SaifunNisa v. District Collector, Kozhikode and Revenue Divisional Officer, Kozhikode

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR.JUSTICE MURALI PURUSHOTHAMAN`** ``` FRIDAY, THE 23[RD] DAY OF FEBRUARY 2024 / 4TH PHALGUNA, 1945 ``` ## **`WP(C) NO.42874 OF 2023`** ## **`PETITIONER:`** ``` SAIFUNNISA AGED 43 YEARS ``` ``` D/O MOIDEENKOYA HAJI, VAYAPURATH, MEETTAL, MAYANAD P.O., KOZHIKODE, PIN - 673008 ``` ``` BY ADVS. ANISH ANTONY ANATHAZHATH SUNILKUMAR M. ``` ## **`RESPONDENTS:`** - **`1 THE DISTRICT COLLECTOR KOZHIKODE CIVIL STATION KOZHIKODE, PIN - 673020`** - **`2 THE REVENUE DIVISIONAL OFFICER KOZHIKODE CIVIL STATION KOZHIKODE, PIN - 673020`** ``` BY SMT.G.SHEEBA, G.P ``` ``` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 23.02.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` W.P.(C) No.42874 of 2023 2 ## **`JUDGMENT`** ``` Petitioner has approached this Court aggrieved by Ext.P3 order, whereby Ext.P2 Form 5 application submitted by her has been rejected by the 2[nd] respondent/Revenue Divisional Officer [RDO] solely relying on the report of the Village Officer. ``` ``` 2. Petitioner is the owner in possession of 1.42 Ares of land comprised in Re.Sy.No.181/2B (181/35) in Block No.1 of Chelavur Village, Kozhikode Taluk, Kozhikode District. ``` ``` 3. According to the petitioner, the aforesaid property was converted much prior to 2008 and is a garden land and will not come within the ambit of paddy land or wetland as defined under the Kerala Conservation of Paddy Land and Wetland Act, 2008 (for brevity, ‘the Act, 2008’). However, the ``` W.P.(C) No.42874 of 2023 3 ``` property is wrongly included in the Data Bank. The petitioner filed Ext.P2 application in Form 5 of Rule 4(d) of the Kerala Conservation of Paddy Land and Wetland Rules, 2008 [for brevity, ‘the Rules, 2008’] before the RDO to remove the said land from the Data Bank. The same has been rejected by the RDO vide Ext.P3 order stating that the Village Officer has reported that in the subject land, which is marshy, there are no buildings, but three coconut trees which are 30 years old, are present and the property is not converted before 2008 and any conversion will have negative impact on agriculture and environment in the locality and need not be removed from the Data Bank. ``` ``` 4. The petitioner has filed this writ petition challenging Ext.P3 contending,inter alia, that the same is vitiated by non application of mind ``` W.P.(C) No.42874 of 2023 4 ``` and is against the provisions of the Act, 2008 and the binding precedents of this Court. ``` ``` 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. 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 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 ``` W.P.(C) No.42874 of 2023 5 ``` 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 RDO has relied solely upon the report of the Village Officer to refuse to remove the property from the Data Bank. ``` ``` 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 as 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 ``` W.P.(C) No.42874 of 2023 6 ``` 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 (6) KHC 83], this Court has held that the predominant factor for determination while considering the Form-5 ``` W.P.(C) No.42874 of 2023 7 ``` 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. Further, it is trite law that merely for the reason that the land is marshy, the same cannot be included as wetland or paddy land. This Court, inJessy Abraham v. Land Revenue Commissioner, Thiruvananthapuram [2021 (6) KHC 316],has held that merely for the reason that the land is lying low and is waterlogged, the same cannot be included as paddy land in the Data Bank. ``` ``` 8. InMather 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 ``` W.P.(C) No.42874 of 2023 8 ``` should have the characteristic features and requirement as is provided under the Act, 2008. It is clear from the report submitted by the Sub Collector before the Apex Court as well as report of KSREC, 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 KSREC 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." ``` ``` In spite of the categorical declarations by this Court in the decisions cited above, the petitioner’s application has been rejected, solely ``` W.P.(C) No.42874 of 2023 9 ``` relying on the report of the Village 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 RDO, to reconsider Ext.P2 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 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 the judgment before the 2[nd]respondent for due ``` W.P.(C) No.42874 of 2023 10 ``` compliance. ``` ``` The writ petition is disposed of with the above directions. ``` ``` Sd/- ``` ``` MURALI PURUSHOTHAMAN JUDGE ``` ``` sp/15/03/2024 ``` W.P.(C) No.42874 of 2023 11 ## **`APPENDIX`** ## **`PETITIONER'S EXHIBITS:-`** ``` Exhibit P1A TRUE COPY OF SETTLEMENT DEED DATED 18.06.2005 Exhibit P2A TRUE COPY OF THE APPLICATION DATED 24.05.2022 SUBMITTED BY THE PETITIONER Exhibit P3A TRUE COPY OF THE ORDER DATED 06.12.2022 BY THE 2ND RESPONDENT ```