Kerala High Court
Ibrahim vs State Of Kerala on 20 April, 2023
WP(C) Nos. 26143 & 26172 of 2022 1
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE VIJU ABRAHAM
THURSDAY, THE 20TH DAY OF APRIL 2023 / 30TH CHAITHRA, 1945
WP(C) NO. 26143 OF 2022
PETITIONER:
IBRAHIM
AGED 49 YEARS
S/O. ABDU RAHIMAN ATHIMANNIL HOUSE, PAPPINIPPARA,
PAPPINIPPARA P.O., MALAPPURAM DIST., PIN - 676122
BY ADVS.
K.SHIBILI NAHA
A.LOWSY
RESPONDENTS:
1 STATE OF KERALA
REPRESENTED BY ITS SECRETARY DEPARTMENT OF REVENUE,
GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM, PIN -
695001
2 THE REVENUE DIVISIONAL OFFICER/SUB COLLECTOR
PERINTHALMANNA MALAPPURAM DISTRICT, PIN - 679322
3 THE AGRICULTURAL OFFICER
ANAKKAYAM GRAMA PANCHAYATH ANAKKAYAM P.O.,
MALAPPURAM DISTRICT, PIN - 676509
4 KERALA STATE REMOTE SENSING AND ENVIRONMENT
CENTRE(KSREC)
NEAR LEGISLATIVE ASSEMBLY THIRUVANANTHAPURAM, PIN -
695033
5 THE LOCAL LEVEL MONITORING COMMITTEE (LLMC)
ANAKKAYAM GRAMA PANCHAYATH REPRESENTED BY ITS
CONVENER ANAKKAYAM P.O., MALAPPURAM DISTRICT, PIN -
676509
GP SRI.SYAMANTHAK
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION
ON 20.04.2023, ALONG WITH WP(C).26172/2022, THE COURT ON THE
SAME DAY DELIVERED THE FOLLOWING:
WP(C) Nos. 26143 & 26172 of 2022 2
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE VIJU ABRAHAM
THURSDAY, THE 20TH DAY OF APRIL 2023 / 30TH CHAITHRA, 1945
WP(C) NO. 26172 OF 2022
PETITIONER:
SAINUL ABIDEEN
AGED 47 YEARS
S/O. ABDU RAHIMAN HAJI MECHERI HOUSE, PAPPINIPPARA,
PAPPINIPPARA P.O., MALAPPURAM DIST, PIN - 676122
BY ADVS.
K.SHIBILI NAHA
A.LOWSY
RESPONDENTS:
1 STATE OF KERALA
REPRESENTED BY ITS SECRETARY DEPARTMENT OF REVENUE,
GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM, PIN -
695001
2 THE REVENUE DIVISIONAL OFFICER/SUB COLLECTOR
PERINTHALMANNA MALAPPURAM DISTRICT, PIN - 679322
3 THE AGRICULTURAL OFFICER
ANAKKAYAM GRAMA PANCHAYATH ANAKKAYAM P.O.,
MALAPPURAM DISTRICT, PIN - 676509
4 KERALA STATE REMOTE SENSING AND ENVIRONMENT
CENTRE(KSREC)
NEAR LEGISLATIVE ASSEMBLY THIRUVANANTHAPURAM, PIN -
695033
5 THE LOCAL LEVEL MONITORING COMMITTEE (LLMC)
ANAKKAYAM GRAMA PANCHAYATH REPRESENTED BY ITS
CONVENER ANAKKAYAM P.O., MALAPPURAM DISTRICT, PIN -
676509
BY G.P., SRI. SYAMANTHAK B.S.
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR
ADMISSION ON 20.04.2023, ALONG WITH WP(C).26143/2022, THE
COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C) Nos. 26143 & 26172 of 2022 3
VIJU ABRAHAM , J.
===========================
WP(C) Nos. 26143 & 26172 of 2022
============================
Dated this the 20th day of April, 2023
JUDGMENT
WP(C) Nos. 26143/2022 and 26172/2022 are filed challenging
Ext P8 order whereby Form-5 applications submitted by the
petitioners in both the writ petitions were rejected.
2. Petitioners are in absolute ownership of the properties
and the same was reclaimed long before the commencement of the
Kerala Conservation of Paddy Land and Wet Land Act 2008
(hereinafter referred to as the Act of 2008). The property is situated
on the side of Manjeri-Malappuram PWD Road and there are several
commercial as well as residential buildings in its close vicinity as is
evident from Exts P3 and P4.
3. The property has been wrongly included as paddy land in
the Data Bank. Ext P5 is the satellite images and the report from the
4th respondent KSRSEC which specifically states that as per the
Toposheet of 1967, the plot was observed as Paddy land and the plot
bordered by a road on the southern side was observed under fallow
land with partial mixed vegetation/plantation on the eastern side in
the data of the year 2006. The same land use pattern was continued
in the data of the year 2011 and that the entire plot was observed
under mixed vegetation/plantation with prominent building/structure
WP(C) Nos. 26143 & 26172 of 2022 4
on the eastern side in the data of 2019. By Ext P6 order, the
application submitted by the petitioner was rejected for the reason
that in the Data Bank, the property is included as paddy land and
the same was paddy land on the date of coming into force of the Act
of 2008.
4. Challenging the same petitioners approached this court
filing WP(C) Nos. 764 and 834 of 2021 and this court as per Ext P7
common judgment set aside Ext P6 and directed to reconsider the
same on the basis of the findings of the KSRSEC and on the basis of
the judgment in Salim C.K. and another v. State of Kerala and
others [2017 (1) KHC 394] and Joy K.K. v. RDO/Sub Collector,
Ernakulam and Others [2021 (1) KHC 540].
5. Even without adverting to the directions in Ext P7
common judgment, the application under Form-5 for deletion of the
subject property from the Data Bank was rejected as per Ext P8,
which is impugned in both the writ petitions. The reason stated in
Ext P8 order is that in the KSRSEC report a portion of the property is
shown as partial mixed vegetation/plantation and the balance
property is lying fallow and in the inspection conducted, though the
property was found to be filled up, no 'Kuzhikoor' that was in
existence before 2008 was found in the property. Further reason
stated was that action has been initiated under Section 13 of the Act
of 2008 for illegally filling up the land and that in the KSRSEC report
WP(C) Nos. 26143 & 26172 of 2022 5
the property is termed as fallow land and the same was not
converted before 2008. Petitioners submit that none of these
reasons are relevant for rejecting an application under Form-5 and
that none of the directions in Ext P7 has been considered while
issuing Ext P8 order.
6. The learned Government pleader has filed detailed
counter affidavits in both cases mainly contending that the
agricultural officer as per Ext R3(a) report has stated that the land
has not been converted as on 2008 and that the land is suitable for
paddy cultivation. In the site inspection, it is revealed that there is
no vegetation/plantation in the applied land and that the petitioner
is facing legal action as mandated in Section 13 of the Act of 2008
for carrying out the illegal conversion. In Ext R3(a) report, the
agricultural officer has reported that in the site inspection
conducted, the property was a paddy land during 2008 and has the
features of the paddy land and in the KSRSEC report also the
property is a paddy land as on 2008.
7. I have heard the rival contentions of both sides. This
court as per Ext P7 common judgment set aside Ext P6 order and
directed reconsideration of the matter taking into consideration the
KSRSEC report and the judgment in Salim and Joy's case cited
supra. This court in Joy's case supra has laid down the parameters
WP(C) Nos. 26143 & 26172 of 2022 6
for consideration of the Form 5 application. Paragraph 11 of the said
judgment reads as follows:
"In the light of the above, the reason given by the LLMC that
after removal of coconut trees land can be made available for
cultivation of paddy is legally unsustainable. The LLMC totally
misguided or misdirected themselves in adverting to the nature
of the land. Admittedly, there are grown up coconut trees spread
over the entire property. The physical nature of the property as
revealed on 12/08/2008 the date on which Act 28/2008 came into
force does not attract the natural features of the land for
cultivation of paddy and the LLMC cannot include such land as a
paddy land. It is not the capability of using the land that matters
to treat one land as a paddy land or not. It is only the character
and fitness of the land, as available on 12/08/2008, that matters,
to include or exclude a land. The LLMC is the competent body to
give expert opinion as to the capability of using the land after
removing the coconut trees in the land. Their functions and
duties are ordained with the statutory provisions."
8. In Salim's case supra, the court observed that the object
of the enactment of the Act of 2008 is the preservation of paddy
land as existed on the date of coming into force of the Act. Section 3
of the Act also prohibits conversion or reclamation of lands which
were paddy lands as on the date of commencement of the Act of
2008 except as provided in the Act. So it is indisputable and well
settled that the nature of the land as on the date of coming into
force of the Act of 2008, which is relevant for consideration of a land
as a paddy land or not. Ext P5 is the KSREC report. The relevant
portion of which is extracted below:
"Observation and conclusion
WP(C) Nos. 26143 & 26172 of 2022 7
As per the toposheet of 1967, the survey plot 167/16-2 was
observed as paddy land. The plot bordered by a road on southern
side was observed under fallow land with partial mixed
vegetation/plantation on eastern side in the data of year 2006.
The same land use pattern was continued in the data of year
2011. From the data of year 2016 exposed soil was observed on
western side. The entire plot was observed under mixed
vegetation/plantation with prominent building/structure eastern
side in the data of year 2019."
9. A perusal of Ext P5 report would clearly show that in the
data of the year 2006, the plot is bordered by a road on the
southern side and observed under fallow land which also had partial
mixed vegetation/plantation on the eastern side and that same land
use pattern was continued in the data of the year 2011. Even in the
data of the year 2019, the entire plot was observed under mixed
vegetation/plantation with prominent building/structure in the
eastern side. So a perusal of Ext P5 report will indisputably prove
that from the year 2006-2019, the plot was observed under mixed
vegetation/plantation and building/structures was also observed
during 2019.
10. The findings in Ext R2(a) report submitted by the
agricultural officer which was relied on by the 2nd respondent for
issuing Ext P7 order, that in the KSRSEC report also the property has
been noted as paddy land is totally contrary to the finding in Ext P5
report. Further reason for rejecting the application as per Ext P8 is
that in the KSRSEC report, the property was observed as fallow land
WP(C) Nos. 26143 & 26172 of 2022 8
and therefore it should be treated as paddy land. Another reason
stated for rejecting the application is that, in the site inspection
even though it was found that the property has been converted,
there is no 'Kuzhikoor' found in the said property and further that
proceedings under Section 13 of the Act of 2008 have been initiated
for illegal conversion of land. I am afraid, none of these reasons are
valid and sustainable for rejecting the application in Form 5. What is
relevant for consideration of an application going by Joy's case
supra and Section 3 of the Act of 2008 is the nature and fitness of
the land as available on 12.08.2008, i.e. the date of coming into
force of the Act to include or exclude the land from the Data Bank.
The nature of the land has been clearly found to be fallow land with
partial mixed vegetation/plantation in the data of the year 2006 and
in the data of the year 2019, the entire plot was observed under
mixed vegetation/plantation with prominent building/structure. So as
on the date of coming into force of the Act of 2008, it can be clearly
found that the property was not lying as a paddy land so as to
include the same in the Data Bank.
11. The 2nd respondent has not considered the KSRSEC
report in full but only took certain portions like the land is lying as
fallow so as to reject the application submitted by the petitioner. If
the report has been considered in full, the 2nd respondent will not
have arrived at such a conclusion. It is settled law that for a mere
WP(C) Nos. 26143 & 26172 of 2022 9
reason that property is lying fallow is not a reason to treat it as
paddy land. The Division Bench of this court in Mather Nagar
Residents Association and another v. District Collector,
Ernakulam and others [2020 (2) KHC 94] has held that merely
for the reason that the property is lying as fallow, it cannot be
termed as a wetland or paddy land under the Act. This court in
Sudheesh v. RDO [2023 (2) KLT 386] has also held that only for
the reason that property is left fallow, the land cannot be brought
within the definition of paddy land in as much as going by the
definition of paddy land in Section 2(xii) of the Act, to bring a
property within the said definition, the land should be cultivated with
paddy at least once in a year or suitable for paddy cultivation but
uncultivated and left fallow, and therefore the RDO should be
satisfied that the land is fit for paddy cultivation but left fallow. Yet
another reason stated for rejecting the application is that
proceedings under Section 13 of the Act are initiated against the
petitioner, but I am of the view that it is not a valid ground for not
entertaining the application, as held by this court in Bharathan
Ramanathan v. State of Kerala [2022 (6) KLT Online 1068].
This court in Salim's case supra has upheld the power of this court
to declare based on the materials produced before it that the entry
of any particular property in the data bank is erroneous and that the
said property should be excluded from the Data Bank. Ext P5
WP(C) Nos. 26143 & 26172 of 2022 10
KSRSEC report specifically state about the nature and fitness of the
land before the coming into force of the Act of 2008, which was not
considered by the 2nd respondent while rejecting the application.
Further, none of the directions in Ext P7 judgment has been looked
into while issuing the impugned order. Ext P3 sketch and the
photographs produced will show that the property is by the side of a
main road and there are various commercial buildings nearby.
Therefore, considering the facts and circumstances of the case and
taking into consideration Ext P5 KSRSEC report and on a finding that
none of the reasons stated in Ext P8 is valid for rejecting an
application under Form 5, I am inclined to set aside Ext P8 order in
both the writ petitions with a consequential declaration that the
property has been reclaimed before the commencement of the Act
of 2008 and hence liable to be deleted/excluded from the Data
Bank. Both the writ petitions are allowed as above.
Sd/-
VIJU ABRAHAM
JUDGE
sbk/-
WP(C) Nos. 26143 & 26172 of 2022 11
APPENDIX OF WP(C) 26172/2022
PETITIONER EXHIBITS
Exhibit P1 TRUE COPY OF THE POSSESSION CERTIFICATE
ISSUED BY THE VILLAGE OFFICER CONCERNED.
Exhibit P2 TRUE COPY OF THE BASIC TAX RECEIPT
EVIDENCING PAYMENT OF LAND TAX DATED
30.7.2022.
Exhibit P3 TRUE COPY OF THE LOCATION MAP PREPARED BY
THE VILLAGE OFFICER ANAKKAYAM .
Exhibit P4 TRUE COPY OF THE PHOTOGRAPHS.
Exhibit P5 TRUE COPY OF THE REPORT OF THE KSREC DATED
6.12.2019.
Exhibit P6 TRUE COPY OF THE PROCEEDINGS OF THE 2ND
RESPONDENT (FILE NO. RDOPTM/2056/2020-S3)
DATED 6.10.2020.
Exhibit P7 TRUE COPY OF THE JUDGMENT IN WP(C)
NO.834/2021 DATED 25.8.2021.
Exhibit8 TRUE COPY OF THE PROCEEDINGS OF THE 2ND
RESPONDENT DATED 13.01.2022.
Exhibit P9 TRUE COPY OF THE INFORMATION DATED
25.01.2022 RECEIVED UNDER THE RIGHT TO
INFORMATION ACT.
RESPONDENT EXHIBITS
Exhibit R2(a) True copy of the report of the Agriculture
Officer dated 23.09.2020
WP(C) Nos. 26143 & 26172 of 2022 12
APPENDIX OF WP(C) 26143/2022
PETITIONER EXHIBITS
Exhibit P1 TRUE COPY OF THE POSSESSION CERTIFICATE
ISSUED BY THE VILLAGE OFFICER CONCERNED.
Exhibit P2 TRUE COPY OF THE BASIC TAX RECEIPT
EVIDENCING PAYMENT OF LAND TAX DATED
22.12.2020.
Exhibit P3 TRUE COPY OF THE LOCATION MAP PREPARED BY
THE VILLAGE OFFICER ANAKKAYAM.
Exhibit P4 TRUE COPY OF THE PHOTOGRAPHS.
Exhibit P5 TRUE COPY OF THE REPORT OF THE KSREC DATED
6.12.2019.
Exhibit P6 TRUE COPY OF THE PROCEEDINGS OF THE 2ND
RESPONDENT (FILE NO. RDOPTM/2056/2020-S3)
DATED 6.10.2020.
Exhibit P7 TRUE COPY OF THE JUDGMENT IN WP(C)
NO.764/2021 DATED 25.8.2021.
Exhibit P8 TRUE COPY OF THE PROCEEDINGS OF THE 2ND
RESPONDENT DATED 13.01.2022.
Exhibit P9 TRUE COPY OF THE INFORMATION DATED
25.01.2022 RECEIVED UNDER THE RIGHT TO
INFORMATION ACT.
RESPONDENT EXHIBITS
EXHIBIT R2(a) TRUE COPY OF THE REPORT OF THE AGRICULTURE
OFFICER DATED 23-09-2020
