The classification of land under the Kerala Conservation of Paddy Land and Wetland Rules must be based on its suitability for paddy cultivation, requiring proper inspection and consideration of evidence.

JUDGMENT :

The writ petition is filed to quash Ext.P2 order and direct the first respondent to re-consider the Form 5 application submitted by the petitioner under Rule 4(d) of the Kerala Conservation of Paddy Land and Wetland Rules, 2008 ('Rules' in short).

2. The petitioner is the owner in possession of 4.5 Ares of land comprised in Survey No. 105/4-5 of Vazhakkala Village, Malappuram District covered by Ext. P1 sale deed. The petitioner has constructed a house in the said land and the same is a garden land. However, the respondents have erroneously classified the petitioner’s property as ‘Nilam’, and included it in the data bank. In order to remove the property from the data bank, the petitioner had submitted Form 5 application. However, the first respondent solely relying on the report of the second respondent and, without inspecting the property directly or calling for satellite images as envisaged under Rule 4(4f) of the Rules, has erroneously passed the impugned Ext. P2 order. Hence, Ext. P2 is liable to be quashed.

3. Heard; the learned counsel for the petitioner and the learned Government Pleader.

4. The petitioner’s case is that, his property is a garden land, which is not suitable for paddy cultivation. The respondents have erroneously classified the property as ‘Nilam’ in the data bank.

5. In a plethora of judicial precedents, this Court has held that, it is nature, lie, character and fitness of the land, and whether the land is suitable for paddy cultivation as on 12.08.2008 i.e., the date of coming into force of the Act, are the relevant criteria to be ascertained by the Revenue Divisional Officer to exclude a property from the data bank (read the decisions of this Court in Muraleedharan Nair R v. Revenue Divisional Officer (2023(4) KHC 524), Sudheesh U v. The Revenue Divisional Officer, Palakkad (2023 (2) KLT 386) and Joy K.K v. The Revenue Divisional Officer/Sub Collector, Ernakulam and others (2021 (1) KLT 433)).

6. Likewise in Mather Nagar Residents Association and Another v. District Collector, Ernakulam and others (2020 (2) KHC 94), a Division Bench of this Court has held that, merely because a property is lying fallow and gets waterlogged during the rainy season or otherwise, due to the low-lying nature of the property, the property cannot be treated as wetland or paddy land in contemplation of Act, 2008. A similar view has been taken by this Court in Aparna Sasi Menon v. Revenue Divisional Officer, Irinjalakuda, (2023 (6) KHC 83), holding that the prime consideration to retain a property in data bank is to ascertain whether paddy cultivation is possible in the land.

7. A reading of Ext.P2 order would substantiate that the first respondent has not rendered any independent finding regarding the nature, character or lie of the petitioner’s property as on the crucial date, i.e., 12.08.2008, or whether the removal of the petitioner’s property from the data bank would adversely affect the paddy cultivation. He has also not directly inspected the property or called for satellite images as envisaged under the rules. Therefore, I hold that there has been total non-application of the mind in passing Ext.P2 order. Hence, I am satisfied that Ext.P2 order is liable to be quashed and the first respondent/authorised officer be directed to reconsider the matter afresh, in accordance with law, after adverting to the principles of law laid down in the aforesaid decisions and the materials available on record.

In the result, the writ petition is allowed in the following manner:

(i). Ext.P2 order is quashed.

(ii). The first respondent/authorised officer is directed to reconsider the Form-5 application, in accordance with law. It would be up to the authorised officer to either directly inspect the property or call for satellite images as per the procedure provided under Rule 4(4f) at the expense of the petitioner.

(iii) If the authorised officer calls for the satellite images, he shall consider the Form-5 application, in accordance with