Mohammed Musliyar vs 1. The Revenue Divisional Officer ...
2023 Latest Caselaw 1926 Ker

          IN THE HIGH COURT OF KERALA AT ERNAKULAM
                             PRESENT
              THE HONOURABLE MR.JUSTICE VIJU ABRAHAM
   FRIDAY, THE 3RD DAY OF FEBRUARY 2023 / 14TH MAGHA, 1944
                      WP(C) NO. 9393 OF 2022
PETITIONER:

          MOHAMMED MUSLIYAR
          AGED 70 YEARS
          KADAVANDY HOUSE, INDIANOOR P.O, KOTTAKKAL,
          MALAPPURAM DISTRICT., PIN - 676503
          BY ADVS.
          JACOB SEBASTIAN
          K.V.WINSTON

RESPONDENTS:

    1     THE REVENUE DIVISIONAL OFFICER TIRUR
          OFFICE OF THE REVENUE DIVISIONAL OFFICER TIRUR,
          TIRUR P.O, MALAPPURAM DISTRICT., PIN - 676301
    2     THE VILLAGE OFFICER
          KOTTAKKAL VILLAGE, KOTTAKKAL P.O, MALAPPURAM
          DISTRICT., PIN - 676503
    3     THE AGRICULTURAL OFFICER FOR THE KOTTAKKAL
          MUNICIPALITY
          KOTTAKKAL P.O, MALAPPURAM DISTRICT., PIN - 676503
    4     THE LOCAL LEVEL MONITORING COMMITTEE FOR THE
          KOTTAKKAL MUNICIPALITY CONSTITUTED UNDER THE
          CONSERVATION OF PADDY LAND AND WETLAND ACT, 2008
          REPRESENTED BY ITS CONVENER, THE AGRICULTURAL
          OFFICER, KOTTAKKAL MUNICIPALITY, KOTTAKKAL P.O,
          MALAPPURAM DISTRICT., PIN - 676503
OTHER PRESENT:

         GP - SRI. SYAMANTHAK B.S.


    THIS WRIT PETITION (CIVIL) HAVING COME UP
FOR ADMISSION ON 03.02.2023, THE COURT ON THE
SAME DAY DELIVERED THE FOLLOWING:
 W.P.(C). No.9393 of 2022       :2:



                          VIJU ABRAHAM, J.
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                      W.P.(C). No.9393 of 2022
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                Dated this the 3rd day of February, 2023

                            JUDGMENT

The petitioner is in ownership and possession of 0.0852

hectors of land comprised in resurvey block No.40, resurvey

Nos.192/10-3 and 192/4-3 of Kottakkal Village, Tirur Taluk,

Malappuram District. The case of the petitioner is that the

property is lying as a pucca garden land situated in a residential

area, surrounded by houses and road. Paddy is not cultivated in

the plot and there is no occasion for any water logging in the area.

Even though the property is a pucca garden land, it was wrongly

included in the data bank. Thereupon the petitioner submitted

Ext.P1 application (Form No.5) seeking the 1st respondent to

delete the entry of the property from the land data bank for the

Kottakkal Municipality. Ext.P1 application was considered and the

same was rejected by issuing Ext.P4. The specific case of the

petitioner is that the 1st respondent has neither referred to the

report from the KSREC nor physically inspected the plot. The fact

that the plot underwent transformation before August 2008 could

be convincingly proved only if a report from the KSREC is

obtained. In the instant case without obtaining any such report or

conducting any physical verification, the 1 st respondent has

mechanically rejected the petitioner's application.

2. A counter affidavit has been filed on behalf of the 1 st

respondent wherein, relying on the report of the Agricultural

Officer which is produced as Ext. R1(f), the learned Government

Pleader would contend that there are only coconut trees having

less than 10 years age and further that on a preliminary enquiry it

could be seen that the land was filled after 2008.

3. Heard the learned counsel for the petitioner as well as the

learned Government Pleader.

4. Even going by Ext. R1(f) report, it is not conclusively

stated by the Agricultural Officer that the reclamation was after

2008 and the Agricultural Officer only says that in the preliminary

enquiry it is presumed that the reclamation was after 2008. It is

also reported about the existence of coconut trees having about 10

years old and other cultivations. The petitioner has a specific case

that the property is a pucca garden land situated in a residential

area, surrounded by houses and road. This Court in Arthasasthra

Ventures(India) LLP v. State of Kerala [2022 (7) KHC 591]

has fixed the parameters by which the Form-5 application has to

be considered by the 1st respondent. Paragraph 8 of the said

judgment is extracted below.

8. This Court is of the view that the Revenue Divisional Officer is not justified in taking a decision on merits on the application submitted by the petitioner in Form-5. The most relevant aspect while considering Form-5 application is whether the land in question was a paddy land or a wetland when the Act, 2008 came into force and whether the land is fit for paddy cultivation. The Revenue Divisional Officer, if he was not satisfied with the available materials, ought to have resorted to scientific data including satellite photographs obtained from KSREC. Ext.P8 proceedings to the extent it does not take a final decision on Form-5 application cannot stand the scrutiny of law.

All these aspects were not properly considered while taking

a decision as per Ext.P4. Therefore, I am of the opinion that

Ext.P4 order is liable to be set aside and the application submitted

by the petitioner (Form No.5) is to be reconsidered by the

Revenue Divisional Officer (1st respondent) in the light of the

Judgment in Arthasasthra Ventures(India) LLP case (Supra)

within a period of three months from the date of receipt of a copy

of this judgment. If the KSREC report is called for, the application

submitted by the petitioner shall be considered by the 1 st

respondent, within a period of one month from the date of receipt

of such report. Petitioner shall file his written arguments and also

produce a copy of the Judgment in Arthasasthra

Ventures(India) LLP v. State of Kerala reported in [2022 (7)

KHC 591].

With the aforesaid directions, the writ petition is disposed of.

Sd/-

VIJU ABRAHAM JUDGE sm/

APPENDIX OF WP(C) 9393/2022

PETITIONER EXHIBITS Exhibit-P1 A TRUE COPY OF THE APPLICATION (IN FORM NUMBER 5) DATED 01.11.2019 SUBMITTED BY THE PETITIONER BEFORE THE FIRST RESPONDENT.

Exhibit-P2 A TRUE COPY OF THE APPLICATION (IN FORM NUMBER 6) DATED 01.11.2019 SUBMITTED BY THE PETITIONER BEFORE THE FIRST RESPONDENT.

Exhibit-P3 A TRUE COPY OF THE GOVERNMENT ORDER NUMBER 4592/2017 DATED 31.10.2017 .

Exhibit-P4 A TRUE COPY OF THE ORDER DATED 03.02.2022 ISSUED BY THE FIRST RESPONDENT .

RESPONDENT EXHIBITS EXHIBIT R1(d) TRUE COPY OF THE COMMUNICATION ISSUED BY TAHSILDAR (LR) TO THIS RESPONDENT DATED 06-03-2020 ALONG WITH ENCLOSURES.

EXHIBIT R1(e) TRUE COPY OF THE FORM 5 APPLICATION DATED 09-01-2022 FILED BY THE PETITIONER EXHIBIT R1(a) TRUE COPY OF THE JUDGMENT DATED 07-09-

2021 IN WP(C) NO.18095/2021 EXHIBIT R1(g) TRUE COPY OF THE ORDER NO.RDOTIR/1327/2019-F1 DATED 06-01-2022 BY THE REVENUE DIVISIONAL OFFICER,TIRUR EXHIBIT R1(b) TRUE COPY OF THE REPORT OF THE VILLAGE OFFICER DATED 16-11-2021 EXHIBIT R1(f) TRUE COPY OF THE REPORT OF THE AGRICULTURAL OFFICER DATED 03-01-2022. EXHIBIT R1(c) TRUE COPY OF THE STATEMENT SIGNED BY THE PETITIONER