Sayyid Umarali Shihab Thangal v. The Sub Collector, Tirur & Others

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR.JUSTICE MURALI PURUSHOTHAMAN`** ``` MONDAY, THE 26[TH] DAY OF FEBRUARY 2024 / 7TH PHALGUNA, 1945 WP(C) NO. 6540 OF 2024 ``` ## **`PETITIONER:`** ``` SAYYID UMARALI SHIHAB THANGAL AGED 41 YEARS ``` ``` S/O. SAYYID KUNHIKKAYATHANGAL, MANNARAKKAL HOUSE,ATHRUSSERY P.O., PONMUNDAM (VIA), MALAPPURAM DISTRICT, PIN – 676 106. ``` ``` BY ADV C.M.MOHAMMED IQUABAL ``` ## **`RESPONDENTS:`** - **`1 THE SUB COLLECTOR, TIRUR, REVENUE DIVISIONAL OFFICE, TIRUR P.O., MALAPPURAM DISTRICT, PIN – 676 101.`** - **`2 THE AGRICULTURAL OFFICER KRISHI BHAVAN, PONMUNDAM, PONMUNDAMP.O., MALAPPURAM DISTRICT, PIN – 676 106.`** - **`3 THE TAHSILDAR, TIRUR TIRUR TALUK OFFICE, TIRUR P.O., MALAPPURAM DISTRICT, PIN – 676 101.`** - **`4 THE VILLAGE OFFICER PONMUNDAMVILLAGE OFFICE, PONMUNDAM P.O., MALAPPURAM DISTRICT, PIN – 676 106.`** - **`5 LOCAL LEVEL MONITORING COMMITTEE REPRESENTED BY ITS CONVENER, PONMUNDAM KRISHI BHAVAN, PONMUNDAM P.O., MALAPPURAM DISTRICT, PIN – 676 106.`** ## **`BY ADV. SMT.R.DEVI SHRI, GOVERNMENT PLEADER`** THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 26.02.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` WP(C) NO. 6540 OF 2024 ``` 2 ## JUDGMENT The petitioner has approached this Court aggrieved by Ext.P7 whereby Form No.5 application submitted by him has been rejected by the Revenue Divisional Officer solely relying on the report of the Agricultural Officer. 2. Petitioner is the absolute owner and in possession of 5.066 Ares (12.5 Cents) of land in Survey No.17/2-13 of Ponmudam Village, Tirur Taluk in Malappuram District. 3. According to the petitioner, the aforesaid property 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 stated that the property is wrongly included in the Data Bank. The petitioner filed Ext.P4 application in Form 5 of `WP(C) NO. 6540 OF 2024` 3 Rule 4(d) of the Kerala Conservation of Paddy land and Wetland Rules, 2008 (hereinafter referred to as ‘the Rules’) before the Revenue Divisional Officer to remove the said land from the Data Bank. The same has been rejected by the Revenue Divisional Officer vide Ext.P7 stating that as per the report of the Agricultural Officer, the subject land still lies as a paddy field and three sides of property are paddy fields and one side abuts a road. The Agricultural Officer has recommended to retain the property in the Data Bank since the property is converted after 2008. It is further stated that as per the report of the Agricultural Officer and the Giotag photo and satellite pictures, the subject land still continues as paddy field and is suitable for paddy cultivation. It is also stated that, the property is prone to water logging. `WP(C) NO. 6540 OF 2024` 4 4. The learned Counsel for the petitioner submits that, in Ext.P7, the Revenue Divisional Officer has not independently assessed the nature of the property and has not come to any conclusion as regards the nature of the property in the year 2008 and whether the land was suitable for paddy cultivation. 5. 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 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 of 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. `WP(C) NO. 6540 OF 2024` 5 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. 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 and LLMC to refuse to remove the property from the Data Bank. 6. 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 `WP(C) NO. 6540 OF 2024` 6 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 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 `WP(C) NO. 6540 OF 2024` 7 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 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 1[st] respondent, the Revenue Divisional Officer to reconsider Ext.P4 application in accordance with law and take a decision in the matter after obtaining KSRSEC report at the expense of the petitioner, within `WP(C) NO. 6540 OF 2024` 8 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 the copy of the judgment before the Revenue Divisional Officer. The writ petition is disposed of with the above directions. Sd/- ## MURALI PURUSHOTHAMAN JUDGE SRJ ``` WP(C) NO. 6540 OF 2024 ``` 9 ## **`APPENDIX OF WP(C) 6540/2024`** ``` PETITIONER EXHIBITS Exhibit P1 ``` ``` THE TRUE COPY OF DOCUMENT NO. 1646/I/2023 OF SRO KALPAKANCHERY DATED 04.03.2023 ``` ``` Exhibit P2THE TRUE COPY OF THE BASIC TAX RECEIPT ISSUED BY THE 4TH RESPONDENT DATED 30.05.2023 ``` ``` Exhibit P3THE TRUE COPY OF THE RELEVANT PAGES OF THE DATA BANK PUBLISHED IN THE EXTRA ORDINARY GAZETTE DATED 1.7.2011 Exhibit P4THE TRUE COPY OF THE FORM 5 APPLICATION FILED BY THE PETITIONER DATED 1.6.2023 Exhibit P5THE TRUE COPY OF THE NOTICE ISSUED BY THE 4TH RESPONDENT DATED 3.6.2023 Exhibit P6THE TRUE COPY OF THE INTERIM ORDER IN W.P.(C).NO.20073/2023 OF THIS HON'BLE COURT DATED 20.06.2023 ``` ``` Exhibit P7THE TRUE COPY OF THE PROCEEDING NO. 3123/2023 OF THE 1ST RESPONDENT DATED 21.11.2023 ```