Kerala High Court
Abdul Khaboor vs The District Collector, Palakkad on 23 February, 2024
Author: Murali Purushothaman
Bench: Murali Purushothaman
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE MURALI PURUSHOTHAMAN
FRIDAY, THE 23RD DAY OF FEBRUARY 2024 / 4TH PHALGUNA, 1945
WP(C) NO.6553 OF 2024
PETITIONER:
ABDUL KHABOOR, AGED 43 YEARS
S/O.HAMSA, KULATHINGAL HOUSE, CHENGANIYUR,
MATHUR AGRAHARAM, ALATHUR, PALAKKAD, PIN - 678571
BY ADV V.A.JOHNSON (VARIKKAPPALLIL)
RESPONDENTS:
1 THE DISTRICT COLLECTOR, PALAKKAD
CIVIL STATION, PALAKKAD, PIN - 678001
2 REVENUE DIVISIONAL OFFICER
CIVIL STATION, PALAKKAD, PIN - 678001
3 THE PRINCIPAL AGRICULTURAL OFFICER
OFFICE OF THE PRINCIPAL AGRICULTURAL OFFICER,
CIVIL STATION, PALAKKAD, PIN - 678001
4 THE VILLAGE OFFICER, MATHUR-II VILLAGE, MATHUR,
ALATHUR TALUK, PALAKKAD, PIN - 678571
5 THE AGRICULTURAL OFFICER, KRISHIBHAVAN, MATHUR.P.O,
ALATHUR, PALAKKAD, PIN - 678571
6 LOCAL LEVEL MONITORING COMMITTEE
MATHUR GRAMA PANCHAYAT, MATHUR.P.O, ALATHUR TALUK,
PALAKKAD, REP.BY ITS CONVENER, PIN - 678571
BY SMT.DEVISHREE, GP
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION
ON 23.02.2024, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
W.P.(C) No.6553 of 2024 2
JUDGMENT
Petitioner has approached this Court aggrieved
by Ext.P8 order whereby Form 5 application
submitted by him has been rejected by the 2 nd
respondent/Revenue Divisional Officer [RDO].
2. Petitioner is the owner in possession of
0.0223 Hectares of land comprised in Re-Survey
No.402/38 in Block No.14 of Mathur-II Village,
Alathur Taluk, Palakkad District.
3. According to the petitioner, the aforesaid
property is converted prior to 2008 and is a
rubber plantation and 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 the Data Bank. The petitioner filed Ext.P7
application in Form 5 of Rule 4(d) of the Kerala
Conservation of Paddy Land and Wetland Rules, 2008
before the RDO to remove the said land from the
Data Bank. The same has been rejected by the RDO
vide Ext.P8 order stating that the Agricultural
Officer has reported that the land is lying three
meter lower than the nearby Malampuzha Canal and
there will be water logging during rainy season
and is part of padasekharam and recommended not to
remove the property from the Data Bank.
4. The petitioner has filed this writ petition
challenging Ext.P8 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. It is also
contended that low lying of land is not a ground
to reject Form 5 application of the petitioner.
5. It is trite law that, merely because the
property is water 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. In Mather
Nagar Residents Association and Another v.
District Collector, Ernakulam and 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 the Act, 2008. It is
clear from the report submitted by the
Sub Collector before the Apex Court as
well as report of KSREC, 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 KSREC 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."
6. The relevant consideration for inclusion of
a property as paddy land or wetland is as to the
nature of the property as on the date of coming
into force of the Act, 2008. This Court has held
in the decision in Arthasasthra Ventures (India)
LLP v. State of Kerala [2022 (7) KHC 591] that,
the Revenue Divisional Officer must, while
considering an application for removal of a
property from the Data Bank, consider the question
whether the land was a paddy land as 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, in Muraleedharan Nair v.
Revenue Divisional Officer [2023 (4) KLT 270], has
held that 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. In Aparna Sasi
Menon v. Revenue Divisional Officer [2023 (6) KHC
83], this Court has held that the predominant
factor for consideration while considering the
Form-5 application should be whether the land
which is sought to be excluded from Data Bank is
one where paddy cultivation is possible and
feasible.
Ext.P8 order has been passed without
application of mind and without adherence to the
categorical declarations by this Court in the
decisions cited above. Accordingly, I find that
Ext.P8 order cannot be sustained and I set aside
the same, with a direction to the 2 nd respondent,
the RDO, to reconsider Ext.P7 application 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. The petitioner
shall produce a copy of the writ petition along
with a copy of the judgment before the 2 nd
respondent for due compliance.
The writ petition is disposed of with the
above directions.
Sd/-
MURALI PURUSHOTHAMAN
JUDGE
sp/23/02/2024
APPENDIX
PETITIONER'S EXHIBITS:-
Exhibit P1 TRUE COPY OF THE BASIC TAX RECEIPT
DATED 29.09.2023 ISSUED FROM THE OFFICE
OF THE 4TH RESPONDENT
Exhibit P2 TRUE COPY OF THE LOCATION CERTIFICATE
DATED 26.02.2019 ISSUED BY 4TH
RESPONDENT
Exhibit P3 TRUE COPY OF THE POSSESSION CERTIFICATE
DATED 04.10.2023 ISSUED BY THE 4TH
RESPONDENT
Exhibit P4 TRUE COPY OF THE ORDER NO.T.A(7)
6001/19 DATED 09.08.2019
Exhibit P5 TRUE COPY OF THE RELEVANT PAGE OF THE
DATA BANK OF PETITIONER'S PROPERTY
ISSUED FROM THE OFFICE OF 4TH
RESPONDENT
Exhibit P6 PHOTOGRAPH OF THE PETITIONER'S PROPERTY
Exhibit P7 TRUE COPY OF THE FORM-5 APPLICATION
DATED 03.11.2022
Exhibit P8 TRUE COPY OF THE ORDER IN FILE
NO.1453/2023 DATED 25.10.2023 ISSUED BY
THE 2ND RESPONDENT
