James Joseph v. District Collector, Civil Station Road, Kollam; Revenue Divisional Officer, Punalur; Tahsildar, Kottarakkara; Village Officer, Valakam; Agriculture Officer, Ummannur; Director, Kerala State Remote Sensing and Environment Centre (KSREC)

# **`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. 6319 OF 2024`** ## **`PETITIONER( S ) :`** ``` JAMES JOSEPH ``` ``` AGED 65 YEARS ``` ``` S/O. P D JOSEPH, PUTHUVEETTIL HOUSE, THRIKKODITHANAM, KOTTAMURICKAL, CHANGANASSERY, KOTTAYAM, PIN - 686105 ``` ``` BY ADVS. AMJATHA D.A. SHAKTHI PRAKASH MUHASIN K.M. FARHANA K.H. ``` ## **`RESPONDENT( S ) :`** - **`1 THE DISTRICT COLLECTOR CIVIL STATION ROAD, KAANKATHU MUKKU, KOLLAM, PIN - 691013`** - **`2 THE REVENUE DIVISIONAL OFFICER PUNALUR REVENUE DIVISIONAL OFFICE, KALAYANAD, PUNALUR, KOLLAM, PIN - 691331`** - **`3 THE TAHSILDAR KOTTARAKARA TALUK OFFICE, MINI CIVIL STATION, OYOOR ROAD, KOTTARAKARA, KOLLAM, PIN - 691506`** - **`4 THE VILLAGE OFFICER VALAKAM VILLAGE OFFICE, VALAKAM, KOLLAM, PIN - 691532`** - **`5 THE AGRICULTURE OFFICER UMMANNUR KRISHI BHAVAN, UMMANNUR, KOLLAM, PIN - 691532`** - **`6 THE DIRECTOR KERALA STATE REMOTE SENSING AND ENVIRONMENT CENTRE, VIKAS BHAVAN, THIRUVANANTHAPURAM, PIN - 695033`** ## **`BY ADV.`** ``` SMT.AMMNIKUTTY.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.6319 OF 2024 ``` 2 **P.V.KUNHIKRISHNAN, J. -----------------------------------W.P.(C) No.6319 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 calling for the records leading to Ext P3 order and quash the same. ii. Issue a writ of mandamus or any other writ, order or direction directing the 2nd respondent to reconsider Ext P2 application and pass orders afresh after obtaining a report from the 6th respondent, KSREC with regard to the nature of the property as on 2008. iii. To issue a writ of mandamus directing the 6th respondent to file a report before the 2nd and 5th respondent with regard to nature ``` WP(C) NO.6319 OF 2024 ``` 3 and lie of the petitioner’s property in 2008. iv. To dispense with the filing of translation of vernacular documents. v. To issue such other writ, order or direction as this Honourable Court may deem fit and proper in the circumstances of the case.” [SIC] 2. The petitioner is aggrieved by the order issued by the 2[nd] respondent rejecting the petitioner’s Form 5 application stating that the property is presently a paddy land. According to the petitioner, there is no paddy cultivation in the petitioner’s property and the nearby properties. It is the further case of the petitioner that, the property of the petitioner was reclaimed much before the enactment of the Kerala Conservation of Paddy Land and Wet Land Act, 2008. It is submitted that the petitioner filed Form 5 application before the 2[nd] respondent for removing the property from the data bank. But, it was ``` WP(C) NO.6319 OF 2024 ``` 4 rejected as per Ext.P3 order. It is further submitted that the petitioner’s application was rejected without obtaining scientific report from the KSREC with respect to the nature of the petitioner’s property as on 2008. Aggrieved by Ext.P3 order, rejecting the Form 5 application, this writ petition is filed. 3. Heard learned counsel appearing for the petitioner and the learned Government Pleader. 4. This Court perused Ext.P3 order. Ext.P3 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.P3 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 Level Monitoring Commitee has decided not to remove the land from the Data Bank. ``` WP(C) NO.6319 OF 2024 ``` 5 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 order is passed in violation of the provisions of the Kerala Conservation of Paddy and Wet Land Act, 2008. ``` WP(C) NO.6319 OF 2024 ``` 6 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: a) Ext.P3 order is set aside. b) The 2[nd] respondent is directed to ``` WP(C) NO.6319 OF 2024 ``` 7 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, the Revenue Divisional Officer need to pass final orders in Form 5 application ``` WP(C) NO.6319 OF 2024 ``` 8 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.6319 OF 2024 ``` 9 ## **`APPENDIX OF WP(C) 6319/2024`** ## **`PETITIONER EXHIBITS`** ``` EXHIBIT P1TRUE COPY OF THE TAX RECEIPT DATED 17.05.2022 ``` ``` EXHIBIT P2 ``` ``` TRUE COPY OF THE FORM 5 APPLICATION SUBMITTED BY THE PETITIONER DATED 13.10.2022 ``` ## **`EXHIBIT P3`** ``` TRUE COPY OF THE ORDER DATED 29.03.2023 ISSUED BY THE 2ND RESPONDENT ``` ``` EXHIBIT P4COPY OF THE PHOTOGRAPHS OF THE PROPERTY OF THE PETITIONER ``` **RESPONDENTS EXHIBITS : NIL** **//TRUE COPY// PA TO JUDGE**