Balakrishnan v. District Collector, Thrissur, and others

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR.JUSTICE MURALI PURUSHOTHAMAN`** ``` MONDAY, THE 5[TH] DAY OF FEBRUARY 2024 / 16TH MAGHA, 1945 ``` ``` WP(C) NO. 4097 OF 2024 ``` ## **`PETITIONER:`** ``` BALAKRISHNAN AGED 75 YEARS S/O. SHANKARANEZHUTHACHAN, KULANGARAVEED, CHEMBUR P. O., THRISSUR, PIN – 680 027. ``` ``` BY ADVS. FARHANA K.H. SHAKTHI PRAKASH MUHASIN K.M. AMJATHA D.A. ``` ## **`RESPONDENTS:`** - **`1 THE DISTRICT COLLECTOR FIRST FLOOR, CIVIL STATION, AYYANTHOLE, THRISSUR, PIN – 680 003.`** - **`2 THE REVENUE DIVISIONAL OFFICER THRISSUR REVENUE DIVISIONAL OFFICE, CIVIL STATION, AYYANTHOLE, THRISSUR, PIN – 680 003.`** - **`3 THE TAHSILDAR THRISSUR TALUK OFFICE, TOWN HALL, W PALACE ROAD, CHEMBUKKAVU, THRISSUR, PIN – 680 020.`** - **`4 THE VILLAGE OFFICER PALISSERY VILLAGE OFFICE, PALAKKAL ANGADI, PALISSERY, THRISSUR, PIN – 680 027.`** - **`5 THE AGRICULTURE OFFICER AVINISSERY KRISHI BHAVAN, AVINISSERY, THRISSUR, PIN – 680 306.`** ``` WP(C).No.4097 OF 2024 ``` ``` 2 ``` ``` 6THE DIRECTOR KERALA STATE REMOTE SENSING AND ENVIRONMENT CENTRE, VIKAS BHAVAN, THIRUVANANTHAPURAM, PIN – 695 033. ``` ``` SRI. VISHNU S.CHEMPAZHANTHIYIL – SC SMT. AMMINIKUTTY – SR.GP ``` ``` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 05.02.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` WP(C).No.4097 OF 2024 ``` ``` 3 ``` ## **`JUDGMENT`** The petitioner has approached this Court aggrieved by Ext.P3 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 of 35.43 Ares of land in Sy. No.205/4 of Palissery Village, Thrissur Taluk, Thrissur District, out of which 13.08 Ares is shown as ‘Nilam’ in the revenue records. 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 included in the Data Bank. According to the petitioner, the property was ``` WP(C).No.4097 OF 2024 ``` ``` 4 ``` converted much prior to 2008. The petitioner filed Ext.P2 application in Form 5 of 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.P3 on the basis of the report of the Agricultural Officer wherein it is stated that in the petitioner’s property there are coconut trees, castor and banana trees which are less than ten years old. It is stated that the property is lying adjacent to ‘Cheruvatheri Padashekaram’. There is paddy field on the Northern and Eastern sides, houses on the west and ‘chal’, garden land on the south and it is understood that the land has been converted only after 2008. 4. The petitioner has filed this writ petition challenging Ext.P3 contending, inter alia, that the same is vitiated by non application of mind and is against the provisions of the Act, 2008 and the ``` WP(C).No.4097 OF 2024 ``` ``` 5 ``` binding precedents of this Court. It is also contended that the Revenue Divisional Officer should have called for a report from the Kerala State Remote Sensing and Environment Centre, Thiruvananthapuram (for short, the KSRSEC’) to ascertain the status of land as on 12.08.2008, the date of coming into force of the Act, 2008. 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 the Act, 2008. On a perusal of Ext.P3, it is evident that, without any independent assessment of the nature of property as on the date coming into force of the Act, 2008, the Revenue Divisional Officer has relied solely upon the report of the Agricultural Officer to refuse to remove the property from the Data Bank. 6. This Court has held in the decision in **Arthasasthra Ventures (India) LLP v. State of Kerala** [2022 (7) KHC 591] that, the Revenue ``` WP(C).No.4097 OF 2024 ``` ``` 6 ``` 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 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 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 ``` WP(C).No.4097 OF 2024 ``` ``` 7 ``` impugned order is unsustainable. In **Aparna Sasi Menon v. Revenue Divisional Officer** [2023 (6) KHC 83], this Court has held that the predominant factor for determination while considering the Form 5 application should be whether the land which is sought to be excluded from Data Bank is one where paddy cultivation is possible and feasible. 7. 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.P3 order cannot be sustained and I set aside the same, with a direction to the 2[nd] respondent, the Revenue Divisional Officer to reconsider Ext.P2 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 ``` WP(C).No.4097 OF 2024 ``` ``` 8 ``` 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 writ petition is disposed of with the above directions. Sd/- ``` MURALI PURUSHOTHAMAN JUDGE ``` SPR ``` WP(C).No.4097 OF 2024 ``` ``` 9 ``` ## **`APPENDIX`** ## **`PETITIONER’S EXHIBITS:-`** ``` EXHIBIT P1TRUE COPY OF THE TAX RECEIPT DATED 24.05.2022. EXHIBIT P2TRUE COPY OF THE FORM 5 APPLICATION SUBMITTED BY THE PETITIONER DATED 04.04.2023. ``` ``` EXHIBIT P3TRUE COPY OF THE ORDER DATED 09.06.2023 ISSUED BY THE 2ND RESPONDENT. EXHIBIT P4COPY OF THE PHOTOGRAPHS OF THE PROPERTY OF THE PETITIONER. ``` ``` RESPONDENTS EXHIBITS: NIL. ```