Muneera v. State of Kerala and others

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE MURALI PURUSHOTHAMAN** **MONDAY, THE 5[TH] DAY OF FEBRUARY 2024 / 16TH MAGHA, 1945** **WP(C) NO. 4428 OF 2024** ## **PETITIONER:** **MUNEERA, AGED 45 YEARS W/O.MUHAMMED AARIF, (ASHAR) VALLIYEETTIKARA HOUSE, PUNNAYOORKULAM , CHAVAKKAD TALUK , THRISSUR DISTRICT-679561, REP. BY HER POWER OF ATTORNEY HOLDER, SURESH, AGED 39 YEARS, S/O.CHANDRAN, POOVATHINGAL HOUSE, KAITHACHIRA, MANNARKKAD, PALAKKAD, PIN - 678582** **BY ADVS. K.MOHANAKANNAN D.S.THUSHARA** ## **RESPONDENTS:** - **1 STATE OF KERALA REPRESENTED BY ITS SECRETARY TO GOVERNMENT REVENUE DEPARTMENT, THIRUVANANTHAPURAM, PIN - 695001** - **2 LAND REVENUE COMMISSIONER PUBLIC OFFICE BUILDING, MUSEUM ROAD, OPPOSITE ZOO, VIKHAS BHAVAN P.O, THIRUVANANTHAPURAM, PIN - 695033** - **3 THE DISTRICT COLLECTOR, THRISSUR CIVIL STATION, AYYANTHOLE, THRISSUR, PIN - 680003** **4 REVENUE DIVISIONAL OFFICER FIRST FLOOR, CIVIL STATION, CIVIL LINES ROAD, AYYANTHOLE, THRISSUR, KERALA, PIN - 680003** **5 LOCAL LEVEL MONITORING COMMITTEE REPRESENTED BY ITS CONVENOR/ GRICULTURAL OFFICER, KRISHIBHAVAN, THRISSUR-KUNNAMKULAM ROAD, AKKIKAVU, AKATHIYUR, TRISSUR, PIN - 680519** **WP(C) NO. 4428 OF 2024 : 2 :** - **6 THE AGRICULTURAL OFFICER KRISHIBHAVAN, THRISSUR-KUNNAMKULAM ROAD, AKKIKAVU, AKATHIYUR, TRISSUR, PIN - 680519** - **7 THE TAHSILDAR (LR) THRISSUR TALUK OFFICE, OPP. THRISSUR TOWN HALL, CHEMBUKKAV, THRISSUR, PIN - 680020** - **8 THE VILLAGE OFFICER, KAREEKKAD KUNNAMKULAM, THRISSUR, PIN – 680519 R BY GP SMT.DEVISHREE** - **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR** - **ADMISSION ON 05.02.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C) NO. 4428 OF 2024 : 3 :** ## **JUDGMENT** The petitioner has approached this Court aggrieved by Ext.P7 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 owner in possession of an extent of 14.83 Ares of property in Sy.No.23/P-3 of Block No.4 of Karikkad Village, Kunnamkulam Taluk, Thrissur District, by virtue of Ext.P1 document. 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 **WP(C) NO. 4428 OF 2024 : 4 :** 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 Ext.P5 application in Form 5 under Rule 4(d) of the Kerala Conservation of Paddy Land and Wetland Rules, 2008 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.P7 stating that as per the report of the Agricultural Officer, the LLMC has recommended not to remove the property from the Data Bank as the property is converted after 2008. 4. The petitioner has filed this writ petition challenging Ext.P7 contending _inter alia_ that the **WP(C) NO. 4428 OF 2024 : 5 :** 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 Revenue Divisional Officer should have called for a report from the Kerala State Remote Sensing and Environment Centre, Thiruvananthapuram (for short, 'the KSRSEC') to ascertain the status of the land as on 12.08.2008, the date of coming into force of the Act, 2008. 5. The relevant consideration for inclusion of 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.P7, it is evident that, without any independent assessment of the nature of the property as on the date of coming **WP(C) NO. 4428 OF 2024 : 6 :** into force of the Act, 2008, the Revenue Divisional Officer has relied solely upon the report of the Agricultural Officer and the recommendation of the LLMC to refuse to remove the property from the Data Bank. 6. 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. This Court in **Muraleedharan Nair** v. **Revenue Divisional Officer** [2023 (4) KLT 270] has held that **WP(C) NO. 4428 OF 2024 : 7 :** 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 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 (4) KLT 270] has held that the predominant factor for **WP(C) NO. 4428 OF 2024 : 8 :** determination 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. 7. In spite of the above 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, which recommended not to remove the land from the Data Bank. Accordingly, I find that Ext.P7 order cannot be sustained and I set aside the same, with a direction to the 4[th] respondent, the Revenue Divisional Officer to reconsider Ext.P5 application in accordance with law and take a decision in the matter after obtaining the KSRSEC report at the **WP(C) NO. 4428 OF 2024 : 9 :** expense of the petitioner, 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 writ petition is disposed as above. **Sd/MURALI PURUSHOTHAMAN JUDGE** SB **WP(C) NO. 4428 OF 2024 : 10 :** ## **APPENDIX** ## **PETITIONER EXHIBITS** **Exhibit P1 TRUE COPY OF THE DOCUMENT NO 3196/2011 OF SRO, KUNNAMKULAM** **Exhibit P2 TRUE COPY OF THE POSSESSION CERTIFICATE OF THE PROPERTY DATED 11-01-2023** **Exhibit P3 TRUE COPY OF THE TAX RECEIPT DATED 14-012023** **Exhibit P4 TRUE COPY OF THE RELEVANT PAGE OF THE DATA BANK** **Exhibit P5 TRUE COPY OF THE FORM-5 APPLICATION DATED 14-1-2023 SUBMITTED BEFORE THE 4TH RESPONDENT** **Exhibit P6 TRUE COPY OF THE JUDGMENT DATED 8/1/2024 IN WRIT PETITION(C) NO.624/2024 Exhibit P7 TRUE COPY OF THE ORDER FILE NO.858/2023 DATED 23/4/2023 ISSUED BY THE REVENUE DIVISIONAL OFFICER**