Kerala High Court
Shereefa Beevi S vs State Of Kerala on 31 March, 2023
WP(C) No. 29343 of 2022 1
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE VIJU ABRAHAM
FRIDAY, THE 31ST DAY OF MARCH 2023 / 10TH CHAITHRA, 1945
WP(C) NO. 29343 OF 2022
PETITIONER:
SHEREEFA BEEVI S
AGED 75 YEARS
W/O.MUHAMMED ISMAIL, PULIMOOTTIL VEEDU,
PALLIPPURAM, PALLIPPURAM P.O., THIRUVANANTHAPURAM
DISTRICT, PIN-695316.
BY ADV M.SREEKUMAR
RESPONDENTS:
1 STATE OF KERALA
REPRESENTED BY SECRETARY TO GOVERNMENT, REVENUE
DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM-
695001.
2 REVENUE DIVISIONAL OFFICER,
OFFICE OF THE REVENUE DIVISIONAL OFFICER,
KUDAPPANAKKUNNU P.O., THIRUVANANTHAPURAM-695044.
BY ADV ADVOCATE GENERAL OFFICE KERALA
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR
ADMISSION ON 31.03.2023, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
WP(C) No. 29343 of 2022 2
VIJU ABRAHAM , J.
===========================
WP(C) No. 29343 of 2022
============================
Dated this the 31st day of March, 2023
JUDGMENT
Petitioner has approached this Court challenging Ext P5
order wherein her form-5 application has been rejected by the 2 nd
respondent.
2. Petitioner is the owner in possession of the property
having an extent of 1.22 Ares comprised in Re-survey No. 92/15-
4 of Pallippuram Village, Murukkumpuzha obtained as per Ext P1
gift deed. The executant of Ext P1 gift deed is a philanthropist
and NRI businessman who has a noble vision to provide building
sites to the people hailing from poor background who are
landless and homeless. Though the entire extent of property is
shown as 'nilam' in the basic tax register, the property has been
reclaimed long back, before the date of coming into force of the
Kerala Conservation of Paddy Land and Wetland Act, 2008 and
the property is now lying as a garden land. At present trees aged
more than 30 years are standing in the said property.
3. In Ext P4 data bank, the property has been included
as paddy land with remarks 'coconut trees'. Petitioner would
submit that, this itself will show that, though the property is
termed as a paddy land, the authorities while preparing the data
bank was conscious of the fact that there are various coconut
trees standing in the property. The area nearby the property of
the petitioner is a fully developed residential area and there are
various residential houses in the nearby properties and there is
no paddy cultivation in the area and the property is not fit for
paddy cultivation.
4. Thereupon the petitioner submitted an application
under Form-5 to remove the said property from the data bank
which is now being rejected by Ext P5 order. Petitioner submits
that while issuing Ext P5 order none of the parameters for
consideration of form-5 application has been duly adverted to.
The prime aspect to be considered is as to the nature of the land
and whether the same is fit for paddy cultivation as on the date
of coming into force of the Act of 2008, which is not seen
considered while issuing Ext P5 order. Strangely enough, though
Ext P4 data bank shows that the property is a 'nilam', now the
application has been rejected by Ext P5 noting that the property
could be treated as a wetland. It is also seen that, in the enquiry
report produced as Ext R2(a) by the Agricultural Officer also, the
property has been termed as a paddy land and the only thing
that is stated is that there is water logging in the area.
5. The learned Government Pleader on the basis of the
counter affidavit filed submitted that, it is only on the basis of Ext
R2(b) report from the Village Officer and the Agricultural Officer's
report that the property was included as a wetland and decided
not to be removed from the data bank. It is pertinent to note
that, in the report submitted by the Agricultural Officer which is
produced as Ext R2(a), the Agricultural Officer has reported that
the property is a 'nilam' lying as paddy land and there is water
logging in the area. The report of the Village Officer which is
produced as Ext R2(b) also states that, on inspection it was
found that there is water logging in that property. If that be so,
this Court fails to understand as to how in Ext R2(a) report it is to
be stated that the property is part of a wetland and therefore
removal from the data bank cannot be allowed. It is also
pertinent to be noted that in this report submitted as Ext R2(a)
also, it is clearly stated there are coconut trees having more than
20 years of age standing in the property.
6. The learned Counsel for the petitioner would rely on
the judgment in Jessy Abraham Vs. Land Revenue
Commissioner [2022 (1) KLT 461] wherein this Court has held
that only for the reason that land is lying low and water logged,
the same cannot be treated as paddy land in the data bank. The
petitioner also relies on the judgment of Division Bench of this
Court in Mather Nagar Residents Association and Another
Vs. District Collector, Ernakulam and Others [2020 (2)
KHC 94] and submitted that, merely for the reason that the
property is lying as fallow is not a reason to treat the said land as
a wetland as per the provisions of the Act of 2008. This Court in
Suraj Vs. State of Kerala [2018 (1) KLT 1] has held that,
once a property has been treated as paddy land subsequently
the same cannot be included as a wetland and further held that
the land which was originally a paddy land would never fall
within the definition of wetland under the Act of 2008. KSRSEC
report was obtained before issuing Ext P5 order. In the said
report it is specifically observed and concluded that the plot was
observed under scattered vegetation/plantation on the data of
07.08.2006 and the same land use practices were continuing in
the data of the subsequent years on 2011, 2016 and 2021. A
perusal of Ext P5 would reveal that none of the parameters as
stated above and the finding in Ext P6 KSRSEC has been properly
taken into consideration. In the report submitted by the Village
Officer as well as the Agricultural Officer, it is stated that the
property is water logged, and the same cannot be a reason to
include the property as a wetland. The nature of the property as
on the date of coming into force of the Act of 2008 is the relevant
aspect for consideration for inclusion or removal of a property
from the data bank.
7. Considering all these aspects, I am of the opinion that
Ext P5 order is liable to be set aside with a consequential
direction to the 2nd respondent to reconsider the application
submitted under form-5 after adverting to the details as pointed
out in the judgment. Petitioner would be free to submit her notes
of argument and is free to produce all the relevant judgments
referred to above along with the same. A decision in this regard
shall be taken within a period of two months from the date of
receipt of a copy of this judgment. Petitioner may be afforded an
opportunity of being heard before a decision is taken as directed
above. The 2nd respondent while taking a decision as directed
above shall also take into consideration the fact that the
petitioner has obtained this property as a gift, as they are
landless and homeless and therefore properly apply his mind and
take a proper and reasoned decision in the matter.
With the above said direction, the writ petition is disposed
of.
Sd/-
VIJU ABRAHAM
JUDGE
sbk/-
APPENDIX OF WP(C) 29343/2022
PETITIONER EXHIBITS
Exhibit P1 TRUE COPY OF GIFT DEED NO.521/2018 OF
SUB REGISTRY OFFICE, MURUKKUMPUZHA DATED
31..3..2018.
Exhibit P2 TRUE COPY OF TAX RECEIPT
NO.KL01011601941/2022 DATED 11..4..2022
ISSUED TO THE PETITIONER.
Exhibit P2 A TRUE COPY OF NEWS ITEM PUBLISHED ON
MALAYALA MANORAMA DAILY DATED
28..7..2018.
Exhibit P3 TRUE COPY OF SALE DEED NO.1861/2014 OF
SUB REGISTRY OFFICE, MURUKKUMPUZHA DATED
14..10..2014.
Exhibit P4 TRUE COPY OF RELEVANT PORTION OF THE
DATA BANK OF ANDOORKONAM GRAMA PANCHAYAT
PUBLISHED ON 23.2.2012.
Exhibit P5 TRUE COPY OF ORDER
NO.RDO/TVM/1569/2021/11 DATED
29..3..2022 OF THE 2ND RESPONDENT.
Exhibit P6 TRUE COPY OF REPORT NO.A-172/2015/KSREC/
004850/21 DATED 29..07..2021 OF KERALA
STATE REMOTE SENSING & ENVIRONMENT
CENTRE.
RESPONDENT EXHIBITS
Exhibit R2(b) True copy of the report of the Village
Officer
Exhibit R2(a) True copy of the report of the
Agricultural Officer dated 09.03.2021
with typed copy
