Yasar K. v. The District Collector, Malappuram & Others

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR.JUSTICE MURALI PURUSHOTHAMAN`** ``` WEDNESDAY, THE 24[TH] DAY OF JANUARY 2024 / 4TH MAGHA, 1945 WP(C) NO.284 OF 2024 ``` ## **`PETITIONER:`** ``` YASAR. K, AGED 39 YEARS, S/O.ABDUL KAREEM, PAYANGANAMATTIL, PUTHUR PALLIKKAL P.O., MALAPPURAM, PIN - 673636 ``` ``` BY ADVS.SHAKTHI PRAKASH AMJATHA D.A. ``` ``` MUHASIN K.M. FARHANA K.H. ``` ## **`RESPONDENTS:`** - **`1 THE DISTRICT COLLECTOR COLLECTRATE ROAD, UP HILL, MALAPPURAM, PIN - 676505`** - **`2 THE REVENUE DIVISIONAL OFFICER TIRUR REVENUE DIVISIONAL OFFICE, TIRUR - THRIKANDIYOOR ROAD, TIRUR, MALAPPURAM, PIN - 676101`** - **`3 THE TAHSILDAR, TIRURANGADI TALUK OFFICE, TIRURANGADI MALAPPURAM, PIN - 676306`** - **`4 THE VILLAGE OFFICER, THENHIPALAM VILLAGE OFFICE, THENHIPALAM, CHELARI, MALAPPURAM, PIN - 673636`** - **`5 THE AGRICULTURE OFFICER, THENHIPALAM KRISHI BHAVAN, NH 17, CHELARI, THENHIPALAM, MALAPPURAM, PIN - 673635`** - **`6 THE DIRECTOR, KERALA STATE REMOTE SENSING AND ENVIRONMENT CENTRE, VIKAS BHAVAN, THIRUVANANTHAPURAM, PIN - 695033`** - **`BY SMT.DEVISREE, GP SRI.VISHNU S.CHEMPAZHANTHIYIL, SC, KSREC`** ``` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 24.01.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` W.P.(C) No.284 of 2024 2 ## **`JUDGMENT`** ``` Petitioner has approached this Court aggrieved by Ext.P2, whereby Form 5 application submitted by him has been rejected by the 2[nd] respondent/Revenue Divisional Officer [RDO] solely relying on the report of the Agricultural Officer. ``` ``` 2. Petitioner is the owner in possession of an extent of 10.12 Ares of land comprised in Sy. No.228/1-3-1 of Thennippalam Village, Thirurangadi Taluk, Malappuram 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 [for brevity, ‘the Act, 2008’]. However, it is stated that the property is wrongly included in ``` W.P.(C) No.284 of 2024 3 ``` the Data Bank. The petitioner filed an application in Form 5 of Rule 4(d) of the Kerala Conservtion of Paddy Land and Wetland Rules, 2008 [for brevity, ‘the Rules’] before the RDO to remove the said land from the Data Bank. The same has been rejected by the RDO vide Ext.P2 stating that the 5[th] respondent/Agricultural Officer has reported that the property of the petitioner is paddy land and has been illegally converted and planted with coconut and arecanut trees and need not be removed from the Data Bank. ``` ``` 4. The petitioner has filed this writ petition challenging Ext.P2 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. Heard the learned counsel for the ``` W.P.(C) No.284 of 2024 4 ``` petitioner, the learned Senior Government Pleader and the learned Standing Counsel appearing for KSREC. ``` ``` 6. The learned Government Pleader points out that Ext.P2 is dated 21.07.2022 and the writ petition is filed with an inexplicable delay. Though no reasonable explanation is given by the petitioner for the delay, in the nature of the order I propose to pass, I am not dismissing the writ petition on the ground of delay and laches. ``` ``` 7. The relevant consideration for inclusion of property as a paddy land or wet land 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.P2, it is evident that, without any independent assessment of the nature of property as on the date of coming into force of the Act, ``` W.P.(C) No.284 of 2024 5 ``` 2008, the 2[nd] respondent has relied solely upon the report of the Agricultural Officer to refuse to remove the property from the data bank. ``` ``` 8. This Court had held in the decision in Arthasasthra Ventures (India) LLP v. State of Kerala [2022 (7) KHC 591]that, the RDO 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, 2008 and also whether the land is suitable for paddy cultivation or not. This Court, inMuraleedharan 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 RDO to dismiss the application simply stating that the LLMC has decided not to remove ``` W.P.(C) No.284 of 2024 6 ``` the land from the Data Bank. The RDO, being the competent authority, has to independently assess the status of the land and come to a conclusion that removal of the land from the 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. InAparna 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 the Data Bank is one where paddy cultivation is possible and feasible. ``` ``` 9. In spite of the categorical declarations by ``` 7 W.P.(C) No.284 of 2024 ``` 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. ``` ``` 10. Accordingly, I find that Ext.P2 order cannot be sustained and I set aside the same, with a direction to the 2[nd] respondent/RDO to reconsider the application under Form 5 in accordance with law and take a decision in the matter after obtaining KSRSEC report 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. ``` W.P.(C) No.284 of 2024 8 # **`The writ petition is disposed of with the above directions.`** ``` Sd/- ``` ``` MURALI PURUSHOTHAMAN JUDGE ``` ``` sp/25/01/2024 ``` W.P.(C) No.284 of 2024 9 ## **`APPENDIX`** ## **`PETITIONER'S EXHIBITS:-`** ``` EXHIBIT P1TRUE COPY OF THE TAX RECEIPT DATED 13.04.2023 ``` ``` EXHIBIT P2TRUE COPY OF THE ORDER DATED 21.07.2022 ISSUED BY THE 2ND RESPONDENT ``` ``` EXHIBIT P3 ``` ``` COPY OF THE PHOTOGRAPHS OF THE PROPERTY OF THE PETITIONER ```