Kerala High Court
K.C.Babu vs The Revenue Divisional Officer/Sub ... on 29 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 29TH DAY OF FEBRUARY 2024 / 10TH PHALGUNA, 1945
WP(C) NO.8059 OF 2024
PETITIONER:
K.C.BABU, AGED 72 YEARS
S/O.GEEVARGHESE CHANDY, RESIDING AT KALLUVILA
GALEELEE, CHEMANCHERY, VENGALAM, KOYILANDY,
KOZHIKODE, PIN - 673303
BY ADVS.
M.SASINDRAN
P.K.SUBHASH
RESPONDENTS:
1 THE REVENUE DIVISIONAL OFFICER/SUB COLLECTOR
KOZHIKODE DISTRICT, PIN - 673001
2 THE AGRICULTURAL OFFICER
KRISHI BHAVAN, ELATHUR, PUTHIYANGADI.P.O., CALICUT,
PIN - 673001
3 THE DISTRICT COLLECTOR,
COLLECTORATE, KOZHIKODE, PIN - 673001
4 STATE OF KERALA
REPRESENTED BY ITS SECRETARY TO GOVERNMENT,
REVENUE DEPARTMENT, SECRETARIATE,
THIRUVANANTHAPURAM, PIN - 695001
SR.GP.SMT.K.AMMINIKUTTY
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION
ON 29.02.2024, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
W.P.(C) No.8059 of 2024 2
JUDGMENT
Petitioner has approached this Court aggrieved
by Ext.P6 order, whereby Form 5 application
submitted by him has been rejected by the 1 st
respondent/Revenue Divisional Officer
2. Petitioner is the co-owner in possession of
22.83 Ares of land comprised in Sy.No.67/39 in
Block No.3 of Elathur Village, Kozhikode Taluk,
Kozhikode District. According to the petitioner,
the property is a pucca garden land with wide
tarred roads on two sides and within the Kozhikode
City and the property 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,
the property is wrongly included in the Data Bank
prepared under the Kerala Conservation of Paddy
Land and Wetland Rules, 2008 (for brevity, 'the
Rules, 2008'). The petitioner states that as per
the report of the Kerala State Remote Sensing and
Environment Centre [for short, 'the KSRSEC'], the
land is indicated as bordered by a road on the
southern side and observed under exposed red soil
with scattered vegetation/ plantation towards
eastern side in the data of 2008. The petitioner,
therefore, filed Ext.P3 application in Form 5
under the provisions of the Act, 2008 to remove
the property from the Data Bank. The RDO, by
Ext.P6 order, rejected Ext.P3 on the ground that
as per the report of the 2nd respondent/
Agricultural Officer, the property is seen as
paddy land and is not converted before 2008 and if
it is removed from the Data Bank, it will affect
the cultivation in the nearby land and the
ecology. It is further stated that, on examining
the KSRSEC report, it is seen that exposed soil
and vegetation is seen only on the eastern side
and it is not recorded that the land was converted
before 2008.
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. It is also contended that the KSRSEC
report was misinterpreted.
5. 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. Rule 4(4E) of the
Rules, 2008 provides that, on receipt of the
application in Form 5, the RDO shall call for a
report from the Agricultural Officer in the case
of paddy land and that of the Village Officer in
the case of wetland. Rule 4(4F) provides that, on
receipt of the report as above, the RDO shall, if
deems necessary, verify the contents of the Data
Bank by direct inspection or with the help of
satellite images prepared by Central/State
Scientific Technological Institutions and pass
appropriate orders on the application. On a
perusal of Ext.P6, it is evident that, without any
independent assessment of the nature of the
property as on the date of coming into force of
the Act, 2008, the RDO has refused to remove the
property from the Data Bank.
6. 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 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 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. 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.
8. I find that there is total non application
of mind on the part of the RDO while interpreting
the report of the KSRSEC. Relevant factors were
not taken into account while considering Ext.P3
application.
Accordingly, I set aside Ext.P6, with a
direction to the 1st respondent, the RDO, to
reconsider Ext.P3 application of the petitioner in
Form 5 and take a decision in the matter on the
basis of Ext.P5 KSRSEC report and the observation
of this Court and the binding precedents within a
period of two months 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 1 st respondent for
due compliance.
The writ petition is disposed of with the
above directions.
Sd/-
MURALI PURUSHOTHAMAN
JUDGE
sp/16/02/2024
APPENDIX
PETITIONER'S EXHIBITS:-
Exhibit P1 A TRUE COPY OF THE SALE
DEED.NO.2384/1995 DATED 05.07.1995 OF
SRO, WEST HILL, KOZHIKODE EXECUTED IN
FAVOUR OF THE PETITIONER AND OTHERS
Exhibit P1(a) A TRUE COPY OF THE PHOTOGRAPHS OF THE
PROPERTY BOUNDED BY TARRED ROAD HOUSES,
AND WELL CONSTRUCTED PUBLIC DRAINAGES
Exhibit P2 A TRUE COPY OF THE TAX RECEIPT ISSUED
BY THE VILLAGE OFFICER ELATHUR
Exhibit P3 A TRUE COPY OF THE APPLICATION DATED
30.12.2022 SUBMITTED BY THE PETITIONER
IN FORM 5, BEFORE THE 1ST RESPONDENT
Exhibit P4 A TRUE COPY OF THE JUDGMENT DATED
16.03.2023 IN WP (C) NO.9228/2023
Exhibit P5 A TRUE COPY OF THE REPORT OF THE KSREC
DATED 25-07-2023
Exhibit P6 A TRUE COPY OF THE ORDER DATED
11-10-2023 ISSUED BY THE FIRST
RESPONDENT
