Ansal Basheer v. District Collector, Kollam & Others

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN** **WEDNESDAY, THE 28[TH] DAY OF FEBRUARY 2024 / 9TH PHALGUNA, 1945** **WP(C) NO. 7813 OF 2024** ## **PETITIONER(S):** **ANSAL BASHEER AGED 44 YEARS** **S/O BASHEER RAWTHER, SHEHANA NIVAS, VAYAKKAL.P.O., KOTTARAKKARA, KOLLAM, PIN - 690532** **BY ADV A.S.SHAMMY RAJ** ## **RESPONDENT(S):** - **1 DISTRICT COLLECTOR, KOLLAM KOLLAM CIVIL STATION, CIVIL STATION.P.O., KOLLAM DISTRICT, PIN - 691013** - **2 REVENUE DIVISIONAL OFFICER (R.D.O.), PUNALUR R.D.O. OFFICE, PUNALUR.P.O., PATHANAMTHITTA, PIN - 691305** - **3 LOCAL LEVEL MONITORYING COMMITTEE (LLMC) REPRESENTED BY ITS CHAIRMAN, AGRICULTURAL OFFICER, UMMANNUR KRISHI BHAVAN, UMMANNUR.P.O., VALAKAM, KOTTARAKKARA, KOLLAM, PIN - 691520** - **4 AGRICULTURAL OFFICER UMMANNUR KRISHI BHAVAN, UMMANNUR.P.O., VALAKAM, KOTTARAKKARA, KOLLAM, PIN - 691520** - **5 VILLAGE OFFICER VALAKAM VILLAGE OFFICE, VALAKOM.P.O., KOTTARAKKARA, KOLLAM, PIN - 691532 BY ADV.** **SMT.AMMNIKUTTY.K, SR.GP** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON** **28.02.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** WP(C) NO.7813 OF 2024 2 **P.V.KUNHIKRISHNAN, J. -----------------------------------W.P.(C) No.7813 of 2024 ------------------------------------Dated this the 28[th] day of February, 2024** ## **JUDGMENT** The above Writ Petition is filed with the following prayers: _“_ i) That a writ of certiorari or other order be passed setting aside Exhibit-P4 order; ii) That a writ of mandamus or other order be passed directing the 2nd respondent to re-consider Exhibit-P3 application and to pass fresh orders, after hearing the petitioner; iii) That a writ of mandamus or other order be passed directing the 2nd respondent to conduct a site inspection of the property of the petitioner before passing fresh orders on Exhibit-P3 application; iv) Considering the exigencies and necessity for urgent consideration of the grievance voiced in this Writ Petition, production of English translations of WP(C) NO.7813 OF 2024 3 documents in vernacular, may kindly be dispensed with for the time being; And v) Grant such other and further reliefs, as that are appropriate and incidental to this Writ Petition. _”[SIC]_ 2. The petitioner is the owner of 4.12 Ares of property. It is stated that there are 40 years old coconut trees and arecanut trees in the said property and the petitioner produced Ext.P2 photographs to prove the same. It is also submitted that there was no paddy cultivation as on 2008. The definite case of the petitioner is that the surrounding properties are already reclaimed and cultivated with rubber plantations. Therefore, there is no water source available to the petitioner's property is the submission. In that circumstance, the petitioner submitted Ext.P3 application before the 2[nd] respondent for removing the said property from the Data Bank. But the 2[nd] respondent illegally dismissed the said application vide WP(C) NO.7813 OF 2024 4 Ext.4 order is the grievance of the petitioner. Hence this Writ Petition is filed. 3. Heard the learned counsel appearing for the petitioner and the learned Government Pleader. 4. This Court perused Ext.P4 order. Ext.P4 is not a speaking order. Except relying on the report of the Agricultural Officer, the contention of the petitioner is not adverted while passing Ext.P4 order. In _**Muraleedharan Nair v. Revenue Divisional Officer**_ [2023 (4) KLT 270], this Court observed that, it will not be sufficient for the Revenue Divisional Officer to dismiss the application simply stating that Local Level Monitoring Commitee has decided not to remove the land from the Data Bank. 5. The Revenue Divisional Officer, being the competent authority, has to independently assess the status of the land and come to a conclusion that, WP(C) NO.7813 OF 2024 5 removal of the land from the Data Bank will adversely affect paddy cultivation in the land in question and 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. 6. In _**Aparna Sasi Menon v. Revenue Divisional Officer**_ [2023 (5) KLT 432], this Court observed that the predominant factor for consideration while considering Form 5 application should be whether the land which is sought to be excluded from the Data Bank is one where paddy cultivation is possible or feasible. 7. According to the petitioner, the impugned order is passed in violation of the provisions of the Kerala Conservation of Paddy and Wet Land Act, 2008. It is also submitted that the Revenue Divisional Officer has not applied his mind and simply accepted the WP(C) NO.7813 OF 2024 6 report. It is also submitted that, the KSREC report is not properly considered by the Revenue Divisional Officer. The contention of the petitioner is that the status of the land as on 12.08.2008 is not ascertained properly as per scientific process. 8. After going through the impugned order, I am of the considered opinion that, there is some force in the argument of the petitioner. The impugned order is not a speaking order. The contentions of the petitioner is not adverted by the 2[nd] respondent while passing the order. Therefore, I am of the considered opinion that the impugned order is to be set aside. Therefore, this Writ Petition is disposed of with the following directions: i) Ext.P4 order is set aside. ii) The 2[nd] respondent is directed to reconsider Form - 5 application WP(C) NO.7813 OF 2024 7 submitted by the petitioner, as expeditiously as possible, at any rate within a period of three months from the date of receipt of a copy of this judgment. iii) The petitioner is free to submit an application before the appropriate authority for getting the KSREC report within two weeks from the date of receipt of a copy of this judgment and if such an application is filed, the authority concerned will do the needful to obtain the same, in accordance with law. If KSREC report is available, the same will be considered by the 2[nd] respondent. If the KSREC report is called for, the Revenue WP(C) NO.7813 OF 2024 8 Divisional Officer need to pass final orders in Form – 5 application only within three months from the date of receipt of the KSREC report. iv) The petitioner will produce a certified copy of this judgment along with a copy of the Writ Petition with exhibits before the 2[nd] respondent for compliance. Sd/- DM **P.V.KUNHIKRISHNAN JUDGE** WP(C) NO.7813 OF 2024 9 ## **APPENDIX OF WP(C) 7813/2024** ## **PETITIONER EXHIBITS** EXHIBIT P1 TRUE COPY OF THE LAND TAX RECEIPT NO.KL02041702843/2022 DATED 4.5.2022 ISSUED BY THE 5TH RESPONDENT TO THE PETITIONER EXHIBIT P2 PHOTOGRAPHS OF PETITIONER'S PROPERTY EXHIBIT P3 TRUE COPY OF THE FORM 5 APPLICATION SUBMITTED BY THE PETITIONER BEFORE THE 2ND RESPONDENT DATED 13.10.2022 EXHIBIT P4 TRUE COPY OF THE ORDER NO.630/2023 DATED 27.6.2023 PASSED BY THE 2ND RESPONDENT RESPONDENTS EXHIBITS : NIL //TRUE COPY// PA TO JUDGE