 2 houses, a church and arecanut trees, aged 10 years. A specific question was put to the Agricultural Officer through the Right to Information Act and a reply was given as per Ext.P8, wherein it is admitted that the KSRSEC report has not been obtained before submitting the report to the Revenue Divisional Officer. Further, the files leading to the issuance of Ext.P4 order, which is produced as Ext.P9 would also reveal that there are no water channels in the property and the property is lying as fallow and it cannot be conclusively said that in which category the property is to be included in the data bank. It is in this background that the petitioner would contend that Ext.P4 has been issued solely based on the report of the Agricultural Officer and which is not even conclusive. W.P.(C). No. **43041/2022** : 4 : 3. Heard the learned Government Pleader also. 4. After going through the records, the following aspects are discernible. There is no conclusive finding entered into by the 2[nd] respondent as to the nature of the land as on the date of coming into force of the Act, 2008. Secondly, even in the data bank, which form part of Ext.P9 document, certain portion of the property having an extent of 20.24 Ares is shown as 'Nilam' and 22.16 Ares is shown as 'converted' and as per the report of the Agricultural Officer also, it cannot be conclusively said that in which category the property is to be included in the data bank. Yet another aspect reported by the Agricultural Officer is that this property is lying adjacent to the road and if irrigation facility is made available, the property on the backside of the property in question could be used for paddy cultivation. This also would reveal that the Agricultural Officer was not gone through the aspects whether the property is fit for paddy cultivation. ## 5. This Court in _**Salim C.K. and Another v. State of Kerala**_ _**and Others[2017 (1) KHC 394]**_ has held that the Data Bank that was contemplated as per the provisions of the Act was to contain details only of cultivable paddy land and wetland within the area of W.P.(C). No. **43041/2022** : 5 : jurisdiction of LLMC concerned. Further in _**Lalu P.S. v. State of Kerala[2020 (5) KHC 490]**_ has held that the data bank to be prepared under the Act is the data bank of the cultivable paddy land existing as on the date of the coming into force of the Rules, i.e., 24.12.2008. In _**Joy v. Revenue Divisional Officer/Sub Collector[2021 (1) KLT 433]**_ it was held that it is the character and fitness of the land as available on 12.08.2008, that matters, to include or exclude a land from the data bank. This court in _**Arthasasthra Ventures (India) LLP v. State of Kerala[2022**_ _**(4) KLT OnLine 1222]**_ has held that the most relevant aspect while considering Form-5 application is whether the land in question was a paddy land or a wetland when the Act, 2008 came into force and whether the land is fit for paddy cultivation and if the Revenue Divisional Officer was not satisfied with the available materials, ought to have resorted to scientific data including satellite photographs obtained from KSRSEC. 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 W.P.(C). No. **43041/2022** : 6 : 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. Further, this Court in _**Aparna Sasi Menon v. Revenue Divisional Officer[2023 (5) KLT 432]**_ 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. It is also held that merely because the land was once cultivated with paddy and it is described as paddy land in revenue records, it cannot be said that the land is suitable for paddy cultivation, when there are no irrigation and other requisite facilities. The petitioner also relies on the judgment in **J** _**essy**_ ## _**Abraham v. Land Revenue Commissioner, Thiruvananthapuram**_ _**[2021 (6) KHC 316]**_ wherein this Court has held that the Act 2008 does not provide for inclusion of all land in the revenue records as paddy land in the data bank and that only the cultivable paddy lands as on the date of coming into force of the Act, 2008, W.P.(C). No. **43041/2022** : 7 : which are liable to be included as paddy land in the data bank. This Court in _**Sudheesh v. Revenue Divisional Officer [2023 (2) KLT 386]**_ held that just for a reason that the property is lying as fallow, it cannot be brought into the definition of paddy land. 6. A perusal of Ext.P4 would reveal that in spite of these categorical declaration by this Court in a catena of judgments as cited above, the application submitted by the petitioner has been rejected solely relying on the decision of the Agricultural Officer, not to remove the land from the data bank. 5. In view of the above, Ext.P4 is set aside with a consequential direction to the 2[nd] respondent to reconsider the Form-5 application submitted by the petitioner. If the petitioner submits an application to the Agricultural Officer concerned seeking to obtain KSRSEC Report remitting the prescribed fee within a period of two weeks, the Revenue Divisional Officer shall pass order afresh in the Form-5 application within a further period of three months from the date of receipt of the KSRSEC Report and take a final decision in the matter after considering the report as well as the relevant factors stipulated in Rule 4(4f) of the Kerala Conservation of Paddy Land and Wetland Rules, 2008 and after conducting a site inspection. Petitioner will be free to file argument W.P.(C). No. **43041/2022** : 8 : notes incorporating copies of the judgments relied on by him to substantiate his contentions and the 2[nd] respondent RDO while reconsidering the matter as directed above, shall advert to the findings by this Court in those judgments cited (supra) and also the contentions of the petitioner in the argument notes submitted by him. Since there are factual aspects to be clarified, especially, when the report of the Agricultural Officer itself is not conclusive, the petitioner should be given an opportunity of being heard. Further, the 2[nd] respondent shall also bear in mind that there should be conclusive proof as to the availability of irrigation facility in the property and the finding of the Agricultural Officer that if irrigation facility is made available, the property on the backside of the property in question could be cultivated, cannot be a reason for rejecting the application. The writ petition is disposed of as above. Sd/- **VIJU ABRAHAM JUDGE** sm/ W.P.(C). No. **43041/2022** : 9 : ## **APPENDIX OF WP(C) 43041/2022** PETITIONER EXHIBITS Exhibit P1 TRUE COPY OF THE LAND TAX RECEIPT DATED 19/4/2021 Exhibit P2 TRUE COPY OF THE FORM 5 APPLICATION SUBMITTED BY THE PETITIONER DATED 19/4/2021 Exhibit P3 TRUE COPY OF THE SKETCH OF THE PETITIONERS PROPERTY DATED 9/11/2020 Exhibit P4 TRUE COPY OF THE ORDER ISSUED BY 2ND RESPONDENT DATED 28/2/2020 TO THE PETITIONER Exhibit P5 TRUE COPY OF THE PHOTOGRAPH SHOWING THE NATURE OF THE PROPERTY THE PETITIONER Exhibit P6 TRUE COPY OF THE PHOTOGRAPH SHOWING THE NATURE OF THE PROPERTY THE PETITIONER RESPONDENT EXHIBITS Exhibit R2(a) True copy of the report submitted by the agricultural officer PETITIONER EXHIBITS Exhibit P7 True copy of the application under the right to information act dated 3/3/2023 Exhibit P8 True copy of the reply dated 25/3/2023 Exhibit P9 True copy of the covering letter dated 7/3/2023 with the documents