Glen Raju v. State of Kerala and Others

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** # **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE MURALI PURUSHOTHAMAN TUESDAY, THE 19[TH] DAY OF MARCH 2024 / 29TH PHALGUNA, 1945 WP(C) NO.25342 OF 2023 ``` ## **`PETITIONER:`** ``` GLEN RAJU, AGED 26 YEARS, S/O.RAJAN, PELLISSERY HOUSE HOUSE, NEAR PANCHAYATH OFFICE, AMMADAM.P.O, THRISSUR DISTRICT, PIN - 680563 ``` ``` BY ADVS. LINDONS C.DAVIS E.U.DHANYA N.S.SHAMILA CHINJU P. JOYIES ``` ## **`RESPONDENTS:`** - **`1 STATE OF KERALA REPRESENTED BY ITS SECRETARY, DEPARTMENT OF AGRICULTURE AND FARMERS WELFARE, SECRETARIAT, THIRUVANANTHAPURAM, PIN - 695001`** ``` 2REVENUE DIVISIONAL OFFICER FIRST FLOOR, CIVIL STATION, CIVIL LINES ROAD, AYYANTHOLE, THRISSUR, PIN - 680003 ``` - **`3 LOCAL LEVEL MONITORING COMMITTEE (REPRESENTED BY ITS CONVENER AGRICULTURAL OFFICER) KRISHI BHAVAN, PARALAM JUNCTION, KODANNUR, THRISSUR DISTRICT, PIN - 680563`** - **`4 AGRICULTURAL OFFICER KRISHI BHAVAN, PARALAM JUNCTION, KODANNUR, THRISSUR DISTRICT, PIN - 680563`** W.P.(C) No.25342 of 2023 2 ``` 5KERALA STATE REMOTE SENSING AND ENVIRONMENT CENTER, 1ST FLOOR, VIKAS BHAVAN, NEAR LEGISLATIVE ASSEMBLY, UNIVERSITY OF KERALA SENATE HOUSE CAMPUS, PMG, THIRUVANANTHAPURAM REPRESENTED BY ITS DIRECTOR, PIN - 695033 ``` ``` BY SMT.G.SHEEBA, GP ``` ``` SRI.VISHNU S.CHEMPAZHANTHIYIL ``` ``` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 19.03.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` W.P.(C) No.25342 of 2023 3 ## **`JUDGMENT`** ``` Petitioner has approached this Court aggrieved by Ext.P6 order, whereby Form 5 application submitted by him has been rejected by the 2[nd] respondent/Revenue Divisional Officer [RDO]. ``` ``` 2. Petitioner is the owner in possession of 20.23 Ares of land comprised in Sy.No.37/23 in Block No.37 of Pallippuram Village, Thrissur Taluk, Thrissur District. ``` ``` 3. According to the petitioner, the aforesaid 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 (for brevity, ‘the Act, 2008’). However, the property is wrongly included in the Data Bank. The petitioner filed an application in Form 5 of Rule ``` W.P.(C) No.25342 of 2023 4 ``` 4(d) of the Kerala Conservation of Paddy Land and Wetland Rules, 2008 before the RDO to remove the said land from the Data Bank. The same has been rejected by the RDO vide Ext.P6 order stating that on the basis of the report of the Agricultural Officer, the property seems like other paddy lands and can be converted in to a cultivable land and there are no trees in the property which are more than 15 years old, andprima facie it is not convinced that the property was converted before 2008 and the property need not be removed from the Data Bank. ``` ``` 4. The petitioner has filed this writ petition challenging Ext.P6 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. ``` W.P.(C) No.25342 of 2023 5 ``` 5. The relevant consideration for inclusion of a property as paddy land or wetland is as to the nature of the property as on the date of coming into 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.P6, it is evident that, without any independent assessment of the nature of the ``` W.P.(C) No.25342 of 2023 6 ``` property as on the date of coming into force of the Act, 2008, the RDO has refused 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 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 as on the date of coming into force of the Act and also whether the land is suitable for paddy cultivation or not. In Muraleedharan Nair v. Revenue Divisional Officer [2023 (4) KLT 270], this Court 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 ``` 7 W.P.(C) No.25342 of 2023 ``` 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. 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. ``` W.P.(C) No.25342 of 2023 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 a Form 5 application has been taken into account while passing the impugned order. Accordingly, I find that Ext.P6 order cannot be sustained and I set aside the same, with a direction to the 2[nd] respondent, the RDO, to reconsider the application in Form 5 in accordance with law and take a decision in the matter 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 ``` W.P.(C) No.25342 of 2023 9 ``` 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 the judgment before the 2[nd] respondent for due compliance. ``` ``` The writ petition is disposed of with the above directions. ``` ``` Sd/- ``` ``` MURALI PURUSHOTHAMAN JUDGE ``` ``` sp/21/03/2024 ``` 10 W.P.(C) No.25342 of 2023 ## **`APPENDIX`** ## **`PETITIONER'S EXHIBITS:-`** ``` Exhibit P1TRUECOPYOFTHEDOCUMENT NO.1060/1/2021 DATED 28.06.2021 OF CHERPU SUB REGISTRAR OFFICE ``` ``` Exhibit P2 ``` ``` TRUE COPY OF THE TAX RECEIPT DATED 24.05.2022 ISSUED BY THE VILLAGE OFFICE, PALLIPURAM ``` ``` Exhibit P3TRUE COPY OF THE APPLICATION OF THE PETITIONER DATED 05.08.2002 SUBMITTED BEFORE THE RDO ``` ``` Exhibit P4TRUE COPY OF THE RELEVANT PAGE OF DATA BANK REGISTER PUBLISHED IN KERALA GAZETTE DATED 24.11.2020 ``` ``` Exhibit P5 ``` ``` Exhibit P6 ``` ``` TRUE COPY OF THE FORM 5 APPLICATION DATED 05.09.2022 SUBMITTED BEFORE THE 2NDRESPONDENTFOREXCLUDING PETITIONER'S PROPERTY FROM DATA BANK TRUE COPY OF THE ORDER WITH FILE NO.1611/2022 DATED 26.01.2023 ISSUED BY THE 2ND RESPONDENT ```