Anil Kumar v. Revenue Divisional Officer, Ernakulam

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** # **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE MURALI PURUSHOTHAMAN MONDAY, THE 19[TH] DAY OF FEBRUARY 2024 / 30TH MAGHA, 1945 WP(C) NO. 6307 OF 2024 ``` ## **`PETITIONER:`** ``` ANIL KUMAR AGED 62 YEARS S/O. SANKARAN NAIR, ROHINIYIL HOUSE, 16/23812, NADAMA DESOM, NADAMA VILLAGE, ERNAKULAM DISTRICT, PIN – 682 032. ``` ``` BY ADVS. PAUL K.VARGHESE A.A.GEETHA ``` ## **`RESPONDENT:`** ``` THE REVENUE DIVISIONAL OFFICER X69V+HV, 1ST FLOOR, K.B. JACOB ROAD, FORT KOCHI, KOCHI, ERNAKULAM DISTRICT, PIN – 682 001. ``` ``` SR.GP. - SMT.K.AMMINIKUTTY ``` ``` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 19.02.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` WP(C).No.6307 OF 2024 ``` ``` 2 ``` ## **`JUDGMENT`** The petitioner has approached this Court aggrieved by Ext.P6 whereby Form 5 application submitted by him has been rejected by the Revenue Divisional Officer solely relying on the report of the Agricultural Officer. 2. The petitioner is the absolute owner in possession of an extent of 3.98 Ares of land in Sy.No.19/2 (Block No.209) of Nadama Village, Kanayannoor Taluk in Ernakulam District. 3. According to the petitioner, the aforesaid property will not come within the ambit of paddy land or wet land as defined under the Kerala Conservation of Paddy Land and Wetland Act, 2008 (hereinafter referred to as 'the Act, 2008’). However, it is stated that the property is wrongly ``` WP(C).No.6307 OF 2024 ``` ## **`3`** included in the Data Bank. The petitioner filed Ext.P4 application in Form 5 under Rule 4(d) of the Kerala Conservation of Paddy Land and Wetland Rules, 2008 before the Revenue Divisional Officer to remove the said land from the Data Bank. The same has been rejected by the Revenue Divisional Officer vide Ext.P6 stating that as per the report of the Agricultural Officer, the LLMC had inspected the land and was convinced that the land was not converted before 2008 and recommended not to remove the property from the Data Bank. 4. The petitioner has filed this writ petition challenging 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 ``` WP(C).No.6307 OF 2024 ``` ``` 4 ``` 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 nature of property as on the date of coming into force of the Act, 2008, the Revenue Divisional Officer has relied solely upon the report of the Agricultural Officer and LLMC to refuse to remove the property from the Data Bank. 6. This Court had 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 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** ``` WP(C).No.6307 OF 2024 ``` ``` 5 ``` **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 Form 5 application should be ``` WP(C).No.6307 OF 2024 ``` ``` 6 ``` whether the land which is sought to be excluded from the Data Bank is one where paddy cultivation is possible and feasible. 8. In spite of the categorical declarations by this Court in the decisions cited above, the petitioner's application has been rejected solely relying on the report of the Agricultural Officer who recommended not to remove the land from the Data Bank. Accordingly, I find that Ext.P6 order cannot be sustained and I set aside the same, with a direction to the Revenue Divisional Officer to reconsider Ext.P4 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 ``` WP(C).No.6307 OF 2024 ``` ``` 7 ``` of a copy of this judgment. The petitioner shall produce a copy of the writ petition along with a copy of this judgment before the Revenue Divisional Officer for compliance. The writ petition is disposed of with the above directions. Sd/- ``` MURALI PURUSHOTHAMAN JUDGE ``` SPR ``` WP(C).No.6307 OF 2024 ``` ``` 8 ``` ## **`APPENDIX`** ## **`PETITIONER’S EXHIBITS:-`** ``` EXHIBIT P1TRUE COPY OF THE TAX RECEIPT ISSUED BY THE VILLAGE OFFICER, NADAMA VILLAGE DATED 25.05.2022. EXHIBIT P2TRUE COPY OF THE POSSESSION CERTIFICATE ISSUED BY THE VILLAGE OFFICER, NADAMA VILLAGE DATED 23.02.2022. EXHIBIT P3TRUE COPY OF THE APPLICATION SUBMITTED BY THE PETITIONER BEFORE THE REVENUE DIVISIONAL OFFICER DATED 25.05.2022. EXHIBIT P4TRUE COPY OF THE ONLINE APPLICATION SUBMITTED BY THE PETITIONER THE REVENUE DIVISIONAL OFFICER DATED 25.05.2022. EXHIBIT P5TRUE COPY OF THE JUDGMENT IN W.P.(C) NO. 31085/2023 OF THIS HON'BLE COURT DATED 21.09.2023. EXHIBIT P6TRUE COPY OF THE ORDER OF THE RESPONDENT DATED 02.11.2023. ``` ## **`RESPONDENTS EXHIBITS: NIL.`**