Assis Ahammed v. Revenue Divisional Officer, Idukki and Others

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE BECHU KURIAN THOMAS** **WEDNESDAY, THE 27[TH] DAY OF SEPTEMBER 2023 / 5TH ASWINA, 1945** ## **WP(C) NO. 27443 OF 2023** ## **PETITIONER :** **ASSIS AHAMMED, AGED 63 YEARS, S/O.LATE AHAMMED, PALAMOOTTIL HOUSE, EDAVETTY POST, THODUPUZHA TALUK, IDUKKI DISTRICT, PIN – 685 588** **BY ADVS. R.SREEHARI HAMZA A.V. VIGNESH S.** ## **RESPONDENTS :** **1 REVENUE DIVISIONAL OFFICER IDUKKI, REVENUE DIVISIONAL OFFICE, KUYILIMALA, PAINAVU POST, IDUKKI DISTRICT, PIN - 685603 2 LOCAL LEVEL MONITORING COMMITTEE (CONSTITUTED UNDER THE KERALA CONSERVATION OF PADDY LAND AND WET LAND ACT,2008), EDAVETTY GRAMA PANCHAYAT, REPRESENTED BY ITS CONVENOR- AGRICULTURAL OFFICER, KRISHI BHAVAN - EDAVETTY, THEKKUMBHAGAM POST, THODUPUZHA TALUK, IDUKKI DISTRICT, PIN - 685585 3 AGRICULTURAL OFFICER KRISHI BHAVAN EDAVETTY, THEKKUMBHAGAM POST, THODUPUZHA TALUK, IDUKKI DISTRICT, PIN – 685 585 4 VILLAGE OFFICER KARIKODE VILLAGE, KARIKODE, THODUPUZHA EAST POST, THODUPUZHA TALUK, IDUKKI DISTRICT, PIN – 685 585** **WP(C) NO. 27443 OF 2023** 2 **5 KERALA STATE REMOTE SENSING AND ENVIRONMENT CENTRE 1ST FLOOR, VIKAS BHAVAN, NEAR LEGISLATIVE ASSEMBLY, UNIVERSITY OF KERALA SENATE HOUSE CAMPUS, PMG JUNCTION POST, THIRUVANANTHAPURAM, REPRESENTED BY ITS DIRECTOR, PIN – 695033** **BY SMT.DEVISHRI R., GOVERNMENT PLEADER** **BY SRI.VISHNU S, SC** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 27.09.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C) NO. 27443 OF 2023** 3 ## **BECHU KURIAN THOMAS, J.** =-=-=-=-=-=-=-=-=-=-=-=-=-= ## **W.P.(C) No.27443 of 2023** =-=-=-=-=-=-=-=-=-=-=-=-=-= **Dated this the 27[th] day of September, 2023** ## **JUDGMENT** Petitioner, is the owner of 32.51 Ares of land in Re-Survey No.149/3, 149/3 and 149/2 of Block No.34 of Karikode Village, Thodupuzha Taluk, Idukki District. Challenge is against Ext.P8 order of the Revenue Divisional Officer,Idukki, rejecting the petitioner’s request to remove his land from the data bank. 2. Petitioner alleges that his land was converted prior to the enactment of the Kerala Conservation of Paddy Land and Wetland Act, 2008 (for short, the Act), and it is presently a 'dry land'. However, when the data bank was prepared under Section 5(4)(i) of the Act, his land was wrongly included in it. Since the petitioner requires the land for other purposes, he submitted an application in Form-5, invoking Rule 4(4d) of the Kerala Conservation of Paddy Land and Wetland Rules, 2008 (for short, the Rules). The extent of land mentioned in Form 5 is 31.6 Ares. 3. By the impugned order, petitioner’s application was rejected by the Revenue Divisional Officer. Petitioner alleges that the rejection was based solely on the report of the Agricultural Officer, without any site inspection and without any application of mind and is hence not a **WP(C) NO. 27443 OF 2023** 4 speaking order. 4. I have heard Sri.Sreehari R., learned counsel for the petitioner, Sri.Vishnu S.Chempazhanthiyil, the learned Standing Counsel as well as Smt. Devishri R., the learned Government Pleader and have also perused Ext.P8 order passed by the Revenue Divisional Officer. 5. The Revenue Divisional Officers while considering an application under Form 5 is exercising a power which affects the rights of parties. The power to consider such applications have been vested with such officers with a purpose. A perusal of Ext.P8 reveals that it is issued in the form of communication and not as an order. The said procedure adopted by the first respondent itself is per se illegal. 6. Be that as it may, petitioner’s application in Form 5 of the Rules was rejected relying on the Agricultural Officer’s report dated 02.04.2022. The said report stated that petitioner’s land need not be excluded from the data bank. Petitioner asserted that the surrounding areas are welldeveloped with multiple buildings and also that the impugned order had not even referred to the suitability of the land for paddy cultivation. 7. In the decision in **Arthasasthra Ventures (India) LLP v. State of Kerala** [2022 (7) KHC 591] and in **Muraleedharan Nair R. v. Revenue Divisional Officer** [2023 (4) KHC 524], this Court had observed that the RDO cannot merely follow the report of the Agricultural **WP(C) NO. 27443 OF 2023** 5 Officer or the LLMC without any independent assessment of the status of the land. This Court had also observed that while considering an application filed under Form 5, the Authority must consider whether the removal of the property from the data bank will affect paddy cultivation in the land and also whether it will affect the nearby paddy fields. Similarly, in the decision in **Aparna Sasi Menon v. Revenue Divisional Officer** [(2023) KHC Online 592] it has been observed that when the competent authority considers a Form-5 application, the predominant consideration should be whether the land which is sought to be excluded from data bank is one where paddy cultivation is possible and feasible including the existence of irrigation facilities. 8. A perusal of the impugned order reveals that the aforementioned specific aspects have not been adverted to, and instead, the application has been rejected solely on the basis of the report of the Agricultural Officer. The RDO could have atleast perused the scientific data for deciding the matter by directing the petitioner to apply for the same or by conducting a site visit. There is also no finding that the land is suitable for paddy cultivation and whether there are any paddy lands in the nearby areas. Since the order is bereft of material particulars and is not issued on any perceivable data, it cannot be said to be a reasoned order. Discernibly, there is no independent application of mind to the relevant circumstances, and hence, the impugned order is liable to be set aside **WP(C) NO. 27443 OF 2023** 6 and a fresh consideration be made. 9. In the above circumstances, Ext.P8 order is quashed and the first respondent is directed to reconsider the Form 5 application submitted by the petitioner and issue fresh orders, after considering the report of KSREC, if applied and obtained, and other relevant factors mentioned in rule 4(4f) of the Rules. The order, as directed above, shall be issued within a period of three months from the date of receipt of a copy of this Judgment. The writ petition is allowed as above. Sd/- **BECHU KURIAN THOMAS, JUDGE** RKM **WP(C) NO. 27443 OF 2023** 7 ## **APPENDIX OF WP(C) 27443/2023** ## **PETITIONER'S EXHIBITS :** **Exhibit P1 TRUE COPY OF THE REGISTERED DOCUMENT NO. 1816/2013 OF SRO KARIKODE DATED 17/05/2013 Exhibit P2 TRUE COPY OF THE BASIC TAX RECEIPT DATED 19/06/2020 ISSUED FROM THE KARIKODE VILLAGE OFFICE IN FAVOUR OF THE PETITIONER FOR THE PERIOD 2020-2021 Exhibit P3 TRUE COPY OF THE RELEVANT PAGES OF THE LAND IDENTIFICATION DETAIL PUBLISHED WITH RESPECT TO THE DATA BANK OF PADDY LAND AND WET LANDS OF EDAVETTY GRAMA PANCHAYAT PUBLISHED AS PER THE KERALA CONSERVATION OF PADDY LAND AND WET LAND RULES, 2008** **Exhibit P4 TRUE COPY OF THE APPLICATION DATED 22/01/2021 SUBMITTED BY THE PETITIONER IN FORM NO.5 OF THE KERALA CONSERVATION OF PADDY LAND AND WET LAND RULES,2008 BEFORE THE 1ST RESPONDENT** **Exhibit P5 TRUE COPY OF THE REPORT ON LAND USE CHANGE WITH NO.A-172/2015/KSREC/010224/18 ISSUED BY THE 5TH RESPONDENT** **Exhibit P6 TRUE COPY OF THE DECISION NO.37 DATED 24/02/2021, OF THE 2ND RESPONDENT** **Exhibit P7 TRUE COPY OF THE LETTER DATED 02/04/2022 WITH NO.ETY/16/2022-23,ISSUED BY THE 3RD RESPONDENT TO THE 1ST RESPONDENT** **Exhibit P8 TRUE COPY OF THE LETTER DATED 24/05/2022 WITH NO. RDOIDK/433/2021/C4 ISSUED BY THE 1ST RESPONDENT TO THE PETITIONER** **WP(C) NO. 27443 OF 2023** 8 ## **Exhibit P9** **TRUE COPY OF THE JUDGMENT OF THE HON'BLE HIGH COURT OF KERALA REPORTED AS 2023 (4) KHC 524 (MURALEEDHARAN NAIR.R -VS- REVENUE DIVISIONAL OFFICER)**