Eliyakutty George v. The District Collector, Palakkad & 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. 5511 OF 2024 ``` ## **`PETITIONER(S):`** ``` ELIYAKUTTY GEORGE AGED 76 YEARS ``` ``` W/O.C.V.GEORGE, CHERICHALATHIL, PUZHAKKALIDOM, VADAKKENCHERRY, ALATHUR, PALAKKAD, PIN - 678683 ``` ``` BY ADV V.A.JOHNSON (VARIKKAPPALLIL) ``` ## **`RESPONDENT(S):`** - **`1 THE DISTRICT COLLECTOR, PALAKKAD CIVIL STATION, PALAKKAD, PIN - 678001`** - **`2 REVENUE DIVISIONAL OFFICER CIVIL STATION, PALAKKAD, PIN - 678001`** - **`3 THE PRINCIPAL AGRICULTURAL OFFICER OFFICE OF THE PRINCIPAL AGRICULTURAL OFFICER, CIVIL STATION, PALAKKAD, PIN - 678001`** - **`4 THE VILLAGE OFFICER VADAKKENCHERRY-I VILLAGE, VADAKKENCHERRY, ALATHUR TALUK, PALAKKAD, PIN - 678683`** - **`5 THE AGRICULTURAL OFFICER KRISHIBHAVAN, VADAKKENCHERRY.P.O, ALATHUR, PALAKKAD, PIN - 678683`** - **`6 LOCAL LEVEL MONITORING COMMITTEE VADAKKENCHERRY GRAMA PANCHAYAT, VADAKKENCHERRY.P.O, ALATHUR TALUK, PALAKKAD, REP.BY ITS CONVENER., PIN - 678546`** - **`BY ADV. SMT. AMMINIKUTTY 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.5511 OF 2024 ``` 2 ## **P.V.KUNHIKRISHNAN, J. -----------------------------------W.P.(C) No.5511 of 2024 ------------------------------------Dated this the 28[th ] day of February, 2024** ## **JUDGMENT** The above Writ Petition is filed with the following prayers: “i) Issue a writ of Certiorari or any other writ order or direction and quash Ext.P8, Order in the File No.10178/2023 dated 20.12.2023 issued by the 2[nd] Respondent. ii) Issue a writ of Mandamus or any other writ order or direction and direct the 2nd respondent to delete the petitioner’s property comprised in Re.Sy.No.258/30 in Block No.44 of Vadakkencherry-I Village, Alathur Taluk in Palakkad District having an extent of 0.0243 Hectare from the Ext.P5, Data Bank. iii) It is prayed that this Hon’ble Court may dispense the production of English Translation of the documents produced in the ``` WP(C) NO.5511 OF 2024 ``` 3 above W.P.(c) and Petitioner undertakes to produce the same as and when required by this Hon’ble Court. And iv) Issue such other writ, order or direction which this Hon’ble Court may deem fit and proper in the light of the facts and circumstances of the case so as to secure the ends of justice. ” [SIC] 2. The petitioner is the absolute owner and in possession and enjoyment of the property comprised in Re.Sy.No.258/30 in Block No.44 of Vadakkancherry-I Village, Alathur Taluk in Palakkad District having an extent of 0.0243 hectare. It is submitted that the petitioner’s property was classified as ‘Nilam’. But, it is submitted that, it is a barren land which is not suitable for any paddy cultivation. It is also submitted that the petitioner is not having any other suitable property for the construction of a residential building. In such circumstances, the petitioner filed Form 5 application as per the Kerala Conservation of Paddy 4 ``` WP(C) NO.5511 OF 2024 ``` Land and Wet Land Act, 2008. The above application was dismissed by the 2[nd] respondent by issuing Ext.P8 order, without considering the ground reality, is the submission. Even as per Ext.P8 order, the petitioner’s property is remained as barren land and the same indicates that the property is not suitable for any cultivation. Aggrieved by Ext.P8 order, this writ petition is filed. 3. Heard learned counsel appearing for the petitioner and the learned Government Pleader. 4. This Court perused Ext.P8 order. Ext.P8 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.P8 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 ``` WP(C) NO.5511 OF 2024 ``` 5 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, 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 ``` WP(C) NO.5511 OF 2024 ``` 6 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 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: ``` WP(C) NO.5511 OF 2024 ``` 7 a) Ext.P8 order is set aside. b) The 2[nd] respondent is directed to reconsider Form 5 application 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. c) 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 any report from the KSREC is called for, ``` WP(C) NO.5511 OF 2024 ``` 8 the Revenue Divisional Officer need to pass final orders in Form 5 application only within three months from the date of receipt of the report from KSREC. d) The petitioner will produce the certified copy of this judgment along with a copy of the Writ Petition with exhibits before the 2[nd] respondent for compliance. Sd/- nvj **P.V.KUNHIKRISHNAN JUDGE** ``` WP(C) NO.5511 OF 2024 ``` 9 ## **`APPENDIX OF WP(C) 5511/2024`** ## **`PETITIONER EXHIBITS`** ``` EXHIBIT P1TRUE COPY OF THE POSSESSION CERTIFICATE DATED 02.10.2022 ISSUED BY THE 4TH RESPONDENT ``` - **`EXHIBIT P2 TRUE COPY OF THE LOCATION MAP OF THE PETITIONER'S PROPERTY`** - **`EXHIBIT P3 TRUE COPY OF THE BASIC TAX RECEIPT DATED 07.09.2021 ISSUED FROM THE OFFICE OF THE 4TH RESPONDENT`** - **`EXHIBIT P4 TRUE COPY OF THE DOCUMENT NO.3144/1/2014 OF S.R.O, VADAKKENCHERRY DATED 15.12.2014`** - **`EXHIBIT P5 TRUE COPY OF THE RELEVANT PAGE OF THE DATA BANK OF PETITIONER'S PROPERTY ISSUED FROM THE OFFICE OF 4TH RESPONDENT`** - **`EXHIBIT P6 PHOTOGRAPH OF THE PETITIONER'S PROPERTY`** - **`EXHIBIT P7 TRUE COPY OF THE PETITIONER'S APPLICATION DATED 22.03.2022`** - **`EXHIBIT P8`** - **`TRUE COPY OF THE ORDER IN FILE NO.10178/2023 DATED 20.12.2023 ISSUED BY THE 2ND RESPONDENT`** ## **RESPONDENTS EXHIBITS : NIL** ## **//TRUE COPY// PA TO JUDGE**