Naseer V.P. v. The District Collector, Kozhikode; The Sub Collector, Kozhikode

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR.JUSTICE MURALI PURUSHOTHAMAN`** ``` MONDAY, THE 18[TH] DAY OF MARCH 2024 / 28TH PHALGUNA, 1945 ``` ``` WP(C) NO. 41993 OF 2023 ``` ## **`PETITIONER:`** ``` NASEER V.P. AGED 48 YEARS S/O. MOIDEEN V.P HOUSE NAMPALATH THAZHEVAYAL, NADUVATTOM, NORTH BEYPORE KOZHIKODE, PIN – 673 015. ``` ``` BY ADVS. ANISH ANTONY ANATHAZHATH SUNILKUMAR M. ``` ## **`RESPONDENTS:`** - **`1 THE DISTRICT COLLECTOR KOZHIKODE CIVIL STATION P.O, KOZHIKODE, PIN – 673 020.`** - **`2 THE SUB COLLECTOR KOZHIKODE CIVIL STATION P.O, KOZHIKODE, PIN – 673 020.`** ## **`SR.GP. - SRI.E.G.GORDEN`** ``` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 18.03.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` WP(C).No.41993 OF 2023 ``` ``` 2 ``` ## **`JUDGMENT`** The petitioner has approached this Court aggrieved by Ext.P3 order whereby Form 5 application submitted by him has been rejected by the Revenue Divisional Officer. 2. The petitioner is the owner in possession of an extent of 4.50 Cents of land comprised in Sy. No.193/1, Block No.2 of Beypore Village, Kozhikode Taluk in Kozhikode District. 3. According to the petitioner, the aforesaid property will not come within the definition of paddy land or wet land. However, it has been wrongly included in the Data Bank prepared under the Kerala Conservation of Paddy land and Wetland Rules, 2008 (for short, ‘the Rules’) as paddy land. It is contended that adjacent properties have been ``` WP(C).No.41993 OF 2023 ``` ``` 3 ``` removed from the Data Bank. The petitioner, therefore, filed Ext.P2 application in Form 5 under the provisions of the 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, rejected the application stating that as per the report of the Agricultural Officer there is a house in the subject land which is less than ten years old, and two coconut trees less than ten years old and as per the report of the Agricultural Officer and satellite picture, the land is not converted before 2008 and the LLMC has recommended not to remove the property from the Data Bank. 4. The petitioner impugns Ext.P3 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. ``` WP(C).No.41993 OF 2023 ``` ``` 4 ``` 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 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.P4, it is evident that, without any independent assessment of the nature of property as on the date of coming into force of the Act, 2008, the Revenue Divisional Officer has solely relied ``` WP(C).No.41993 OF 2023 ``` ``` 5 ``` upon the report of the Agricultural Officer to refuse to remove the property from the Data Bank. 6. This Court had 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, 2008 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 the Data Bank. The Revenue Divisional Officer being the competent authority, ``` WP(C).No.41993 OF 2023 ``` ## **`6`** has to independently assess the status of the land and come to a conclusion that removal of the land from the 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. 7. 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 Act, 2008. In **Aparna Sasi Menon v. Revenue Divisional Officer** [2023 (6) KHC 83], this Court has held that the predominant factor for consideration while considering Form 5 application should be whether the land which is sought to be excluded from the Data Bank is one where paddy ``` WP(C).No.41993 OF 2023 ``` ``` 7 ``` ## cultivation is possible and feasible. 8. In spite of the 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, 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, to reconsider Ext.P2 application of the petitioner in Form 5 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 the writ petition along with a copy of this judgment ``` WP(C).No.41993 OF 2023 ``` ``` 8 ``` before the 2[nd] respondent for compliance. The writ petition is disposed of with the above directions. Sd/- ``` MURALI PURUSHOTHAMAN JUDGE ``` SPR ``` WP(C).No.41993 OF 2023 ``` ``` 9 ``` ## **`APPENDIX`** ## **`PETITIONER’S EXHIBITS:-`** ``` EXHIBIT P1A TRUE COPY OF SALE DEED DATED 08.03.2012. EXHIBIT P2A TRUE COPY OF THE APPLICATION DATED 16.02.2021 SUBMITTED BY THE PETITIONER. EXHIBIT P3A TRUE COPY OF THE ORDER DATED 22.04.2023 BY THE 2ND RESPONDENT. EXHIBIT P4A TRUE COPY OF AGRICULTURAL OFFICERS CERTIFICATE DATED 02.11.2018. ``` ``` RESPONDENTS EXHIBITS: NIL. ```