A.T. Arif vs The Revenue Divisional Officer
2024 Latest Caselaw 5020 Ker

Kerala High Court

A.T. Arif vs The Revenue Divisional Officer on 15 February, 2024

Author: Murali Purushothaman

Bench: Murali Purushothaman

            IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                PRESENT
        THE HONOURABLE MR.JUSTICE MURALI PURUSHOTHAMAN
THURSDAY, THE 15TH DAY OF FEBRUARY 2024 / 26TH MAGHA, 1945
                      WP(C) NO. 5759 OF 2024
PETITIONER:

            A.T. ARIF
            AGED 41 YEARS
            S/O. LATHEEF, RESIDING AT ASBEENA MANZIL,
            CHAKKERIPADU PARAMBA, P.O. ARAKKINAR,
            KOZHIKODE, PIN - 673 028.

            BY ADVS.
            V.V.SURENDRAN
            P.A.HARISH
            DONA PAUL
            DIVIN V.VIJAYAN


RESPONDENTS:

    1       THE REVENUE DIVISIONAL OFFICER
            OFFICE OF THE REVENUE DIVISIONAL OFFICER
            COLLECTORATE BUILDING , P.O. CIVIL STATION,
            KOZHIKODE, PIN - 673 020.
    2       THE VILLAGE OFFICER, BEYPORE
            OFFICE OF THE VILLAGE OFFICER,
            BEYPORE, P.O. BEYPORE,
            KOZHIKODE, PIN - 673 015.
    3       THE AGRICULTURAL OFFICER, BEYPORE
            OFFICE OF THE AGRICULTURAL OFFICER,
            P.O. BEYPORE, KOZHIKODE,
            PIN - 673 015.

            SR.GP. - SMT.K.AMMINIKUTTY



     THIS     WRIT   PETITION    (CIVIL)     HAVING    COME    UP    FOR
ADMISSION     ON   15.02.2024,    THE     COURT   ON   THE    SAME   DAY
DELIVERED THE FOLLOWING:
 WP(C).No.5759 OF 2024

                                 2




                              JUDGMENT

The petitioner has approached this Court

aggrieved by Ext.P6 order whereby Form 5

application submitted by him has been rejected by

the Revenue Divisional Officer.

2. The petitioner is the owner in possession of

an extent of 2.311 Ares of land comprised in Re.Sy.

No.192/2 (192/26) of Beypore Village, Kozhikode Taluk

in Kozhikode District.

3. According to the petitioner, the aforesaid

property will not come within the definition of paddy

land or wet land. However, it has been wrongly

included in the Data Bank prepared under the Kerala

Conservation of Paddy land and Wetland Rules, 2008.

The petitioner, therefore, filed an application in Form

5 under the provisions of the Kerala Conservation of

Paddy Land and Wetland Act, 2008 (hereinafter

referred to as 'the Act, 2008') to remove the property WP(C).No.5759 OF 2024

from the Data Bank. The Revenue Divisional Officer

by Ext.P6 order rejected the application on the

ground that, as per the report of the Agricultural

Officer, the satellite report and on site inspection by

her office, there are seven coconut trees in the land

which are ten years old, there are residential

buildings and road on all sides and the land is marshy

and water logged and conversion will lead to

environmental hazards.

4. The petitioner impugns Ext.P6 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. The relevant consideration for inclusion of a

property as 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.P6, it is evident

that, without any independent assessment of the WP(C).No.5759 OF 2024

nature of property as on the date of coming into force

of the Act, 2008.

6. This Court, in Muraleedharan 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 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 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.

7. Further, it is trite law that, merely because

the land is marshy or water logged, it cannot be WP(C).No.5759 OF 2024

termed as wetland or paddy land in contemplation of

Act, 2008. In Mather Nagar Residents Association

and Another v. District Collector, Ernakulam

others (2020 (2) KLT 192), a Division Bench of this

Court held as follows:-

"22. Going by the definition of wetland, we are of the view that, in order to treat a particular land as wetland, it should have the characteristic features and requirement as is provided under Act, 2008. It is clear from the report submitted by the Sub Collector before the Apex Court as well as report of KSRSEC, the nodal agency of State Government, that the properties in question is a fallow land. Fallow land is never treated as wetland in accordance with the provisions of Act, 2008. It is also significant to note that from the definition of wetland under Act, 2008, paddy land and rivers are excluded. The report submitted by the KSRSEC is not disputed by the Residents Association. Merely because the property is lying fallow and water gets logged during rainy season or otherwise due to the low lying nature of the property, it cannot be termed as wetland or paddy land in contemplation of Act, 2008."

8. In Aparna Sasi Menon v. Revenue

Divisional Officer, Irinjalakuda [2023 (6) KHC 83],

this Court has held that existence of neerchals in a

property should never be a prime consideration in WP(C).No.5759 OF 2024

deciding whether the land is to be retained in the

Data Bank. Instead, the prime consideration should

be whether paddy cultivation is possible in the

property in question.

9. In Sudheesh v. Revenue Divisional

Officer [2023 (2) KLT 386], this Court held as

follows:-

"Going by the definition in S.2(xii) of "paddy land" in the Act, 2008, to bring in a land within the definition of paddy land, it should be suitable for paddy cultivation, but uncultivated and left fallow. Just for the reason that the property is left fallow, the land cannot be brought within the definition of paddy land but the Revenue Divisional Officer should be satisfied that the land is suitable for paddy cultivation and left fallow and therefore only on satisfaction of the said twin conditions that a land could be treated as paddy land coming under the definition of S.2(xii) of the Act, 2008."

10. In spite of the categorical declarations by

this Court in the decisions cited above, the

petitioner's application has been rejected, without

ascertaining the nature of the property as on the date

of coming into force of the Act, 2008. Accordingly, I

set aside Ext.P6 with a direction to the 1st respondent, WP(C).No.5759 OF 2024

the Revenue Divisional Officer to reconsider the

application of the petitioner in Form 5 and take a

decision in the matter on the basis of KSRSEC report

and the observations of this Court and the binding

precedents. The petitioner shall apply for KSRSEC

report before the Agricultural Officer within a period

of two weeks from the date of receipt of a copy of this

judgment. On receipt of KSRSEC report, the 1 st

respondent shall pass appropriate orders within a

period of two months from the date of receipt of the

report of the KSRSEC. The petitioner shall produce a

copy of the writ petition along with a copy of this

judgment before the 1st respondent for compliance.

The writ petition is disposed of with the above

directions.

Sd/-

MURALI PURUSHOTHAMAN JUDGE

SPR WP(C).No.5759 OF 2024

APPENDIX

PETITIONER'S EXHIBITS:-

EXHIBIT P1 A TRUE COPY OF DOCUMENT NO 2405/14 OF MEENCHANDA SUB REGISTRY DATED 05.09.2014 EXECUTED BY M/S SUBRAMANIAN AND HARIDASAN IN FAVOUR OF THE PETITIONER AND HIS BROTHER.

EXHIBIT P2 A TRUE COPY OF THE BASIC TAX RECEIPT DATED 04.02.2021 BY THE 2ND RESPONDENT TO THE PETITIONER AND HIS BROTHER.

EXHIBIT P3 A TRUE COPY OF THE POSSESSION CERTIFICATE ISSUED BY THE 2ND RESPONDENT DATED 18.03.2021 BY THE 2ND RESPONDENT TO THE PETITIONER AND HIS BROTHER.

EXHIBIT P4 TRUE PHOTOGRAPHS SHOWING THE LIE OF THE PROPERTY.

EXHIBIT P5 A TRUE COPY OF THE APPLICATION DATED 16.03.2021 MADE BY THE PETITIONER UNDER FORM 5 OF THE RULES.

EXHIBIT P6 A TRUE COPY OF THE ORDER DATED 28.05.2023, OF THE 1ST RESPONDENT.

RESPONDENTS EXHIBITS: NIL.