G. S. Venugopal and Padmini Venugopal v State of Kerala 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. 28445 OF 2022** ## **PETITIONERS:** - **1 G. S. VENUGOPAL, AGED 70 YEARS S/O. PULLAT SETHUMADHAVAN, RESIDING AT 5-D ANJAM APARTMENTS, 62/5050 CHITTOOR ROAD 682011.** - **2 PADMINI VENUGOPAL, AGED 65 YEARS, W/O. G.S. VENUGOPAL, RESIDING AT 5-D ANJAM APARTMENTS, 62/5050 CHITTOOR ROAD 682011.** **BY ADVS. SREELAL N.WARRIER M.S.AMAL DHARSAN** ## **RESPONDENTS:** - **1 STATE OF KERALA REPRESENTED BY ITS SECRETARY, DEPARTMENT OF REVENUE, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695001.** - **2 THE DISTRICT COLLECTOR, ERNAKULAM DISTRICT, CIVIL STATION, KAKKANAD, ERNAKULAM 682030.** - **3 THE REVENUE DIVISIONAL OFFICER, REVENUE DIVISIONAL OFFICE, FORT KOCHI, ERNAKULAM - 680003.** - **4 THE TAHSILDAR, KANAYANNOOR TALUK OFFICE, KANAYANNOOR, ERNAKULAM - 680506.** - **5 THE VILLAGE OFFICER, NADAMA THEKKUMBAGAM VILLAGE OFFICE, VAIKOM ROAD, TRIPPUNITHURA, ERNAKULAM - 682301.** - **6 THE KERALA STATE REMOTE SENSING & ENVIRONMENT CENTRE, C BLOCK, VIKAS BHAVAN, THIRUVANANTHAPURAM - 695030.** - **7 THE AGRICULTURAL OFFICER,** **WP(C) NO. 28445 OF 2022 : 2 :** **KRISHI BHAVAN, TRIPPUNITHURA, ERNAKULAM - 682301.** **8 TRIPUNITHURA MUNICIPALITY, TRIPUNITHURA MUNICIPAL OFFICE, ERNAKULAM 682301, REPRESENTED BY ITS SECRETARY.** **BY ADV K.S.ARUN KUMAR** **SR.GP.SRI.E.G.GORDEN SRI.VISHNU S.CHEMPAZHANTHIIYIL, SC** **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. 28445 OF 2022 : 3 :** ## **JUDGMENT** The petitioners have approached this Court aggrieved by Ext.P13 whereby Form 5 application submitted by them has been rejected by the Revenue Divisional Officer. 2. The petitioners are the owners in possession of an extent of 370 cents of land comprised in Re.Sy.No.6/19 (Old Sy.Nos.1/34, 1/35, 1/36) of Naduma Thekkumbagam Village, Kanayannoor Taluk, Ernakulam District. 3. According to the petitioners, the said property will not come within the ambit of paddy land or wetland as defined under the Kerala Conservation of Paddy Land and Wetland Act, 2008 **WP(C) NO. 28445 OF 2022 : 4 :** (hereinafter referred to as 'the Act, 2008' for short). However, it has been wrongly included in the Data Bank prepared under the Kerala Conservation of Paddy Land and Wetland Rules, 2008 (hereinafter referred to as 'the Rules, 2008' for short). The petitioner therefore filed Ext.P11 application in Form 5 under Rule 4(d) of the 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.P13 stating that as per the report of the Agricultural Officer, the LLMC had inspected the site and found the subject land as paddy land and if the land is excluded from the Data Bank on the basis of Ext.P10 KSRSEC report, similar properties lying in Naduma and Thekkumbagam Village will **WP(C) NO. 28445 OF 2022 : 5 :** have to be excluded from the Data Bank and that would lead to environmental issues. 4. The petitioners impugn Ext.P13 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. The petitioners also refer to Ext.P10 KSRSEC report and states that as per the 2008 data, the plot was observed under soil exposed. Accordingly, it is contended that the subject land was not a paddy land as on the date of commencement 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 **WP(C) NO. 28445 OF 2022 : 6 :** force of the Act, 2008. Rule 4(4E) of the Rules, 2008 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.P33, 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 relied upon the report of the Agricultural Officer and the **WP(C) NO. 28445 OF 2022 : 7 :** recommendation of the LLMC to refuse to remove the property from the Data Bank. 6. This Court has held in **Arthasasthra Ventures (India) LLP** v. **State of 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 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 **WP(C) NO. 28445 OF 2022 : 8 :** 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 impugned order is unsustainable. 7. Further, this Court in **Aparna Sasi Menon** v. **Revenue Divisional Officer** [2023 (6) KHC 83] has held that the predominant factor for determination while considering the Form-5 **WP(C) NO. 28445 OF 2022 : 9 :** application should be whether the land which is sought to be excluded from 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 petitioners' 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 a Form 5 application has been taken into account while passing the impugned order. I find that there is total non application of mind on the part of the RDO in issuing Ext.P13. Accordingly, I set aside Ext.P13, with a direction to the 3[rd] respondent, the Revenue Divisional Officer to **WP(C) NO. 28445 OF 2022 : 10 :** reconsider the application of the petitioners in Form 5 in accordance with law taking note of Ext.P10 KSRSEC report and other relevant factors mentioned in Rule 4(4F), within a period of two months from the date of receipt of a copy of this judgment. The petitioner shall produce a copy of this writ petition along with the copy of the judgment before the RDO. The writ petition is disposed of with the above directions. Sd/- **MURALI PURUSHOTHAMAN JUDGE** SB ## **WP(C) NO. 28445 OF 2022 : 11 :** ## **APPENDIX** ## **PETITIONER EXHIBITS** **Exhibit P1 TRUE COPY OF THE JUDGMENT DATED 11-42003 IN PARTITION SUIT O.S. NO. 100 OF 2003 OF PRINCIPAL SUB COURT, ERNAKULAM.** **Exhibit P2 TRUE COPY OF THE PARTITION DEED DOC. NO. 2182/08 DATED 11/03/2008 OF TRIPUNITHURA SRO.** **Exhibit P3 TRUE COPY OF THE REPORT DATED 25/11/2004 SUBMITTED BY THE 7TH RESPONDENT TO THE 4TH RESPONDENT. Exhibit P4 TRUE COPY OF THE ORDER OF THE LAND REVENUE COMMISSIONER DATED 09/06/2006.** - **Exhibit P5 TRUE COPY OF THE ORDER DATED 02/01/2007 ALONG WITH PROCEEDINGS OF THE 2ND RESPONDENT DATED 04/01/2007.** - **Exhibit P6 TRUE COPY OF THE RECEIPT DATED 11/01/2007 ISSUED BY THE 8TH RESPONDENT.** - **Exhibit P7 TRUE COPY OF THE BUILDING PERMIT DATEAD 25/03/2008 ISSUED BY THE 8TH RESPONDENT.** **Exhibit P8 TRUE COPY OF THE DATA BANK PREPARED FOR TRIPUNITHURA MUNICIPALITY, THEKKUMBHAGOM, VILLAGE ALONG WITH LAND IDENTIFICATION DETAILS SHOWING THE LANDS OF THE PETITIONERS AS CONVERTED AS DRY LAND 6 YEARS PRIOR TO 2008.** - **Exhibit P9 TRUE COPY OF THE DEMAND DRAFT DATED 24/04/2018 SUBMITTED TO THE 6TH RESPONDENT TOWARDS EXPENSES FOR GETTING KSREC REPORT.** **Exhibit P10 TRUE COPY OF THE KSREC REPORT DATED 12/12/2019 ISSUED BY THE 6TH RESPONDENT.** **WP(C) NO. 28445 OF 2022 : 12 :** **Exhibit P11 TRUE COPY OF THE APPLICATION DATED 23/06/2020 UNDER FORM - 5 SUBMITTED BEFORE THE 3RD RESPONDENT.** **Exhibit P12 TRUE COPY OF THE LETTER DATED 20/12/2021 ISSUED BY THE 6TH RESPONDENT TO THE PETITIONERS WHICH INCLUDED THE PROCEEDINGS OF THE LLMC MEETING DATED 18/11/2021.** - **Exhibit P13 TRUE COPY OF THE ORDER DATED 27/04/2022 ISSUED BY THE 3RD RESPONDENT TO THE PETITIONER.** **Exhibit P14 TRUE COPY OF A PHOTOGRAPHS AND SATELLITE IMAGES SHOWING THE LIE AND NATURE OF THE PROPERTY OF THE PETITIONERS.**