Pushpavally P v. District Collector, Kozhikode & Others

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT** # **THE HONOURABLE MR.JUSTICE MURALI PURUSHOTHAMAN WEDNESDAY, THE 20[TH] DAY OF MARCH 2024 / 30TH** # **PHALGUNA, 1945** # **WP(C) NO. 11014 OF 2024** ## **PETITIONER/S:** **PUSHPAVALLY. P AGED 70 YEARS** **D/O. PARU AMMA, SREENIKETH, CHERUVATH HOUSE, NEAR KAMBILIPARAMBU UP SCHOOL, OLAVANNA, OLAVANNA P.O, KOZHIKODE DISTRICT, PIN - 673019** **BY ADV BINIYAMIN K.S.** ## **RESPONDENTS:** **1 THE DISTRICT COLLECTOR CIVIL STATION KOZHIKODE, WAYANAD ROAD, ERANHIPPALAM, KOZHIKODE DISTRICT, PIN – 673020** - **2 THE REVENUE DIVISIONAL OFFICER KOZHIKODE REVENUE DIVISIONAL OFFICE, CIVIL STATION KOZHIKODE, WAYANAD ROAD, ERANHIPPALAM, KOZHIKODE DISTRICT, PIN – 673020** - **3 THE TAHSILDAR** **KOZHIKODE TALUK OFFICE, CIVIL STATION KOZHIKODE, WAYANAD ROAD, ERANHIPPALAM, KOZHIKODE DISTRICT, PIN – 673020** - **4 THE VILLAGE OFFICER PANTHEERANKAVU VILLAGE OFFICE, PANTHEERANKAVU, KOZHIKODE DISTRICT, PIN -** ``` WPC No.11014 /2024 ``` ``` 2 ``` **673019** ## **5 THE AGRICULTURAL OFFICER OLAVANNA KRISHI BHAVAN, GURUVAYOORAPPAN COLLAGE, OLAVANNA, KOZHIKODE DISTRICT, PIN - 673014** ## **OTHER PRESENT:** ## **SMT.R.DEVI SHRI, GP** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 20.03.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ``` WPC No.11014 /2024 ``` ``` 3 ``` ## **JUDGMENT** The petitioner has approached this Court aggrieved by Ext.P6 whereby Form 5 application submitted by her has been rejected by the Revenue Divisional Officer. 2. The petitioner is the absolute owner and in possession of a total extent of 10 Ares 92.64 Sq. Meter of land comprised in Survey No.9/14 in Pantheerukavu village, Kozhikode Taluk, Kozhikode District. 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, ``` WPC No.11014 /2024 ``` ``` 4 ``` the property is wrongly included in the Data Bank. The petitioner, therefore, filed Ext.P3 application in Form 5 of Rule 4(d) of the Kerala Conservation of Paddy Land and Wetland Rules, 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 as per the report of the Village Officer, there are coconut trees in the subject land and is water logged and on analysing the satellite pictures, it is convinced that the property is not converted before 2008 and conversion will affect the environment. 4. Heard the learned counsel for the petitioner and the learned Government Pleader. 5. The petitioner has filed this writ petition ``` WPC No.11014 /2024 ``` ``` 5 ``` 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 ought not have relied on the satellite pictures of agency other than KSRSEC, the nodal agency of the State and should have called for a report from the KSRSEC 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 ``` WPC No.11014 /2024 ``` ``` 6 ``` 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 any independent assessment of the nature of property as on the date coming into force of the Act, 2008, the Revenue Divisional Officer has relied on the report of the Village Officer and satellite pictures not obtained from KSRSEC, the nodal agency of Government. ``` WPC No.11014 /2024 ``` ``` 7 ``` 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 ``` WPC No.11014 /2024 ``` ``` 8 ``` 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 (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. 7. This Court in **Jessy Abraham v. Land Revenue Commissioner, Thiruvananthapuram** **[2021 (6) KHC 316]** has held that merely for the ``` WPC No.11014 /2024 ``` ``` 9 ``` reason that the land is lying low and is waterlogged, the same cannot be included as paddy land in the data bank. 7. In **Mather Nagar Residents Association and Another v. District Collector, Ernakulam and others** (2020 (2) KLT 192), a Division Bench of this Court held as follows:- “22. Going by the definition of wetland, we are of the view that, in order to treat a particular land as wetland, it should have the characteristic features and requirement as is provided under Act, 2008. It is clear from the report submitted by the Sub Collector before the Apex Court as well as report of KSRSEC, the nodal agency of State Government, that the properties in question is a fallow land. Fallow land is never treated as wetland in accordance with the provisions of Act, 2008. It is also significant to note that from the definition of wetland under Act, 2008, paddy land and rivers are excluded. The report submitted by the KSRSEC is not disputed by the Residents Association. 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.” ``` WPC No.11014 /2024 ``` ``` 10 ``` 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 Village Officer who recommended not to remove the land from the data bank. Accordingly, I find that Ext.P6 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.P3 application in Form 5 in accordance with law and take a decision in the matter 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 ``` WPC No.11014 /2024 ``` ``` 11 ``` 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.11014 /2024 ``` ``` 12 ``` ## **APPENDIX OF WP(C) 11014/2024** **PETITIONER EXHIBITS Exhibit-P1** **TRUE COPY OF THE TAX RECEIPT BEARING NO. KL11013904031/2021 FOR THE PERIOD OF 2021-2022 DATED 14.07.2021** ## **Exhibit-P2** - **TRUE COPY OF THE RELEVANT EXTRACT OF THE PUBLISHED DRAFT DATA BANK OF OLAVANNA GRAMA PANCHAYATH TRUE COPY OF THE FORM 5 APPLICATION SUBMITTED BY THE PETITIONER BEFORE THE 2ND RESPONDENT DATED 21.04.2022** - **Exhibit-P3** - **Exhibit-P4 TRUE COPY OF THE RECEIPT BEARING NO. KL11013903061/2022 DATED 2104-2022 FOR EVIDENCING FORM 5 APPLICATION** - **Exhibit-P5 TRUE COPY OF THE JUDGMENT DATED 24.06.2022 IN WP(C) NO. 20601/2022 ISSUED BY THIS HON'BLE COURT** ## **Exhibit-P6** - **TRUE COPY OF THE ORDER DATED 28-122022 BEARING FILE NO.931/2022 ISSUED BY THE 2ND RESPONDENT TO THE PETITIONER** - **Exhibit-P7 TRUE COPY OF THE PHOTOGRAPHS OF THE SUBJECT PROPERTY**