Shabana Rahman v. State of Kerala and others

## IN THE HIGH COURT OF KERALA AT ERNAKULAM ## PRESENT THE HONOURABLE MR.JUSTICE MURALI PURUSHOTHAMAN TUESDAY, THE 5[TH] DAY OF MARCH 2024 / 15TH PHALGUNA, 1945 ## WP(C) NO. 8612 OF 2024 ## PETITIONER/S: SHABANA RAHMAN AGED 37 YEARS D/O ABDUL RAHMAN PUTHUPPARAMBIL KOOTTIKKAL MUNDAKKAYAM KOTTAYAM, PIN - 686513 BY ADVS. BINDUMOL JOSEPH BEENA JOSEPH RIYAS M.B. M.V.RAHUL ## RESPONDENTS: - 1 STATE OF KERALA REPRESENTED BY SECRETARY TO REVENUE DEPARTMENT GOVERNMENT SECRETARIAT THIRUVANANTHAPURAM-, PIN - 695001 - 2 SUB COLLECTOR UNION CLUB ROAD, PUTHENANGADY , KOTTAYAM -, PIN - 686001 - 3 THE AGRICULTURAL OFFICER KRISHIBHAVAN , PAIPPAD KOTTAYAM DISTRICT,, PIN - 686548 - 4 LOCAL LEVEL MONITORING COMMITTEE REPRESENTED BY ITS CONVENER THE AGRICULTURAL OFFICER, PAIPPAD GRAMA PANCHAYATH NALUKODY P O, CHANGANASSERY, KERALA, PIN - 686548 - 5 VILLAGE OFFICER PAIPPAD VILLAGE CHANGANASSERY TALUK KOTTAYAM DISTRICT, PIN - 689582 - 6 KERALA STATE REMOTE SENSING AND ENVIRONMENT CENTRE (KSREC) REPRESENTED BY ITS DIRECTOR C BLOCK, VIKAS BHAVAN THIRUVANANTHAPURAM -, PIN - 695033 OTHER PRESENT: ``` WPC No.8612/2024 ``` ``` 2 ``` ## SMT.R.DEVI SHRI, GP BY SC – SRI. VISHNU S. CHEMPAZHANTHY. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 05.03.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` WPC No.8612/2024 ``` ``` 3 ``` ## **JUDGMENT** The petitioner has approached this Court aggrieved by Ext.P3, whereby Form 5 application submitted by her has been rejected by the Revenue Divisional Officer. 2. The petitioner is the owner and in possession of an extent of 12.14 Ares of land comprised in Re.Survey No.497/6-1-1 of Block 7, Payippad Village, Changanassery Taluk in Kottayam 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, the property is wrongly included in the Data Bank. The petitioner filed an 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. ``` WPC No.8612/2024 ``` ``` 4 ``` The same has been rejected by the Revenue Divisional officer vide Ext.P3 stating that the Agricultural Officer has reported that the LLMC has decided to retain the property in the Data Bank. It is further stated that there is plantain cultivation in the subject land and there are 5 coconut trees more than ten years old and the soil is loose and there is no water flow and there is a thodu with walls on the eastern side and there are no paddy fields nearby and the land is converted after 2008. 4. Heard the learned counsel for the petitioner, the learned Government Pleader and the learned Standing Counsel for KSRSEC. 5. 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. It is also contended that the Revenue Divisional Officer did not rely on the report of the KSRSEC though the same was available. It is stated ``` WPC No.8612/2024 ``` ``` 5 ``` that the KSRSEC report shows that the land was converted before 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 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 property as on the date of coming into force of the Act, 2008, the Revenue Divisional Officer has relied solely upon the report of the ``` WPC No.8612/2024 ``` ``` 6 ``` Agricultural Officer to refuse to remove the property from the Data Bank. 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 assess the status of the land and come to a conclusion that removal of the land from Data Bank will adversely ``` WPC No.8612/2024 ``` ``` 7 ``` 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 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. None of the parameters for consideration of a Form 5 application has been taken into account while passing the impugned order. I find that there is total non application of mind on the part of the RDO in issuing Ext.P3. Accordingly, I set aside Ext.P3 ``` WPC No.8612/2024 ``` ``` 8 ``` with a direction to the Revenue Divisional Officer to reconsider the application of the petitioner in Form 5 in accordance with law and take a decision in the matter on the basis of Ext.P4 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 a copy of the judgment before the Revenue Divisional Officer. The writ petition is disposed of with the above direction. Sd/- **MURALI PURUSHOTHAMAN JUDGE** al/-.06.03.2024. ``` WPC No.8612/2024 ``` ``` 9 ``` ## APPENDIX OF WP(C) 8612/2024 PETITIONER EXHIBITS Exhibit P1 THE TRUE COPY OF THE SETTLEMENT DEED NO. 329/17 OF SRO, THENGANA DATED 28/2/2017 Exhibit P2 TRUE COPY OF THE TAX RECEIPT DATED 13/04/2023 WITH RESPECT TO THE PROPERTY IN QUESTION Exhibit P3 A TRUE COPY OF THE ORDER OF THE SUB COLLECTOR BEARING NO. RDOKTM/2847/2021-B2 DATED 06/07/2023 Exhibit P4 A TRUE COPY OF THE REPORT OF THE KSREC ALONG WITH COVERING LETTER DATED 22.03.2022