John v. State of Kerala and Others

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN`** ``` FRIDAY, THE 2[ND] DAY OF FEBRUARY 2024 / 13TH MAGHA, 1945 ``` ## **`WP(C) NO. 3825 OF 2024`** ## **`PETITIONER(S):`** ``` JOHN, AGED 73 YEARS S/O THOMAS, KANAMKUDAN HOUSE, VELLAMGALLOR P.O., THRISSUR DISTRICT, KERALA., PIN - 680662 ``` ``` BY ADV MEREENA.J.JOSEPH ``` ## **`RESPONDENT(S):`** - **`1 STATE OF KERALA REPRESENTED BY THE SECRETARY, REVENUE DEPARTMENT, GOVERNMENT SECRETARIAT,THIRUVANANTHAPURAM, PIN - 695001`** - **`2 THE LAND REVENUE COMMISSIONER, COMMISSIONERATE OF LAND REVENUE,PUBLIC OFFICE BUILDING, MUSEUM JUNCTION,THIRUVANANTHAPURAM-., PIN - 695001`** - **`3 THE DISTRICT COLLECTOR, CIVIL STATION, KAKKANAD, ERNAKULAM., PIN - 682030`** - **`4 THE REVENUE DIVISIONAL OFFICER, OFFICE OF THE REVENUE DIVISIONAL OFFICER, FORTH KOCHI, PIN - 682001`** - **`5 THE AGRICULTURAL OFFICER KRISHIBHAVAN, NEDUMBASSERY, ALUVA TALUK, ERNAKULAM DISTRICT., PIN - 683585`** - **`6 KERALA STATE REMOTE SENSING AND ENVIRONMENT CENTRE, REPRESENTED BY ITS DIRECTOR, VIKASBHAVAN, THIRUVANANTHAPURAM., PIN - 695033`** ## **`BY ADV.`** ``` SMT. DEVISHRI R., GP ``` ``` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 02.02.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` WP(C) NO.3825 OF 2024 ``` 2 **P.V.KUNHIKRISHNAN, J. -----------------------------------W.P.(C) No.3825 of 2024 ------------------------------------Dated this the 02[nd ] day of February, 2024** ## **JUDGMENT** The above Writ Petition is filed with the following prayers: “(i) To call for the records leading to Ext. P5 form 5 application filed by the petitioner and Exhibit P-7 order passed by the 4th Respondent and Issue a writ of certiorari or other appropriate writ, order or direction quashing Ext.P7 order passed by the 4th Respondent rejecting Exhibit P-5 form 5 application. (ii) To issue a writ of mandamus or any other appropriate writ, order or direction commanding the 4th Respondent to allow Ext.P5 application submitted by the petitioner in Form-5 in Rule 4(D) of the Kerala Conservation of Paddy and Wet Land Rules, 2008 after physically verifying the property ``` WP(C) NO.3825 OF 2024 ``` 3 and ground realities and considering Exhibit P-6 report of the Director, Kerala State Remote Sensing and Environment Centre, Thiruvananthapuram, in the light of the decision in the Division Bench of this Hon'ble Court In 2020(2) KLT 192 In Mather Nagar Residents Association Vs. The District Collector, within a stipulated time as directed by this Hon'ble Court. (iii) To dispense with the translation of the documents produced in the Vernacular Language. (iv) To Issue such other reliefs as this Hon'ble Court may deem fit and proper In the circumstances of the case.” **==> picture [33 x 12] intentionally omitted <==** 2. This Writ Petition is filed seeking a direction to the 4[th] respondent to reconsider the order passed in Form 5 application under the Kerala Conservation of Paddy and Wet Land Rules, 2008 [for short, ‘the Rule, 2008’] and on the basis of the report of the Kerala State Remote Sensing and Environment Centre, 4 ``` WP(C) NO.3825 OF 2024 ``` Thiruvananthapuram [for short, ‘the KSREC’]. The petitioner is the owner in possession and enjoyment of landed property covered in Re-Sy. No.112/3-4, Re-Sy. No.112/7-2, Re-Sy. No.113/10-9, Sy. No.113/11 and ReSy. No.113/12 of Nedumbassery Village. Ext.P1 and P2 are the title deeds. According to the petitioner, the said property is not a wetland or paddy field which is stated in the title deeds. There is a building situated in the property when the property was purchased in 2006 itself. According to the petitioner, Ext.P4 photographs shows that the property is not a paddy land or wet land. The petitioner submitted Ext.P5 Form 5 application under the Kerala Conservation of Paddy Land and Wetland (Amendment) Act, 2018 to remove the properties from the Data Bank, the same is rejected by Ext.P7 order. Eventhough the KSREC report is obtained, the same is not properly considered is the grievance. Hence, this Writ Petition is filed. ``` WP(C) NO.3825 OF 2024 ``` 5 3. Heard learned counsel appearing for the petitioner and the learned Government Pleader. 4. This Court perused Ext.P7 order. Ext.P7 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.P7 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. 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 ``` WP(C) NO.3825 OF 2024 ``` 6 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. 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 7 ``` WP(C) NO.3825 OF 2024 ``` 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 4[th] 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.P7 order is set aside. b) The 4[th] respondent is directed to 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 ``` WP(C) NO.3825 OF 2024 ``` 8 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 4[th] respondent. d) The petitioner will produce the certified copy of this judgment along with a copy of the Writ Petition with exhibits before the 4[th] respondent for compliance. Sd/- nvj **P.V.KUNHIKRISHNAN JUDGE** ``` WP(C) NO.3825 OF 2024 ``` 9 ## **`APPENDIX OF WP(C) 3825/2024`** ``` PETITIONER EXHIBITS ``` ``` EXHIBIT-P1TRUE COPY OF THE SALE DEED IN RESPECTOFPROPERTYCOVERED BYSY.NO:113/10,SY.NO:113/11 ANDRE- SY.NO:113/12OF NEDUMBASSERY VILLAGE COVERED BY DOCUMENT NO. 8838/2006 OF SUB REGISTRY OFFICE CHENGAMANAD DATED 27/12/2006 ``` - `EXHIBIT-P2 TRUE COPY OF THE SALE DEED COVERED BYIN RESPECT OF PROPERTY COVERED BYSY.NO:112/3,SY.NO:112/7 OF NEDUMBASSERY VILLAGE COVERED BY DOCUMENT NO. 246/2007 OFSUB REGISTRY OFFICE CHENGAMANAD DATED 9/1/2007` - `EXHIBIT-P3 THE TRUE COPY OF THE LAND TAX RECEIPT IN RESPECT OF THE PETITIONER'S PROPERTY COVERED BYRESY.NO:112/3-4,RE-SY.NO:112/7-2,RESY.NO:113/10-9,SY.NO:113/11,RESY.NO:113/12OF NEDUMBASSERY VILLAGE DATED 19/04/2022` - `EXHIBIT-P4 THE PHOTOGRAPH OF THE PROPERTY OF THE PETITIONER,DATED NIL` - `EXHIBIT-P5 TRUE COPY OF THE FORM 5 APPLICATION SUBMITTED BY THE PETITIONER BEFORE THE 4TH RESPONDENT DATED 21/4/2022` - `EXHIBIT-P6 THE TRUE COPY OF THE COMMUNICATION NO:A/172/2015/KSREC/003845/23 DATED 1/4/2023 ISSUED BY THE DIRECTOR, KERALA STATE REMOTE SENSING AND ENVIRONMENT CENTRE,` ``` WP(C) NO.3825 OF 2024 ``` 10 ## `THIRUVANANTHAPURAM` ``` EXHIBIT-P7TRUE COPY OF THE ORDER REJECTING THE FORM 5 APPLICATION SUBMITTED BY THE PETITIONER BEFORE THE 4TH RESPONDENT DATED 20/10/2023 ``` ``` EXHIBIT-P8TRUE COPY OF THE BUILDING AGE CERTIFICATEISSUEDBYTHE NEDUMBASSERYGRAMAPANCHAYAT TO THE PETITIONER DATED 4/2/2023 ``` RESPONDENTS EXHIBITS : NIL //TRUE COPY// PA TO JUDGE