Muhammed Shareef v. Revenue Divisional Officer, Kasaragod at Kanhangad; Village Officer, Hosdurg Village Office Kanhangad; Agricultural Officer, Agriculture Office Kanhangad Hosdurg

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR.JUSTICE MURALI PURUSHOTHAMAN THURSDAY, THE 7[TH] DAY OF MARCH 2024 / 17TH PHALGUNA, 1945 ## WP(C) NO. 9174 OF 2024 ## PETITIONER/S: MUHAMMED SHAREEF AGED 54 YEARS S/O ABDUL RAHMAN SHAREEF MANZIL ATHINAL,MANIKOTH P.O KASARGOD, PIN - 671531 BY ADV M.S.SHAMLA BY ADV. SMT.SHIBA M.SAMUEL ## RESPONDENTS: *[1 THE REVENUE DIVISIONAL OFFICER REVENUE DIVISIONAL OFFICE THAYALANGADI KASARGOD,KERALA, PIN – 671121] * corrected as detailed below 2 THE VILLAGE OFFICER HOSDURG VILLAGE OFFICE KANHANGAD KASARGOD KERALA, PIN - 671315 3 THE AGRICULTURAL OFFICER AGRICULTURE OFFICE KANHANGAD HOSDURG KERALA, PIN - 671315 ## OTHER PRESENT: ## SMT.R.DEVISHREE, GP THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 07.03.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: The name and address of the 1[st] respondent is corrected as “Revenue Divisional Officer, Kasaragod at Kanhangad, Kasargod671315” as per order dated 04.04.2024 in I.A.1/2024 in W.P.(c) No.9174/2024. Sd/- Assistant Registrar ``` WPC No.9174/2024 ``` ``` 2 ``` ## **JUDGMENT** The petitioner has approached this Court aggrieved by Ext.P6 whereby Form 5 application submitted by him has been rejected by the Revenue Divisional Officer. 2. The petitioner is the absolute owner and in possession of an extent of 23 Ares 26 Square meters (57.47 cents) of land comprised in Re-Survey No.29/1 in Hosdurg Village of Hosdurg Taluk, 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, therefore, filed Ext.P4 application in Form 5 of Rule 4(d) of the Kerala Conservation of Paddy Land and Wetland Rules, ``` WPC No.9174/2024 ``` ``` 3 ``` 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.P6 stating that though the Agricultural Officer reported that the subject land is converted land and can be removed from the Data Bank, on examining the photographs produced along with the application is it convinced that the land is converted after 2008 and the coconut trees therein are less than one year old. 4. Heard the learned counsel for the petitioner and the learned Government Pleader. 5. The petitioner has filed this writ petition challenging Ext.P6 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 ``` WPC No.9174/2024 ``` ``` 4 ``` KSRSEC before disposing of the 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. 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.P6, it is evident that, without taking into account the relevant factors mentioned in Rule 4(4F), the Revenue Divisional Officer has relied on the photographs ``` WPC No.9174/2024 ``` ``` 5 ``` of the land to refuse to remove the property from the Data Bank, that too, ignoring the report of the Agricultural Officer. 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 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 ``` WPC No.9174/2024 ``` ``` 6 ``` 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 certain photographs, without a direct inspection of the site or verifying the data bank with KSRSEC report. None of the parameters for consideration of a Form 5 application has been taken into account while passing the impugned order. Accordingly, I find that Ext.P6 order cannot be sustained and I set aside ``` WPC No.9174/2024 ``` ``` 7 ``` the same, with a direction to the 1[st] respondent, the Revenue Divisional Officer to reconsider Ext.P4 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 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 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.9174/2024 ``` ``` 8 ``` ## A PPENDIX OF WP(C) 9174/2024 ## PETITIONER EXHIBITS Exhibit P1 TRUE COPY OF THE SALE DEED NO.1824/2007 DATED 16/05/2007 OF KASARGOD SRO Exhibit P2 TRUE COPY OF THE LAND TAX RECEIPT FOR THE YEAR 2023-2024 DATED 27/04/2023 ISSUED BY THE 2ND RESPONDENT IN FAVOR OF THE PETITIONER Exhibit P3 TRUE COPY OF THE EXTRACT OF PUBLISHED DATA BANK DATED 24/03/2012ISSUED BY THE 3RD RESPONDENT Exhibit P4 TRUE COPY OF THE APPLICATION SUBMITTED BY THE PETITIONER IN FORM NO.5 BEARING NO 1/2022/930069 DATED 10/02/2022 Exhibit P5 TRUE COPY OF THE REPORT SUBMITTED BY THE 3RD RESPONDENT UNDER RTI DATED 30/12/2023 Exhibit P6 TRUE COPY OF THE REJECTION ORDER ISSUED BY THE FIRST RESPONDENT BEARING FILE NO.2168/2023 DATED 27/09/2023