IzaHak v. Revenue Divisional Officer, Pulikkal Village Office and Agricultural Officer

## **W.P.(C) No.35011 of 2023 1** # **IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT** **THE HONOURABLE MR.JUSTICE VIJU ABRAHAM THURSDAY, THE 2[ND] DAY OF NOVEMBER 2023 / 11TH KARTHIKA,** **1945** **WP(C) NO. 35011 OF 2023** **PETITIONER:** IZAHAK, AGED 34 YEARS S/O AHAMMED KUTTY, MANGALANGAD, PULIKKAL, CHEVAYOOR, KONDOTTY, MALAPPURAM, PIN - 673637 BY ADVS. SANGEETHA SREEKUMAR MARY LIYA SABU ## **RESPONDENTS:** 1 REVENUE DIVISIONAL OFFICER, REVENUE DIVISIONAL OFFICE, PERINTHALMANNA, SHORNUR- PERINTHALMANNA RD, MALAPPURAM, PIN - 679322 2 THE VILLAGE OFFICER, PULIKKAL VILLAGE OFFICE, PULIKKAL, ALUNGAL-VALIYA PARAMBA ROAD, PULIKKAL P.O., MALAPPURAM, PIN - 673637 3 THE AGRICULTURAL OFFICER, AGRICULTURAL OFFICE, PULIKKAL P.O., MALAPPURAM, PIN - 673637 **OTHER PRESENT:** GP - RIYAL DEVASSY THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 02.11.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **W.P.(C) No.35011 of 2023 2** ## **VIJU ABRAHAM, J.** ------------------- ## **W.P.(C) No.35011 of 2023** -------------------------------- **Dated this the 2[nd] day of November, 2023** ## **JUDGMENT** The petitioner has approached this Court challenging Ext.P7 whereby Form 5 application submitted by the petitioner has been rejected by the 1[st] respondent. 2. The petitioner purchased the property for construction of a residential house and he does not have any other property. The property has been erroneously included in the data bank. The petitioner belongs to the BPL category and he has been allotted fund for construction of a house under the “Life Mission Project”. The petitioner has started the construction of the house in Ext.P1 property, but the entire funds will not be released from the department unless the property is removed from the data bank. Petitioner submitted Ext.P5 Form 5 application before the 1[st] respondent to remove the property from the data ## **W.P.(C) No.35011 of 2023 3** bank. Since there was inordinate delay in considering the application, petitioner filed WP(C) No.17435/2023 before this Court, this Court as per Ext.P6 judgment directed the 1[st] respondent to consider Ext.P5 application, the same has been rejected by Ext.P7 order. A perusal of Ext.P7 would reveal that the same has been rejected in a mechanical manner solely relying on the report of the Agricultural Officer and there is no independent consideration of the same by the 1[st] respondent. ## 3. This Court in _**Salim C.K. and Another v.**_ _**State of Kerala and Others[2017 (1) KHC 394]**_ has held that the Data Bank that was contemplated as per the provisions of the Act was to contain details only of cultivable paddy land and wetland within the area of jurisdiction of LLMC concerned. Further in _**Lalu P.S. v. State of Kerala[2020 (5)**_ _**KHC 490]**_ has held that the data bank to be prepared under the Act is the data bank of the cultivable paddy land existing as on the date of ## **W.P.(C) No.35011 of 2023 4** the coming into force of the Rules, i.e., 24.12.2008. In _**Joy v. Revenue Division Officer/Sub Collector[2021 (1) KLT 433]**_ it was held that it is the character and fitness of the land as available on 12.08.2008, that matters, to include or exclude a land from the data bank. This court in _**Arthasasthra Ventures (India) LLP v. State of Kerala[2022 (4) KLT OnLine 1222]**_ has held that the most relevant aspect while considering Form-5 application is whether the land in question was a paddy land or a wetland when the Act, 2008 came into force and whether the land is fit for paddy cultivation and if the Revenue Divisional Officer was not satisfied with the available materials, ought to have resorted to scientific data including satellite photographs obtained from KSRSEC. 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 ## **W.P.(C) No.35011 of 2023 5** 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. Further, this Court in _**Aparna**_ ## _**Sasi Menon v. Revenue Divisional Officer[2023 (5)**_ _**KLT 432]**_ has held that the predominant factor for consideration 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. 4. The extent of land is involved is only 3.24 Ares and the petitioner has no other property in his possession and further that the petitioner has been included in the Life Mission Project for ## **W.P.(C) No.35011 of 2023 6** construction of a house. In spite of several directions issued by this Court regarding the parameters to be considered while considering a Form 5 application, which reiterated that, the predominant consideration in as to the nature and lie of the land as on the date of coming into force of the the Kerala Conservation of Paddy and Wet Land Act, 2008. In this case, the application has been rejected by Ext.P7 without considering any such aspect but solely relying on the report of the agricultural officer. The 1[st] respondent ought to have applied his mind before passing orders on the application submitted by the petitioner and ought to have considered the relevant aspects to be considered as declared by this Court in a catena of judgments, few of which have been referred to in this judgment also. The petitioner could not enjoy the property and the construction of the house for which funds have been allotted under the Life Mission Project could not be utilised only for the reason that the ## **W.P.(C) No.35011 of 2023 7** application submitted by the petitioner has been rejected in a very casual manner, without even a site inspection or calling for a KSRSEC report. I am of the opinion that this is a fit case where cost ought to have been ordered with a direction to recover the same from the 1[st] respondent, but due to the persuasive request made by the learned Government Pleader that on a remand, the 1[st] respondent will consider the application strictly in accordance with the provisions of the Act and Rules and on the basis of the direction issued by this Court in the judgments cited supra, I am refraining from doing so. Ext.P7 is set aside with a consequential direction to the 1[st] respondent to reconsider Ext.P5 application in the light of the law laid by this Court in the judgments cited supra, and a decision in this regard shall be taken within an outer limit of two months from the date of receipt of a copy of this judgment. The 1[st] respondent while considering the application as directed shall also take note of the fact that ## **W.P.(C) No.35011 of 2023 8** this is the only property in the possession of the petitioner and further that the petitioner has been allotted fund under the Life Mission Project for construction of a house. The writ petition is disposed of as above. Sd/- **VIJU ABRAHAM JUDGE** pm ## **W.P.(C) No.35011 of 2023 9** ## **APPENDIX OF WP(C) 35011/2023** PETITIONER'S EXHIBITS Exhibit P1 A. TRUE COPY OF THE SALE DEED EXECUTED NO.618/2020 OF SRO THENJIPALAM ON 1402-2020 Exhibit P2 A. TRUE COPY OF THE REVENUE RECEIPT DATED 29-04-2023 WITH RESPECT TO THE PROPERTY Exhibit P3 A. TRUE COPY OF THE PHOTOGRAPHS OF THE PROPERTY Exhibit P4 A. TRUE COPY IF THE DATA BANK WITH RESPECT TO THE PROPERTY SURVEY NO:41/53 Exhibit P5 A.TRUE COPY OF THE FORM 5 APPLICATION NO. 11/2023/25213 DATED 08-05-2023 Exhibit P6 A. TRUE COPY OF THE JUDGMENT DATED 3105-2023 IN W.P.(C) NO.17435 OF 2023 Exhibit P7 A. TRUE COPY OF THE ORDER NO. 11/2023/25213 DATED 06-07-2023 PASSED BY THE 1ST RESPONDENT