Shabeer Ali P.M. & Jaseela v. District Collector, Office of the District Collector, Kozhikode; Revenue Divisional Officer, Kozhikode; Tahasildar, Kozhikode; Village Officer, Perumanna; Agricultural Officer, Krishibhavan, Perumanna; Director, Kerala State Remote Sensing and Environment Centre

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT** # **THE HONOURABLE MR.JUSTICE MURALI PURUSHOTHAMAN MONDAY, THE 4[TH] DAY OF MARCH 2024 / 14TH PHALGUNA,** # **1945** # **WP(C) NO. 8556 OF 2024** ## **PETITIONER/S:** - **1 SHABEER ALI.P.M, AGED 44 YEARS** - **S/O P. KOYAKUTTY MAILANGOT HOUSE, VAZHAKKAD P.O, MALAPPURAM, PIN - 673640** - **2 JASEELA, AGED 48 YEARS** **W/O ASHRAF, KIZHAKKAYIL VELLAYIKKODE, PERUMANNA.P.O, KOZHIKODE, PIN - 673019 BY ADVS. RANJITH C. MAHENDRAN S. KIRAN JOHNY G.S.SAJI** ## **RESPONDENTS:** - **1 DISTRICT COLLECTOR, OFFICE OF THE DISTRICT COLLECTOR, CIVIL STATION.KOZHIKKODE, PIN - 673020** - **2 REVENUE DIVISIONAL OFFICER, REVENUE DIVISIONAL OFFICE, CIVIL STATION.KOZHIKKODE, PIN - 673020** - **3 TAHASILDAR, TALUK OFFICE KOZHIKODE, CIVIL STATION , KOZHIKODE,KERALA, PIN - 673020** - **4 VILLAGE OFFICER , PERUMANNA VILLAGE OFFICE PERUMANNA.KOZHIKKODE-, PIN - 673019** - **5 ARICULTURAL OFFICER KRISHIBHAVAN, PERUMANNA, KOZHIKKODE, PIN - 673019** - **6 THE DIRECTOR, KERALA STATE REMOTE SENSING AND** ``` WPC No.8556/2024 ``` ``` 2 ``` # **ENVIRONMENT CENTRE,VIKAS BHAVAN, THIRUVANANTHAPURAM, PIN - 695033** **OTHER PRESENT:** ## **SMT.R.DEVISHREE, GP** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 04.03.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ``` WPC No.8556/2024 ``` ``` 3 ``` ## **JUDGMENT** The petitioners have approached this Court aggrieved by Ext.P5 whereby Form 5 application submitted by them has been rejected by the Revenue Divisional Officer. 2. The petitioners are the absolute owners in possession of 6.21 Ares of landed property comprised in Re.Sy. Nos.63/1-7, 63/1-8, 63/32 of Perumanna Village, Kozhikode Taluk, Kozhikode District as per settlement deed No.3080/2010 of Mavoor Sub Registrar Office. 3. According to the petitioners, 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 'the Act 2008). However, the property is wrongly included in the Data Bank. The petitioners, therefore, filed Ext.P4 application in Form 5 of Rule 4(d) of the Kerala ``` WPC No.8556/2024 ``` ``` 4 ``` Conservation of Paddy Land and Wetland Rules, 2008 (hereinafter referred to as ‘the Rules 2008’) before the Revenue Divisional Officer to remove the property from the Data Bank. The same has been rejected by the Revenue Divisional Officer vide Ext.P5 stating that as per the report of the Agricultural Officer, there is no building in the subject land and is a paddy land area and there are coconut trees which are less than 6 years old and the land has been converted after the coming into force of Act, 2008 and need not be removed from the Data Bank. 4. The petitioners have filed this writ petition challenging Ext.P5 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 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. ``` WPC No.8556/2024 ``` ``` 5 ``` 5. Heard the learned counsel for the petitioners and the learned Government Pleader. 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.P5, 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 ``` WPC No.8556/2024 ``` ``` 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.8556/2024 ``` ``` 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 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 this Court in the decisions cited above, the petitioners’ 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. Accordingly, I find that Ext.P5 order cannot be sustained and I set aside the same, with a direction to the 2[nd] respondent, ``` WPC No.8556/2024 ``` ``` 8 ``` the Revenue Divisional Officer to reconsider Ext.P4 application in Form 5 in accordance with law and and take a decision after considering the KSRSEC report to be obtained at the expense of the petitioners, and other relevant factors mentioned in Rule 4(4F), within a period of two months from the date of receipt of a copy of the report of the KSRSEC. The petitioners 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 petitioners 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 directions. Sd/- **MURALI PURUSHOTHAMAN JUDGE** al/-.04.03.2024. ``` WPC No.8556/2024 ``` ``` 9 ``` ## APPENDIX OF WP(C) 8556/2024 PETITIONER EXHIBITS Exhibit P1 A TRUE COPY OF THE LAND TAX RECEIPT NO. KL11014009588/2023 DATED 23/06/2023 ISSUED BY THE 4TH RESPONDENT Exhibit P2 TRUE COPYS OF PHOTOGRAPHS OF THE PROPERTY Exhibit P3 A TRUE COPY OF DATA BANK DATED 30/12/2023 ISSUED BY THE 5TH RESPONDENT DATED NIL Exhibit P4 A. TRUE COPY OF FORM.5 APPLICATION DATED 08/06/2022 Exhibit P5 A TRUE COPY OF THE ORDER DATED 27/11/2023 ISSUED BY 2ND RESPONDENT Exhibit P6 A TRUE COPY OF RECEIPT ISSUED BY THE FIRST RESPONDENT DATED 27/11/2023 Exhibit P7 A TRUE COPY OF RECEIPT NO.1040617/24C7 DATED 22/01/2024 ISSUED BY THE 2ND RESPONDENT