Sayyid Alavi Pookkooya Thangal v. The District Collector Malappuram and Sub Collector Perinthalmanna

# **`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. 42838 OF 2023`** ## **`PETITIONER:`** ``` SAYYID ALAVI POOKKOYA THANGAL, AGED 61 YEARS PRESIDENT KERALA MUSLIM JAMA ATH, PARAVOOR UNIT COMMITTEE PALLIKKANDY CHERUKAVU PULIKKAL, PIN - 673637 ``` ``` BY ADVS. ANISH ANTONY ANATHAZHATH SUNILKUMAR M. ``` ## **`RESPONDENTS:`** - **`1 THE DISTRICT COLLECTOR MALAPPURAM CIVIL STATION ROAD UP HILL MALAPPURAM, PIN - 676505`** - **`2 SUB COLLECTOR PERINTHALMANNA OFFICE OF SUB COLLECTOR MINI CIVIL STATION PERINTHALMANNA, PIN - 679322`** ## **`BY SMT.G.SHEEBA, GP`** ``` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 23.02.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` 2 W.P.(C) No.42838 of 2023 ## **`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]. ``` ``` 2. Petitioner is the owner in possession of 5.46 Ares of land comprised in Re.Sy.No.141/14-1 in Block No.4 of Cherukavu Village, Kondotty Taluk, Kozhikode District. ``` ``` 3. According to the petitioner, the aforesaid property was converted much prior to 2008 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 property is wrongly included in the Data Bank. The petitioner filed ``` 3 W.P.(C) No.42838 of 2023 ``` 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 on examining the report of the Agricultural Officer it is convinced that the subject land was not converted before 2008 and is not eligible to 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 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 ``` W.P.(C) No.42838 of 2023 4 ``` 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 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 ``` W.P.(C) No.42838 of 2023 5 ``` report of the Agricultural 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 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 ``` W.P.(C) No.42838 of 2023 6 ``` 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 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 ``` W.P.(C) No.42838 of 2023 7 ``` 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, 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 and other relevant factors mentioned in Rule 4(4F) 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 ``` W.P.(C) No.42838 of 2023 8 ``` 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 compliance. ``` ``` The writ petition is disposed of with the above directions. ``` ``` Sd/- ``` ``` MURALI PURUSHOTHAMAN JUDGE ``` ``` sp/15/03/2024 ``` 9 W.P.(C) No.42838 of 2023 ## **`APPENDIX`** ## **`PETITIONER'S EXHIBITS:-`** ``` Exhibit P1A TRUE COPY OF SALE DEED DATED 20.04.2018 Exhibit P2A TRUE COPY OF THE APPLICATION DATED 03.03.2022 SUBMITTED BY THE PETITIONER Exhibit P3A TRUE COPY OF THE ORDER DATED 16.02.2023 BY THE 2ND RESPONDENT ```