Najiya v. District Collector, Malappuram and others

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE MURALI PURUSHOTHAMAN** **MONDAY, THE 19[TH] DAY OF FEBRUARY 2024 / 30TH MAGHA, 1945** **WP(C) NO. 6209 OF 2024** ## **PETITIONERS:** **NAJIYA, AGED 27 YEARS D/O ABDUL RAHMAN, MADAYIL HOUSE, CHELAKKAD P.O., MALPPURAM, PIN - 676323** **BY ADVS. AMJATHA D.A. SHAKTHI PRAKASH MUHASIN K.M. FARHANA K.H.** ## **RESPONDENTS:** - **1 THE DISTRICT COLLECTOR COLLECTRATE ROAD, UP HILL, MALAPPURAM, PIN - 676505** - **2 THE REVENUE DIVISIONAL OFFICER PERINTHALMANNA REVENUE DIVISIONAL OFFICE, SHORNUR - PERINTHALMANNA ROAD, SHANTI NAGAR, PERINTHALMANNA MALAPPURAM, PIN - 676322** - **3 THE TAHSILDAR PERINTHALMANNA TALUK OFFICE, 1ST FLOOR, SHORNUR- PERINTHALMANNA, TIRURANGADI , MALAPPURAM, PIN - 676322** - **4 THE VILLAGE OFFICER PULAMANTHOLE VILLAGE OFFICE, PERINTHALMANNA ROAD, PULAMANTHOLE, WAYANAD, PIN - 679323** - **5 THE AGRICULTURE OFFICER PULAMANTHOLE KRISHI BHAVAN, PULAMTHOLE, MALAPPURAM, PIN - 679323** - **6 THE DIRECTOR KERALA STATE REMOTE SENSING AND ENVIRONMENT CENTRE,** **WP(C) NO. 6209 OF 2024 : 2 :** **VIKAS BHAVAN, THIRUVANANTHAPURAM, PIN - 695033** ## **OTHER PRESENT:** **SR.GP.SMT.K.AMMINIKUTTY** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 19.02.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C) NO. 6209 OF 2024 : 3 :** ## **JUDGMENT** The petitioner has approached this Court aggrieved by Ext.P3 whereby Form 5 application submitted by her 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 13 Ares and 38.5 square metres of property in Sy.Nos.82/4-1, 26/9-3, 82/2-8 and 26/8-3 of Pulamanthole Village, Perinthalmanna Taluk, Malappuram District. 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 **WP(C) NO. 6209 OF 2024 : 4 :** (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.P2 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.P3 stating that as per the report of the Agricultural Officer, the property is entirely a paddy land and presently it is cultivated with short term crop and was not converted before 2008. 4. The petitioner has filed this writ petition challenging Ext.P3 contending, _inter alia,_ that the same is vitiated by non application of mind and is against the provisions of the Act and the binding **WP(C) NO. 6209 OF 2024 : 5 :** 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 (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 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. On a perusal of Ext.P3, 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 report of the Agricultural Officer to refuse to remove the property from the Data Bank. **WP(C) NO. 6209 OF 2024 : 6 :** 6. This Court has held in the decision 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 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 **WP(C) NO. 6209 OF 2024 : 7 :** 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 v. **Aparna Sasi Menon Revenue Divisional Officer** [2023 (4) KLT 270] this Court has held that the predominant factor for 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 categorical declarations by this Court in the decisions cited above, the **WP(C) NO. 6209 OF 2024 : 8 :** petitioner's application has been rejected, solely relying on the report of the Agricultural Officer, who recommended not to remove the land from the Data Bank. 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 accordance with law and take a decision in the matter after obtaining the KSRSEC report at the expense of the petitioner, within a period of two months from the date of receipt of the report of 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 this writ petition along with **WP(C) NO. 6209 OF 2024 : 9 :** the copy of the judgment before the Revenue Divisional Officer. The writ petition is disposed with the above direction. **Sd/MURALI PURUSHOTHAMAN JUDGE** SB ## **WP(C) NO. 6209 OF 2024 : 10 :** ## **APPENDIX** ## **PETITIONER EXHIBITS** **Exhibit P1 TRUE COPY OF THE TAX RECEIPT DATED 30.08.2022** **Exhibit P2 TRUE COPY OF THE FORM 5 APPLICATION SUBMITTED BY THE PETITIONER DATED 05.11.2022** **Exhibit P3 TRUE COPY OF THE ORDER DATED 17.02.2023 ISSUED BY THE 2ND RESPONDENT** **Exhibit P4 A COPY OF THE PHOTOGRAPHS OF THE PROPERTY OF THE PETITIONER**