Balakrishnan Koottala v. District Collector, Palakkad and Others

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE MURALI PURUSHOTHAMAN THURSDAY, THE 29[TH] DAY OF FEBRUARY 2024/10TH PHALGUNA, 1945 ``` ## **`WP(C) NO. 38982 OF 2022`** ## **`PETITIONER:`** ``` BALAKRISHNAN KOOTTALA, AGED 46 YEARS S/O. LATE.SANKUNNI NAIR, KOOTTALA HOUSE, POLPULLY, PALAKKAD – 678 552. ``` ## **`BY ADV V.A.JOHNSON (VARIKKAPPALLIL)`** ## **`RESPONDENTS:`** - **`1 THE DISTRICT COLLECTOR, CIVIL STATION, PALAKKAD – 678 001.`** - **`2 REVENUE DIVISIONAL OFFICER, CIVIL STATION, PALAKKAD – 678 001.`** - **`3 THE PRINCIPAL AGRICULTURAL OFFICER, OFFICE OF THE PRINCIPAL AGRICULTURAL OFFICER, CIVIL STATION, PALAKKAD – 678 001.`** - **`4 THE VILLAGE OFFICER, POLPULLY VILLAGE, PALAKKAD TALUK, PALAKKAD – 678 722.`** - **`5 THE AGRICULTURAL OFFICER, KRISHIBHAVAN, POLPULLY, PALAKKAD – 678 722.`** - **`6 LOCAL LEVEL MONITORING COMMITTEE, POLPULLY GRAMA PANCHAYAT, POLPULLY P.O, PALAKKAD TALUK, PALAKKAD – 678 722. REPRESENTED BY ITS CONVENER.`** ## **`SMT. SHEEBA - GP`** ``` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 29.02.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` WP(C).No.38982 OF 2022 ``` ``` 2 ``` ## **`JUDGMENT`** The petitioner has approached this Court aggrieved by Ext.P7 whereby Form 5 application submitted by him has been rejected by the Revenue Divisional Officer. 2. The petitioner is the absolute owner in possession of an extent of 0.0567 Hectors of land in Block No.45, Re.Sy.No.216/10 (216/9) of Polpully Village, Palakkad Taluk in Palakkad District. 3. According to the petitioner, the aforesaid property was converted long back and 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, the property is wrongly included in the Data Bank as paddy land. The petitioner filed Ext.P6 application in Form 5 under Rule 4(d) of the ``` WP(C).No.38982 OF 2022 ``` ``` 3 ``` Kerala Conservation of Paddy Land and Wetland Rules, 2008 (for short, ‘the Rules’) 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.P7 stating that the Agricultural Officer has reported that presently plantains and other crops are cultivated in the subject land and it is understood that there was paddy cultivation after 2008 in the subject land and that the conversion will affect the paddy cultivation nearby and need not be removed from the Data Bank. 4. The petitioner has filed this writ petition challenging Ext.P7 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 nature of the property as on the date of coming into force of ``` WP(C).No.38982 OF 2022 ``` ``` 4 ``` the Act, 2008. Rule 4 (4E) of the Rules 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.P7, 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 solely relied upon the report of the Agricultural Officer 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** ``` WP(C).No.38982 OF 2022 ``` ``` 5 ``` **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** **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 the Data Bank will adversely affect paddy cultivation in the land in question or in the nearby paddy lands or that ``` WP(C).No.38982 OF 2022 ``` ``` 6 ``` 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 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. None of the parameters for consideration of Form 5 application has been taken into account while passing the impugned order. Accordingly, I find that Ext.P7 order cannot be sustained and I set aside the ``` WP(C).No.38982 OF 2022 ``` ``` 7 ``` same, with a direction to the 2[nd] respondent to reconsider Ext.P6 application in Form 5 in accordance with law and take a decision after considering the KSRSEC report to be obtained at the expense of the petitioner, and other relevant factors mentioned in Rule 4(4F), 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 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 2[nd] respondent for compliance. The writ petition is disposed of with the above directions. Sd/- ## **`MURALI PURUSHOTHAMAN JUDGE`** SPR ``` WP(C).No.38982 OF 2022 ``` ``` 8 ``` ## **`APPENDIX`** ## **`PETITIONER’S EXHIBITS:-`** ``` EXHIBIT P1TRUE COPY OF THE BASIC TAX RECEIPT DATED 20.08.2020 ISSUED IN THE NAME OF THE PETITIONER. EXHIBIT P2TRUE COPY OF THE LOCATION SKETCH OF THE PETITIONER'S PROPERTY. EXHIBIT P3TRUE COPY OF THE ORDER NO.259/04 DATED. 20.10.2005 ISSUED BY THE 2ND RESPONDENT. EXHIBIT P4TRUE COPY OF THE RELEVANT PAGE OF THE DATA BANK PUBLISHED BY THE POLPULLY GRAMA PANCHAYAT. EXHIBIT P5PHOTOGRAPHS OF THE PETITIONER'S PROPERTY. EXHIBIT P6TRUE COPY OF THE APPLICATION DATED 18.11.2020. EXHIBIT P7TRUECOPYOFTHEORDER NO.RDOPKD/1510/2021J1 DATED 06.07.2022 ISSUED BY THE 2ND RESPONDENT. EXHIBIT P8TRUE COPY OF THE COMMUNICATION DATED 25.09.2021. EXHIBIT P9TRUE COPY OF THE COMMUNICATION DATED 24.02.2022 ISSUED UNDER R.T.I ACT. ``` ``` RESPONDENTS EXHIBITS: NIL. ```