Riyas A. v. State of Kerala and others

## IN THE HIGH COURT OF KERALA AT ERNAKULAM ## PRESENT ## THE HONOURABLE MR.JUSTICE MURALI PURUSHOTHAMAN TUESDAY, THE 27[TH] DAY OF FEBRUARY 2024 / 8TH PHALGUNA, 1945 ## WP(C) NO. 4478 OF 2024 ## PETITIONER: RIYAS.A., AGED 42 YEARS S/O.ABDUL RAHMAN.S (LATE),AYANIMOODU HOUSE, MANACADU VADAKKEVILA POST,KOLLAM DISTRICT, PIN – 691 010. BY ADV AVANEESH KOYIKKARA ## RESPONDENTS: - 1 STATE OF KERALA, REPRESENTED BY ITS SECRETARY,REVENUE DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM, \ PIN – 695 001. - 2 DISTRICT COLLECTOR, KOLLAM, COLLECTORATE, CIVIL STATION, KAANKATHU MUKKU,KOLLAM DISTRICT, PIN – 691 013. - 3 REVENUE DIVISIONAL OFFICER, REVENUE DIVISIONAL OFFICE, KOLLAM,VIDYA NAGAR, KOLLAM, PIN – 691 013. - 4 KERALA STATE REMOTE SENSING AND ENVIRONMENT CENTER,1ST FLOOR, VIKAS BHAVAN, NEAR LEGISLATIVE ASSEMBLY, UNIVERSITY OF KERALA SENATE HOUSE CAMPUS, PMG, THIRUVANANTHAPURAM DISTRICT,REPRESENTED BY ITS DIRECTOR, PIN – 695 033. W. P.(C) No.4478 of 2024 : 2 : 5 LOCAL LEVEL MONITORING COMMITTEE, (REPRESENTED BY ITS CONVENER AGRICULTURAL OFFICER) ,KRISHI BHAVAN, VADAKKEVILA, KILIKOLLOOR.P.O., KOLLAM, PIN – 691 004. - 6 AGRICULTURAL OFFICER, KRISHI BHAVAN, VADAKKEVILA, KILIKOLLOOR.P.O., KOLLAM, PIN – 691 004. BY ADV. SMT.G.SHEEBA, GOVERNMENT PLEADER THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 27.02.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W. P.(C) No.4478 of 2024 : 3 : ## JUDGMENT Petitioner has approached this Court aggrieved by Exts.P4 and P5 whereby Form 5 applications submitted by him has been rejected by the Revenue Divisional Officer relying on the report of the Agricultural Officer and Local Level Monitoring Committee. 2. Petitioner is the absolute owner and in possession of 7.66 Ares & 29.14 Ares of land comprised in Survey Nos.562/6 and 562/6-2 of Vadakkevila Village, Kollam Taluk in Kollam District. 3. According to the petitioner, the aforesaid properties 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 (hereinafter referred to as 'Act, 2008'). However, it is W. P.(C) No.4478 of 2024 : 4 : stated that, the properties are wrongly included in the Data Bank. The petitioner filed Exts.P4 and P5 applications 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 properties from the Data Bank. The same has been rejected by the Revenue Divisional Officer vide Ext.P7 stating that the Agricultural Officer has reported that, on inspection the land is seen as wetland and if the land is converted, the same will adversely affect the water flow in the surrounding paddy fields. 4. The petitioner has filed this writ petition challenging Ext.P7 contending, inter alia, that the same is vitiated by non application of mind and is W. P.(C) No.4478 of 2024 : 5 : 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 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. 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, 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 W. P.(C) No.4478 of 2024 : 6 : 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.P7, 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 upon the report of the Agricultural Officer to refuse to remove the property from the Data Bank. The petitioner states that, Ext.P10 KSRSEC report would show that the land was not a paddy land as on 2008. W. P.(C) No.4478 of 2024 : 7 : 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 LIMC has decided not to remove the land from Data Bank. The Revenue Divisional Officer, W. P.(C) No.4478 of 2024 : 8 : 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 (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 W. P.(C) No.4478 of 2024 : 9 : 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.P7 order cannot be sustained and I set aside the same, with a direction to the 3[rd] respondent, the Revenue Divisional Officer to reconsider Exts.P4 and P5 applications in Form 5 in accordance with law and take a decision in the matter on the basis of Ext.P10 KSRSEC report and the observation of this Court and the binding precedents within a period of two months from the date of receipt of a copy of this judgment. The petitioner shall produce a copy of the writ petition along with the copy of the judgment before the Revenue W. P.(C) No.4478 of 2024 : 10 : Divisional Officer. The writ petition is disposed of with the above directions. Sd/- MURALI PURUSHOTHAMAN JUDGE SRJ W. P.(C) No.4478 of 2024 : 11 : ## APPENDIX OF WP(C) 4478/2024 ## PETITIONER’S EXHIBITS - Exhibit P1 THE COPY OF THE TAX RECEIPT ISSUED BY VADAKKEVILA VILLAGE OFFICE DATED 13.09.2022 WITH RESPECT TO SURVEY NO.562/6. - Exhibit P2 THE COPY OF THE TAX RECEIPT ISSUED BY VADAKKEVILA VILLAGE OFFICE DATED 13.09.2022 WITH RESPECT TO SURVEY NO.562/6-2. - Exhibit P3 A COPY OF THE RELEVANT PAGES OF DATA BANK PUBLISHED IN GAZETTE DATED 24.03.2012. - Exhibit P4 A COPY OF THE FORM.5 APPLICATION SUBMITTED BY THE PETITIONER BEFORE THE 3RD RESPONDENT DATED 24.02.2023 WITH RESPECT TO 7.66 ARES IN SURVEY NO.562/6. - Exhibit P5 A COPY OF THE FORM.5 APPLICATION SUBMITTED BY THE PETITIONER BEFORE THE 3RD RESPONDENT DATED 24.02.2023 WITH RESPECT TO 29.14 ARES IN NO.562/6-2. - Exhibit P6 THE TRUE COPY OF THE FILE NO.2982/2023 DATED 21.06.2023 ISSUED BY THE 3RD RESPONDENT WITH RESPECT TO 7.66 ARES IN SURVEY NO.562/6. - Exhibit P7 THE TRUE COPY OF THE FILE NO.2984/2023 DATED 15.06.2023 ISSUED BY THE 3RD RESPONDENT WITH RESPECT TO 29.14 ARES IN NO.562/6-2. - Exhibit P8 A COPY OF THE REPORT FILE NO. VDK 60/23-24 ISSUED BY THE AGRICULTURE OFFICER DATED 25.08.2023. W. P.(C) No.4478 of 2024 : 12 : Exhibit P9 A COPY OF THE BUILDING AGE CERTIFICATE ISSUED BY THE KOLLAM CORPORATION DATED 22.10.2022. - Exhibit P10 A COPY OF THE KSREC REPORT DATED 05.07.2021. Exhibit P11 TRUE COPY OF THE QUESTIONNAIRE DATED 16.10.2023 AS PER RIGHT TO INFORMATION ACT SUBMITTED BY THE PETITIONER BEFORE THE STATE PUBLIC INFORMATION OFFICER IN THE OFFICE OF THE 6TH RESPONDENT. - Exhibit P12 TRUE COPY OF THE LETTER NO. VDK 09(1)/202324, DATED 16.11.2023 BY PUBLIC INFORMATION OFFICER, IN THE OFFICE OF THE 5TH RESPONDENT.