Elsamma Devasya v. State of Kerala and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE VIJU ABRAHAM** **MONDAY, THE 30[TH] DAY OF OCTOBER 2023 / 8TH KARTHIKA, 1945** ## **WP(C) NO. 34479 OF 2023** ## **PETITIONER:** ELSAMMA DEVASYA AGED 61 YEARS W/O. K.J. DEVASYA, KANNUTHOTTIYIL HOUSE, MANIKUNI, SULTHAN BATHERY P.O., WAYANAD DISTRICT, PIN - 673592 BY ADVS. MATHEW KURIAKOSE J.KRISHNAKUMAR (ADOOR) MONI GEORGE C.N.PRAKASH PREETHU JAGATHY SHAJI P.K. ARUN.S. ## **RESPONDENTS:** 1 THE STATE OF KERALA REPRESENTED BY THE PRINCIPAL SECRETARY, DEPARTMENT OF REVENUE, SECRETARIAT, THIRUVANANTHAPURAM, PIN - 695001 2 THE PRINCIPAL SECRETARY DEPARTMENT OF REVENUE, GOVT. OF KERALA, SECRETARIAT, THIRUVANANTHAPURAM, PIN - 695001 3 THE DISTRICT COLLECTOR, WAYANAD, CIVIL STATION, WAYANAD, PIN - 673121 4 REVENUE DIVISIONAL OFFICER, MANANTHAVADY, WAYANAD, PIN - 670645 5 THE TAHSILDAR SULTHAN BATHERY TALUK OFFICE, WAYANAD, PIN - 673592 6 LOCAL LEVEL MONITORING COMMITTEE (LLMC) NOOLPUZHA GRAMA PANCHAYAT, NOOLPUZHA, WAYANAD REPRESENTED BY ITS CHAIRMAN AND PRESIDENT OF THE, PANCHAYAT, PIN - 673592 7 THE AGRICULTURAL OFFICER NOOLPUZHA, WAYANAD, PIN - 673592 8 THE VILLAGE OFFICER, NOOLPUZHA VILLAGE, NOOLPUZPHA, WAYANAD, PIN - 673592 9 THE SECRETARY NOOLPUZHA, WAYANAD, PIN - 673592 10 AGRICULTURAL PRODUCTION COMMISSIONER, KERALA & THE PRINCIPAL SECRETARY, DEPARTMENT OF AGRICULTURE, ( SOUGHT TO BE IMPLEADED ) GOVT. OF KERALA, GOVT. SECRETARIAT, THIRUVANANTHAPURAM ( SOUGHT TO BE IMPLEADED ) ## **OTHER PRESENT:** GP - RIYAL DEVASSY THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 30.10.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **VIJU ABRAHAM,J** ## **-----------------------** ## **W.P.(C).No.34479 of 2023** ## **--------------------------------Dated this the 30[th] day of October, 2023** ## **JUDGMENT** Petitioner has approached this Court seeking to quash Ext.P6 and P8. Petitioner is the owner in possession of 4.05 ares (10 cents) of property in Sy.No.395/16 in Block No.33 of Noolpuzha Village in Wayanad District with Building No.NPVII/751B (New No.NP11/15) by virtue of Sale Deed No.2260 of 2014 of SRO Sulthan Bathery. After effecting transfer of registry of the property in the name of the petitioner, the petitioner has been remitting basic tax in respect of the property and property tax in respect of the building. 2. Petitioner submits that the property has been converted much prior to the coming into force of the Kerala Conservation of Paddy Land and Wet Land Act, 2008 and this property originally belonged to one Smt.Radhamany and she has constructed a house in the said property and in the year 2011 the property was transferred in the name of one Bibin **W.P.(C).No.34479 of 2023 4** Thankappan, who was using the said property and house as a small scale industrial unit and the said property was purchased by the petitioner. Petitioner submits that the said property is not at all suitable for paddy cultivation and there is no cultivation in the said property and in the neighbouring properties at any point of time and the property is situated by the side of a public road. Houses, commercial establishments and Government Veterinary Hospital, Noolpuzha are situated in the adjacent/nearby properties. Coconut trees and other trees having more than 20 years of age are also standing in the properties. Petitioner submitted an application, Form-5 to remove the property from the data bank which has been rejected by the 4[th] respondent as per Ext.P6 order. Pursuant to the rejection of Form 5 application as per Ext.P6 order, petitioner has been served with Ext.P8 order under Section 13 of the Act, 2008 by the 3[rd] respondent. It is aggrieved by the issuance of Exts.P6 and P8 that the petitioner has approached this Court. ## **W.P.(C).No.34479 of 2023 5** Petitioner submits that a perusal of Ext.P6 would reveal that the application has been rejected by the 4[th] respondent solely relying on the report of the LLMC and the Agricultural Officer and that there is no independent consideration by the 4[th] respondent. Petitioner would submit that even going by Ext.P8, this property has been entered in the assessment register maintained by the Panchayat for the period 2009-2010. On the basis of the same, the contention of the petitioner is that the property being entered in the assessment register for the year 2009-2010, necessary the construction of the property is over prior before the coming into force of the Act, 2008. It is settled position of law that by catena of judgments of this Court in **Salim C.K. v. State of Kerala and others (2017 (1) KHC 394)** and **Lalu v. State of Kerala (2020 (5) KHC 490)** that the data bank to be prepared under the Act is in respect of the cultivable paddy land existing as on the date of coming into force of the Act and Rules. This Court in **Arthasasthra Ventures (India) LLP v.** ## **W.P.(C).No.34479 of 2023 6** **State of Kerala [2022 (7) KHC 591]** and in **Joy v. Reveneue Divisional Officer/Sub Collector (2021** **(1) KLT 433)** has laid down the parameters for consideration of a Form 5 application which held that it is only the character and fitness of the land as available on 12.8.2008 that matters to include or exclude from the data bank and further than most relevant aspect for consideration in Form 5 application is whether the land in question was paddy land or wet land when the Act coming into force and whether the land is for paddy cultivation and further that if the RDO is not satisfied with the available material he ought to have been resorted to scientific data including satellite photographs obtained from the KSRSEC. This Court in **Muraleedharan Nair R. v. Revenue Divisional Officer [2023 (4) KHC 524]** has held that when the party 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 the Data Bank ## **W.P.(C).No.34479 of 2023 7** and the Revenue Divisional Officer being the competent authority, has to independently assess the status of the land and come to a conclusion and further this Court in **Aparna Sasi Menon v.** **Revenue Divisional Officer Irinjalakuda [2023 (6)** **KHC 83]** 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. A perusal of Ext.P6 order would reveal that none of the parameters have been considered by the 4[th] respondent while rejecting the Form 5 application submitted by the petitioner and he has merely relied on the report of the LLMC and the Agricultural Officer. In view of the same, I am of the opinion that Ext.P6 is liable to be interfered with. Therefore, Ext.P6 is set aside with a consequential direction to the 4[th] respondent to reconsider Form-5 application submitted by the petitioner in the ## **W.P.(C).No.34479 of 2023 8** light of the declaration of law stated above and in accordance with the mandate of the Rule 4 (4f) of the Kerala Conservation of Paddy Land and Wet Land Act, 2008. Petitioner will be free to submit his argument notes highlighting the contention including any judgments in support of the same and the 4[th] respondent while reconsidering the matter as directed above shall be taken into consideration the contentions of the petitioner in the argument notes. A decision in this regard shall be taken within an outer limit of 3 months from the date of receipt of a copy of this judgment. Till a decision is taken as directed above all further proceedings pursuant to Ext.P8 order shall be kept in abeyance. sd/- ## **VIJU ABRAHAM, JUDGE** pm ## **W.P.(C).No.34479 of 2023 9** ## **APPENDIX OF WP(C) 34479/2023** PETITIONER'S EXHIBITS |Exhibit P|1|TRUE COPY OF THE BASIC TAX RECEIPT| |---|---|---| |||DATED 21.07.2022 ISSUED BY THE VILLAGE| |||OFFICE NOOLPUZHA IN RESPECT OF THE| |||PETITIONER'S PROPERTY| |Exhibit P|2|TRUE COPY OF THE POSSESSION CERTIFICATE| |||DATED 18.03.2023 ISSUED BY THE VILLAGE| |||OFFICE NOOLPUZHA IN RESPECT OF THE| |||PETITIONER'S PROPERTY| |Exhibit P|3|TRUE COPY OF THE OWNERSHIP CERTIFICATE| |||DATED 09.08.2023 ISSUED BY THE| |||NOOLPUZHA GRAMA PANCHAYAT IN RESPECT OF| |||THE PETITIONER'S BUILDING BEARING NO.| |||15 IN WARD NO. 11| |Exhibit P|4|TRUE COPY OF THE PROPERTY TAX RECEIPT| |||DATED 10.07.2023 ISSUED BY THE| |||NOOLPUZHA GRAMA PANCHAYAT IN RESPECT OF| |||THE PETITIONER'S BUILDING BEARING NO.| |||15 IN WARD NO. 11| |Exhibit P|5|TRUE COPY OF THE BUILDING AGE| |||CERTIFICATE DATED 09.08.2023 ISSUED BY| |||THE NOOLPUZHA GRAMA PANCHAYAT IN| |||RESPECT OF THE PETITIONER'S BUILDING| |||BEARING NO. 15 IN WARD NO. 11| |Exhibit P|6|TRUE COPY OF THE PROCEEDINGS/ ORDER| |||DATED 22.12.2022 OF THE SUB COLLECTOR| |||(RDO), MANANTHAVADY| |Exhibit P|7|TRUE COPY OF THE REPRESENTATION DATED| |||21.06.2023 SUBMITTED BY THE PETITIONER| |||TO THE DISTRICT COLLECTOR, WAYANAD| |Exhibit P|8|TRUE COPY OF THE ORDER NO.| |||DCWYD/3690/2023-L9 DATED 02.10.2023| |||ISSUED BY THE DISTRICT COLLECTOR,| |||WAYANAD TO THE PETITIONER| |Exhibit P|9|TRUE COPY OF THE REVISION PETITION/| |||REPRESENTATION SUBMITTED BY THE| |||PETITIONER BEFORE THE PRINCIPAL| ## **W.P.(C).No.34479 of 2023 10** SECRETARY, DEPARTMENT OF REVENUE OF THE STATE OF KERALA WITH ITS POSTAL ACKNOWLEDGEMENT CARD Exhibit P 10 PHOTOGRAPHS OF THE PETITIONER'S PROPERTY WITH BUILDING AND THE SURROUNDING PROPERTIES Exhibit P11 TRUE COPY OF THE REVISION PETITION/ REPRESENTATION DATED 04.10.2023 SUBMITTED BY THE PETITIONER BEFORE THE AGRICULTURAL PRODUCTION COMMISSIONER, KERALA WITH ITS POSTAL RECEIPT DATED 19.10.2023