Jihtin James v. District Collector, Thrissur & Others

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** # **`PRESENT`** ## **`THE HONOURABLE MR.JUSTICE MURALI PURUSHOTHAMAN`** ``` THURSDAY, THE 7[TH] DAY OF MARCH 2024 / 17TH PHALGUNA, 1945 WP(C) NO.9061 OF 2024 ``` ## **`PETITIONER:`** ``` JIHTIN JAMES, AGED 34 YEARS S/O.JAMES, KOMBAN HOUSE, PURANATTUKARA P.O., THRISSUR, PIN - 680551 ``` ``` BY ADVS. AMJATHA D.A. MUHASIN K.M. FARHANA K.H. ``` ## **`RESPONDENTS:`** - **`1 THE DISTRICT COLLECTOR, FIRST FLOOR, CIVIL STATION, AYYANTHOLE, THRISSUR, PIN - 680003`** - **`2 THE REVENUE DIVISIONAL OFFICER THRISSUR REVENUE DIVISIONAL OFFICE, CIVIL STATION, AYYANTHOLE, THRISSUR, PIN - 680003`** - **`3 THE TAHSILDAR, THRISSUR TALUK OFFICE, CIVIL STATION, AYYNATHOLE, THRISSUR, PIN - 680003`** - **`4 THE VILLAGE OFFICER, PURANATTUKARA VILLAGE OFFICE, THRISSUR - KUTTIPPURAM ROAD, PURANATTUKARA, THRISSUR, PIN - 680551`** - **`5 THE AGRICULTURE OFFICER ADAT KRISHI BHAVAN, ADAT, THRISSUR, PIN - 680553`** - **`6 THE DIRECTOR KERALA STATE REMOTE SENSING AND ENVIRONMENT CENTRE, VIKAS BHAVAN, THIRUVANANTHAPURAM, PIN - 695033`** ``` BY SR.GP.SMT.PREETHA .K.K ``` ``` SRI.VISHNU S.CHEMPAZHANTHIYIL, SC, KSREC ``` ``` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 07.03.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` W.P.(C) No.9061 of 2024 2 ## **`JUDGMENT`** ``` Petitioner has approached this Court aggrieved by Ext.P3 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 11.49 Ares of land comprised in Sy.No.198/4-1 in Block No.9 of Puranattukara Village, Thrissur Taluk, Thrissur District, out of which 6 Ares is shown as nilam in the Revenue Records. ``` ``` 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 ``` W.P.(C) No.9061 of 2024 3 ``` property is wrongly included in the Data Bank. The petitioner filed Ext.P2 application in Form 5 of Rule 4(d) of the Kerala Conservation of Paddy Land and Wetland Rules, 2008 [for brevity, ‘the Rules, 2008’] before the RDO to remove the said land from the Data Bank. The same has been rejected by the RDO vide Ext.P3 stating that the Agricultural Officer has reported that the Local Level Monitoring Committee has recommended not to remove the subject land from the Data Bank. ``` ``` 4. The petitioner has filed this writ petition challenging Ext.P3 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. It is also contended that the RDO should have called for a ``` W.P.(C) No.9061 of 2024 4 ``` report from the Kerala State Remote Sensing and Environment Centre [for short, ‘the KSRSEC’] before disposing of the Form 5 application to ascertain the exact nature of the land as on 12.08.2008, the date of coming into force of the Act, 2008. ``` ``` 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 ``` W.P.(C) No.9061 of 2024 5 ``` 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.P3, it is evident that, without any independent assessment of the nature of the property as on the date of coming into force of the Act, 2008, the RDO has relied solely upon the report of the Agricultural Officer to refuse 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 ``` W.P.(C) No.9061 of 2024 6 ``` 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 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 ``` W.P.(C) No.9061 of 2024 7 ``` 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. ``` ``` 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 ``` W.P.(C) No.9061 of 2024 8 ``` consideration of a Form 5 application has been taken into account while passing the impugned order. Accordingly, I find that Ext.P3 order cannot be sustained and I set aside the same, with a direction to the 2[nd] respondent, the RDO, to reconsider Ext.P2 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 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 ``` W.P.(C) No.9061 of 2024 9 ``` 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/07/03/2024 ``` W.P.(C) No.9061 of 2024 10 ## **`APPENDIX`** ## **`PETITIONER'S EXHIBITS:-`** ``` Exhibit P1TRUE COPY OF THE TAX RECEIPT DATED 03.11.2022 Exhibit P2TRUE COPY OF THE FORM 5 APPLICATION SUBMITTED BY THE PETITIONER DATED 21.10.2021 Exhibit P3TRUE COPY OF THE ORDER NO. D1- 20529/2021 DATED 30.06.2022 ISSUED BY THE 2ND RESPONDENT Exhibit P4COPY OF THE PHOTOGRAPHS OF THE PROPERTY OF THE PETITIONER ```